University of Vermont AAHS

Brumfield v. Richardson

California Court of Appeals
UNPUBLISHED, 2002 WL 234768
February 19, 2002

Summary of Opinion

Plaintiffs Brumfield owned a show horse with a scrotal hernia that they brought to defendant Richardson, a veterinarian, for surgery.  There were complications from the surgery that substantially decreased the value of the horse.

Plaintiffs sued on theories of veterinary malpractice, breach of contract and fraud.  The trial court gave only the veterinary malpractice theory to the jury, which returned a verdict in favor of defendant.  In this opinion, the Court of Appeals says that the veterinary malpractice theory was so similar to the breach of contract theory that refusing to give the contract theory to the jury was not reversible error. However, the trial court should have presented the fraud claim to the jury and its failure to do so requires sending the case back for a trial on that theory.

Text of Opinion

Plaintiffs Daniel T. Brumfield (Dr. Brumfield) and his wife, plaintiff Deanna Brumfield (together the Brumfields), appeal from a judgment entered in favor of defendant and respondent G. Lynn Richardson (Richardson), a veterinary surgeon, following a jury trial. The Brumfields owned a thoroughbred show horse that suffered an inguinal  [FN1] injury and scrotal hernia while competing at a horse show. The Brumfields decided to have the hernia repaired and contacted Richardson. Richardson performed a suture-free, standing castration procedure, but the horse suffered another herniation and an obstructed bowel during recovery, resulting in a lengthy hospitalization, surgical removal of a portion of the bowel, and loss in the horse's value.

FN1. The Oxford English Dictionary Online (OED Online) defines "inguinal" as "[o]f, belonging to, or situated in the groin." (OED Online (2d. ed.1989) < http://dictionary.oed.com/cgi/entry/00116877> [as of Feb. 13, 2002].)

The Brumfields sued Richardson, alleging counts of fraud, breach of oral contract, and professional negligence. In their amended complaint, the Brumfields based these three counts on allegations that Richardson orally promised to repair the scrotal hernia by performing a standing castration using a technique that would induce swelling and scarring to prevent postoperative herniation, and also promised to order close postsurgical observation of the horse to safeguard against such herniation. They further alleged that Richardson defrauded them, breached the alleged oral agreement, and was negligent by performing only a standard open castration without inducing swelling and scarring, and by failing to issue orders for close postoperative observation. They also alleged that Richardson defrauded them by misrepresenting the number of scrotal hernias he had repaired using the promised castration method.

At trial, after the defense rested, the court on its own motion decided not to instruct the jury with respect to the Brumfields' claims for fraud and breach of contract, thereby barring those claims, on the ground of insufficiency of evidence and because it appeared to the court that this was a veterinary malpractice case. The court instructed the jury under modified versions of BAJI Nos. 6.10 and 6.10.5 (discussed, post) that it is the duty of a veterinarian to obtain the consent of an animal's owner before operating on an animal, and it is a violation of a veterinarian's professional duties to obtain consent for one type of operation and then perform a substantially different operation. The jury returned a special verdict in favor of the defense on the Brumfields' cause of action for professional negligence, finding only that Richardson was not negligent.

The Brumfields appeal, contending the court committed reversible error by refusing to give jury instructions on their claims for fraud and breach of contract as they presented substantial evidence in support of both claims. They also contend that even if the evidence adduced at trial were insufficient to support these claims, the judgment should be reversed because the court made prejudicial evidentiary rulings that prevented the Brumfields from presenting additional evidence in support of those claims. We reverse the portion of the judgment dismissing the Brumfields' fraudulent misrepresentation cause of action to the extent it is based on their allegation that Richardson misrepresented his veterinarian experience, and otherwise affirm the judgment.

FACTUAL BACKGROUND

John Taylor (the horse) was born in 1991 and is the Brumfields' thoroughbred show horse. Sarah Baldwin (Baldwin), a renowned grand prix rider, helped to train the horse. The Brumfields claim that in 1994, when it was a three-year-old colt, the horse had an unusually high market value of $100,000. Baldwin testified that because the horse was a promising grand prix prospect, it was worth between $400,000 and $500,000 in 1997 before the occurrence of the incidents from which the instant lawsuit arose.

