Kenner v. Powell CA3

Filed 5/23/13 Kenner v. Powell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

DAVID KENNER, C068740

Cross-complainant and Respondent, (Super. Ct. No. SCV23915)

v.

KELVIN POWELL,

Cross-defendant and Appellant.

After David Kenner was sued for breach of contract by Time Payment Corporation, he cross-complained for breach of contract, fraud, and common counts against Kelvin Powell and others. Following an unreported court trial, the court entered judgment in Kenner’s favor. Cross-defendant Powell, appearing in pro se as he did in the trial court, appeals on the judgment roll. He contends the trial court erroneously admitted some evidence, refused to admit other evidence, misinterpreted the parties’ contract, and erred in computing the amount of damages. On this record, we find no error, and shall affirm the judgment.

1

BACKGROUND We treat this case as an appeal on the judgment roll, because it reaches us based on a clerk’s transcript. (Cal. Rules of Court, rule 8.832 (further references to rules are to the Cal. Rules of Court; hereafter Rule or Rules); cf. Dumas v. Stark (1961) 56 Cal.2d 673, 674; Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) Because the case is presented in this posture, we presume that the trial court's findings of fact are supported by substantial evidence, and its conclusions of law are binding upon us unless error appears on the face of the record. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.) On this extremely limited appellate record, we cannot discern the precise nature of the parties’ dispute. Neither the complaint nor the cross-complaint appears in the record. Powell’s answer to the cross-complaint identifies the causes of action raised by Kenner, and states various affirmative defenses. The cross-complaint was tried to the court; the trial was unreported. Kenner, Powell, and cross-defendant Katanya Maina testified. Fifteen documentary exhibits were admitted into evidence; four appear in the record on appeal. At the close of trial, the court took the matter under submission and directed all parties to submit a written “summary of their evidence and argument presented to the court” and proposed judgment. Powell’s summary of argument, summary of evidence, and proposed judgment are the only ones that appear in the appellate record. The trial court ultimately entered judgment in favor of Kenner and against all cross-defendants -- including Powell -- in the amount of $76,636.44, including prejudgment interest, costs, and attorney fees. DISCUSSION I. Applicable Standards of Review On appeal, we must presume the trial court's judgment is correct. In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless