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Seager-Eason v. Smith

California Court of Appeals, Second District, Second Division
Sep 16, 2008
No. B197596 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. LC072614. James A. Kaddo, Judge.

Law Offices of David Drexler and David Drexler for Plaintiff and Appellant.

Jones & Ayotte and Gregory A. Jones for Defendant and Respondent.


DOI TODD, J.

Irene Jessie Seager-Eason appeals from the judgment entered in favor of respondent Diane Grace Smith in this quiet title and partition action involving two real properties. Following a bench trial, the court determined that appellant and respondent each owned an undivided one-half interest in both properties, and granted respondent’s request for partition of the properties by sale. Appellant contends that the trial court erred by (1) precluding parol evidence of a prior oral agreement; (2) finding respondent had title to one of the properties based on the terms of a grant deed; (3) denying her motion for leave to amend the complaint to conform to proof; and (4) denying her request to post late jury fees. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The Calabasas Property

In 1989, appellant and her husband purchased a residence at 4032 Cottonwood Grove Trail in Calabasas, California (the Calabasas property) for $256,500. Nearly ten years later in 1998, appellant and respondent met while working together at the same middle school and began a romantic relationship. They were each still married. Appellant’s husband moved out of the Calabasas property in March 1999 and respondent moved in later the same month. As part of her subsequent divorce settlement, appellant received the Calabasas property in exchange for which she paid her husband $50,000.

On November 19, 1999, appellant and respondent entered into a two-page written agreement regarding the Calabasas property that was prepared by an attorney. The agreement defined the Calabasas property as “residence.” Under “Recitals,” the agreement stated: “[Respondent] wishes to purchase and [appellant] wishes to sell a one-half interest in the residence.” Under the heading “Transfer of Interest in Residence,” the agreement provided that respondent would pay appellant the sum of $50,000 in exchange for obtaining a 50 percent interest in the Calabasas property; that the parties were to each pay half the expenses, including the mortgage, property taxes, utilities, maintenance, improvements and repairs while the agreement was in effect; that either party could terminate the agreement upon 30 days’ written notice to the other; and that upon termination of the agreement, “the parties shall list the residence for sale, shall cooperate to sell the residence for the best price and shall equally divide any net proceeds of the sale.” The agreement further stated that it contained “the entire agreement between the parties.”

While the parties dispute whether respondent paid her share of the expenses on the Calabasas property, there is no dispute that respondent provided appellant $50,000 which appellant used to pay her husband in the divorce proceeding. There is also no dispute that appellant executed a quitclaim deed on the same date the agreement was executed, quitclaiming a 50 percent interest in the Calabasas property to respondent, and that this quitclaim deed was never recorded.

In 2003, appellant refinanced the Calabasas property to take advantage of lower interest rates. Because the lender required a cosigner, respondent’s father, Wayne Garlock, agreed to cosign the loan. Neither he nor respondent contributed any money toward the refinancing. By grant deed recorded on February 7, 2003, appellant granted the Calabasas property to herself and Mr. Garlock as joint tenants. Three days later, on February 10, 2003, appellant recorded another grant deed in which she and Mr. Garlock granted the Calabasas property to herself and respondent as joint tenants.

The Oxnard Property

In 2001, appellant purchased a residence located at 2204 Jamestown Lane in Oxnard, California (the Oxnard property) for $545,000. The down payment consisted of $50,000 from appellant’s savings and a $100,000 equity loan on the Calabasas property. According to appellant, the Calabasas property was worth $500,000 at that time. Mr. Garlock cosigned the loan. Neither he nor respondent contributed any money toward the purchase price. Title to the Oxnard property was taken by appellant and Mr. Garlock as tenants in common, with appellant holding a 99 percent interest and Mr. Garlock holding a one percent interest. On June 29, 2001, the day after this grant deed was recorded, another grand deed was recorded in which Mr. Garlock granted his interest in the Oxnard property to appellant.

In 2003, appellant also refinanced the Oxnard property and Mr. Garlock again cosigned the loan. Again, neither he nor respondent contributed any money toward the refinancing. By grant deed recorded on January 31, 2003, appellant granted the Oxnard property to herself and Mr. Garlock as joint tenants. Appellant and Mr. Garlock then granted the Oxnard property to appellant and respondent as joint tenants, by grant deed recorded on February 10, 2003.

Although appellant purchased the Oxnard property with the intention that her parents would live there, they never moved in. Instead, appellant and respondent moved into the Oxnard property, and appellant rented the Calabasas property. Respondent moved out of the Oxnard property in 2004 and the parties ended their relationship.