In August 1996, the horse competed as a jumper and placed first and second in two classes. During a third class competition, the horse was so lame from inguinal herniation into the scrotum that the Brumfields pulled him out of the competition.

In October 1997, the Brumfields contacted Richardson to have the horse's hernia repaired. During a phone conversation, Richardson and Dr. Brumfield discussed various treatment options. Dr. Brumfield testified he initially told Richardson that he and his wife did not want the horse castrated in treating what Dr. Brumfield referred to as the horse's "herniary defect," but wanted the inguinal rings sutured. Richardson said he could do that procedure, but explained that he would have to lay the horse on a table, and there was a risk the sutures might rip out when the horse stood back up.

Richardson then explained that he had used a technique of removing the testicles in a manner that caused so much inflammation and swelling in the inguinal canal that such hernias could not happen again. Dr. Brumfield replied that he did not want Richardson to perform that procedure, and he did not want the horse castrated. He also told Richardson, however, that if there was one hernia, he wanted it sutured; if there were two hernias, he wanted both sutured; and if the horse's testicles had to be removed to accomplish the hernia repair, that was okay.

Dr. Brumfield stated he asked Richardson what he would do if it were his horse, and Richardson replied that he would use his standing castration technique. Dr. Brumfield asked whether the intestines could fall out if that technique were used. Richardson responded that he knew of only three horses to which that had happened, and it had occurred because the horses had not been hospitalized, but had gone home struggling in stock trailers.

Dr. Brumfield also testified that Richardson, in describing his experience with the standing castration technique with induced swelling and scarring to repair similar hernias, had used terms like "numerous," "many" and "all the horses I've done." He believed that Richardson had used this technique on 50 to 150 horses. At trial in this matter, Catherine Sauter (Sauter), a veterinary nurse at the animal hospital who assisted Richardson, testified, however, that he had performed only four or five inguinal hernia repairs, usually through rectal manipulation, and less than ten routine castrations at the hospital during the 12-year period she worked with Richardson at the animal hospital from 1986 to 1998. Sauter also testified that during the same 12-year period, Richardson had never performed a standing, open castration to correct a hernial defect.

Dr. Brumfield testified further that in response to his question during the October 1997 phone conversation as to whether the horse's bowel could drop out, Richardson replied that this was the reason the horse needed to be in the hospital, and he would write orders for very frequent postsurgery examinations until the horse was ready to return home.

Based on the foregoing conversation, Dr. Brumfield consented to Richardson's repairing of what Dr. Brumfield referred to as the horse's hernial defect, with the understanding that the horse would lose one or both of the testicles. He stated he did not consent to a "regular" standing castration of the horse unless Richardson also addressed the inguinal canals and the hernial defect.  [FN3]

FN3. For purposes of our review of the evidentiary record in this matter, and for reasons we shall discuss (post ) in the standard of review portion of this opinion, we disregard Richardson's conflicting trial testimony regarding this.

A. Surgery

Dr. Brumfield testified that in reliance on Richardson's alleged agreement to repair the horse's hernial defect by performing a standing castration with frequent postsurgery observation, the Brumfields delivered the horse to the animal hospital.

On October 8, 1997, at 2:00 p.m., Richardson performed a routine open, standing castration procedure. Sauter, the veterinary nurse, assisted Richardson with the surgery at the animal hospital. Her testimony shows he did not use any sutures to close the scrotum, and he did not pack the scrotum with gauze or packing material. He also did not use a cicatrizant  [FN4] in the inguinal canals to induce swelling. Richardson wrote no special orders for the horse's postoperative care, and only gave standard postoperative orders. He took no steps to ensure that the horse's bowels did not fall out through the hernial defect.

FN4. OED Online defines "cicatrizant" as "[a] medicine or application which induces a cicatrice." (OED Online, supra, <http:// dictionary.oed.com/cgo/entry/00039783> [as of Feb. 13, 2002] .) OED Online defines "cicatrice" as "[t]he scar of a healed wound." (Ibid.)

