Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C04-01792
Jones, P.J.
Defendant and appellant Paul Maguire (appellant) appeals the order denying his request for attorney fees following a summary judgment in his favor in plaintiff and respondent Samuel C. Slack’s (respondent) action for breach of contract. Appellant contends the court erred in concluding the agreement sued on did not contain an attorney fee clause.
Appellant elected to proceed by appendix instead of a clerk’s transcript. (Cal. Rules of Court, rule 8.124.) Respondent moved to strike appellant’s reply appendix and the parts of his reply brief that referred to the reply appendix. We deferred ruling on the motion until we considered the merits of the case. We now grant the motion in part. We will strike appellant’s reply appendix and disregard those portions of the reply brief that refer to the reply appendix.
BACKGROUND
Complaint
Respondent’s complaint for breach of contract and specific performance contained the following allegations: On March 30, 2004, he and appellant entered into a written agreement (hereinafter the Agreement), whereby respondent agreed to purchase from appellant a condominium in Maui, commonly known as Maalaea Yacht Marina 205 (for convenience, the Maalaea condo). As additional consideration for the sale of the Maalaea condo, appellant requested that respondent agree to install two granite kitchen countertops, valued together at $10,000, in two other condominiums appellant owned in Maui after escrow closed on the Maalaea condo. Respondent agreed to this additional consideration. “A true and correct copy of this Agreement is attached hereto as Exhibit ‘A’ and incorporated herein by reference.”
Thereafter, in accordance with the agreement, respondent opened an escrow account with a Hawaii title company and tendered $155,000 to appellant to consummate immediately the transaction for the sale of the Maalaea condo.
Respondent performed all promises in accordance with the Agreement, but appellant breached “said agreement” by failing to accept the funds for the purchase of the Maalaea condo after escrow was opened and to sign the documents necessary to close escrow and transfer title to respondent. Respondent remained ready, willing and able to install the two granite countertops at the close of escrow and to pay the agreed upon price for the Maalaea condo. “The consideration set forth in the accord is adequate in that the purchase price for the subject property was negotiated by [appellant] who is sophisticated in real estate transactions[,] and [respondent] has no adequate remedy in the ordinary course of law in that the real property is unique.” Respondent demanded that appellant perform all conditions necessary for the sale and conveyance of the Maalaea condo, but appellant refused to do so.
Exhibit A to Complaint
Exhibit A consists of two pages. Page one is entitled “SALES AGREEMENT MAALAEA YACHT MARINA, MAUI, HI.” It is dated March 30, 2004, and in its entirety states: “Paul Maguire, Trustee agrees to sell to Samuel C. Slack who agrees to buy Maalaea Yacht Marina 205 ‘as is, fully furnished’ for the sum of $155,000 (one hundred fifty five thousand dollars). [¶] Escrow is to close as soon as possible. No financing is required. [¶] All closing costs will be paid by Samuel C. Slack. ¶ AGREED: [¶] Paul Maguire, Trustee SELLER [address] Samuel C. Slack BUYER [address].” Both parties signed the “Sales Agreement” above their typewritten names.
For convenience, this page shall be referred to as the Sales Agreement.
Page two of exhibit A is a preprinted business form captioned “PROPOSAL CONTRACT.” The letterhead on the form is “California Marble & Stone” in Danville. Appellant’s name is handwritten under the form’s preprinted entry “proposal submitted to.” “Maalaea Yacht Marina #901 & #302” is handwritten under the preprinted entry “job name.” The center of the form contains 15 preprinted lines. Handwritten on these lines are the following phrases: “2-Granite Kitchens in Material of Choice @ Calif. Marble[;] Edge 11/2 Full Bullnose[;] Backsplash--Owners Choice[;] Includes Shipping Installation Fabrication & Material[.]”
For convenience, this page shall be referred to as the Proposal Contract.
Under the above handwritten phrases is the preprinted phrase “hereby to furnish material and labor--complete in accordance with the above specifications, for the sum of:” Handwritten under this preprinted phrase is “[$]10,000 PAID IN FULL W/SALE OF #205,” with respondent’s signature on the line for “Authorized Signature.”
