Opinion
Superior Court County of Ventura No. CIV227876, William Q. Liebman, Judge
Steve Pell for Defendants and Appellants.
Howe and Holmes, James T. Holmes and Naomi Cohen for Plaintiffs and Respondents.
GILBERT, P.J.
Sellers under a real estate contract appeal a judgment granting buyers specific performance.
FACTS
Eric and Lidia Nicoleyson are licensed real estate agents who own real property in Oxnard. They agreed to sell their Oxnard property to Raquel and Ireneo Rodriguez.
On February 10, 2004, Lidia Nicoleyson arranged for Ticor Title to prepare escrow instructions for the sale. Ticor prepared the instructions as specified by the Nicoleysons. The instructions identified the parties, described the property, stated the purchase price of $485,000 to be paid partly in cash and partly from the proceeds of trust deeds to be obtained by the Rodriguezes, and set a closing date of February 29, 2004. February 29, 2004, was a Sunday. The instructions state that they are the only written agreement. They do not state that time is of the essence.
The Nicoleysons signed the instructions on or before February 18, 2004. The Rodriguezes signed the instructions on February 24, 2004.
Escrow did not close on February 29, as provided in the instructions. By that date, neither party had fully performed. On March 10, 2004, the banker who arranged for the Rodriguezes' loan called Lidia Nicoleyson and informed her the loan documents would be in escrow the next day. On March 12, 2004, the Nicoleysons attempted to cancel escrow by submitting instructions to Ticor. The Nicoleysons never made demand for performance on the Rodriguezes. The first time the Rodriguezes learned of the Nicoleysons' attempt to cancel escrow was when they went to Ticor to sign the loan documents on March 12, 2004. At the time the Nicoleysons attempted to cancel escrow, they had not performed their duty to provide a hazard zone disclosure. The seller's provision of a zone disclosure is a condition of escrow.
The Nicoleysons made a motion for a new trial. The motion is based on a letter from the Rodriguezes' attorney dated March 24, 2004. The letter offers a mutual cancellation of escrow upon payment of the Rodriguezes' attorney fees and costs. The Nicoleysons refused the offer. The trial court denied the motion.
DISCUSSION
I
The Nicoleysons' opening brief on appeal has no table of contents; no table of authorities; no separate headings for points raised; and its statement of facts includes no supporting citations to the record. (See Cal. Rules of Court, rule 8.204(1), formerly rule 14.) In short, there is not the slightest effort to conform to the rules of court. Moreover, the brief contains an affidavit signed by Lidia Nicoleyson stating what she perceives to be the facts of the case. The affidavit was apparently never before the trial court. The brief fails to explain the affidavit's purpose. Our task on appeal is to review the proceedings in the trial court, not to retry the case. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 316, p. 354.)
We could strike the opening brief for failure to comply with the rules of court. (9 Witkin, Cal. Procedure, supra, Appeal, § 602, p. 636.) Instead, we choose to proceed with a consideration of the merits.
II
The Nicoleysons argue there was no enforceable contract because the escrow instructions required escrow to close on a Sunday.
It is true an escrow that requires the recording of documents cannot close on a day on which the recorder's office is not open. But in the absence of an express term in the agreement that time is of the essence or its necessary implication by reason of the nature of the contract, the court will provide the parties a reasonable time in which to perform. (Fowler v. Ross (1983) 142 Cal.App.3d 472, 479-480.) Here the contract did not expressly state that time is of the essence, and there is nothing in the nature of the contract that requires the implication that time is of the essence. Thus it was not necessary to close escrow on February 29, 2004.
For the same reason, the contract did not terminate because the Rodriguezes were not ready to perform on February 29, 2004. The trial court could reasonably conclude the Rodriguezes were tendering their performance within a reasonable time when the Nicoleysons attempted to cancel escrow.
Finally, the Nicoleysons' reliance on the letter from the Rodriguezes' attorney dated March 24, 2004, is misplaced. That letter offered a mutual cancellation of escrow upon payment of the Rodriguezes' attorney fees and costs. Apparently, the offer was never accepted. The Nicoleysons claim the letter constitutes a counteroffer that revokes the original offer. (Citing Wristen v. Bowles (1889) 82 Cal. 84.) Thus, the Nicoleysons conclude there is no contract between the parties.
It is beyond argument that a counteroffer revokes an offer. (See 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 163, p. 200.) But here prior to the March 24, 2004, letter, the parties had a complete contract, not simply an offer. The Nicoleysons cite no authority for the proposition that an unaccepted offer to modify a contract terminates the contract. Indeed, such a proposition is absurd.
The judgment is affirmed. Costs are awarded to respondents.
We concur: YEGAN, J. COFFEE, J.