First AFG Financial Corp. v. Security Union Title Ins. Co. CA4/3 filed 1/28/13 A

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State: California

Court: California Eastern District Court

Docket No: G046179

Case Date: 01/28/2013

Plaintiff: First AFG Financial Corp.

Defendant: Security Union Title Ins. Co. CA4/3 filed 1/28/13 Case Details

Preview:Filed 1/28/13 First AFG Financial Corp. v. Security Union Title Ins. Co. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

FIRST AFG FINANCIAL CORPORATION, G046179 Plaintiff and Respondent, (Super. Ct. No. 07CC05856) v. OPINION SECURITY UNION TITLE INSURANCE COMPANY, Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Reversed with directions. Rutan & Tucker, Milford W. Dahl, Jr., and Gerard M. Mooney, Jr., for Defendant and Appellant. ONeil & Matusek and Henry John Matusek II for Plaintiff and Respondent.

In a nonpublished opinion, First AFG Financial Corporation v. Security Union Title Insurance Company (Dec. 8, 2010, G042855) (First AFG I), we reversed the trial courts entry of judgment in favor of First AFG Financial Corporation (First AFG), arising out of First AFGs breach of contract and negligence causes of action against Security Union Title Insurance Company (Security Union), in a dispute over the recording of documents. We concluded insufficient evidence supported the trial courts finding (1) there was a contract between First AFG and Security Union, and (2) Security Union owed a duty of care to First AFG. On remand, the trial court set a trial date but then entered a revised judgment in favor of Security Union. The trial court later granted First AFGs motion to vacate the revised judgment. The court then granted First AFGs ex parte application to file a first amended complaint. Security Union appeals from the trial courts order granting First AFGs motion to vacate the revised judgment. In its opening brief, Security Union argues the trial court erred in granting the motion to vacate the revised judgment because: (1) the court had the authority to enter the revised judgment; (2) retrial after an appellate court reversal based on insufficient evidence is prohibited; and (3) First AFGs two new causes of action are barred by the "law of the case" doctrine. In its respondents brief, First AFG contends: (1) the November 2011 order Security Union appeals from is a nonappealable order; (2) any appeal from the June 2011 order is untimely; (3) the June 2011 judgment is null and void because it violated First AFGs due process rights; and (4) the courts June 2011 order setting a new trial was proper. In its reply brief, Security Union asserts: (1) the November 2011 order was an appealable order; (2) First AFGs due process rights were not violated by entry of the revised judgment; and (3) the courts granting of First AFGs motion to vacate was erroneous. 2

We conclude First AFGs due process rights were violated when the trial court entered the revised judgment but First AFG was not prejudiced. As we also explain below, we agree with Security Union that the trial court erred in granting First AFGs motion to vacate the revised judgment. We reverse the order and remand the matter to the trial court and direct the trial court to enter judgment in favor of Security Union. FACTS Underlying Factual Dispute The underlying facts are fully set forth in our prior nonpublished opinion First AFG I, supra, G042855. We need not repeat them here. Our First Opinion In December 2010, we filed our opinion reversing the trial courts judgment in favor of First AFG. As to First AFGs breach of contract cause of action, we stated: "Here, the parties to the escrow were the borrower, [Lorece] Wright, and the lender, Long Beach Mortgage, and the escrow holder was Priority Escrow. First AFG makes much of the fact it hired Security Union, but Security Union was not a party to the escrow--it provided sub-escrow and title services. The evidence at trial established sub-escrow services included making payoffs and recording the documents. Additionally, there was testimony there was no written contract between the escrow company, Priority Escrow, and the title company, Security Union. [

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