On the bottom left of the form below respondent’s signature is a preprinted clause entitled “Acceptance of Proposal,” which states: “The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above.” Immediately to the right of the Acceptance of Proposal is the preprinted phrase “Date of Acceptance,” with “4.2.04” handwritten alongside. Below the “Acceptance of Proposal” and “Date of Acceptance” entries are the preprinted statements: “Payment in full is due upon completion. All past due accounts shall bear interest at the rate of 18% per anum until paid in full. IN THE EVENT LEGAL ACTION IS NECESSARY TO ENFORCE THIS CONTRACT, I WILL PAY REASONABLE ATTORNEY’S FEES AND COURT COST.” The preprinted lines for two signatures under this final sentence are blank.
Summary Judgment
Appellant answered and moved for summary judgment. The order granting his motion states in part: When respondent’s girlfriend presented appellant “with the document captioned ‘Sales Agreement,’ [appellant] introduced a new term to the effect that he wanted the agreement set forth on a California Real Estate Purchase Agreement form.” He also indicated that the document prepared by respondent did not address terms such as the escrow closing date and “which party would pay the note held by Royce.” Appellant “appears to have made a counter-offer to [respondent’s] proposal, and although [appellant] signed the ‘Sales Agreement’ this would constitute a ‘qualified acceptance’ in this instance. [Citation.]” Respondent did “not raise any triable issue[s] of fact regarding [appellant’s] stated understanding of the documents presented to him or of his intention or instruction to [respondent] that the agreement be submitted on a California Real Estate Purchase Agreement form before it be finalized, or in regard to [appellant’s] handwritten notes giving further ‘instructions’ to [respondent] regarding completion of the deal. . . . In addition, the ‘Sales Agreement’ fails to provide any terms in regard to ‘time and manner of payment.’ [Citation.] [Respondent] appears to contend that this term is adequately set forth in that the document provides that escrow will close ‘as soon as possible.’ However, [respondent] himself alleges in the complaint that part of the consideration was the installation of kitchen countertops valued at $10,000, yet the ‘Sales Agreement’ refers only to payment of $155,000, and nowhere does it refer to the ‘Proposal Contract’ for installation of the countertops, nor does either document indicate when the countertops were to be installed. [Citation.]”
The summary judgment pleadings are not in the appellate record.
Mary Royce held a second mortgage on the Maalaea condo.
“In addition, [respondent] alleges in his complaint that part of the consideration for the sale of the condo was his agreement to install two granite countertops. As the evidence is undisputed that [respondent] lacks any kind of contractor’s license in the state of Hawaii[], this consideration is unlawful pursuant to [Hawaii statutes], and [respondent] fails to show that he falls within an exception to this requirement.”
Judgment in favor of appellant on all causes of action was entered May 4, 2006.
Motion for Attorney Fees
In August 2006, appellant moved for an award of attorney fees for the defense of respondent’s action for breach of contract. As grounds for his motion he asserted that the action was based on an alleged contract claim; the contract claim was based on documentation including an attorney fee clause signed by respondent; and the court rendered judgment for appellant based on a finding no binding contract formed, thereby recognizing appellant as the prevailing party. He asserted he had incurred attorney fees of $130,124.09 to date.
Respondent opposed the motion on the grounds appellant was judicially estopped to claim that the contract at issue contained an attorney fee provision. He asserted that appellant had alleged in his motion for summary judgment that the parties never negotiated or agreed on an attorney fee clause, and the installation of the granite countertops was based on an oral agreement. Respondent further asserted that during the litigation of the breach of contract action, appellant took the position that there was never any attorney fee agreement between the parties.
Respondent argued that appellant was not entitled to attorney fees under Civil Code section 1717 because both parties had agreed during the summary judgment proceedings that they had no agreement regarding attorney fees if a dispute arose between them over the Sales Agreement. He also argued that even if the parties had an attorney fee agreement, the statute of frauds would have barred recovery, insofar as the attorney fee provision was not in the written Sales Agreement but on the Proposal Contract, which was signed only by respondent and not incorporated into the Sales Agreement.