The Complaints

In September 2005, appellant filed a complaint against respondent alleging seven causes of action for fraud, interference with economic relationship, infliction of emotional distress, quiet title, removal of cloud on title, slander of title and assault and battery. This last cause of action was settled by the parties and dismissed prior to trial. Respondent filed a cross-complaint against appellant alleging four causes of action for quiet title, partition of real property, breach of contract and accounting. Respondent eventually dismissed her last two causes of action.

Jury Fees

On the first day of the two-day trial, it was brought to the court’s attention that appellant had failed to post the required jury fees. Appellant’s attorney represented that it was an oversight on the part of his office and he presented a check for the amount of fees. Respondent orally waived her right to a jury trial. The court denied appellant leave to post late jury fees, ordering the matter to proceed as a bench trial. On the second day of trial, appellant filed in this appellate court a petition for writ of mandate, which was dismissed the same day for failure to file the certificate of interested parties.

Parol Evidence

On the first day of trial, respondent testified that she made handwritten notes prior to the parties’ November 19, 1999 agreement, which stated in part: “If we go [our] separate ways, [respondent] to be paid $50,000 plus one-half appreciation from September 1, 1999.” Appellant’s attorney argued that these notes were evidence that the parties had a separate oral agreement regarding division of the Calabasas property, that the November 19, 1999 agreement was invalid because it did not have all of the material terms necessary for a binding sale agreement, and that the November 19, 1999 agreement was ambiguous in nature. The court sustained objections to further questioning about the notes and, after much argument by counsel, concluded that the November 19, 1999 agreement was not ambiguous and did not need to be explained by any extrinsic evidence. The next day, the court nevertheless allowed appellant to testify that she did “not really” review the November 19, 1999 agreement as it was dictated to the attorney by respondent, and that it was her understanding that the November 19, 1999 agreement was a loan agreement, that she had 30 days to repay respondent $50,000, and that if she failed to do so respondent could record the quitclaim deed, put the Calabasas property up for sale and get her money back. Appellant also testified that it was not her understanding that respondent would own half the Calabasas property for a payment of $50,000, and that respondent was made a joint tenant of the property so that she would be protected if appellant died. The court later admitted respondent’s handwritten notes into evidence.

Motion for Leave to Amend Complaint

During trial, the court provisionally allowed appellant to introduce evidence that she had paid approximately $116,000 in expenses on the Calabasas property, as a possible offset to respondent’s claim for breach of contract, which was later dismissed. At the end of trial, appellant moved the court for leave to amend her complaint to add a cause of action for breach of contract to conform to proof at trial, arguing that based on the evidence she presented at trial she should be allowed to allege that respondent had breached the November 19, 1999 agreement by failing to pay her share of the expenses on the Calabasas property. Respondent opposed the motion. The court denied the motion on the grounds that the proposed amendment was attempting to add new facts and new theories not presented in the original complaint and that respondent would be prejudiced in defending against such a claim because she did not have “the opportunity to verify the amounts that were allegedly paid.”

The Decision

The court issued a notice of intended decision and findings of fact, finding that as to the parties’ quiet title causes of action, appellant and respondent each owned an undivided one-half interest in the properties. The court also found that the November 19, 1999 agreement contained no ambiguities and that resort to extrinsic evidence was therefore improper, but did not make any findings on whether the November 19, 1999 agreement was integrated. The court granted respondent’s request for partition of the properties by sale. The court then entered its interlocutory judgment. The judgment stated that the basis for the court’s finding that respondent was a joint owner of the Calabasas property was the parties’ November 19, 1999 written agreement, the unrecorded quitclaim deed and the grant deed recorded on February 10, 2003. The judgment stated that the basis for the court’s finding that respondent was a joint owner of the Oxnard property was the grant deed recorded on February 10, 2003. The court also granted judgment in favor of respondent on appellant’s remaining causes of action. This appeal followed.

Under Code of Civil Procedure, section 904.1, subdivision (9), an appeal may be taken from an interlocutory judgment in an action for partition determining the rights and interests of the respective properties and directing partition to be made.

DISCUSSION

I. Jury Trial Waiver

Appellant contends that she was denied her constitutional right to a jury trial under article I, section 16 of the California Constitution. She argues that the trial court abused its discretion in denying her leave to post late jury fees because respondent would have suffered no prejudice from having the case heard by a jury.

Code of Civil Procedure section 631, subdivision (b) provides that each party demanding a jury trial shall deposit advance jury fees with the clerk or judge at least 25 calendar days before the date initially set for trial. Subdivision (d)(5) provides that a party may waive a jury trial by failing to deposit the advance fees. After a party waives the right to a jury trial, the court has “discretion upon just terms” to allow a jury trial. (Code Civ. Proc., § 631, subd. (e).)

