Affiliated Brokers v. Alexander-Lewis

Filed 1/10/07  Affiliated Brokers v. Alexander-Lewis CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

            This appeal arises out of an action by respondent Affiliated Brokers to recover a real estate commission from appellant Lillian M. Alexander-Lewis,[1] who cross-complained against Affiliated Brokers and others for fraud.  Following a bench trial, the court entered judgment in favor of Affiliated Brokers on the complaint and against appellant on her cross-complaint, awarding Affiliated Brokers damages and costs totaling $24,083.  Appellant claims among other things that the evidence is insufficient to support the judgment.  We affirm.

Factual and Procedural Background

            The lack of an adequate record on appeal hinders our review.  Although appellant attended all four days of testimony the trial court heard in this matter, she listed only two of the four days in her notice designating the reporter's transcript.  As a consequence, we have no transcription for the final two days of trial.  In addition, the record on appeal does not include any of the trial exhibits.[2]  While it appears appellant requested inclusion of the trial exhibits in the clerk's transcript, they were omitted from the record provided to this court.  This deficiency should have been apparent to appellant when she prepared her opening brief in that she was required by the rules of court to support any factual references with citations to the record.  (Cal. Rules of Court, rule  14(a)(1)(C).[3])  Her oversight is not surprising, however, given that the recitation of facts in her opening brief is not only incomplete but also fails to provide record citations for many of the facts alleged.  Although we are empowered to direct the lower court or a party to provide this court with any original trial court exhibits (Cal. Rules of Court, rule  18(d)), taking such action would serve little purpose in this case.[4]  As discussed below, the appeal is so fundamentally deficient that we need not examine the trial exhibits to arrive at our disposition.

            On August 13, 2002, appellant and Affiliated Brokers entered into a listing agreement to sell real property owned by appellant in Oakland.  The listing agreement provided that from August 15, 2002, through October 15, 2002, Affiliated Brokers had the exclusive right to sell the property.  Affiliated Brokers had the right to receive a 5  percent commission based on the sales price if the property sold during the term of the listing agreement or for 30 days thereafter, provided that within five days of the listing period's expiration Affiliated Brokers gave written notice to appellant that it was in negotiations with the purchaser.

            Beginning in August 2002, the listing agent at Affiliated Brokers, respondent Hong Gardner, proceeded to market appellant's property by posting signage, listing the property on the multiple listing service, preparing and distributing fliers, and holding open houses, among other activities.  Although Gardner presented appellant with various offers for the property, as of October 15, 2002, none of the offers was acceptable to appellant.  Affiliated Brokers did not extend the listing agreement before its expiration on October 15, 2002, nor did Affiliated Brokers provide appellant with a list of potential buyers with which it was negotiating as of that date.

            On October 31, 2002, Gardner received a written offer for appellant's property from Martin Acholonu.[5]  Acholonu offered to pay $395,000 with escrow to close within 30 days of the offer's acceptance.  Gardner never actually met Acholonu in person but dealt with someone she identified as â€