Respondent supported his opposition to appellant’s motion for attorney fees with the separate statements of undisputed material facts that each party had submitted to support, and to oppose, appellant’s motion for summary judgment.
Appellant’s undisputed fact number 4 stated that the parties executed a “Written Memorandum” relating to the purchase and sale of the Maalaea condo on March 30, 2004. His undisputed fact number 46 stated: “There was no agreement between [the parties] regarding arbitration or attorney’s fees in the event a dispute arose over the Written Memorandum.”
Respondent’s separate statement of undisputed facts did not dispute appellant’s undisputed fact number 46 except as to his characterization of the March 30, 2004 document as a “Written Memorandum” rather than a “Sales Agreement.”
In its order denying appellant’s motion for attorney fees, the court found that “the provision for attorney fees in the ‘Proposal Contract’ must be construed as applying only to disputes specifically relating to the installation of granite [countertops], and not more generally to disputes relating to the purchase of the condominium. [Citation.]”
DISCUSSION
Appellant contends he is entitled to attorney fees because respondent sued for specific performance of a contract, which, expressly according to respondent’s complaint, consisted of the Sales Agreement and the Proposal Contract, and the latter document contained an attorney fee clause.
“It is ‘solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.’ [Citation.]” (McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1535, quoting Parsons v. Bristol Development (1965) 62 Cal.2d 861, 865.) If the facts are undisputed, the appellate court conducts an independent review of the facts to the applicable law. (Ibid.) However, where the trial court has properly admitted extrinsic evidence to aid the interpretation of a contract and the evidence conflicts, the appellate court will uphold the trial court’s reasonable construction of the agreement if it is supported by substantial evidence. (Ibid.)
Civil Code section 1717 provides that if a contract gives one party the right to recover attorney fees in an action arising out of the contract, but the other party prevails in the action, that other party is also entitled to attorney fees. (Paul v. Schoellkopf (2005) 128 Cal.App.4th 147, 152 (Paul).) Section 1717 also provides that an attorney fee provision in a contract shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract. The parties here were not represented by counsel when they executed the March 30, 2004 Sales Agreement.
The fundamental goal of contractual interpretation is to give effect to the mutual intentions of the parties when they formed the contract. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) If a contract is written, the parties’ intention is to be ascertained from the writing alone, if possible, but a contract may be explained by reference to the circumstances under which it was made and to which it relates. (Civ. Code, §§ 1639, 1647; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.) However broad the terms of the contract, it extends only to those things it appears the parties intended to contract. (Civ. Code, § 1648.) If a written contract fails to express the real intention of the parties through mistake, the parties’ true intention is to be regarded and the erroneous parts of the writing disregarded. (Civ. Code, § 1640; Hess, at p. 524.)
For his assertion that the parties’ mutual intent was to have the attorney fee clause in the Proposal Contract apply to any litigation arising from the sale of the Maalaea condo appellant relied solely on respondent’s allegation in his complaint for breach of contract that the contract on which he was suing was attached as exhibit “A,” which consisted of the Sales Agreement and the Proposal Contract. However, respondent presented evidence of a different intent: the parties’ consensus in their separate statements of undisputed facts that they had no agreement regarding attorney fees if a dispute arose over the March 30, 2004 Sales Agreement. This evidence alone is sufficient to support the trial court’s conclusion that the attorney fee provision of the Proposal Contract was not intended to apply to disputes regarding the sale of the condo.
Other evidence bolsters the trial court’s conclusion. First, the Sales Agreement makes no reference to the Proposal Contract or to anything resembling a similar document meant to be incorporated in the Sales Agreement.
