Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIE023335 Lillian Y. Lim, Judge.
McDONALD, J.
South Bay Rod and Gun Club (Club) owns land in the Dulzura area on which it operates a shooting range. Club became interested in securing an adjoining property (Property) as a buffer zone for its range. Charles Mitchell Dashiell (Dashiell), then a director of Club and a real estate broker, tried to arrange for Club to acquire the Property. However, because of a lack of financing available to the Club, Dashiell and Club--recognizing the value to Club of having the Property in the hands of a friendly owner--entered into an agreement under which both parties contributed funds to pay the down payment to purchase the Property; and Dashiell acquired title to the Property in his individual name, obtained a loan for the balance of the purchase price in his individual name, and received a five-year option to retain title to the Property on repayment of Club's contributions.
Four years later, Dashiell began making payments to Club to exercise his option. However, when Dashiell tendered his final payment, Club rejected the tender and filed this action alleging claims for specific performance of Club's option to acquire title to the Property, declaratory relief, breach of fiduciary duty, and a determination that Dashiell held the Property as constructive trustee for Club. Dashiell cross-complained for breach of the agreement, for specific performance of his option to retain the Property, for declaratory relief, and to quiet his title to the Property. The matter was tried to the court, which ruled in Dashiell's favor. Club's appeal asserts the evidence is insufficient to support the trial court's decision.
I
FACTUAL BACKGROUND
We are required to view the facts most favorably to the judgment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203.) Because Club's briefs contain a one-sided recitation of the facts supporting its position, without stating facts supporting the ruling, we could deem any contentions regarding the sufficiency of the evidence waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) We instead elect to examine the issues on the merits, although our factual recitation is based on our review of the entire appellate record and bears little resemblance to Club's briefs.
A. The Parties
Club is a nonprofit corporation that owns more than 300 acres of land in Dulzura. Club operates a commercial shooting range on approximately 240 of its acres and the remaining 68-acre parcel is vacant back country land.
Dashiell is a member of Club, and was elected a director in the mid-1970's. He has been Club's business manager for many years. Dashiell is also a licensed real estate broker.
B. The Property
The Property is an approximately 24-acre parcel improved with a residence, barn, outbuilding, orchards, and a swimming pool. Its primary value is as a residence. The Property is situated so that it receives ricocheting bullets from Club's shooting range.
In 1998, Club's directors began discussing the benefits of having the Property owned by someone friendly to Club because the board was concerned that its shooting range could suffer the same fate as another local shooting range, which had been closed because of ricochet problems. The then-owner of the Property, Mr. Scharer, had concerns over the ricochet problem but was reasonably sympathetic to Club's operations.
C. Dashiell's Efforts to Obtain the Property in Club's Name
In 1999, Dashiell noticed the Property was for sale. The board discussed purchase of the Property and expressed concerns it might be acquired by someone hostile to Club's activities. However, the initial listing price of $450,000 was beyond Club's capacity to finance, so the board informally discussed how it might finance a purchase were the price reduced.
Dashiell tried to interest a friend in buying the Property because the friend was a shooter who would have been cooperative with Club, but that effort was unsuccessful.
By June 1999, the board's interest in acquiring the Property was rekindled. The asking price had been reduced to $398,000, and Dashiell began investigating whether Club could obtain a purchase money loan because the board expressed an interest in buying the Property. However, in July, the board voted not to make an offer to purchase the Property because the expenses (including the down payment, monthly loan payments, and related costs) were too high.
However, Club's interest in acquiring the Property was again rekindled during a board meeting in August 1999 at which Dashiell reported on the status of the Property. At that time, the Property was in escrow for sale to an Oregon buyer for approximately $400,000. The lengthy meeting was well attended and was devoted almost entirely to discussing the Property. Dashiell sought directions from the board, and also asked whether the board members would be willing to contribute personal funds to help acquire the Property; no one stepped forward to offer funds. By the end of the meeting, the board directed Dashiell to keep it informed about the Property.
During the next month, Dashiell continued to pursue two alternatives to enable Club to acquire the Property. First, although the Property was in escrow for sale to the Oregon buyer, he continued to negotiate with Scharer's agent on Club's behalf. Dashiell worked "backward" to negotiate a lower price using the net proceeds Scharer would receive from the pending sale and agreeing to waive the sales commission to which Dashiell would be entitled to reduce the gross price.
