Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PC20040491
RAYE, J.Defendants Robert Henderson et al. (Henderson) represented plaintiffs Stanley and Peggy Kubat in litigation between family members. As part of the settlement agreement ending the litigation, the Kubats agreed to sell a South Lake Tahoe property. The sale of the property culminated in this malpractice action by the Kubats against Henderson. The Kubats contend Henderson coerced them into settling the underlying litigation, misstated the terms of the settlement agreement on the record, and failed to have the property properly appraised. The Kubats also alleged Henderson breached his fiduciary duty and misled them into believing they could repurchase the property. The trial court granted a nonsuit based on the Kubats’ failure to prove damages. On appeal, the Kubats argue the trial court erred thrice: in excluding evidence of a subsequent sale of the property, in ruling they could not seek benefit-of-the-bargain damages, and in granting Henderson’s nonsuit since the motion was made prior to commencement of trial. We shall affirm the judgment.
For clarity, plaintiffs will be referred to individually by their first names. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Litigation
Following the death of her mother, Peggy Kubat retained Henderson and his firm to administer her mother’s estate. Peggy’s sister, Ronnee Duncker, sought an accounting of their mother’s assets. Their mother had resided with Peggy at the South Lake Tahoe property (property) from 1991 until their mother’s death in 1998. In 1991 their mother conveyed the property to herself, Peggy, and Duncker as joint tenants.
After the accounting, Duncker suspected the Kubats had converted over $100,000 of her mother’s funds and alleged that they had committed elder abuse. Duncker filed an action against the Kubats in El Dorado County (Duncker litigation). The complaint alleged causes of action for conversion, conspiracy, elder abuse, and to compel accounting.
The Kubats retained Henderson to represent them. Henderson filed a cross-complaint for them requesting the property be partitioned and sold.
Deed of Trust
As the litigation proceeded, the Kubats fell behind in their payments of Henderson’s fees. Following discussions with the Kubats, Henderson sent them a letter requesting that Peggy execute a deed of trust to secure the fees and costs anticipated to be incurred at trial.
In the letter, Henderson advised the Kubats that “attorneys are not allowed to take a security interest in property belonging to their clients without first advising them that they have the right to, and no doubt should, consult independent legal counsel before giving a security for our fees.” Henderson also suggested a local attorney, Joseph Tillson, or another attorney of their choice.
Settlement Conference
On Christmas Eve 2001 the court conducted a mandatory settlement conference in the Duncker litigation. A few days before the conference, Stanley suffered an infection in his bloodstream requiring hospitalization. The Kubats did not contact Henderson to request a continuance of the settlement conference.
The parties strenuously disagree as to the impact of Stanley’s illness on his ability to participate in the conference. The Kubats contend Stanley was still on medication and in serious pain during the conference. Stanley told Henderson he was in pain and had to see an orthopedic surgeon that day because of the seriousness of the infection. Stanley left for his medical appointment, and Henderson later called and demanded he return because the parties had reached an agreement.
The Kubats claim they entered the settlement agreement very reluctantly, since Stanley was heavily medicated and in great pain. The Kubats felt Henderson failed to adequately explain the settlement terms, and did not discuss certain material terms. Although the Kubats believed the settlement would not be final until they had agreed to the terms in writing, Henderson announced the agreement on the record in court.
In contrast, Henderson contends Stanly admitted in deposition that at the time of the settlement conference, he was not heavily medicated and his ability to participate was not impaired. Stanley’s hospital discharge records from the day of the settlement conference indicated he denied any pain.
The Duncker litigation settlement required the sale of the property and payment of $50,000 to Duncker from Peggy’s share of the proceeds. The settlement terms were put on the record in court with all parties present. The trial court questioned both Peggy and Stanley about their understanding of the terms of the settlement. The court asked whether the couple had discussed the terms with Henderson, and whether they agreed with the terms. The couple agreed to the settlement without voicing any objections.
Sale of the Property
The aftermath of the settlement agreement, the sale of the property, comprises the fundamental dispute between the parties. The Kubats argue the property was undervalued and they were prevented from bidding on the property. Henderson contends two experienced realtors valued the property and the Kubats willingly sold the property to a third party.
