Realmuto v. Ross Provence and Assocs

Filed 6/19/07 Realmuto v. Ross Provence and Assocs. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.

Peter Realmuto, representing himself in propria persona, appeals from a judgment entered against him following a bench trial in his lawsuit against real estate broker Ross Provence and Associates (RPA) for breach of contract, professional negligence and breach of fiduciary duty. As we will explain, we conclude that Realmuto's appeal lacks merit. Accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Jeffrey Provence (Provence), a real estate agent with RPA, approached Realmuto to inquire whether he would be interested in selling his real property in Alpine, California, to buyers (the Buyers) who were amassing property for a local Indian tribe that was attempting to develop a casino. The Buyers were represented by a different real estate agent. Realmuto agreed to sell his property to the Buyers for the sum of $683,000. An escrow was opened, but before the transaction closed the Buyers cancelled the transaction.

Realmuto then sued the Buyers for specific performance and breach of contract. Summary judgment was entered against Realmuto on the ground that he had not provided Buyers with a transfer disclosure statement (TDS) as required by Civil Code section 1102 et seq. Realmuto appealed, and this court affirmed the summary judgment in a published opinion. (Realmuto v. Gagnard (2003) 110 Cal.App.4th 193.) We ruled that "Realmuto's failure to deliver a TDS precludes this action against the [B]uyers for specific performance and breach of contract." (Id. at p. 205)

Realmuto then filed this action. Alleging that the missing TDS was the fault of RPA, Realmuto alleged causes of action against RPA for (1) breach of contract; (2) professional negligence; and (3) breach of fiduciary duty.

The case was tried to the court without a jury. Provence testified that he attempted to have Realmuto sign a TDS, but Realmuto refused. Realmuto, in contrast, testified that Provence never presented him with a TDS. Counsel for Realmuto stated in his closing argument, "The case really comes down to whether or not the court will believe that Mr. Realmuto was given a transfer disclosure form or not. Whether or not Mr. Provence brought the transfer disclosure form and gave it to Mr. Realmuto to sign [and] Mr. Realmuto refused it." The trial court ruled against Realmuto, impliedly finding that Provence's testimony was credible and that Realmuto's testimony was not.^[1] The trial court awarded $1,951 in costs to RPA.

Representing himself in propria persona, Realmuto appeals from the judgment.^[2]

II

DISCUSSION

A. Realmuto'sAttack on the Attorneys Involved in the Litigation

The "Argument" section of Realmuto's appellate briefing focuses on an attack against three attorneys who were involved in the litigation: (1) Jonathan Preston, who represented Realmuto until the trial court granted his motion to be relieved as counsel; (2) Gregory Lee, who replaced Preston and who represented Realmuto during the trial; and (3) Judith Hartwig, who represented RPA in the trial court and continues to represent it on appeal. Realmuto argues that the three attorneys committed "legal mal[]practice, malfeasance, professional negligence, breach of contract, attempt to defraud and conspiracy to attempt to defraud." (Capitalization omitted.) In his "Summary of the Argument" section, Realmuto argues that because of the alleged misconduct of the three attorneys, he "has not received the opportunity for a fair and [j]ust trial."

We reject Realmuto's argument. Realmuto's lengthy attack on the three attorneys involved in this litigation lacks any legal framework or citation to authority to support the relief he is requesting on appeal. It thus provides us with no grounds for reversing the judgment. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106); its role is to evaluate " 'legal argument with citation of authorities on the points made.' " (People v. Stanley (1995) 10 Cal.4th 764, 793.) As the appellant, Realmuto has the burden to overcome the presumption on appeal that the underlying judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [on appeal, judgment of the lower court is "presumed correct" and "error must be affirmatively shown"]; see also Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 165 ["lack of organization and the improper format" of appellate brief resulted in waiver of arguments alluded to but not properly developed]; Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 689 ["Generally, asserted grounds for appeal that are unsupported by any citation to authority and that merely complain of error without presenting a coherent legal argument are deemed abandoned and unworthy of discussion"].) Realmuto's deficient argument does not carry his burden on appeal.

