Land Preserve v. Pacini








Filed 9/2/11 The Land Preserve v. Pacini CA1/5



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE LAND PRESERVE, LLC, Plaintiff and Appellant, v. BLAINE PACINI, as Trustee, etc., et al., Defendants and Respondents.

A127502 (Contra Costa County Super. Ct. No. C-07-02568)

In 2004, plaintiff and appellant The Land Preserve, LLC (Buyer) entered into a contract with several family trusts to purchase multiple parcels of real property, intending to develop a residential subdivision. Unfortunately for all parties, certain endangered species were found on and throughout the property, requiring identification and implementation of environmental impact mitigation measures and regulatory approvals. Development of the property as contemplated required three things, which the trial court found were “intertwined”: 1) recordation of a final subdivision map; 2) posting of a bond to ensure completion of certain required onsite improvements; and 3) obtaining the regulatory approvals. None of these things happened. The parties mutually extended the term for completion of the contract at least eight times. In 2007, the parties were unable to agree on a further extension and Buyer sued the sellers, contending that they breached the contract by failing to record the final map, failing to post the completion bond, and by refusing to extend the contract until a final map was recorded.
Following a nonjury trial, the trial court interpreted disputed provisions of the purchase agreement, found no breach by the sellers, and further found that the Buyer’s claim would fail in any event because Buyer could establish no legal damages. Buyer contends that the court improperly refused to consider parol evidence in interpretation of the purchase agreement, erred in its interpretation of the contested contract provisions, and mistakenly found its damage claims too speculative and uncertain.
We affirm.
I. Background
The Original Contract Terms
On June 4, 2004, Buyer entered into a “Land Purchase Installment-Sale Agreement” (Contract) with Robert J. Pacini, trustee of the Robert J. Pacini Family Trust; James M. Ashlock, trustee of the James M. Ashlock Family Trust; and Donald G. and Constance F. Pacini, trustees of the Donald G. Pacini Family Trust (hereafter, we refer to these three trusts and their trustees or successor trustees as Sellers). Larry Kinsella, as trustee of The Tara Property Trust,[1] and Alan William Coon, as trustee of Montebello Property Trust, signed the Contract on behalf of Buyer. Recitals to the Contract stated that Sellers owned 96 acres of land consisting of 40 undeveloped lots and rights of way that were depicted on a tentative map that had been approved by the County of Contra Costa (Tentative Map). The Contract further recited that Sellers owned intangible property connected with the real property (Intangibles), “including . . . the soon to be approved Final Map,” and Sellers wished to sell Buyer 39 of the 40 lots and the Intangibles for a total purchase price of $5.5 million. Buyer planned to develop the property in three phrases and purchase price was payable in installments.
Buyer’s purchase of the property was conditioned on the recording of a final map that met certain conditions and many of the contract terms addressed the process for obtaining the final map. Paragraph C of the Recitals provided that the “Final Map will be delivered at Escrow Closing. Buyer’s obligations are conditioned on the recording of the Final Map and Buyer’s right to review and approve of the Final Map before the Escrow Closing.” Paragraph 14 of the Contract provided that the “Final Map shall be in substantial conformity with the Tentative Map and any other land use conditions placed on the development of the Property by the County and other governmental agencies having jurisdiction over the Property.” Paragraph 14 further provided, “Buyer and Seller[s] shall post and maintain all bonds required for approval of the Final Map. Seller[s] shall pay cost of the bond premium and maintain bond(s) up-to [sic] Escrow Closing[] (for purpose of recording the Final Map). Simultaneously, upon Escrow Closing, bond and bond premium(s) shall be assumed by Buyer.” Paragraph 1.C provided, “Prior to Escrow Closing, Seller[s] shall pay from Seller[s’] personal funds those expen[s]es listed on Exhibit ‘C’ up to a total of $500,000. Buyer shall pay the excess[] above $500,000 for those listed on Exhibit ‘C’ at the Escrow Closing.” The expenses included county final map fees, payments for geological and geotechnical consultants and peer review, environmental study costs, environmental permit costs, and “[a]ll other fees and costs . . . as may be required for Final Map approval . . . .” Sellers were also responsible for paying the fees of a civil engineering firm up to a maximum of $300,000, with Buyer paying such costs above that amount.