Second, Dashiell attempted to find lenders to finance the purchase by Club. Dashiell directly contacted potential lenders, and received promising responses but no commitments. Dashiell also approached a loan broker, Mr. Carter, about finding a loan for Club. Carter had successfully worked with Dashiell on several residential loans and, although Carter's primary practice involved residential loans, he also could handle commercial loans. Carter had at least 300 lenders on his company's approved list, and had access to other publications listing lenders and the types of loans they made. Dashiell provided Carter with the purchase price, Club's financial information (including the fact Club owned other property that could serve as collateral), and confirmed Club could make the monthly loan payments. Carter found seven to 10 lenders that could potentially fund a loan to Club, but after Carter contacted them he learned none were interested, and so informed Dashiell. The primary obstacles were Club's nonprofit status and its limited funds for the down payment. Carter testified he made diligent and reasonable efforts to find a lender for Club (and was financially motivated to find a lender because Carter was paid on commission) and Dashiell encouraged Carter's efforts to find a loan and never interfered with his efforts.
An additional obstacle was that the lenders' processes for a commercial loan might not fit the transaction because it could take three months to finalize and fund a commercial loan.
At a Club board meeting on September 9, Dashiell told the board the sale to the Oregon buyer might have fallen through, and Club could probably purchase the Property for $375,000. The consensus of the board was to proceed if possible. Dashiell immediately informed the listing broker that Club was interested in buying the Property for $375,000, and submitted a formal offer on Club's behalf to buy the Property that included, among other things, a 45-day escrow. Scharer reduced the escrow period and informed Dashiell that, subject to the expedited escrow, Scharer accepted the offer. Dashiell immediately notified Club's president (Mr. Small) and secretary (Mr. Boyd), who were pleased. Small set a special board meeting for September 14, 1999, to discuss financing the purchase. Escrow for Club's purchase of the Property opened on September 13, and Dashiell deposited $3750 of Club funds into the escrow.
After Scharer accepted Club's offer, Dashiell intensified his efforts to find a willing lender, but this proved difficult. Dashiell was also in frequent contact with Carter, and was satisfied Carter was diligently trying to find a lender for Club. In addition to Carter, Dashiell recontacted three other brokers who had previously suggested a loan would be possible, but they declined to pursue the loan after Club's offer was accepted.
The difficulties in finding financing led Dashiell to begin considering less conventional alternatives to fund purchase of the Property. He considered forming an investor group. He also considered whether he and his wife could personally provide funding from his retirement account. In preparation for the special board meeting, Dashiell prepared a term sheet to discuss with the board. The term sheet described the closing costs, cash needs, and monthly expenses for the Property, including loan payments. It also contained an outline of a proposal by Dashiell personally to acquire the Property in which he would contribute $20,000 at 6 percent interest, have a five-year option to retain the Property, and Club would have a right of first refusal on any future sale if Dashiell exercised the option.
D. The Board-Approved Agreement
At the September 14 special board meeting, 12 or 13 of Club's directors attended. Dashiell distributed the term sheet and the directors discussed various proposals for purchase of the Property.
As of that time, Dashiell had been unable to obtain a commitment for an acquisition loan. Only one lender expressed a potential willingness to make a loan, but it was only a three-year loan that was not considered a viable option because the Club had no visible exit strategy at the end of the third year. Moreover, Club's acquisition required an initial funding (for the down payment and closing costs) that would have left Club with insufficient cash to continue operations. It appeared Club would need $20,000 to $30,000 in "new" money to complete the purchase.
Small had made informal inquiries of knowledgeable persons and was satisfied about the reasons Club was having difficulty finding a willing lender.
The board discussed various ways of raising the required new money, including making personal contributions, putting up personal property as collateral, or asking the membership for funds. The directors also discussed (and rejected) forming a cooperative among themselves to pool a loan to Club. However, by the end of the meeting, it was clear the directors were unwilling to advance personal funds, and Dashiell (based on his long experience with Club) concluded members would not step forward if the directors were unwilling to take the lead.