The parties agreed to list the property for sale “at a price that is agreeable to both parties.” If the parties failed to agree on a price, the matter would be submitted to the court. Peggy and her sister signed an exclusive listing agreement with Century 21, South Tahoe Realty and agreed to list the property for $329,000.
Three days after the parties entered into the settlement agreement, realtor Mark Lucksinger inspected the property. Lucksinger’s initial inspection revealed the property was in need of major repairs: new carpets, extensive sheetrock work, interior painting, and deodorization. The realtor valued the property, “in as-is condition,” at between $175,000 and $200,000, based in part on the prices of comparable homes in the neighborhood.
Four months later, Lucksinger again inspected the property. Although Stanley had made some repairs, the realtor did not change his estimate as to the property value. The snow around the house had melted, allowing Lucksinger to observe substantial dry rot and a possible infestation on the property’s exterior. Lucksinger stated the property needed significant upgrades to justify the $329,000 proposed asking price.
Lucksinger prepared a listing agreement listing the property at $329,000. Duncker forwarded the listing agreement to the trial court. Lucksinger delayed listing the property until it had passed the city’s inspection and a pest report had been prepared.
In October 2002 the listing agreement with Lucksinger ended and another realtor, David Kurtzman, inspected the property. According to Stanley, no work had been done on the property between Lucksinger’s April 2002 inspection and Kurtzman’s inspection in October 2002.
The Kubats contend that in March and April 2002 they made numerous repairs and upgrades to the property. They added a bedroom, disposed of the carpet, deodorized floors, added baseboards, tiled the laundry room, painted the interior, repaired the master bath, added a closet, replaced the front door, and deep cleaned.
Kurtzman determined a great deal of work was necessary before the property could be put on the market. In addition, undisclosed problems could result in the need for significant repairs. As is, Kurtzman believed the property would sell for between $250,000 and $265,000.
The trial court held a hearing on the sale of the property and ordered it be listed by Kurtzman at $265,000, based on the realtor’s evaluation. The trial court ordered the listing agreement be executed within seven days of the order.
However, the Kubats refused to execute the listing, contending the house was undervalued. Stanley told Henderson $265,000 was not enough for the property. Stanley also believed that, under the settlement agreement, if the parties did not agree with the sale price, they would not have to sell it for that amount.
The Kubats also allege Henderson failed to inform the trial court that the parties had agreed to list the property at $329,000. Henderson counters that he contacted the trial court to advise it of the listing agreement.
Kubats Seek to Purchase Property
According to the Kubats, they made Henderson aware of their desire to purchase the property when they retained him.
In December 2002 Henderson requested a three-week extension of time from the trial court for the Kubats to prepare an offer to purchase the property. Henderson met twice with the couple, who agreed to make an offer of $235,000 for the property. In January 2003 Henderson prepared an offer of $235,000 to purchase the property on behalf of the Kubats. The Kubats never executed the offer.
In January 2003, after the Kubats failed to execute the listing agreement ordered by the trial court, the court issued an order to show cause (OSC) as to why sanctions should not be imposed for failure to obey the previous order. Henderson forwarded the OSC to the Kubats, encouraging them to make an offer on the property.
Subsequently, Henderson prepared an offer on behalf of the Kubats. They offered $225,000 for the property with a six-month close of escrow contingent upon the sale of three unrelated properties. Duncker rejected the offer because of the length of escrow.
At the OSC hearing in February 2003, Henderson advised the court that the Kubats wanted to purchase the property. The parties agreed that the Kubats’ daughter, a real estate agent, be excluded from receiving a commission in the event the Kubats wished to purchase the property. After Peggy again refused to execute the listing agreement, the trial court executed the agreement on her behalf.
Offers for the Property
In March 2003 Henderson advised the Kubats to make an offer on the property. According to Henderson, Stanley demurred, stating he “wanted the market to talk.”
Later that month several parties made offers on the property. Brett and Amy Baker offered $240,000; Stanley Kubat advised Henderson to reject the offer. Four other parties each offered $265,000 in cash.
On March 20, 2003, following receipt of the offers, 11 real estate agents toured the property. The agents estimated the property’s worth at between $180,000 and $279,000.