Paragraph G of the Recitals provided: “Buyer and Seller[s] agree to cooperate and exercise their best efforts to accomplish full and complete performance of this Agreement and; to complete the procurement of the Final Map in the event of unforeseen delays and/or any litigation following action on the Final Map by the Contra Costa County Board of Supervisors. Provided however, that if the final map is not recorded within one (1) year from the date of this agreement, then this agreement shall be reconsidered and/or subject to renegotiation.” (Italics added.)
The Contract Amendments
On May 11, 2005, Sellers and Buyer executed Amendment 1 to the Contract, which provided: “IN RECOGNITION of the soon to be approved Final Map, Buyer and Sellers agree that the last sentence of Paragraph G within the Recitals section of the Agreement is hereby amended as follows: Provided however, that if the final map is not recorded within 18 months from the date of this Agreement [i.e., by December 4, 2005], then this Agreement shall be reconsidered and/or subject to renegotiation and; extensions shall be granted by Seller[s] for unusual circumstances or conditions beyond the control of the Buyer.” (Hereafter, the Contract Extension Clause.) On October 18, 2005, the parties executed a similar amendment that extended the deadline to 20 months from the date of the original Contract to February 4, 2006 (Amendment 2). Four subsequent amendments extended the deadline, respectively, 22 months to April 2006 (Amendment 3), 24 months to June 2006 (Amendment 4), 26 months to August 2006 (Amendment 6), and 32 months to February 4, 2007 (Amendment 7).
On August 15, 2006, the parties amended several provisions of the Contract (General Amendment). The amendment recited that “through the efforts of Sellers and Buyer the requirements of [the Tentative Map] were met and complied with such that now the only significant condition is the posting of an improvement bond in the amount of 1.8 million dollars (the ‘Bond’ for certain onsite improvements (the ‘Improvements’. [¶] . . . Buyer has sought the approval of the United States [Fish & Wildlife Service (USFWS)] for the development of the Lots but the [USFWS] has not yet given its approval and may require, as a condition of its approval, payment of fees and the removal of one or more of the Lots from residential use and development.^[[2]] [¶] . . . Buyer and Sellers are desirous of causing the Bond to be issued as soon as possible so that the Tentative Map does not expire and the Final Map can be approved by the County and recorded which in turn requires . . . Buyer to close escrow on all 39 Lots (not in Phases) to obtain its bank financing in an amount not to exceed [$9.5 million] and set aside letter of credit securing the Bond.” The General Amendment revised the terms of payment of the $5.5 million purchase price to require Buyer to pay $4.5 million at close of escrow and provide a $1 million promissory note payable to Sellers. Escrow would cover all 39 lots and would be reduced by $70,513 for each lot deemed unbuildable by the county building department, unbuildable for environmental mitigation reasons, or unbuildable because the cost of mitigation exceeded one-half of the appraised value of the finished lot without a mitigation condition. If the USFWS imposed mitigation measures requiring the direct expenditure of money, Sellers would reimburse Buyer for such costs. Signing the General Amendment on behalf of Buyer were William P. McComas (identified as “Manager” of Land Preserve, LLC), as well as Kinsella and Coon.
In January 2007, the parties again extended the Contract 36 months from the date of the original Contract to June 4, 2007 (Amendment 8). Sometime thereafter, Robert Pacini died and Blaine and Starla Pacini succeeded him as trustees of the Robert Pacini Family Trust. A disagreement then arose over further extensions of the deadline. Buyer executed an Amendment 9 that extended the deadline 40 months to October 2007. Sellers executed a revised copy of the amendment that extended the deadline only 38 months to August 2007. In September 2007, Buyer proposed a tenth amendment that would have extended the deadline 48 months to June 2008 (Amendment 10), but only one of the Sellers agreed to sign it.
The Litigation
On November 21, 2007, Buyer sued Sellers for specific performance of the Contract or in the alternative damages for breach of contract. Buyer alleged Sellers breached the Contract by refusing to pay for or obtain “the necessary permits identified in Exhibit C” including “payment of the subdivision bond premiums.” Because of this breach, approval of a final map was at risk. Buyer alleged that it had insisted that Sellers execute Amendments 1 through 8 “[a]s a result of the delays caused by [Sellers]” and “pursuant to the duty to cooperate provisions” of the Contract, and that Sellers breached those provisions when they refused to sign Amendment 10 and “refus[ed] to make full and complete disclosure of the status of the legal work regarding the Final Map process . . . .”