The board recognized time was running short, and the board's overriding concern was to have the Property in friendly hands because Club's entire operation would be jeopardized were the Property acquired by someone hostile to Club. Accordingly, after exhausting other possible financing methods, the board considered Dashiell's term sheet.
Scharer had contracted to buy other property and needed to sell the Property to fund his new purchase.
Although the board wanted to protect the shooting operation, the directors also discussed that the Property, because it was extensively developed, would require a level of maintenance unlike the property Club already owned.
Dashiell, cognizant that his roles as a director and as a broker raised potential conflicts of interest, carefully explained the full ramifications of his involvement, including taking title to the Property in his own name and acquiring it with a loan using his own credit. He proposed to provide $30,000 of his own money, and Club would provide $50,000, and he would take title in his own name and secure a loan in his own name for the balance of the purchase price. He would have an option, exercisable in the first five years, to retain the Property on condition he repay Club for its contributions. The board understood that, if this option were pursued, Dashiell would take title in his own name, using funds contributed jointly from Dashiell and Club for the down payment and closing costs, and with a loan in Dashiell's individual name. The board also extensively discussed the terms of the option.
The board reached a consensus that Dashiell should move forward to acquire the Property in any way possible, including acquiring it under the terms discussed for Dashiell's individual acquisition.
E. The Closing
The following day, Dashiell and Carter discussed the matter and concluded they did not have two or three weeks to decide how to obtain a commercial loan to allow Club to acquire the Property. However, Carter concluded Dashiell could get a loan in his individual name, and recommended changing the loan to reflect a residential financing transaction. Accordingly, they changed the escrow to show Dashiell to be the buyer, as required by the lender, and Dashiell submitted the requisite loan application.
Club provided $50,000 of its funds, and Dashiell provided $30,000 of his personal funds, to make the down payment for purchase of the Property. At Club's regular board meeting on October 13, 1999, Dashiell reported on the status of the acquisition. He told the board the purchase would close in two days, title would be in his name and listed as his residence, the final price was $375,000, and monthly payments would be between $3000 and $3500. The board had discussed and weighed the detriment to Club of tying up $50,000 of Club funds for five years against the benefits to Club. The benefits considered by the board included (1) ensuring the ricochet problem would not imperil the Club by alienating a hostile owner, (2) Club would receive a five-year window to solve the ricochet problem, and (3) Club would receive full use of the Property and its improvements (including use of the home as a clubhouse and for teaching classes).
The parties provided documentation of these contributions by executing promissory notes in favor of each other. Dashiell gave a note to Club for $49,125.47 (reflecting a refund of approximately $875 that proved unnecessary for the final closing costs), and Club gave Dashiell a note for $30,000.
The board's minutes referred to Club's name on the grant deed, but that was in error because Dashiell clearly explained to the board that title was in his name. It took several sets of minutes before the secretary for Club was able to correctly reflect what had transpired at that meeting.
F. Subsequent Memorialization of the Agreement
After the closing, Mr. Schmidt (Club's vice-president), began objecting that Club's name was not on the title, but he was apparently the only board member raising any objection. At a February 2000 meeting, held to determine whether Club could refinance and buy the Property, Schmidt brought an attorney to assist Club with an agreement between Club and Dashiell. At that meeting, the consensus reaffirmed the decision to adopt Dashiell's plan and his option to retain the Property, and the group discussed drafting an agreement that memorialized the terms of the relationship between Club and Dashiell concerning the Property.
After the meeting, the attorney generated a draft agreement. That draft underwent several iterations discussed at several board meetings, and changes were requested and inserted at the request of Dashiell, Club, and Schmidt. Ultimately, in July 2000, Dashiell and Club entered into two agreements: a Property Disposition Agreement and a Lease Agreement. The latter called for Club to lease the Property for five years, retroactive to October 1999, and to pay (as rent) the expenses of maintaining the Property.