B. Allegations of Judicial Bias

In the "Summary of the Argument" section of his brief, Realmuto argues that not only did the three lawyers involved in the litigation commit misconduct, but that the trial court, too, was biased against him. Although Realmuto's point is not completely clear, he appears to contend that the alleged bias of the trial court was caused by the three attorneys' alleged unfair presentation of the facts.

Realmuto's argument is made without any citation to legal authority or to the record. Thus, based on the principles we have cited above  requiring Realmuto to present a coherent argument supported by citations to the record and to legal authority  we reject Realmuto's argument that the judgment should be reversed because of judicial bias.

C. Sufficiency of the Evidence

In the "Conclusion" section of his brief, Realmuto argues  again without any citation to the record  that the "[t]estimony given at trial did not prove [RPA's] case," and that "there have been no facts presented by [RPA] to the trier of fact that are of any legal significance, or sufficiency." We reject this argument on two independent grounds.

First, as is the case with Realmuto's other arguments, this argument fails because it is insufficiently briefed. Although Realmuto apparently intends to invoke the substantial evidence standard of review and argue that substantial evidence does not support the trial court's ruling (see Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 [findings of fact challenged on a civil appeal are reviewed under the substantial evidence standard]), he does not include any citation to the record to support his argument. Accordingly, we may reject his argument without reaching the merits. (See City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [arguments not supported by adequate citations to record need not be considered on appeal].)

Second, even considering the substance of Realmuto's argument, it lacks merit. As RPA points out in its respondent's brief, the record contains ample evidence supporting the trial court's finding in favor of RPA.

As we have noted, the central issue at trial was whether Provence presented Realmuto with a TDS, which Realmuto refused to sign.^[3] Provence's trial testimony provided direct support for such a finding. We presume that the trial court made a credibility determination in favor of Provence and against Realmuto. (See Baugh v. Garl (2006) 137 Cal.App.4th 737, 744.) We will not disturb that determination on appeal. (See People v. Smith (2005) 37 Cal.4th 733, 739 [" ' "it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends" ' "].) Accordingly, we reject Realmuto's argument that the trial court's ruling was not supported by substantial evidence.^[4]

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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^[1] Realmuto requested a statement of decision after the matter was submitted for decision. The trial court concluded that the request was untimely and denied it. However, before concluding that a statement of decision would not be issued, the trial court had indicated in a minute order that if a proposed statement of decision were to be prepared, it should include "the finding that . . . Provence told . . . Realmuto to sign a [TDS] and . . . Realmuto refused to sign it."

^[2] At oral argument, Realmuto asked pursuant to Code of Civil Procedure section 909 that we consider additional evidence that he claims to have discovered after the proceedings in the trial court. We reject this request. The power to take new evidence on appeal is to be used " 'sparingly,' " and is only appropriately exercised when required by "the interests of justice." (Conservatorship of Hart (1991) 228 Cal.App.3d 1244, 1257, 1259; Code Civ. Proc.,  909.) Realmuto did not submit a formal written request explaining the nature of the evidence, and he did not establish during oral argument that the interest of justice require that new evidence be considered on appeal.

^[3] Based on our review of the record, it appears that each of Realmuto's three causes of action turned primarily on this crucial factual issue.

^[4] At oral argument, Realmuto argued that the trial court's decision must be reversed because of the undisputed fact that Provence did not document in his file that Realmuto refused to sign the TDS. We need not address this argument, as it was made for the first time at oral argument. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854 ["We will not consider an issue not mentioned in the briefs and raised for the first time at oral argument"].) Further, even if we were to consider the argument, we would reject it as a basis for reversing the trial court's decision, as no damages are associated with Provence's failure to document Realmuto's refusal to sign the TDS. It was Realmuto's own refusal to sign the TDS (as found by the trial court and supported by substantial evidence) that caused him to lose the real estate deal, not Provence's failure to document Realmuto's refusal to sign.