Trial commenced on July 6, 2009, before Judge Barry Baskin, sitting without a jury, and evidence and argument were presented over eight days, with the matter submitted for decision on July 22, 2009.
Both sides initially agreed that the all of the relevant Contract terms were unambiguous. Buyer, however, then “changed course” and sought to introduce parol evidence during the trial to show that the language of the Contract Extension Clause was susceptible to more than one interpretation. The court conditionally received the testimony of Buyer’s principals on the issue, but concluded that the proffered testimony was inconsistent with the plain and unambiguous language of the Contract Extension Clause, and struck the testimony to the extent that it contradicted the “plain, clear, and explicit language contained in [the Contract Extension Clause].” Buyers presented the testimony of two expert witnesses, real estate appraiser Paul Stansky and Wayne Rasmussen, an expert in planning, zoning and land use, on their claim for contractual damages.[3]
Trial Court Findings and Conclusions of Law
The court gave a tentative ruling from the bench for Sellers on July 22, 2009, concluding that “I don’t find on these facts that any party willfully violated or breached the Agreement or that anyone acted in bad faith or refused to act in bad faith. This seems to be a speculative land deal gone wrong . . . .” The court subsequently made detailed and extensive findings of fact in a written tentative statement of decision filed on August 26, 2009.[4] In its written decision, the court found that the original Contract “embodied the parties’ highest hopes and their most optimistic expectations for what [wa]s essentially, even with the wisdom of hindsight, a speculative land deal. . . . [¶] . . . [¶] . . . [E]ven if a final map was approved and recorded, the land ultimately could not be developed by the Buyer without a permit from the U.S. Army Corps of Engineers and the concurrent approval of the [USFWS] as to appropriate mitigation the developer would be required to satisfy for the taking of the endangered species that were located on and throughout the subject property. . . . [¶] . . . [¶] . . . [N]obody at the time the original contract was entered into was aware of how great an obstacle USFWS approval would present.” As it turned out, “the mitigation issues were never resolved with the USFWS.”
The trial court found that both parties “had obligations relating to the procurement of the final map.” Before the execution of Amendment 9, Sellers had delayed some payments related to obtaining the final map. However, Buyer failed to prove a nexus between any such delay and the failure to obtain a final map. “On the contrary, . . . Kinsella attributed the delay in obtaining a recorded final map to bureaucratic delays” by local, state and federal agencies that required further environmental studies and to Kinsella’s need to recuperate from an automobile accident. The trial court found that “the obligation of procuring the posting and maintaining of all bonds required for the approval of the final map was [an obligation] for both the Buyer and the Sellers. . . . To the extent that the Sellers failed to post and maintain the bonds, the Sellers failed to the same extent that the Buyer[] did. The failure to secure the bonds did not constitute a breach of contract by either party and in the Court’s view that was a good business decision by both sides.”[5]
The trial court found that “it was not possible to separate the bonding requirements and the final map from the mitigation. It is clear from [the evidence] that in [the Buyer representatives’] minds all of these issues were intertwined in one merged track and that taken together there was no way to proceed with the final map, and obtain the bonds without first getting the required agreements from USFWS which [they] had not been able to accomplish.”
Critically, Buyer was unable to finance the transaction without an affordable mitigation agreement. “[T]he reason there was not a recorded final map obtained in 2005 was due to the fact that Buyer would have had to close escrow and pay the Sellers under the original Contract and hold the property while attempting to obtain mitigation at their own expense . . . [and] the Buyer did not have the money to purchase the property with full disclosure to its tentative lender and sufficient funds to carry the property without being able to build on the property.” As of the summer of 2007, First National Bank was refusing to loan Buyer the purchase money until a signed and executed mitigation agreement was in place or to increase the loan by $1 million to cover the anticipated mitigation costs. The trial court commented, “[A] glaring question raised [in this case] is where would the money have come from to pay for the mitigation costs up front‌ The General Amendment provided that the Seller[s’] obligation as to reimbursement of up to $1,000,000 would only come after the close of escrow and would be a setoff against the $1,000,000 promissory note. Without the loan[,] mitigation costs could not be carried and nobody, including Mr. McComas [a Buyer representative who had offered to advance some of his personal money into escrow] was willing to advance money without a mitigation agreement. . . . The Buyer has not established where would the funds have come from to pay for mitigation.”