Six days later, the Kubats offered Duncker $250,000 to purchase the property with a 60-day close of escrow. The same day Fred Cohen offered $277,000 in cash with no contingencies, waiving all inspections, and a 30-day close of escrow.
The Sale
Duncker accepted the Cohen offer of $277,000. A few days later, Stanley left Henderson a message stating that they were going to match the offer on the house but decided not to. Subsequently, Peggy signed off and accepted the Cohen offer.
The Kubats contend they agreed to the offer in reliance on Henderson’s representation that they would be able to buy the property at a confirmation hearing by offering more than $277,000. However, Henderson did not petition the trial court for a confirmation hearing or request the court to consider the Kubats’ offer.
Several months later, the Kubats began consulting with other counsel over the sale of the property. Henderson requested they execute a substitution of attorney. Instead, the Kubats negotiated a reduction in Henderson’s fees for a waiver of any claims against Henderson.
The Complaint
In October 2004 the Kubats filed a complaint against Henderson asserting legal malpractice, breach of contract, breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, constructive fraud, statutory violations, and fraud and deceit. The Kubats alleged misconduct on Henderson’s part consisting of: (1) misstating the terms of the settlement agreement on the record, (2) failing to enforce the settlement agreement by not advocating a price of $329,000 for the property, (3) selling the property for less than it was worth, (4) attempting to limit liability by negotiating a release, (5) failing to make court appearances, and (6) violating the California Rules of Professional Conduct.
Henderson moved for summary judgment on various grounds, including the fact that the Kubats’ damages were speculative as a matter of law. The trial court denied the motion. The trial court took judicial notice of a grant deed of the sale of the property for $610,000 in September 2005. The court noted: “The grant deed is relevant as evidence of potential damages arising from the plaintiffs’ alleged loss of an investment opportunity due to defendants’ conduct as their attorney.” The court, in denying the motion, found triable issues of material fact as to whether Henderson’s conduct damaged the Kubats.
Motions in Limine
Prior to trial, Henderson filed a motion in limine to exclude evidence of the September 2005 sale of the property for $610,000. The trial court granted the motion to exclude evidence of the sale price “until such time as there’s a proper foundation for the admission.”
In excluding the evidence, the trial court noted: “The Plaintiff is entitled, even under a loss of business opportunity argument, to the value of the property at the time of the act which triggered this lawsuit, which would have been in 2003. [¶] Proper evidence establishing the value at that time would have to be introduced. The Court does not know, absent testimony of expert witnesses, whether the market would have equaled the $600,000 paid. [¶] It will be necessary for the Plaintiff to show the condition of the property at the time of sale, the condition of the property at the time of the probate sale, and show that the same was identical or the same can be computed with a reasonable degree of accuracy. [¶] The court will also require the Plaintiff to establish that the market conditions at the time of sale in 2005 were identical to the market conditions at the time of the event which triggered the malpractice claim in 2003, since that’s when the damage was sustained.”
Motion to Amend
During the hearing on the motions in limine, Henderson argued the Kubats could not seek damages based on the theory that they lost the opportunity to purchase the property themselves and obtain the increase in appreciation after 2003. According to Henderson, the Kubats failed to plead the theory in their complaint.
The Kubats moved to amend their complaint. The court denied the motion, finding the Kubats waited too long to seek amendment, to Henderson’s prejudice.
Nonsuit and Appeal
Henderson moved for nonsuit on the ground of the Kubats’ failure to prove damages. Counsel for the Kubats acknowledged that a nonsuit was appropriate given the court’s rulings. The Kubats filed a timely notice of appeal.
Subsequent to the nonsuit and just prior to this appeal, the Kubats filed a legal malpractice action against their trial attorney. Henderson requests that we take judicial notice of the malpractice complaint. The request is denied. The allegations of the complaint are irrelevant to the issues involved in the present appeal. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)
DISCUSSION
Exclusion of Evidence of 2005 Sale
The Kubats contend the trial court abused its discretion in excluding evidence of the 2005 sale of the property. They argue the 2005 sale is relevant to show the fair market value of the property in 2003 and is also admissible under Evidence Code sections 813 and 815.