Second, the Proposal Contract itself is a standard form used by California Marble & Stone to propose a “job” for which it will “furnish material and labor.” Typical of the printed proposal form of many building contractors, e.g., plumbers, electricians, roofers, California Marble & Stone’s state contractor’s license, address and telephone numbers are printed at the top of the form. None of the information called for on the form seeks any information related to the sale of real property. The Proposal Contract was signed only by respondent, and on a date different from the Sales Agreement. Respondent signed on the form’s line designated for the person authorized by California Marble & Stone to make the proposal. By its format, the preprinted Proposal Contract contemplates that its attorney fee provision will be effective only if both the party making the job proposal and the party to whom the proposal is submitted sign on the designated lines under the attorney fee clause. These lines are separate from the line for the signature of the person authorized to make the proposal on behalf of California Marble & Stone, and neither party to this action signed on these attorney fee provision lines.
While the Proposal Contract may be related to the sale of the Maalaea condo as indicative of some of the consideration for the sale, the document itself represents respondent’s agreement to install granite kitchens for appellant at a cost of $10,000, with appellant’s payment for the installation job taking the form of the sale of his condo. The relationship of the Proposal Contract to the Sales Agreement is comparable to the relationship to the documents at issue in Paul, supra, 128 Cal.App.4th 147, on which the trial court here relied.
In Paul, the parties signed three documents related to the sale of a parcel of land: a purchase agreement, an addendum, and escrow instructions. (Paul, supra, 128 Cal.App.4th at p. 150.) Only the escrow instructions contained an attorney fee clause. (Id. at p. 152.) Following trial on a complaint and cross-complaint for breach of contract in which the buyers were the prevailing party, the trial court awarded them attorney fees, finding that the escrow instructions were part of the parties’ overall agreement. (Id. at p. 151.) Paul reversed. It observed that the attorney fee provision in the escrow instructions addressed the rights and obligations of the escrow holder as to the buyer and seller, and vice versa. The other two documents, which described the rights and obligations as between buyer and seller, contained no attorney fee clause, reflecting the parties’ intent to limit recovery of attorney fees only to conflicts over the execution of the escrow, which the parties’ dispute did not involve. (Id. at p. 153.)
Here, not only was the Proposal Contract not signed anywhere by appellant, and signed by respondent only in the space provided to propose a job, the Proposal Contract’s attorney fee clause addressed the rights and obligations of California Marble & Stone as installer of the granite kitchen as to appellant as recipient of the installation, and vice versa. Just as the escrow instructions in Paul pertained to disputes regarding the execution of the escrow, the attorney fee clause of the Proposal Contract pertained to disputes between California Marble & Stone and appellant arising from litigation related to the installation of the granite kitchens. It did not address the rights and obligations of appellant and respondent to each other as seller and buyer, respectively, of the Maalaea condo. Thus, it would not pertain to disputes arising from the sale of the condo.
Finally, respondent did not pray for attorney fees in his complaint for breach of contract. Although a failure to specify attorney fees in the prayer does not foreclose a subsequent request (see Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455), it is reasonable to infer that a party suing on a contract would include such a request in his prayer if he understood that the contract was intended to provide them to the party prevailing in the litigation. The absence in the prayer is not dispositive of intent here, but taken together with the other evidence, it reasonably implies the parties’ intent that their agreement regarding the sale of the Maalaea condo did not provide a contractual basis for seeking attorney fees in the event of litigation arising from the sale.
Appellant argues that he is entitled to attorney fees even though he established in the summary judgment proceedings that the purported contract on which respondent brought suit for breach and specific performance was invalid. As a general proposition, appellant is correct, and respondent does not dispute, that “prevailing” in an action on a contract for purposes of Civil Code section 1717 can include demonstrating that the contract is unenforceable. (See North Associates v. Bell (1986) 184 Cal.App.3d 860, 865.) Appellant’s argument begs the question: whether or not the contract sued on here was ultimately unenforceable, did the parties mutually intend when they entered into the agreement for the sale of the Kaalaea condo that their agreement provided for attorney fees in the event of litigation over a dispute regarding the sale of the condo? As discussed, ante, respondent presented credible, uncontradicted evidence that they did not so intend.
DISPOSITION
The order denying attorney fees is affirmed.
We concur: Gemello, J., Needham, J.