Stiefel v. McKee

California Court of Appeal Oct 29, 1969 No. Civ. 33834Published

Before: Roth

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Holding. The trial court's judgment is reversed because the findings of fact were contradictory, uncertain, and contrary to uncontradicted evidence, failing to support the judgment.

Issues

Whether the trial court's findings of fact were sufficient to support the judgment in a negligence action against real estate brokers.
Whether the trial court erred in finding that the defendants were not fiduciaries despite evidence of an agency relationship.
Whether an appellant waives the right to challenge defective findings on appeal by failing to object to them in the trial court.

Disposition. reversed

Quotations verified verbatim against the opinion

“At bench, the findings in some vital respects are contrary to uncontradicted evidence and are so inconsistent and uncertain in material respects that they cannot and do not support the judgment.”

Opinion

ROTH, P. J.

Respondent Bruce McKee was a licensed salesman for respondent Hugo Becker, a licensed real estate broker doing business as Kent Realty (brokers). Brokers were employed by appellants Stiefel, husband and wife (Stiefels) to assist them in arranging a transaction whereby the Stiefels would dispose of two apartment units owned by them for cash to Mayan Developers (Mayan) said cash to be used in concurrently acquiring a parcel known as Zicaro Property.

Stiefels charge that because of the negligent omission

of brokers to

[265]

make the closing of separate escrows contingent upon the consummation of each, the escrow wherein Mayan purchased the Stiefel property was consummated, but the one whereby Stiefel was to acquire the Zicaro property, aborted.

Subsequently, the Stiefels effected a rescission of the Mayan transaction and brought this action predicated on said negligence against brokers for unreimbursed escrow costs in the sum of $1,800 and loss of rentals suffered by the Stiefels which had been collected on the Stiefel property by Mayan during the period of its possession in the amount of $4,020.

The Stiefels appeal from the judgment in favor of respondents.

The findings upon which the judgment is based were submitted by respondents and signed by the court. The findings were adopted by reference for the most part from the allegations of the pleadings, paragraph by paragraph, except for some omissions, and were found to be true or untrue (as seemingly required). This is a practice tolerated as adequate if the pleadings are clear

(Patek & Co.

Vineberg,

210 Cal.App.2d 20, 24 [26 Cal.Rptr. 293]), but generally recognized as being an unsatisfactory method of setting forth facts necessary to support a judgment when the allegations of complaint and answer are without discernment found promiscuously to be true or untrue.

Stiefel v. McKee

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ROTH, P. J.

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