The Property Disposition Agreement recited that Dashiell had acquired ownership in the Property, with the unanimous consent of the officers and directors of Club at the September 14 and October 13 board meetings, the purpose of which was to ensure the owner of the Property would be friendly to Club's interests, which the board had concluded was "absolutely necessary to insure the future of" Club. The Property Disposition Agreement then set forth the terms giving Dashiell an option to retain the Property, and granting Club an option to acquire the Property after the five-year term of Dashiell's option expired, and also giving Club a right of first refusal if Dashiell (after exercising his option) wanted to sell the Property. Schmidt signed the Property Disposition Agreement as President of Club, and Small (the past president) signed it understanding that it accurately reflected the agreement discussed and approved in September 1999.
At the same time the board entered the Lease and Property Disposition Agreements, the board and Dashiell signed a letter to be delivered to Club members explaining the transaction. The letter, signed by six officers (including the 1999 and 2000 presidents and the treasurer) and nine directors (other than Dashiell), recited the letter represented "a fair recounting of the circumstances leading up to the purchase." The letter explicitly recited, in describing the October 13, 1999, board meeting, that Dashiell reported before the closing that Club's name would not be on the deed, the loan would be in Dashiell's name and the lender had made the loan on the assumption the Property would be Dashiell's residence. It also recited that the basic agreement reached in 1999 (and confirmed in 2000) involved Dashiell having a five-year option to retain the Property, with Club having full use of the Property during that option period. The letter informed the members that the agreements were available for inspection, as were all of the underlying documentation, board minutes and notes.
At the annual membership meeting in 2001, the members received a report about the Property Disposition Agreement and the Lease Agreement. The members thereafter ratified the actions of the board for 2000.
G. The Dispute Arises
In November 2003, more than three years after signing the formal Property Disposition Agreement, Dashiell began making payments to Club to exercise his option to retain the Property. During the next nine months, Dashiell made a series of payments totaling $40,000. However, when Dashiell tendered his final installment to satisfy the remainder due Club under the agreement, Club rejected the tender and filed this action.
II
THE LITIGATION
A. The Lawsuit
Club filed this action alleging (1) Dashiell violated the fiduciary duties he owed as a director of and real estate broker for Club by acquiring the Property in his individual name, and (2) Club was entitled to specific performance of its rights under the Property Disposition Agreement. Dashiell's cross-complaint alleged he was entitled to the Property under the option contained in the Property Disposition Agreement, and sought declaratory relief, specific performance and to quiet title.
At trial, Club's theory was that Dashiell had not adequately pursued financing that would have allowed Club to acquire the Property, and instead had taken title to the Property in his individual name without first fully disclosing the facts to Club's board and on terms unfair and unjust to Club. Dashiell disputed these claims, and alleged he had properly exercised his option to retain the Property and was entitled to specific performance of the agreement.
Dashiell also alleged Club's claims were barred by the three-year statute of limitations for fraud or the four-year statute of limitations for breach of fiduciary duty. Club asserted the five-year statute of limitations (Code Civ. Proc., § 318), applicable to claims seeking recovery of real property, was governing because Club sought to impose a constructive trust on the Property. The trial court concluded Club's claims were time barred. Although the trial court's ruling on the applicable statute of limitations appears correct, it is unnecessary to address Club's claims of error as to this ruling because we conclude there is substantial evidence to support the trial court's rulings that Dashiell did not violate his fiduciary obligations and was entitled to enforce the option. Additionally, our disposition makes it unnecessary to reach Club's appellate claim that the trial court abused its discretion when it refused Club's motion for new trial to allow introduction of evidence on tolling of the statute of limitations.
B. The Statement of Decision
The trial court found (1) Dashiell had satisfied his burden of proof to show he disclosed to Club's board every significant aspect of the transaction before he entered into the agreement with Club to acquire the Property on the terms embodied in the Property Disposition Agreement, (2) the transaction was fair and reasonable as to Club, and (3) Dashiell met his fiduciary obligations in attempting to arrange financing for the transaction. The court's findings included the following:
A. Dashiell informed the board in September 1999 it was difficult to get financing for a nonprofit organization such as Club, additional outside funds would be required to fund the down payment, and Dashiell was willing to assist the acquisition if he received an option to purchase. He disclosed the conflicts of interest to the board and, after the board discussed the material terms (e.g. the option, the respective contributions of Dashiell and Club, and other material terms ultimately embodied in the Property Disposition Agreement), the board authorized him to proceed to acquire the Property.