B. Postoperative Events

Following the surgery, the horse was checked for the first time at around 11:30 p.m. Sauter was the person who next checked the horse, at 7:00 a.m. the following morning, October 9, 1997. In her opinion, the horse looked fine.

At some time later in the morning, the horse suffered herniation through the scrotum, which resulted in an obstructed bowel, surgical removal of a portion of the bowel, a lengthy hospitalization, and loss in the horse's value.

PROCEDURAL BACKGROUND

A. Amended Complaint

The Brumfields' operative second amended complaint set forth three counts against Richardson: fraudulent misrepresentation, breach of oral contract, and professional negligence.

1. Fraudulent misrepresentation claim

In support of their claim for fraudulent misrepresentation, the Brumfields alleged that Richardson deceitfully told them he had performed his castration and hospital observation treatment, without serious complications, on "many" adult horses to repair scrotal herniation; and they would not have consented to the surgical procedure had they known that Richardson's representations were deceitful. They also alleged that Richardson had deceitfully promised--without intent to perform--to repair the horse's hernia and performed instead an ordinary castration procedure without gauze packing or use of a cicatrizant; and they would not have consented to the surgical procedure had they known of Richardson's true intention not to honor his agreement to repair the hernia.

The Brumfields further alleged that Richardson deceitfully promised--without intent to perform--to write "close-and-frequent" postsurgery observation orders; and his deceit prevented them from conducting their own close postsurgical monitoring of the surgical opening in the horse's scrotum.

2. Breach of oral contract claim

In support of their breach of contract claim, the Brumfields alleged that Richardson orally promised to repair the horse's scrotal hernia by performing a suture-free standing castration using a technique that would induce swelling and scarring to prevent postoperative herniation and also promised to order frequent postsurgical observation of the horse to safeguard against such herniation. They further alleged that Richardson breached the oral agreement by performing only a standard open castration without inducing swelling and scarring and by failing to issue orders for close postoperative observation.

3. Professional negligence claim

The Brumfields' professional negligence claim is based on allegations that Richardson (1) obtained their consent to perform one surgical procedure (discussed, ante) followed by close monitoring of the horse during its recovery, but performed another procedure; and (2) negligently failed (among other things) to write specific orders for postsurgery preventative aftercare of the horse, resulting in the horse's rearing to his hindquarters, precipitating the "eventration" (i.e., the protruding of the intestines through the open scrotum) that occurred during postoperative recovery.

B. Pretrial motions

The court granted Richardson's motion to strike the emotional distress allegations set forth in the fraud and breach of contract counts in the Brumfields' complaint. The court denied the Brumfields' motion for leave to amend their pleading to add a claim for punitive damages in connection with their claim for fraudulent misrepresentation.

C. Challenged Trial Ruling, Special Verdict, and Judgment

At trial, after the parties rested, the court on its own motion decided not to instruct the jury with respect to the Brumfields' claims for fraud and breach of contract, thereby barring those claims, on the ground of insufficiency of evidence and because it appeared to the court that the Brumfields's lawsuit was a veterinary malpractice case. The court instructed the jury under modified versions of BAJI Nos. 6.10  [FN6] and 6.10.5  [FN7] that it is the duty of a veterinarian to obtain the consent of an animal's owner before operating on an animal, and it is a violation of a veterinarian's professional duties to obtain consent for one type of operation and then perform a substantially different operation.

FN6. The modified version of BAJI No. 6.10 that the court gave provided: "It is the duty of a veterinarian to obtain the consent of an animal's owner or the owner's authorized agent or representative before operating on the animal. Such consent may be express or may be implied from the circumstances."

FN7. The modified version of BAJI No. 6.10.5 provided: "The performance of an operation by a veterinarian to which the animal's owner has not consented is a violation of a veterinarian's professional duties. [] Where a veterinarian obtains consent of the animal's owner to one type of operation and subsequently performs a substantially different operation, that is likewise a violation of a veterinarian's professional duties. [] A violation of either of those duties also renders the veterinarian subject to liability for any injury resulting therefrom."

