OLFACTO LABS v. BOYAJIAN

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Court of Appeal, First District, California.

OLFACTO-LABS, Plaintiff and Respondent, v. Robert K. CRAWFORD et al., Defendants, Cross-complainants, and Respondents, Stemple & BOYAJIAN et al., Defendants, Cross-defendants, and Appellants.

No. A070925.

Decided: September 30, 1996

This is the second appeal in this matter. On September 28, 1994, we reversed the original judgment for compensatory damages and remanded to the trial court with instructions to prepare a supplemental statement of decision specifying the amount awarded for emotional distress and reducing the award to respondent Olfacto-Labs (Olfacto) to the extent it included compensation for emotional distress. Stemple & Boyajian and Berj Boyajian (hereafter collectively referred to as S & B) now appeal from the second judgment for compensatory damages. They contend the trial court erred by not setting forth with sufficient specificity the precise special damages awarded for fraud. We affirm the judgment.

Factual and Procedural Background

This lawsuit originated in a dispute over costs, attorney and expert witness fees incurred during contingent fee litigation of claims arising from groundwater contamination by toxic chemicals. Following a lengthy nonjury trial, the court found that S & B were liable to respondents Olfacto, Robert K. Crawford and others, for breach of contract, fraud, and emotional distress. In addition, it found that S & B had engaged in bad faith, frivolous litigation tactics. The trial court awarded Olfacto and Crawford compensatory damages for fraud in the amount of $500,000 each, as well as punitive damages.

S & B appealed the trial court's findings and judgment largely on the ground that they were unsupported by substantial evidence. With regard to the compensatory damages awarded, S & B argued that the trial court erred by not separately stating Olfacto's and Crawford's emotional distress and business damages. We agreed with this argument. We reversed the judgment insofar as it awarded compensatory damages for fraud to Olfacto and Crawford, and remanded with specific directions “to (1) supplement [the trial court's] statement of decision by specifying how much of Crawford's fraud award [against S & B] is for emotional distress, and (2) reduce the compensatory award to Olfacto to the extent that the award includes compensation for emotional distress.” We then directed the trial court to “enter judgment for compensatory damages for Olfacto and Crawford in conformity with the supplemental statement of decision.” We affirmed the judgment “[i]n all other respects.”

On remand, the parties filed extensive written arguments on the proper award of compensatory damages to Crawford and Olfacto. On May 30, 1995, the trial court entered a supplemental statement of decision in compliance with our directive, stating that the amounts originally awarded to both Crawford and Olfacto were $60,000 as damages for emotional distress and $440,000 for economic damages. The new judgment for compensatory damages eliminated Olfacto's emotional distress damages but retained the total award of $500,000 to Crawford for both economic and emotional distress damages. From this judgment for compensatory damages, S & B now appeal.

Discussion

S & B's sole argument here is that the trial court erred by “failing to separately detail each and every discrete special damage suffered” by Olfacto and Crawford. S & B contend that, because the trial court's awards of damages to Crawford and Olfacto were in lump sum figures, it is impossible to know how much was intended to compensate them for various discrete categories of general and special damages. S & B's contentions are meritless.

On remand, a trial court must follow the specific directions of the appellate court and enter judgment accordingly. Without express directions from the appellate court, the trial court cannot permit new pleadings, hold an evidentiary hearing, or have a new trial on issues tangentially related to the remand. The directions of the appellate court are controlling for the trial court, and any action not in strict conformity with them is void. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655; Bach v. County of Butte (1989) 215 Cal.App.3d 294, 301; Skaggs v. City of Los Angeles (1956) 138 Cal.App.2d 269, 272; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 633, pp. 613-615.)

The express and limited purpose of the remand in this case was to require the trial court to quantify and allocate the two components of Crawford's compensatory damage award and to delete the amount awarded to Olfacto for emotional distress. The trial court carefully complied with our specific directions, then entered judgment as instructed. S & B were not entitled on remand to renew their objections to the trial court's previous award of economic damages to Olfacto and Crawford. Such adjudications would have required new evidentiary hearings, with argument on amounts of damage already determined. Neither may S & B complain about the trial court's supplemental statement of decision and judgment, which complied precisely with the specific directives made on remand.

In any event, a party may not raise an error on appeal when, by conduct or inaction amounting to acquiescence in the action taken, it has previously waived the right to attack such action. (People v. Woods (1991) 226 Cal.App.3d 1037, 1055; Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 188; Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 85-86; 9 Witkin, Cal. Procedure, Appeal, supra, §§ 305, 307, pp. 316, 317-318; 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Reversible Error, § 3289, pp. 4068-4070.) S & B could have raised their present contentions in their previous appeal; failure to do so constitutes a waiver. S & B argued only that the trial court erred by not separating the emotional distress damages from the economic damages awarded to Olfacto and Crawford. Although this court's opinion briefly discussed the law requiring that a trial court separately determine general and special damages, we did not address any alleged defect in the judgment in this respect beyond the failure to distinguish between economic and emotional distress damages. We were not asked to do so. Quite simply, S & B did not make the present argument that the trial court should further itemize its award of economic damages by specifying precise amounts awarded in various categories. The language of our previous directive to the trial court was very specific. Consistent with S & B's narrow argument, we directed the trial court only to separate the amount awarded to Crawford for economic damages from that awarded for emotional distress damages, and to reduce Olfacto's compensatory damage award to the extent it included damages for emotional distress. The trial court cannot now be charged with error for doing precisely what we told it to do.

Although S & B's opening brief states in passing that the trial court's failure to specify “the precise special damages for fraud proven” leaves “an insufficient record to determine whether the Judgment is supported by substantial evidence,” they do not argue the substantive merits of the trial court's actual awards to respondents. By failing to address any of the evidence in the record material to this issue, S & B have waived any further appellate challenge to the sufficiency of the evidence supporting the new judgment for compensatory damages below, (Cal. Rules of Court, rule 13; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; In re Marriage of Harris (1976) 65 Cal.App.3d 143, 148-149.)

Disposition

The judgment is affirmed. S & B shall pay Olfacto's and Crawford's costs on appeal.

CORRIGAN, J.

We concur: PHELAN, P.J., WALKER, J.