The trial court interpreted the Contract Extension Clause to provide that “if a final map was not recorded with[in] a specified period of months . . . , the parties were required to reconsider and/or renegotiate the contract and that further extensions would only be granted by the Sellers for unusual circumstances or conditions beyond the control of the Buyer that emerged from the date of the last agreement.” (Italics added.) “[U]nusual circumstances or conditions beyond the control of the Buyer” meant “there need[ed] to be unusual circumstances [or] unusual conditions present that are beyond the control of the Buyer” and that emerged from the date of the last agreement.[6] The court found that “the ‘reconsider and/or renegotiate’ clause provided an out or an escape clause to both sides, which given the level of upfront speculation, investment of time by [B]uyer[] and money by [S]ellers was reasonable, if not predictable.”
The court found that, upon the expiration of Amendment 9, Sellers asked to renegotiate the Contract and Buyer refused to do so. “[S]ince Buyer[] refused to renegotiate, there was no basis to extend the contract because material terms could not be agreed on.” Thus, “failure of the Buyer to reconsider and/or renegotiate the contract after the Ninth Amendment resulted in a termination and end of the contractual relationship and accordingly, there was no breach of contract by the Sellers in not executing the Tenth Amendment.”
The court found that Sellers did not act in bad faith by asking to renegotiate the Contract because the USFWS still had not made a decision on mitigation and Buyer was estimating that mitigation costs could rise to as much as $2 million. By asking to renegotiate the Contract, Sellers in essence were saying “enough is enough and that the end of the road is here.” Moreover, Blaine Pacini acted appropriately in holding discussions at about this time with other possible developers. Pacini “had a fiduciary duty to investigate into all of the aspects of the Contract and the environmental matters that pertained to and affected the property before any further expenditure of money in a continued effort to obtain a final map. Mr. Pacini’s inquiry as to value or potential value of the property was not improper and there was no evidence presented that . . . [he] cut deals with anyone else or was attempting to undermine the Contract in issue in anyway whatsoever. . . . In fact, there is no evidence that the [S]ellers gained anything financially by not renewing the contract[.] [T]he evidence shows they lost significant sums as a result of the failure of this venture.”
In sum, “once the General Amendment was entered into establishing that the costs of mitigation would be fronted by the Buyer and eventually partly paid for by the Sellers[,] the issues that had been delayed [in the original Contract] . . . moved to the front burner. That overly optimistic speculation was involved became clear to all concerned and . . . this deal quickly unraveled. [¶] . . . [¶] . . . The Court does not find on the evidence in this case that any party or trustee willfully violated or breached the agreement or that anyone acted in bad faith or refused to act in good faith. This seems to be a speculative land deal gone wrong.”[7]
The court entered judgment for the Sellers and awarded them costs, including contractual attorney fees.
II. Discussion
We review questions of law de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800.) When the trial court has resolved a disputed factual issue, we review the court’s findings for substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) In a case tried without a jury, the trial judge is the sole arbiter of all conflicts in the evidence and the sole judge of the credibility of the witnesses. (Davis v. Kahn (1970) 7 Cal.App.3d 868, 874.) The judge is free to disbelieve witnesses even though they are uncontradicted if there is any rational ground for doing so. (Ibid.) When the sufficiency of evidence is contested on appeal, it will be assumed that the judge resolved every factual conflict in favor of the prevailing party and drew every reasonable inference in favor of that party. (Ibid.) The sole question on appeal is “whether there is any substantial evidence, direct or indirect, contradicted or uncontradicted, which will support the finding [citations] . . . .” (Ibid.)
Buyer again contends here that the evidence established that Sellers breached the contract by failing to record a final map and by failing to take steps necessary for approval of such a map, specifically posting a bond. Buyer argues that since these were conditions “beyond the control of the Buyer,” Sellers further breached the Contract by failing to grant an additional extension, and acted in bad faith by deliberately delaying procurement of a final map in order to demand renegotiation of the Contract and exact a higher purchase price from Buyer.
