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Gauss v. GAF Corp.11/25/2002
e settlements could not be enforced because GAF disputed the shares assigned to it by the CCR. GAF attempted to turn this same argument to its advantage when it filed a motion in the In re Complex Asbestos Litigation case asking the court to enforce the settlements against current members of the CCR. However, at no time does it appear the trial court ever reached or ruled upon the question of whether CCR member companies bear joint and several liability for settlements entered on their behalf. This issue raises complex factual questions extending well beyond the findings and records before us in these appeals. As the parties apparently recognize, the matter is not appropriate for an appellate court to resolve in the first instance. (See Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879 [new theory should not be decided on appeal if based on facts subject to controversy and not fully litigated below].)
B. Plaintiffs' Cross-Appeals
Plaintiffs in the Gauss and In re Complex Asbestos Litigation cases filed cross-appeals from the trial court's "decision to reserve ruling" on their alternative summary judgment motions. These cross-appeals are improper. Because the trial court never decided the summary judgment motions, plaintiffs have presented this court with no adverse ruling to review. Plaintiffs urge us to affirm the judgments incorrectly entered pursuant to section 664.6 by recasting them as "summary judgments." While plaintiffs correctly observe that an appellate court may affirm an entry of summary judgment on any correct legal theory, so long as the opposing party had an adequate opportunity to address it below (see Kramer v. State Farm Fire & Casualty Co. (1999) 76 Cal.App.4th 332, 335-336), the fact remains that the trial court did not enter summary judgment in these cases and, thus, never decided whether triable issues of material fact exist. The trial court is entitled to make this determination in the first instance.
DISPOSITION
Judgments entered against appellant GAF in the Gauss, Haught and In re Complex Asbestos Litigation cases are reversed, and these matters are remanded to the trial court for further proceedings in accordance with this opinion. The cross-appeals in Gauss and In re Complex Asbestos Litigation are dismissed. Each side shall bear its own costs on appeal.
We concur:
McGuiness, P. J.
Corrigan, J.
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