Opinion
No. 83CA1363
Decided November 8, 1984. Rehearing Denied December 20, 1984. Certiorari Denied March 18, 1985.
Appeal from the District Court of El Paso County Honorable Joe A. Cannon, Judge
The Law Firm of Justin R. Melat, Edward J. LaBarre, for Plaintiff-Appellant.
Tegtmeier Sears, P.C., Benjamin S. Waxman, Richard L. Tegtmeier, for Defendants-Appellees.
Division III.
Plaintiff, State Farm Fire Casualty Company (State Farm), appeals the summary judgment entered in favor of defendant, Mitchell B. Mason, individually and d/b/a On-Line Computer Center (Mason). We reverse and remand for further proceedings.
On July 5, 1982, Mason notified State Farm that a fire had occurred at his business. Subsequent investigation revealed that the fire was an act of arson. State Farm refused to pay fire insurance benefits to Mason and, on February 3, 1983, filed a petition for declaratory judgment to have its right to refuse payment adjudicated.
On July 18, 1983, more than a year after the fire, but prior to trial in the declaratory judgment action, the district attorney charged Mason with first and third-degree arson. After a preliminary hearing, the trial court dismissed the criminal action, finding that the district attorney had failed to present sufficient evidence to show probable cause.
Thereafter, hearings on the declaratory judgment action commenced, and the trial court, with a different judge presiding, granted Mason's motion for summary judgment, based on collateral estoppel. The court found that State Farm had acted as alter ego to the district attorney in the criminal action by supplying witnesses, transcripts of depositions, financial records obtained from Mason, and an audit it had completed of Mason's business, and by vigorously encouraging prosecution over the course of a year.
State Farm contends that the granting of Mason's motion for summary judgment was error. We agree.
Collateral estoppel prevents relitigation between the same parties of an issue of ultimate fact once determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); People v. Hoehl, 629 P.2d 1083 (Colo.App. 1980).
The elements of the doctrine of collateral estoppel are enunciated in Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973), as follows: 1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? 2) Was there a final judgment on the merits? 3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? And 4) did the party against whom the plea is asserted have a full and fair opportunity to litigate the issue in the prior adjudication?
Applying these criteria to the facts in this case, we conclude that, while the first two have been fulfilled, two remain unsatisfied. The third Pomeroy requirement, that privity must exist between State Farm and the State of Colorado, has not been met. A privy is one who is "directly interested in the subject matter, and had a right to make a defense, or to control the proceeding, and to appeal from the judgment." Bernhard v. Bank of America National Trust Savings Ass'n, 19 Cal.2d 807, 122 P.2d 892 (1942) (adopted in Murphy v. Northern Colorado Grain Co., 30 Colo. App. 21, 488 P.2d 103 (1971) and cited with approval in Pomeroy v. Waitkus, supra).
Here, the criminal action was instituted by the district attorney, who cannot be said to "represent" State Farm and its interests, except as a general representative of the interests of the people of the State of Colorado. As our supreme court held in People v. Dennis, 164 Colo. 163, 433 P.2d 339 (1967):
"Prosecution for an alleged crime is a litigation in which the People of the State of Colorado is the plaintiff and its representative is the District Attorney. The complaining witness, or the victim of the crime, has no control over the case, since he is not a party to it. He can neither require prosecution of the case, nor can he require its dismissal . . . ."
See also § 16-5-205, C.R.S. (1978 Repl. Vol. 8). Thus, as we noted in People v. Lucero, 623 P.2d 424 (Colo.App. 1980), "[w]hile a victim's wishes occasionally may color the District Attorney's decision, manifestly they do not control it."
Although State Farm concededly had a substantial interest in the outcome of the criminal action, the record indicates it had no control over the preliminary hearing. Indeed, its attorneys made no attempt to participate in or to advise the district attorney during the preliminary hearing. State Farm's attorneys could not examine witnesses or present argument. State Farm supplied its entire file to the district attorney; however, the Arson Reporting Information Act, § 10-4-1001, et seq., C.R.S. (1984 Cum. Supp.) mandated that this be done.
Moreover, we note that the district attorney did not appeal the dismissal of the charges against Mason after the preliminary hearing. State Farm could not have appealed this decision as a matter of law, since it had no standing to do so. Thus, we adopt the view set out in Restatement (Second) of Judgments § 28 (1982) that relitigation of the same issue in a subsequent action between the parties is not precluded if the party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action.
Mason's reliance on Brown v. City of New York, 80 A.D.2d 596, 436 N.Y.S.2d 37 (1981) and Irizarry v. City of New York, 79 Misc.2d 346, 357 N.Y.S.2d 756 (1974) in support of his contention that collateral estoppel applies here, is misplaced. Unlike the facts here, both Brown and Irizarry dealt with the application of collateral estoppel to civil cases involving only governmental entities, not private interests. While a state and a city are distinct legal entities, their interests in the criminal prosecution in those cases made one privy to the other. Warren v. Byrne, 699 F.2d 95 (2d Cir. 1983).
Here, in order to conclude that privity between the district attorney and State Farm existed, we would have to assume that the decision to charge Mason was made by State Farm, not by the district attorney. We refuse to adopt that view, since it finds no support in either the record or in the law.
Further, the fourth Pomeroy element, requiring that collateral estoppel be applied only when a party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in a prior adjudication, also remains unsatisfied. As previously noted, State Farm could not present argument, examine witnesses, nor appeal the trial court's dismissal of the criminal charges. Moreover, the record indicates that State Farm subpoenaed twenty witnesses for the declaratory judgment action, only two of whom testified at the preliminary hearing, and that its main investigator did not testify at the preliminary hearing. Additionally, we note that the district attorney could not have called Mason, the defendant, as a witness at the preliminary hearing, and that Mason chose not to testify at the preliminary hearing. In a civil action, State Farm could have at least called Mason as a witness. Asplin v. Mueller, 687 P.2d 1329 (Colo.App. 1984).
Mason asserts that State Farm's witnesses would have provided testimony that was immaterial, cumulative, or that constituted inadmissible hearsay. We find this speculation to be unpersuasive. State Farm deserves the opportunity to present its case.
While we acknowledge the need for finality and consistency in our system, judicial economy must not operate to deprive a party of an actual opportunity to be heard. Pomeroy v. Waitkus, supra. State Farm has not had its day in court.
The summary judgment is reversed, and the cause is remanded for further proceedings.
JUDGE BERMAN concurs.
JUDGE BABCOCK dissents.