All further statutory references are to the Evidence Code unless otherwise indicated.
We review a trial court’s evidentiary rulings for an abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900 (City of Ripon).) We also review the admissibility of expert or lay opinion testimony and the relevance of such testimony under the abuse of discretion standard. (Id. at p. 900; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112.) We reverse only where the trial court’s ruling exceeds the bounds of reason, resulting in a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Section 813The Kubats argue the trial court ruled they had to present foundational evidence of the property’s value through expert testimony and that such a ruling is contrary to section 813, which permits the value of property to be shown by the opinion of the owner or the owner’s spouse. Under section 813, therefore, Peggy was qualified to testify to the value of the property.
However, Peggy’s competence to opine on the value of the property was not raised in the trial court. The issue disputed below was whether evidence of the property’s sale price in 2005 was admissible to prove its value in 2003. While the court discussed the need for expert testimony, it was during the course of its observation that the Kubats would need to show market conditions at the time of the sale in 2005 were identical to market conditions in 2003 when the malpractice occurred. Peggy’s opinion regarding value was never offered and was not a consideration in the grant of nonsuit. There was no occasion to consider section 813, which was never raised by the Kubats.
As Henderson points out, generally theories or issues not raised in the trial court cannot be asserted for the first time on appeal. (Adelson v. Hertz Rent-A-Car (1982) 133 Cal.App.3d 221, 225 (Adelson).) “An exception to this rule exists where a question of law only is presented on the facts appearing in the record. ‘But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal. [Citations.]’ [Citation.]” (Adelson, supra, 133 Cal.App.3d at pp. 225-226.)
The Kubats claim their section 813 argument is “a question of law arising on facts that are not in dispute” and therefore can be raised for the first time on appeal. According to the Kubats, there is no dispute that Peggy owned the property and could offer an opinion about the property’s value. However, the property’s value is not an undisputed fact and is central to the resolution of the litigation between the parties. Thus, the Kubats freshly hatched theory involving Peggy’s possible testimony does indeed “contemplate[] a factual situation the consequences of which are open to controversy.” For that reason the Kubats cannot raise section 813 for the first time on appeal.
Also, section 813 merely allows the owner of the property to provide evidence as to the value of the property. It does not preclude the trial court from subjecting the evidence to the balancing requirements of section 352. The court, within its discretion, could find that without sufficient foundation, Peggy’s opinion about the property’s value would be far more prejudicial than probative of the property’s value when sold in 2003. The opinion of an owner as to the value of property is still subject to the same rules of admissibility for any other witness. (Contra Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 661.)
Section 815Section 815 provides: “[A] witness may take into account as a basis for an opinion the price and other terms and circumstances of any sale or contract to sell and purchase which included the property or property interest being valued or any part thereof if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation . . . .”
The Kubats contend the trial court erred in not allowing evidence of the property’s resale price in 2005 without “testimony of experts that the sale was not an aberration but was in keeping with the market at the time of sale in ’05.” The Kubats argue: “Nothing in § 815 requires a party offering evidence of the price at which property sold to prove that the price did not reflect changes in the property’s condition or in the market generally between the sale and the time of valuation. Those considerations ‘go merely to the weight of the evidence’ and not to its admissibility.” (City and County of San Francisco v. Golden Gate Heights Investments (1993) 14 Cal.App.4th 1203, 1211.)
The sale price of the property in 2005 might well be relevant to assess whether the property was undervalued in 2003. However, the court, in granting the motion in limine to exclude the evidence without proper foundation, described the bare price paid for the property in 2005 as “horribly speculative.” The court later repeated its concern over the “speculative nature” of the proffered evidence.
All relevant evidence is admissible unless specifically excluded by statute or the federal or state Constitution. Relevant evidence may be excluded pursuant to section 352 if the trial court in its discretion concludes its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. We may not disturb the trial court’s decision to exclude evidence pursuant to section 352 absent an abuse of that discretion. (People v. Basuta (2001) 94 Cal.App.4th 370, 386.)