On a vote of 11 to 1, the jury returned a special verdict in favor of the defense on the Brumfields' cause of action for professional negligence, finding only that Richardson was not negligent. [FN8] Judgment was entered in favor of Richardson on July 14, 2000, and the Brumfields' timely notice of appeal followed.

FN8. The first question set forth in the special verdict form asked the jury, "Was [Richardson] negligent?" The jury answered, "No," and did not answer the remaining two questions pertaining to causation and damages.

STANDARD OF REVIEW

By refusing to instruct the jury on the Brumfields' claims for fraud and breach of contract, the court essentially granted a directed verdict on those claims in favor of Richardson. When an appeal is taken from a judgment entered upon a directed verdict, we must view the evidence in the light most favorable to the appellant. (South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1120 (South Bay ).) All evidentiary conflicts must be resolved and inferences drawn in the appellant's favor. (Colbaugh v. Hartline (1994) 29 Cal.App.4th 1516, 1521.) If we conclude there is legal merit to appellants' claims and substantial evidence to support those claims, we are required to reverse the judgment. (South Bay, supra, 72 Cal.App.4th at p. 1120.)

The Brumfields assert the court should have instructed the jury on the breach of contract and fraud counts. A party is entitled upon request to nonargumentative, correct instructions on every theory of the case that is supported by substantial evidence. (Soule, supra, 8 Cal.4th at p. 572.) Our high court in Soule addressed the standard of appellate review that applies to a claim of instructional error in a civil case and held:

"[T]here is no rule of automatic reversal or 'inherent' prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, 13.) ... [] Instructional error in a civil case is prejudicial 'where it seems probable' that the error 'prejudicially affected the verdict.' [Citations.]" (Soule, supra, 8 Cal.4th at p. 580.)

With respect to the factors to be considered in determining whether actual prejudice has resulted from instructional error, the Soule court further held:

"Actual prejudice must be assessed in the context of the individual trial record. For this purpose, the multifactor test set forth in such cases as LeMons [v. Regents of University of California (1978) 21 Cal.3d 869] and Pool [v. City of Oakland (1986) 42 Cal.3d 1051] ... is as pertinent in cases of instructional omission as in cases where instructions were erroneously given. Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule, supra, 8 Cal.4th at pp. 580-581, fn. omitted.)

DISCUSSION

I. BREACH OF CONTRACT CLAIM

The Brumfields first contend they presented substantial evidence in support of their claim for breach of oral contract, and thus the court committed reversible error by refusing to give jury instructions on that claim. We conclude the court committed instructional error, but the error was not prejudicial.

A. Applicable Legal Principles

"It is, of course, basic hornbook law that the existence of a contract is a necessary element to an action based on contract, regardless whether the plaintiff seeks specific performance or damages for breach of contract." (Roth v. Malson (1998) 67 Cal.App.4th 552, 557, citing 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 476, p. 570 & 5 Witkin, supra, 741, p. 199.)

The essential elements of a contract are (1) parties capable of contracting, (2) their consent, (3) a lawful object, and (4) consideration. (Civ.Code, 1550.) The consent of the parties to a contract must be free, mutual, and communicated by each to the other. (Civ.Code, 1565.) "Consent is not mutual, unless the parties all agree upon the same thing in the same sense." (Civ.Code, 1580 .)

" 'The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.' [Citation.] Outward manifestations thus govern the finding of mutual consent required by Civil Code sections 1550, 1565 and 1580 for contract formation. [Citation.] The parties' outward manifestations must show that the parties all agreed 'upon the same thing in the same sense.' [Citation.] If there is no evidence establishing a manifestation of assent to the 'same thing' by both parties, then there is no mutual consent to contract and no contract formation. [Citation.]" (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)

"Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties' obligations and to determine whether those obligations have been performed or breached." (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.)

In litigating a breach of contract cause of action, the plaintiff has the burden of pleading and proving (1) the existence of an enforceable contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) damage to the plaintiff resulting from the defendant's breach. (See 4 Witkin, supra, Pleading, 476, p. 570 & 501, p. 589.)