Ordinarily, where there has been a failure to post the required jury fees, there must be a showing of prejudice to the party opposing the jury trial in order for the court to properly deny the request for relief from waiver. (Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810.) “‘A trial court abuses its discretion as a matter of law when “. . . relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.]”’” (Id. at p. 811.) But where the challenge to the denial of relief from the waiver of a jury trial is brought after judgment, as here, the appellant must show actual prejudice. (McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363.) “‘Reversal of the trial court’s refusal to allow a jury trial after a trial to the court would require reversal of the judgment and a new trial. It is then reasonable to require a showing of actual prejudice on the record to overcome the presumption that a fair trial was had and prejudice will not be presumed from the fact that trial was to the court [rather than] to a jury.’” (Ibid.) To the contrary, “it is presumed that the party had the benefit of a fair and impartial trial as contemplated by the Constitution.” (Ibid.) Thus, a petition for writ of mandate is the proper remedy to secure a jury trial where it is allegedly being improperly withheld by a trial court. (Id. at p. 364.)

Although appellant immediately filed a writ petition after the trial court’s denial of relief from her waiver of a jury trial, the petition was dismissed for failure to file the certificate of interested parties. And because appellant fails to address her burden of showing actual prejudice, the trial court’s ruling must stand.

II. The Calabasas Property

Appellant contends that the trial court erred in finding that respondent owned an undivided one-half interest in the Calabasas property pursuant to the parties’ November 19, 1999 written agreement. She argues that the trial court improperly precluded parol evidence of the parties’ prior oral agreement regarding division of the property in the event the parties separated, as reflected in respondent’s handwritten notes. According to appellant, the November 19, 1999 agreement was not fully integrated and therefore such parol evidence was admissible.

California’s parol evidence rule is codified in section 1856 of the Code of Civil Procedure. Subdivision (a) of section 1856 provides: “Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement.” Under subdivision (d), “[t]he court shall determine whether the writing is intended by the parties as a final expression of their agreement with respect to such terms as are included therein and whether the writing is intended also as a complete and exclusive statement of the terms of the agreement.” (Code Civ. Proc., § 1856, subd. (d).) Thus, the issue of whether an agreement is an integration is a question of law. (Esbensen v. Userware Internat., Inc. (1992) 11 Cal.App.4th 631, 638, fn. 4; Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 805.) And where, as here, the trial court makes no finding on whether the contract at issue is integrated, the issue of integration is for the appellate court to determine. (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 314.)

In deciding the foundational question of integration, we may look to various factors such as the writing itself, including whether the written agreement appears to be complete on its face and/or contains an integration clause; whether the alleged oral understanding on the subject matter at issue might naturally be made as a separate agreement; and the circumstances surrounding the time of the writing. (Masterson v. Sine (1968) 68 Cal.2d 222, 225–226; Esbensen v. Userware Internat., Inc., supra, 11 Cal.App.4th at p. 637.) “‘When only part of the agreement is integrated, the [parol evidence] rule applies to that part.’” (Slivinsky v. Watkins-Johnson Co., supra, 221 Cal.App.3d at p. 805.)

Here, the November 19, 1999 agreement expressly states: “This AGREEMENT contains the entire agreement between the parties.” Appellant argues that this statement is “a far cry from a standard integration clause.” But appellant never made this argument to the trial court and never attempted to focus the court’s attention on this provision or, indeed, on the issue of integration. She also argues that the parties’ understanding as to how the property should be divided upon their separation would naturally be made as a separate agreement. But, again, appellant points to no place in the record where she made this argument to the trial court. Arguments and theories not raised in the trial court will not be considered on appeal. (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.)

But even if we were to consider these arguments, we would find they have no merit. “[O]bviously, the presence of an ‘integration’ clause will be very persuasive, if not controlling,” on the issue of whether the written agreement appears on its face to be a complete agreement. (Banco Do Brasil, S.A. v. Latian, Inc. (1991) 234 Cal.App.3d 973, 1002–1003.) Moreover, we disagree with appellant that the parties’ understanding as to how the Calabasas property would be divided in the event they separated would naturally be made a separate agreement. Appellant focuses on only part of respondent’s handwritten notes. The remaining notes stated the following: “Paper work to show ½ ownership (Quitclaim) not to be filed until both divorces are final”; “Note that you received $50,000 as payment from me buying ½ interest in house”; and “Property to be held in ‘joint tendency’ [sic] so that house goes to other in case of ____.” The written November 19, 1999 agreement contains provisions entirely consistent with all of these statements: The written agreement provides that respondent wished to purchase, and appellant wished to sell, a one-half interest in the Calabasas property; respondent would deliver the sum of $50,000 to appellant; a deed transferring a one-half interest in the property would be delivered to respondent; and title would be held in joint tenancy. The written agreement then provides how the Calabasas property would be divided in the event either party terminated the agreement, namely, that the parties would equally divide any net proceeds from the sale of the property. It is not reasonable to assume that only part of the parties’ understanding as to the purchase, sale and division of the Calabasas property would be reduced to a writing prepared by a lawyer and not all of their understanding. We therefore conclude that the November 19, 1999 written agreement was intended as a final expression of the parties’ agreement with respect to such terms as are included.