No such abuse occurred in the present case. While the price paid in 2005 might be relevant in assessing the price paid for the property in 2003, the price alone, without any evidence as to the market factors or improvements made to the property in the interim, carries little probative value and great potential for prejudice. The bare price paid two years after the original sale might well confuse and mislead the jury as to the fairness of the original price. The trial court acted well within its discretion in excluding the evidence absent a sufficient foundation.
The Kubats also contend the price paid in the 2005 sale was relevant to show their lost opportunity damages, which would consist of the appreciation of the property. The argument assumes that the complaint properly alleged a basis for recovery of lost opportunity damages. The trial court ruled to the contrary. We agree with the trial court.
Lost Opportunity Damages
The Kubats claim they were entitled to seek lost opportunity damages connected with their claim of breach of fiduciary duty. These lost opportunity damages, the Kubats contend, include all appreciation from the time of the sale until the present. Citing this court’s decision in Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, the Kubats insist “[t]hey were not required to plead specifically that they would seek lost appreciation damages or benefit-of-the-bargain damages.” True enough. “‘Under the prayer for general relief the court can give such judgment as plaintiffs show themselves entitled to, and as may be necessary to effect justice between the parties and protect the rights of both.’ [Citation.]” (Id. at p. 1536, italics omitted.) What is critically lacking in the Kubats’ complaint is not a prayer for lost opportunity damages but allegations of fact sufficient to warrant entitlement to them.
The complaint sets forth allegations of breach of fiduciary duty, misrepresentation, fraud, and related claims in the fifth, seventh, and ninth “Cause[s] of Action.” In the fifth cause of action, it is alleged that defendants made certain misrepresentations concerning plaintiffs’ obligation to sell the property. However, the misrepresentations and the damages alleged all pertain to the price of the property: “Plaintiffs were forced to sell the property at a price they did not agree upon. [¶] . . . [¶] [P]laintiffs were induced to and did sign a sale contract for the property at a price well below market price. . . . [¶] [P]laintiffs were induced to sell their property below market value, by reason of which plaintiffs have been damaged in an amount according to proof.” There is no hint in these allegations of a claim to lost opportunity damages. So also, in the seventh cause of action, it is alleged that defendant negligently represented that plaintiffs did not have to sell their property unless they agreed to the price and that the agreement reached at the settlement conference was not final until reduced to writing and signed. However, the allegations of reliance and causation are that “plaintiffs were . . . induced to sell their property for less than market value.” This cannot be construed as a claim to lost opportunity damages.
Only the allegations of the ninth cause of action are susceptible to the broad interpretation offered by the Kubats. There, the complaint incorporates the earlier allegations of breach of fiduciary duty and simply alleges that “[p]laintiffs incurred damages according to proof.” However, an allegation that plaintiffs incurred “damages according to proof” does not permit a plaintiff to scan the legal authorities and pursue any recovery recognized in the law, disconnected from the facts alleged in the complaint. A plaintiff is required to set forth the essential facts of his or her case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source, and extent of the cause of action. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1492.) Thus, the Kubats were obliged to allege facts sufficient to alert Henderson that they were seeking lost opportunity damages, measured by the appreciation of the property between the sale in 2003 and the date of trial. While the Kubats now express a desire to keep their mother’s home in the family and possibly capture the appreciation in value of the property, nowhere in the complaint is there an allegation to that effect. To the contrary, all of the relevant allegations refer to the proposed sale of the property at a price less than the property’s fair market value. Those allegations reflect a claim for out-of-pocket loss, not benefit of the bargain.
We therefore agree with the trial judge who reviewed the complaint and determined: “[T]he key language in the original Complaint . . . appears under the negligence complaint . . . . ‘As a proximate result of such negligence, Plaintiffs lost their family home of over 60 years, were forced to sell the home at below market value, were not properly reimbursed upon the distribution of the proceeds of the sale of the home, and caused Plaintiffs damage in the sum of according to proof.’” The court reasoned: “. . . I feel in legal malpractice in a case such as this, as the Complaint was phrased and as the damages were phrased in the Complaint, the date for the termination of damages would be, at the very latest, on the date of sale to Mr. Cohen on October 8th, 2003.”