Witkin explains the well-established rule that where the plaintiff contracted in reliance on fraud committed by the defendant, the plaintiff "may elect either the contract remedy (restitution based on rescission) or the tort remedy (affirmance and damages). [Citations.]" (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, 148, p. 218.)

B. Analysis

The Brumfields' breach of oral contract claim, as to which the court refused to give jury instructions, was based on allegations that Richardson orally promised to repair the horse's scrotal hernia by performing a suture-free standing castration using a technique that would induce swelling and scarring to prevent postoperative herniation, and also promised to order frequent postsurgical observation of the horse to safeguard against such herniation. They alleged Richardson breached the oral agreement by performing a routine open castration without inducing swelling and scarring, and by failing to issue orders for close postoperative observation of their horse, resulting in the eventration and resection of the horse's intestines.

1. Substantial evidence supported the breach of contract claim

The initial issue we must decide is whether substantial evidence adduced at trial supported the foregoing breach of contract claim, thereby legally precluding a directed verdict as to that count. Viewing the evidence in the light most favorable to the Brumfields and resolving all evidentiary conflicts and drawing reasonable inferences in their favor, as we must (South Bay, supra, 72 Cal.App.4th at p. 1120; Colbaugh, supra, 29 Cal.App.4th at p. 1521), we conclude the Brumfields met their burden of presenting substantial evidence on all of the essential elements of their breach of oral contract claim.

The Brumfields testified that when they spoke with Richardson about whether he could repair the horse's scrotal hernia, he explained that he had used a technique of removing the testicles in a manner that caused so much inflammation and swelling in the inguinal canal that such hernias could not happen again. Dr. Brumfield stated that he initially responded by telling Richardson he did not want him to perform that procedure, and he did not want the horse castrated, but he then asked Richardson what he would do if it were his horse, and Richardson replied that he would use his standing castration technique. Dr. Brumfield also testified that he asked Richardson whether the horse's intestines could fall out if he used his technique, and Richardson replied that this was the reason the horse needed to be in the hospital, and he would write orders for very frequent postsurgery examinations until the horse was ready to return home. Dr. Brumfield stated that based on the foregoing conversation, he consented to Richardson's repairing of the horse's hernial defect with the understanding that the horse would lose one or both of the testicles, but he did not consent to a routine standing castration of the horse unless Richardson also addressed the inguinal canals and the hernial defect. It is undisputed that Richardson proceeded to perform surgery on the horse.

The foregoing testimony is substantial evidence that the parties entered into an oral contract under which Richardson, in consideration of the Brumfields' promise to pay him for his services, agreed to repair the horse's hernial defect by means of a suture-free standing castration technique that would induce sufficient swelling and scarring to prevent eventration of the intestines, and that he also agreed to issue orders for close observation of the horse in the animal hospital during recovery. The evidence shows the Brumfields performed by delivering the horse to the hospital. This evidence, if credited by the jury, would have established that the Brumfields bargained for one type of procedure--a suture-free standing castration technique that would induce sufficient swelling and scarring to prevent eventration of the intestines--and Richardson breached the oral agreement by performing a different type of procedure--a routine, suture-free standing castration.

The Brumfields also presented substantial evidence that they suffered compensable damages as a result of Richardson's breach of the agreement. Sauter testified that the morning after the procedure, the horse, after being checked only twice, suffered herniation through the scrotum, which resulted in an obstructed bowel, surgical removal of a portion of the bowel, a lengthy hospitalization, and loss in the horse's value.

The foregoing substantial evidence, if believed by the jury, would have established the essential elements of the Brumfields' breach of contract claim in this matter. We thus conclude the court erred by not instructing the jury on this count.

