ESSAY

In 1994, in the State of North Catatonic, located in the southern part of the United States, a start up organization called Babe Ruth Ballpark Co. (BRBC), whose business was the building of new indoor and outdoor sports arenas, which were leased back to states and municipalities, contracted with the City and County of Santa Frisco (CCSF) in the State of California for the building of a new baseball field. The contract was entered into and the city signed the contract for the building which was to result in a new baseball park to be built by BRBC by 1998, the park to be called Windless Park. One of the conditions of the contract was that the wind within the park would never be more than five miles per hour. As a result of the contract, the City sold 40,000 seats as property, so that the purchasers in fact owned the seat itself. A condition of those sales was that the wind within the park would never be more than five miles per hour. In the first month, April, of the first season, 1998, it was discovered that the winds averaged over twelve miles per hour in the stadium. Indeed, there was one "jet stream" which went from one area to another at about twenty miles per hour. The City decided to sue BRBC for breach of contract, whose statute of limitations was one year from discovery of the breach. The City started its suit, CCSF v. BRBC, Inc., in federal court in California on a diversity basis, in February, 1999.

In June, 1999, the City discovered that Babe Ruth Ballpark Co. was not a corporation, but a partnership, whose partners were three people called Tinkers, Evers and Chance but who called themselves the Babe Ruth Ballpark Co. The City promptly filed a motion to amend its complaint to correctly sue the partnership. The partnership opposed the motion, but the City said the amendment should be permitted since the partners had learned, through articles in the newspapers which had been printed in May, 1999, before the motion was made, that the wrong entity had been sued.

In addition to the City's suit, a class action was independently started in the same federal court by Josie Fanatic, one of the owners of the seats, in late March, 1999 against the Babe Ruth Ballpark Co as corporation and partnership, in the alternative. Thus, the seat owners did not have the same problem as the City in its suit against Babe Ruth Ballpark Co., Inc. The seat owners sued to obtain damages in the amount of $20,000.00 each for the loss of value of the seats over the useful lifetime of the seats based on the wind as the defendant had advertised that there would be no wind, and also for an injunction against the continued use of the park unless barriers were erected to stop the wind. The court, without notice to anyone certified the class for injunctive and damage relief. Defendants then moved for summary judgment, with one witness saying there was virtually no wind. Plaintiffs presented no declarations at all as they wanted a trial. The court then determined, on the motion for summary judgment, in June 1999, that plaintiff Fanatic had failed to show in their declarations that the wind was so bad, and granted judgment for the defendants, over plaintiffs' claim that they needed a trial to show that defendants lacked credibility as to their defense that there was very little wind.

The wind continued. In September, 1999, another owner of a seat, Jim Giant, who had bought his seat from one of the original seat owners, Candy Stick, brought an action in California Superior Court against the Babe Ruth Ballpark Co. as a partnership for damages based on the breach of contract. Defendants demurred claiming res judicata.

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