The court noted that although some cases hold a plaintiff need not specify in detail all of the damages to the point of absolute certainty, “the Plaintiff cannot, in the other line of cases, shoot out in the dark.” Therefore, the court determined the Kubats’ complaint pled damages consisting of the amount the property was undervalued at the time of sale, not lost business opportunity consisting of the property’s appreciation measured to the date of trial as the Kubats argued during the motions in limine. A careful reading of the complaint supports the trial court’s conclusions.
The Kubats argue that even if their original complaint did not adequately plead lost opportunity damages, the trial court erred in denying them leave to amend their complaint to allege such damages. Ordinarily, courts should exercise liberality in permitting amendments at any stage of the proceeding. Nevertheless, whether such amendment shall be allowed rests in the sound discretion of the trial court, and courts are much more critical of proposed amendments offered after long delay, or where there is a lack of diligence, or prejudice to the other party. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)
“As a general rule, a trial court’s exercise of discretion with respect to amendment of pleadings should be upheld unless clearly abused. Furthermore, where inexcusable delay and probable prejudice to the opposing party is indicated, the trial court’s exercise of discretion in denying a proposed amendment should not be disturbed.” (Avedissian v. Manukian (1983) 141 Cal.App.3d 379, 384.)
The trial court, in denying the Kubats’ motion to amend, noted: “. . . I’m denying it basically on the prejudice involved when the parties had knowledge of the sale [to] Cohen, . . . that sale . . . took place in September of ’05. [¶] So there was plenty of time between September of ’05 and the hearing . . . on March 3rd[, 2006,] to amend, and there was plenty of time between March 3rd and . . . May 2nd . . ., the first hearing on the motions in limine.”
In addition to the Kubats’ delay, the court noted the “serious prejudice” to Henderson “in the fact that a whole new area has been opened up.” The court found that “to grant the amendment of the pleading would require total redeposing of all of the expert witnesses on valuation. That was something which could have been avoided by an earlier act by filing anything, even after March 3rd or after March 17.”
The trial court acted well within its discretion in denying the motion to amend. The amendment, sought on the eve of trial, introduced a new theory of damages. This new theory would, in turn, require additional depositions and expert testimony. A denial of leave to amend “may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party [citations].” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940.)
Nonsuit
Finally, the Kubats contend the trial court erred in granting Henderson’s motion for nonsuit. In reviewing a motion for a nonsuit, we will not disturb the trial court’s decision unless, after interpreting the evidence most favorably to the plaintiff’s case and most strongly against the defendant, and resolving all presumptions, inferences, and doubts in favor of the plaintiff, a judgment for the defendant is required as a matter of law. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799.)
The Kubats argue the trial court’s decision to grant nonsuit prior to their opening statement was procedurally improper. However, while nonsuit motions prior to the plaintiff’s opening statement are disfavored, they are not improper. Where the facts alleged do not state a cause of action, nonsuit is proper. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 305; Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451-452.)
Henderson moved for nonsuit, arguing there was no valuation for the property at the time of the sale in 2003, no expert testimony on the issue of damages, and therefore a failure to establish the necessary elements of malpractice. The trial court granted Henderson’s nonsuit, to which the Kubats acquiesced, “on the basis that there was no foundation for the damage sustained.”
In their complaint, the Kubats claimed damages consisting of the difference between the $329,000 listing agreement and the price the Kubats believed to be the fair market value for the property in 2003. However, as Henderson points out, the only evidence of the value of the property in 2003 was the price it sold for, $277,000, and the offers to purchase made prior to the final offer.
The Kubats’ complaint failed to allege what the fair market value of the house was in 2003, nor did they identify themselves, an appraiser, or any other expert to provide evidence of the value in 2003. The Kubats renew their argument that under sections 813 and 815, their own testimony and evidence of a later sale would have established the value of the property in 2003. However, as we have discussed, the trial court acted within its discretion in excluding this evidence under section 352.
Given the Kubats’ inability to establish their damages arising from Henderson’s alleged malpractice, the trial court did not err in granting Henderson’s nonsuit.
DISPOSITION
The judgment is affirmed. Henderson shall recover costs on appeal.
We concur: SCOTLAND, P.J., BLEASE, J.