B. Dashiell sought commercial loans to allow Club to obtain the Property, and was not negligent in pursuing such loans, and Dashiell kept Club fully informed about his progress.
C. Before the escrow closed, Dashiell informed the board that he would be obtaining title in his individual name, using the respective contributions of the parties and subject to his option, and the board ratified his actions.
D. The Property Disposition Agreement, the product of a group effort, contained the broad terms authorized by the board before the close of escrow but added specificity as to its terms.
E. The Property Disposition Agreement was just and reasonable as to Club within the meaning of Corporations Code section 7233.
F. Dashiell properly exercised the option and was entitled to the Property under the terms embodied in the Property Disposition Agreement.
III
ANALYSIS
A. Breach of Fiduciary Duties Claims
The court found against Club on its claims that Dashiell breached the fiduciary duties he owed as a director of and real estate broker for Club. The parties agree our review of the trial court's findings on Club's claims for breach of fiduciary duty is limited to determining whether substantial evidence supports the findings.
A director of a nonprofit mutual benefit corporation may enter into a transaction with the corporation when the transaction (1) is authorized or ratified by a board informed of the material facts and (2) is just and reasonable as to the corporation at the time it is approved or ratified. (Corp. Code, § 7233, subd. (a)(2).) The court found the transaction (later memorialized in the Property Disposition Agreement) satisfied Corporations Code section 7233.
There is substantial evidence to support the conclusion the transaction was approved or ratified by an informed board. Dashiell's evidence showed it was approved by Club's board in September 1999, after a full exploration of alternatives, as an alternative plan if Dashiell could not timely arrange a loan for Club to acquire the Property in its own name. It was ratified by Club's board in October 1999 when it learned Dashiell had not been able to obtain a loan for Club and therefore proceeded to acquire the Property in his own name and on his own credit, as authorized by Club's board. Finally, it was approved by the board (after it had consulted with an independent attorney) when it decided to enter the formally memorialized agreements (the written Property Disposition Agreement and Lease Agreement), and this decision was subsequently ratified by the membership.
Club argues there is no evidence to support the finding the board's approval or ratification satisfied Corporations Code section 7233 because the material facts were not known to the board. Club asserts that because its expert testified Club could have obtained a commercial loan to acquire the Property, in a sufficiently timely fashion and on terms that would have allowed Club to fully fund the down payment, the board was misinformed on the material facts when it approved the transaction. However, the trial court's ruling necessarily encompassed a rejection of Club's expert's contention. There was substantial evidence to support the court's disbelief of Club's expert, ranging from bias and foundational problems with the expert's opinion in contrast to the contrary evidence provided by Dashiell that he had sought commercial loans (both personally and through a loan broker) but had been unable to timely obtain a commitment for a commercial loan. Because "[t]he credibility and weight of the expert testimony was for the [trier of fact] to determine, and it is not up to us to reevaluate it" (People v. Flores (2006) 144 Cal.App.4th 625, 633), there was substantial evidence to support the trial court's conclusion the board was fully apprised of the material facts when it approved the transaction in compliance with Corporations Code section 7233.
The same analysis compels us to reject Club's argument that the trial court erred in finding Dashiell did not breach his fiduciary obligations in his capacity as Club's real estate broker. A real estate broker owes the principal fiduciary obligations, which include the duty to act in the highest good faith toward the principal, and requiring the broker to make fullest disclosure of all material facts concerning the transaction that might affect the principals decision. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 782.) However, the agent may enter into transactions with the principal as long as " 'he acted in perfect good faith, revealed all material facts, and paid an adequate consideration' " (Helbing v. Helbing (1948) 89 Cal.App.2d 224, 227), which essentially mirrors the fiduciary obligations owed by a director under Corporations Code section 7233. The same substantial evidence supports the same conclusions that Dashiell acted in good faith, revealed all material facts, and the transaction was fair as to his principal. Therefore the trial court's rejection of Club's claim that Dashiell breached his fiduciary duty as a real estate broker must be affirmed.