Richardson contends the court properly refused to instruct the jury on the Brumfields's breach of contract claim as case law establishes that a guarantee of a particular outcome is the sole basis in California for a contract-based claim against a health care professional, and the Brumfields presented no evidence that he had guaranteed a particular outcome of the open standing castration he performed on their horse. We reject this contention on several grounds.

i. Richardson's case law authorities are inapposite

The case law authorities on which Richardson relies are inapposite. He quotes Eads v. Marks (1952) 39 Cal.2d 807 (Eads ) for the proposition that, in general, "it has been held that actions based on negligent failure to perform contractual duties, such as those owing from a hospital [citation] or physician [citation] to a patient, ... [,] although containing elements of both contract and tort, are regarded as delictual actions, since negligence is considered the gravamen of the action." (Id. at pp. 811-812.) In Eads, the parents of a one-year-old child sued a creamery in tort for personal injuries that the child suffered after the creamery left a milk bottle on the back porch of their home, and the child picked up the container, fell off the porch with the container, and was severely injured when the bottle broke. (Id . at pp. 809-810.) The plaintiffs alleged the creamery negligently breached an agreement to leave no milk bottles at the home, except in the refrigerator. (Id. at p. 809.) The Eads court reversed the judgment entered in favor of the defendant after the trial court sustained its general demurrer without leave to amend and held that the parties' agreement created a duty of care owed to the injured child, and the plaintiffs thus had stated facts sufficient to constitute a tort claim sounding in negligence. (Id . at pp. 812-813.) Eads is distinguishable as it did not involve an action against a health care provider for allegedly performing a procedure other than the one for which the plaintiff bargained. The gravamen of the action in Eads was clearly simple negligence against a commercial defendant.

Richardson cites Bellah v. Greenson (1978) 81 Cal.App.3d 614, 625 (Bellah ) for the proposition that an action against a doctor arising out of negligent treatment of a patient is an action sounding in tort and not one based upon a contract. Bellah, like Eads, is inapposite. Bellah involved a wrongful death action brought by parents against a psychiatrist who had been treating their daughter, alleging that he had negligently failed to take measures to prevent the daughter's suicide. (Bellah, supra, 81 Cal.App.3d at p. 618.) The complaint purported to state two claims, one based on simple negligence, and one based upon the psychiatrist's negligent performance of his contract with the plaintiffs to care for their daughter. (Ibid.) The trial court sustained the psychiatrist's general demurrer to the complaint without leave to amend, in part on the ground that the action was barred under the one-year limitations provision set forth in Code of Civil Procedure section 340.5, and the Court of Appeal affirmed the judgment. (Bellah, supra, 81 Cal.App.3d at pp. 624-625.) Rejecting the plaintiffs' contention on appeal that their claim for negligent breach of contract was based upon an oral contract subject to the two-year statute of limitations specified in Code of Civil Procedure section 339, the Bellah court stated, "[i]t is settled that an action against a doctor arising out of his negligent treatment of a patient is an action sounding in tort and not one based upon a contract. [Citations.]" (Bellah, supra, 81 Cal.App .3d at p. 625.) The gravamen of the Bellah action was clearly professional negligence against the psychiatrist. The Bellah case did not involve a claim that the psychiatrist defendant promised to perform one kind of health care service, but performed another. Bellah is thus distinguishable from the instant case.

Richardson also relies on McKinney v. Nash (1981) 120 Cal.App .3d 428 (McKinney ). McKinney is also inapposite. There, a patient brought an action against a surgeon who had performed a bilateral inguinal hernia repair that resulted in the atrophy of the patient's testicles and impotency, seeking damages on theories of negligence, lack of informed consent, and breach of contract or warranty. (Id. at p. 433.) The patient appealed from the judgment entered in favor of the surgeon after the court granted a directed verdict in favor of the surgeon. (Ibid.) The Court of Appeal reversed the judgment. (Id. at p. 443.) Rejecting the patient's claim that there was substantial evidence that the surgeon breached a warranty or contract in performing the surgery, the McKinney court stated that "[t]o recover for breach of warranty or contract in a medical malpractice case, there must be proof of an express contract by which the physician clearly promises a particular result and the patient consents to treatment in reliance on that promise. [Citations.]" (Id. at p. 442.) Noting that "[t]he promise of a particular result is to be distinguished from the mere generalized statement that the result of treatment will be good," the Court of Appeal concluded that the surgeon's comment to the patient that the hernia operation would be simple and without problem did not satisfy such "standard of particularity." (Ibid .) McKinney, like Bellah, did not involve a claim that the health care professional promised to perform one kind of procedure, but performed another. McKinney is thus distinguishable from the instant case.

