Truin v. Haywood

Filed 3/22/06 Truin v. Haywood CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Kenneth R. Freeman, Judge. Judgment is affirmed.

Trikkia Keel; Ronald P. Kaplan for Plaintiff and Respondent.

Law offices of Christoph T. Nettesheim and Christoph T. Nettesheim for Defendants and Appellants.

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Ernestine Haywood^[1] owned a six-unit apartment building in the City of Los Angeles. She agreed to sell the property to York Truin. Thereafter, Haywood breached the contract by failing to allow Truin or his appraiser to conduct the necessary inspections. The sale was not consummated. Truin sued Haywood for specific performance, and prevailed at a bench trial. The trial court also granted Truin his attorney's fees pursuant to the contract. We conclude: (1) substantial evidence supports the trial court's finding that Truin had the ability to perform; (2) the trial court did not exclude Haywood's evidence that the property was not unique; and (3) the court did not err in awarding attorney's fees in the absence of a memorandum of costs. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2001, Truin and Haywood entered into an agreement by which Haywood would sell the property to Truin for $385,000. Truin deposited $10,000 with the escrow holder upon making his offer for the property. He was to deposit an additional $91,250 into escrow before closing. The remainder of the purchase price was to be financed.

Haywood anticipatorily breached the agreement by refusing to allow Truin access to the property in order to conduct necessary inspections and obtain a necessary appraisal. Haywood also failed to disclose material defects to Truin.

Truin did not deposit the $91,250 into escrow, although his bank records indicated he possessed sufficient funds on deposit to do so. As to the financing, Truin had contacted Junius Johnson, a mortgage broker. Johnson reviewed Truin's assets, income, credit report, tax returns, and other documents in order to determine whether Truin would have sufficient income to support the proposed loan. Johnson issued a letter pre‑approving Truin for a loan in excess of the necessary amount. First Fidelity Investment and Loan expressed interest in being Truin's lender, although it could not issue a commitment to lend without an appraisal on the property.^[2] Truin had met all of his necessary conditions for the loan; but no loan could be made until the conditions relating to the property had been met.

As to the uniqueness of this property, as opposed to other six-unit apartment buildings, Truin believed that the neighborhood was desirable because it was near his home, which would enable him to be on site quickly. This factor was important as Truin intended to manage the property himself. Truin also thought that the area was a â€