Opinion
B206640.
7-15-2009
PAMELA EVANS, et al., Plaintiffs and Respondents, v. GODFREY EKEKE, Defendant and Appellant.
Eric-Douglas Johnson and Justin Graham for Defendant and Appellant. Alfred Visco for Plaintiffs and Respondents.
Not to be Published in the Official Reports
After a bench trial the lower court found appellant Godfrey Ekeke liable for damages totaling approximately $193,000 plus interest as a result of breach of contract and fraud claims brought by respondents Pamela Evans and Monarch Lending, LLC in connection with the purchase of commercial real estate. Before this court, appellant claims the evidence presented in the trial court did not support the judgment. In support of his claims appellant filed a clerks transcript consisting of the case summary printed from the superior courts website, the judgment, a notice of appeal, and a notice designating the record on appeal. After this court notified appellant of the deficiency in the appellate record, appellant submitted a binder containing the "exhibits" purportedly submitted in the trial. Notwithstanding this additional submittal, the record is still insufficient to support appellants arguments. Appellants failure to provide an adequate record prevents this court from conducting any meaningful review. Accordingly, we dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
In August 2004, appellant and respondent entered into a commercial real estate sales agreement for respondent to purchase a commercial building, which was subdivided into several separate rental spaces. In connection with that purchase agreement and in order to secure bank financing for the purchase, "estoppel certificates" were prepared which purported to represent the rents paid on the units, including unit #2615 which appellant rented for his business, Square Pot Technologies ("SPT"). In addition to bank financing, the purchase of the building was also partially financed by a $170,000 loan to respondent from a trust—the Nbele Family Trust—for which appellant apparently served as the trustee ("the carry-back note").
After the purchase was completed, SPT continued to rent unit # 2615. In March 2005, SPT entered into a new lease agreement with respondent for the unit. In September 2005, respondent filed an unlawful detainer against SPT. In December 2005, the trial court entered judgment for respondent Pamela Evans in the amount of $13,583.09 for "rent and damages."
In August 2006, appellant recorded a notice of default on the carry-back note. Respondent paid approximately $42,000 to reinstate the note and rescind the notice of default.
Thereafter respondent filed the instant action against appellant, the Nbele Family Trust and an escrow company for breach of contract and misrepresentation, alleging that appellant breached the original purchase agreement and committed fraud by misrepresenting and overstating the rents for each of the units in the building. After a four day bench trial in October of 2007, the court entered judgment for respondents against appellant and the Nbele Family Trust for $193,850. According to appellant, the court found that SPT had failed to pay rent after the sale of the property and that the estoppel certificate for the unit #2615 "was fraudulent."
This appeal followed.
DISCUSSION
Appellant contends that the lower court erred in awarding respondents damages for loss of future rent. More specifically, he contends that any losses respondents suffered resulted from SPTs breach of the lease for unit #2615, not from an alleged breach of the purchase agreement for the property. Appellant points out respondents were not entitled to "future rents" under the lease agreement with SPT; and that to the extent respondents were entitled to unpaid rent for the unit, respondents had already been fully compensated for that loss in the unlawful detainer action. Appellant also argues that the loss of future rent damages was not proximately caused by the purportedly fraudulent estoppel certificates. In addition, appellant claims that respondents "waived" the right to sue for fraud in connection with the purchase agreement and estoppel certificates because respondents entered into the new lease agreement with SPT to rent the unit #2615 after respondent Pamela Evans had discovered the fraud in connection with the sale of the property. As we shall explain, appellant has not provided a sufficient appellate record to enable us to assess the merits of his claims.
Despite the complexity of appellants claims involving various documents, transactions and trial testimony, appellant designated only four documents in the clerks transcript and elected to proceed without a reporters transcript of the proceedings of the trial. Moreover, appellant did not request to proceed by way of settled statement in lieu of the reporters transcript. Appellant designated — a case summary printed from the courts website, the lower court judgment, a notice of appeal, and a notice designating the record on appeal. Appellant also indicated in his opening brief that after the last responsive brief was filed in the appeal, he would transmit the "trial exhibits" which he claimed contained the evidence he cited in his brief, supporting his claims on appeal. Respondents filed the last responsive brief in December 2008. Appellant, however, did not provide the trial exhibits. After two unsuccessful attempts by the clerk of this court to reach appellant by telephone to inquire about the status of the appellate record, on March 30, 2009, this court sent appellant a letter advising appellant of the deficiency in the record and directing him to forward the documents referred to in the opening brief that were missing in the record on appeal. On April 9, 2009, appellant submitted a binder of "trial exhibits" to this court.