Club also peremptorily contends there is no evidence the transaction was just and reasonable to Club because it paid all of the expenses of the Property, and made a five-year interest free loan to Dashiell, while Dashiell had use of the Property and its improvements as his weekend retreat. However, Club cites nothing in the record to support its claim that Dashiell used the Property as his personal "weekend retreat"; instead, the Lease Agreement gave Club the right to use the Property. Moreover, the board discussed and agreed an overriding benefit flowed to Club from getting the Property into friendly hands: it preempted having Club's shooting operation jeopardized by having a hostile person obtain the Property. Finally, the transaction had collateral benefits to Club: it allowed the Property to be obtained less expensively (because Dashiell waived his commission); it bought time for Club to solve the ricochet problem; it insulated Club from loss by placing the risk of depreciation on Dashiell (a risk that apparently manifested when a 2002 appraisal valued the Property at $30,000 less than the purchase price; and it granted Club a limited option (if Dashiell did not exercise his option) as well as a right of first refusal if Dashiell (after acquiring the Property) sought to sell it. Because Club reaped significant benefits at minimal expense, there is substantial evidence to support the finding the transaction was just and reasonable at the time it was approved or ratified.
B. The Contract Claim
Club asserts the court erred when it concluded Club was not entitled to acquire the Property from Dashiell, pursuant to the option clause in favor of Club, after Dashiell elected to exercise his option. The trial court rejected this claim by finding that Club's option was not independent from or superior to Dashiell's option.
Legal Standards
When a court interprets a written instrument, its fundamental goal " 'is to give effect to the mutual intention of the parties.' [Citations.] The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]" (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912.) On appeal, the appellate court "is not bound by a trial court's construction of a contract where (a) the trial court's contractual interpretation is based solely upon the terms of the written instrument without the aid of extrinsic evidence; (b) there is no conflict in the properly admitted extrinsic evidence; or (c) [] the trial court's determination was made on the basis of improperly admitted incompetent evidence. [Citation.] By the same token, however, where the interpretation of the contract turns upon the credibility of conflicting extrinsic evidence which was properly admitted at trial, an appellate court will uphold any reasonable construction of the contract by the trial court." (Id. at p. 913.)
Analysis
The Property Disposition Agreement provided in Paragraph 7A that, "[a]t any time prior to October 12, 2004," Dashiell could make specified payments "and retain ownership of the Property," subject to his agreement in Paragraph 7D that he would "not offer the Property for sale to anyone other than the Club prior to 1 January, 2005" and would give Club a first right of refusal on any future sale of the Property. It then provided, at Paragraph's 7B and 7C, that "on or after October 12, 2004," but expiring January 1, 2005, Club would have the option to cash out Dashiell. Club argues that the option clauses, when properly interpreted, granted Club an unqualified right to acquire title to the Property even after Dashiell exercised his paragraph 7A option.
However, the extrinsic evidence supports the trial court's construction that Dashiell's exercise of his option extinguished Club's option. The evidence showed the parties discussed and agreed that, under the option clauses, Dashiell's financial involvement (e.g. co-funding the down payment and obtaining the loan on his own credit) was in exchange for a "five[-]year option to acquire title to the property" on cashing out Club's financial contributions, and "should he acquire title to the property, he would give the club a first right to purchase the property if at some time in the future he should want to dispose of it." As the July 2000 letter to Club members confirmed, the "basic agreement . . . is now and has always been . . . centered around a [five-]year option period during which [Dashiell] would have the right to assume ownership of the [P]roperty [and] . . . if [Dashiell] does not exercise the option" Club could obtain ownership. This fundamental intent would be eviscerated under Club's construction, because Dashiell's right to acquire ownership would be converted into the mere right to hold title for fewer than three months.
Moreover, Club's construction is contrary to the interpretative canon that a contract should not be construed in a manner that renders portions of the contract mere surplus age. (Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, 503.) If Club's option survived Dashiell's exercise of his option, as Club asserts, the clause in which Dashiell agreed not to "offer the Property for sale to anyone other than the Club prior to January 1, 2005" would become meaningless because Club could preempt any pending sale during that period by exercising its surviving option.
We conclude the trial court's construction of the effect of Dashiell's option on Club's option was correct, and therefore the court correctly rejected Club's claim for specific performance or breach of contract against Dashiell.
DISPOSITION
The judgment is affirmed. Dashiell is entitled to costs on appeal.
WE CONCUR: HALLER, Acting P. J., AARON, J.