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Wilson v. Zimmer6/23/2004
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Daniel L. Zimmer agreed to sell a piece of property to plaintiff James K. Wilson. Zimmer later refused to sell the property. Wilson filed a complaint for specific performance. Following a court trial, the court ordered specific performance of the agreement. Zimmer appeals, contending: (1) the trial court erred in denying him a jury trial, (2) the statute of frauds bars Wilson's suit, and (3) insufficient evidence supports the trial court's judgment. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wilson expressed an interest in buying Zimmer's property for many years. During that time, the two discussed prices of $65,000, $80,000, and $90,000 for the property. Although unwilling to sell at any of the discussed prices, Zimmer assured Wilson that when he was ready to sell, Wilson would have the "first shot."
Subsequently, Zimmer received an offer of $100,000 from a third party. Zimmer and Wilson met and drew up a document dated January 22, 2002, which stated: "I Daniel L. Zimmer [signature] will sell 20.48 acres of property APN # 64-015-02 for the sum of 100,000--one hundred thousand dollars. I have received 2,000, two thousand dollars as a down payment[,] check # 7143[,] and have six moths to get possions off the property. If Jim Wilson fails to go threw , the two thousand dollars is none-refundable ."
Zimmer provided the paper for the agreement, supplied the assessor's parcel number (APN) for the property, signed the agreement, and accepted Wilson's check for $2,000. Wilson was amenable to any terms of payment. Zimmer requested 20 percent down and the remainder at 8 percent over 10 years. Wilson agreed to these terms.
Following a discussion of the terms and the signing of the agreement, Wilson and Zimmer shook hands. Zimmer told Wilson, "`You finally got it.'"
A few weeks later, Zimmer returned the $2,000 check to Wilson and refused to sell him the property.
Wilson filed a complaint for specific performance. Zimmer demurred to the complaint, alleging the complaint failed to state a cause of action and was uncertain. The trial court sustained the demurrer with leave to amend.
Wilson filed an amended complaint for specific performance of a contract to sell real property. The amended complaint requested: (1) that Zimmer be ordered to execute and deliver a sufficient conveyance of the property to an escrow holder, (2) that Zimmer be ordered to accept from the escrow holder the consideration tendered by Wilson, (3) costs of suit, and (4) any other relief the court deemed just and proper. The complaint requested no monetary damages.
Zimmer again demurred, arguing the oral agreement was unenforceable under the statute of frauds and the written agreement was missing essential terms. Wilson opposed the demurrer, arguing the written agreement contained all the essential terms of the parties' agreement.
The trial court overruled the demurrer, rejecting Zimmer's argument that because the written agreement did not specify a time of performance, the agreement could not be enforced. The court cited Civil Code section 1657, which states: "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. . . ." The court found a reasonable time for performance applied and the agreement di
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