ii. Election of remedies

Richardson also quotes Witkin for the proposition that while the same wrongful act may constitute both a breach of contract and a tort, "[o]rdinarily the form of the action will be either contract or tort, not both," and the plaintiff "would be required to elect, at some stage, between inconsistent remedies, and would not be entitled to a double recovery." (3 Witkin, Cal. Procedure, supra, Actions, 139, pp. 203-204, italics omitted.) Richardson asserts that "[t]here is nothing in the record or in [the Brumfields'] argument on appeal to suggest that [they] were willing to forego their negligence theory in order to pursue a claim for breach of contract." He invokes the election of remedies doctrine to imply that the Brumfields suffered no prejudice as a result of the court's decision not to instruct on their breach of contract and fraudulent misrepresentation claims, as the court afforded the Brumfields an adequate remedy by allowing the jury to decide the negligence claim, and the court merely accelerated the inevitable election of remedies. Richardson's election of remedies arguments are unavailing.

Clearly, the Brumfields would be required to make an election between tort damages and contract damages in the event they prevailed at trial on both theories of liability. Otherwise, they would impermissibly obtain a double recovery. (3 Witkin, Cal. Procedure, supra, Actions, 139, pp. 203-204.)

Richardson, however, has cited no case law or statutory authority, and we are aware of none, that gives a trial court discretion to make such election for the plaintiffs after the parties have rested, and before the tort and contract claims are submitted to the jury for decision, by means of a ruling that effectively directs a verdict against the plaintiffs on their breach of contract claim. Assuming arguendo a favorable jury verdict, the plaintiffs would be entitled to make their election of remedies after the jury returns its verdict and before entry of judgment.

3. Lack of prejudice: Effect of the modified version of BAJI No. 6.10.5

Richardson asserts it is "plain" from the trial record that the court's decision to give no jury instructions on the Brumfields' claim for breach of contract did not result in a probable miscarriage of justice because the court instructed the jury with a modified version of BAJI No. 6.10.5. We agree and conclude the court's instructional error was not prejudicial.

For the sake of clarity, we reiterate that the modified version of BAJI No. 6.10.5 that the court gave to the jury in this matter provided:

"The performance of an operation by a veterinarian to which the animal's owner has not consented is a violation of a veterinarian's professional duties. [] Where a veterinarian obtains consent of the animal's owner to one type of operation and subsequently performs a substantially different operation, that is likewise a violation of a veterinarian's professional duties. [] A violation of either of those duties also renders the veterinarian subject to liability for any injury resulting therefrom."

Richardson argues the Brumfields can show no prejudice because the jury was explicitly instructed under the foregoing modified jury instruction that it should impose liability on him if it found the Brumfields had proven that he engaged in precisely the same conduct they claimed would constitute the alleged breach of contract. Specifically, he asserts that as a result of the giving of the informed consent instructions set forth in the modified version of BAJI No. 6.10.5, "the jury would have found [Richardson] to be negligent if it believed that he had promised one thing and done another." He also asserts that "[e]ven with those instructions, the jury found no negligence." Richardson's arguments are meritorious and must be sustained.

The trial record shows that by a vote of 11 to 1, the jury returned a special verdict in favor of Richardson on the Brumfields' cause of action for professional negligence, finding that Richardson was not negligent. Specifically, the record shows that the first question set forth in the special verdict form asked the jury, "Was [Richardson] negligent?" The jury answered, "No," and did not answer the remaining two questions pertaining to causation and damages. Based on the jury's special verdict finding of no negligence, the court entered judgment in favor of Richardson.