The duty to provide an adequate record lies on an appellant who must affirmatively show error by providing an adequate record. (See Aguilar v. Avis Rent A Car System (1999) 21 Cal.4th 121,148-149 [appellant has the burden of furnishing an appellate record sufficient to consider the issues on appeal]; Erikson v. Sullivan (1947) 81 Cal.2d 790,791.) A reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. (Rule 8.163, Cal. Rules of Court.) On an appeal on the clerks transcript alone, findings are presumptively correct. (Seay v. Allen (1955) 134 Cal.App.2d 440, 444.) An appellate court must assume that there was substantial evidence adduced at the trial to support the findings. (Crowell v. Braly (1959) 169 Cal.App.2d 352, 354.)
This case presents a scenario similar to Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808, where the court dismissed an appeal due to a deficient record. There, the lower court granted a demurrer in favor of the defendant, Aureguy. Plaintiff, Utz, sought review of that decision. (Id. at p. 805.) The record submitted by Utz consisted solely of: a complaint with its amendments along with a demurrer and its amendments. But, the demurrer in the lower court was premised upon defendants four affidavits, all the pleadings in the case, and a deposition of the plaintiff. (Ibid.) In order to review whether the lower court erred in making that determination, the court of appeal needed all four affidavits filed by the defendants, and all complaints filed in connection with the case, all demurrers, answers, motions to strike and a deposition of the plaintiff. The court concluded that, "In the absence of [the other material evidence] which constituted the [lower court holding] there is no way of knowing anything about [that holding]." (Id. at pp. 805-806.) Due to this deficiency in the record submitted for review, the court of appeal dismissed the case and affirmed the lower court judgment.
This case also bears resemblance to Agnew v. Contractors Safety Association (1963) 216 Cal.App.2d 154, 162. There, an in pro per appellant sought to file an appeal based upon, inter alia, judicial bias. The trial below was an extensive one which called many witnesses, had many motions filed, and involved a substantial amount of evidence. (Id. at pp. 156-157.) During this trial, the appellant had never uttered one word indicating that he felt the judge acted with unfair bias. (Id. at p. 159.) Alleging bias on appeal, the appellant merely provided certain facts from the case and conclusory declarations accusing the judge of bias. He did not present a reporters transcript or clerks transcript detailing the evidence of bias from which the court of appeal could have viewed any indications of unfair bias. (Id. at pp. 158-162.) The court stated that since appellant failed to incorporate a condensed statement of all or such portions of the oral proceedings which he felt were material to the determination of bias, he could not attack the sufficiency of the evidence to support the findings of fact. (Id. at p. 163.) The court dismissed the appeal. (Ibid.)
Here, appellant has similarly failed to provide this court with the material evidence upon which the lower court judgment was based. The binder of trial exhibits contains a number of documents: (1) the purchase agreement for the commercial property; (2) estoppel certificates, rent roll and prior lease agreement for unit # 2615; (3) the escrow, loan, title documents and appraisal reports pertaining to the purchase of the property; (4) the carry-back note and default notice; and (5) the judgment in the unlawful detainer action. However, without a reporters transcript or a settled statement of the proceedings from the trial, this court cannot determine whether these documents were admitted into evidence or even considered by the trial court. Furthermore, other documents that are crucial for our review are nowhere to be found in the record. Appellant did not include a copy of the underlying complaint, the May 2005 lease agreement for unit #2615, or the courts statement of decision from the trial. Appellant makes various claims for reversal which are based on testimonial and documentary evidence which are cited in his brief, but not present in the record. Similar to Agnew, the force of appellants arguments relies on the truth of claims made concerning this material evidence which has not been provided to this court and cannot be verified. Appellant provides no other testimonial evidence in the form of depositions, interrogatories, declarations or other documents from the lower court so substantiate the claims made on appeal. Without that evidence to review, this court cannot question the largely fact-intensive judgments made by the lower court. On the record before this court we cannot determine the basis for the trial courts decision, nor can the court determine what evidence was presented in support of or in opposition to respondents causes of action, and without such evidence this court is unable to assess the soundness of appellants contentions on appeal.
In Utz, appellant had at least provided some of the pertinent evidence in connection with the case. The court still dismissed the action for failure to provide an adequate record on appeal because all of the material documents were not provided. In Agnew, the appellant failed to provide much more than his conclusory declarations of bias in order to prove that the judge had acted unfairly. In the case at bar, appellant has provided even less than the appellant in Utz. Virtually none of the evidence needed to conclude that the lower court made a reversible error has been submitted to this court. Appellant indicated he would provide the evidence months ago, but failed to submit an adequate record, even after given an additional opportunity by this court.
In view of the foregoing, this appeal must be dismissed.
DISPOSITION
The appeal is dismissed. Respondents to recover costs on appeal.
We concur:
PERLUSS, P.J.
ZELON, J.