Because the alleged oral agreement that respondent would be paid $50,000 plus one-half the appreciation of the Calabasas property from September 1, 1999 directly contradicts the terms of the written November 19, 1999 agreement that the parties shall cooperate in the sale of the Calabasas property and shall equally divide any net proceeds from the sale, evidence of the oral agreement was properly precluded. (Code Civ. Proc., § 1856, subd. (a); Masterson v. Sine, supra, 68 Cal.2d at pp. 227–230.)

III. The Oxnard Property

Appellant also contends that the trial court erred in finding that respondent owned an undivided one-half interest in the Oxnard property. She claims the trial court reached this conclusion based on two findings—that appellant had obtained an equity loan on the jointly owned Calabasas property in order to fund the purchase of the Oxnard property, and that respondent was listed as a joint tenant on a grant deed recorded on February 10, 2003. She claims that neither of these findings is a proper basis for the court’s conclusion.

As to the first finding, appellant cites to case law for the proposition that “[c]otenants (both joint tenants and tenants in common) may encumber their separate interest without the consent, and without affecting the interest, of other tenants.” (Dieden v. Schmidt (2002) 104 Cal.App.4th 645, 650.) Even assuming appellant’s equity loan on the Calabasas property at a time when respondent was a joint tenant of that property was not a proper basis for concluding that respondent was a joint owner of the Oxnard property, it is not clear that the trial court’s conclusion was based on this finding. The judgment makes no reference to the equity loan, stating only: “As of February 10, 2003, [respondent] held and continues to hold her interest in the Oxnard property as a fee simple owner of an undivided one-half interest, with [appellant], the basis of which is a Grant Deed executed by [appellant] and Wayne Garlock, recorded with the office of the Ventura County Recorder on February 10, 2003 . . . .”

With respect to this second finding, appellant makes the following assertion: “The trial court further erroneously ruled that, because Respondent had been placed on title as a joint tenant that, the deed itself was sufficient enough to satisfy the written agreement required under the Statute of Frauds.” Appellant provides no further analysis or argument, nor any legal authority to support her assertion.

It is not the role of the appellate court to make appellant’s arguments for her. A judgment or order of the lower court is presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Nor is it an appellate court’s role to construct theories or arguments that would rebut that presumption or otherwise undermine the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Likewise, we need not consider an argument for which no authority is furnished. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 350–351.) Accordingly, we conclude appellant has waived her contention that the trial court erred in finding that respondent jointly owned the Oxnard property based on the recorded grant deed.

IV. Breach of Contract

We also find that appellant has waived her contention that the trial court erred in denying her motion for leave to add a breach of contract cause of action to conform to proof at trial. Appellant provides no further argument or analysis in her opening brief, nor does she cite to the applicable statutes or relevant case law. In her reply brief, she appears to be arguing that quiet title actions can encompass contract claims and she cites to various quiet title cases, only one of which deals with contract claims. It does not appear from the record that appellant relied on this authority below and she certainly did not make this argument in her opening brief. “‘Points raised for the first time in a reply brief will not be considered.’ [Citation.]” (Moran v. Endres (2006) 135 Cal.App.4th 952, 956.)

To the extent appellant is attempting to raise additional claims of error, we give these no consideration due to appellant’s failure to adequately raise, argue and support such claims.

DISPOSITION

The judgment is affirmed. Respondent is entitled to her costs on appeal.

We concur: BOREN, P. J., CHAVEZ, J.


Summaries of

Seager-Eason v. Smith

California Court of Appeals, Second District, Second Division
Sep 16, 2008
No. B197596 (Cal. Ct. App. Sep. 16, 2008)
Case details for

Seager-Eason v. Smith

Case Details

Full title:IRENE JESSIE SEAGER-EASON, Plaintiff and Appellant, v. DIANE GRACE SMITH…

Court:California Court of Appeals, Second District, Second Division

Date published: Sep 16, 2008

Citations

No. B197596 (Cal. Ct. App. Sep. 16, 2008)