Presuming, as we must, that the jury understood the instructions and followed them, the special verdict indicates the jury rejected the Brumfields' theories of negligence, including the theory that Richardson promised to perform one procedure but performed another, which was the gravamen of the Brumfields' breach of contract claim. Because the breach of contract theory and the negligence theory were based on the same alleged facts, the jury's rejection of the Brumfields' negligence claim necessarily constituted a rejection of their breach of contract claim. The Brumfields thus cannot show the court's instructional error resulted in a probable miscarriage of justice. Accordingly, we conclude the court did not commit reversible error by failing to instruct on the breach of contract claim.

II. FRAUDULENT MISREPRESENTATION CLAIM

The Brumfields also contend they presented substantial evidence in support of their claim for fraudulent misrepresentation, and thus the court committed reversible error by refusing to give jury instructions on that claim. We conclude the court committed reversible error by failing to instruct the jury on the portion of the Brumfields's fraudulent misrepresentation claim that alleged Richardson misrepresented his veterinarian experience.

The California Supreme Court has explained that " '[t]he necessary elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.' [Citations.]" (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 (Alliance ), fn. omitted.) The high court in Alliance explained that "[r]eliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff's conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction. [Citations.]" (Ibid.)

Here, the Brumfields based their claim for fraudulent misrepresentation on their allegations that Richardson deceitfully told them he had performed his castration and hospital observation treatment, without serious complications, on "many" adult horses to repair scrotal herniation; and they would not have consented to the surgical procedure had they known that Richardson's representations were false. The Brumfields also alleged that Richardson had deceitfully promised--without intent to perform--to repair the horse's hernia, and performed instead an ordinary castration procedure without gauze packing or use of a cicatrizant; and they would not have consented to the surgical procedure had they known of Richardson's true intention not to honor his agreement to repair the hernia. The Brumfields further alleged that Richardson deceitfully promised--without intent to perform--to write "close-and-frequent" postsurgery observation orders; and his deceit prevented them from conducting their own close postsurgical monitoring of the surgical opening in the horse's scrotum.

After reviewing the trial record under the applicable standard of review (discussed, ante ), we conclude the Brumfields met their burden of presenting substantial evidence on all of the essential elements of their fraudulent misrepresentation claim to the extent that claim was based on their allegation that Richardson had misrepresented his veterinarian experience. Dr. Brumfield testified that Richardson, in describing his experience with his standing castration technique using induced swelling and scarring to repair similar hernias, had used terms like "numerous," "many" and "all the horses I've done." Dr. Brumfield also testified that based on these statements, he believed that Richardson had used the technique on 50 to 150 horses. Sauter, the veterinary nurse at the animal hospital who assisted Richardson, testified, however, that he had performed only four or five inguinal hernia repairs, usually through rectal manipulation, and less than 10 routine castrations at the hospital during the 12-year period she worked with Richardson at the animal hospital from 1986 to 1998. Sauter also testified that during the same 12-year period, Richardson had never performed a standing, open castration to correct a hernial defect. The foregoing testimony supported the Brumfields' allegation that Richardson had fraudulently misrepresented his experience. Had the jury been properly instructed with regard to the fraudulent misrepresentation claim, and had it credited the foregoing testimony, it could reasonably have concluded that the Brumfields probably would have selected a different veterinarian had they known the true extent of Richardson's veterinarian experience, and the damage to the horse would not have occurred.

Because the Brumfields presented substantial evidence at trial in support of their fraudulent misrepresentation claim based on their allegation that he misrepresented his veterinarian experience, we conclude the court prejudicially erred by not instructing the jury on that portion of the claim. Accordingly, we reverse the judgment for the purpose of remanding this matter for a new trial on that claim. We affirm, however, the portion of the judgment entered in favor of Richardson on the Brumfields' claims for negligence and breach of contract.

DISPOSITION

The judgment is reversed in part and affirmed in part, and the matter is remanded for a new trial on the portion of the Brumfields' fraudulent misrepresentation claim based on the allegation that Richardson misrepresented his veterinarian experience. The Brumfields shall recover their costs on appeal.


Return to Top of This Page
Return to Horse Injuries and Illnesses Page