A. Interpretation of Contract Extension Clause
Buyer devotes most of its appellate argument to the proper interpretation of the Contract Extension Clause. Buyer argues the clause is ambiguous and the trial court erred by excluding extrinsic evidence of its intended meaning. Alternatively, Buyer argues that even without the assistance of extrinsic evidence the trial court’s interpretation of the language is unreasonable. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) It contends that, correctly interpreted, the Contract required Sellers to grant extensions if the final map was not recorded (1) due to “unusual circumstances,” regardless of whether they were beyond the control of the Buyer, or (2) due to “conditions” that were beyond the control of the Buyer.
The court did consider parol evidence, albeit provisionally to determine whether the language of the Contract Extension Clause was susceptible of the meaning Buyer urged. (See General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435, 441.)[8] The court ultimately rejected Buyer’s proffered evidence as inconsistent with its reading of the plain meaning of the terms of the Contract Extension Clause.
We need not decide if the court erred in rejecting the parol evidence because even if we assume for purposes of argument that the language is ambiguous and that it should be interpreted as Buyer proposes, we nevertheless conclude that Buyer has not met its burden to demonstrate the trial court erred in finding no breach of the Contract by Sellers.
B. Failure to Record a Final Map
Buyer contends that the Contract Extension Clause was “put in place specifically to deny the [S]ellers the right to terminate the Agreement as long as the [B]uyer continued to perform its obligations [under the Contract] and the final map remained unapproved.” Buyer notes that the Contract does not provide for the close of escrow until the final map is both recorded and approved by Buyer as meeting the conditions set forth in the Contract, including approval by government agencies such as USFWS. Buyer contends Sellers had the obligation under the Contract to first record the final map. If Buyer did not then approve the final map because for example it was not in conformity with a USFWS mitigation decision, the Contract would terminate and there would be no breach by either party. However, until such time as Sellers recorded the final map, Buyer had no obligation to close escrow and Sellers were obligated to continue to extend the Contract. Stated differently, Sellers’ failure to record the final map was a “condition beyond the control of the Buyer” that required the Sellers to continue extending the Contract.
The problem with this argument is that the Contract does not place the burden of obtaining a final map solely on the Sellers. Rather, Paragraph G of the Recitals provides, “Buyer and Seller[s] agree to cooperate and exercise their best efforts . . . to complete the procurement of the Final Map in the event of unforeseen delays . . . .” (Italics added.) Paragraph 14 of the Contract provides, “Buyer and Seller[s] shall have the right to process all applications and improvements plans with the County and all other governmental agencies, appropriate for the development of the Property, including, without limitation, a Final Map . . . .” (Italics added.) Nowhere does the Contract require Sellers to obtain and record a final map. Instead, the Contract uses passive voice or other neutral language to describe the task. Paragraph C of the Recitals provides, “The Final Map will be delivered at the Escrow Closing,” and “Buyer’s obligations are conditioned on the recording of the Final Map,” not on Sellers’ recording a final map. Paragraph G of the Recitals provide for reconsideration and/or renegotiation “if the final map is not recorded,” not if Sellers fail to record a final map. Paragraph 3 in both the original Contract and in the August 2006 General Amendment provide, “Upon recordation of Final Map” (not Sellers’ recordation of the Final Map), but specify that “Seller[s] shall deliver . . . grant deeds for each of the 39 lots.” (Italics added.) Consistent with this plain language in the Contract, the trial court properly concluded that both “Buyer and the Seller[s] had obligations relating to the procurement of [the] final map.” As explained further below, the court also impliedly found that Buyer and Sellers both decided not to pursue recording of a final map because they determined it did not make good business sense to do so in the absence of an final and affordable mitigation decision by USFWS. Thus, the failure to record a final map was not a breach of the contract by either party and was not a condition beyond Buyer’s control that required Sellers to extend the Contract.
C. Failure to Post Bond
Buyer argues that Sellers failed to post the bond required as a precondition for recording a final map and thus a final map was not recorded due to a condition beyond Buyer’s control. Buyer acknowledges that that Sellers’ refusal or reluctance to post the bond was understandable in light of the cost of the bond and the fact that USFWS still had not issued a mitigation decision. Nevertheless, Buyer argues the failure to post the bond was a breach of Sellers’ obligations under the Contract.
The trial court found that the Contract plainly placed the obligation to post and maintain the bond on both Buyer and Sellers. We agree. Paragraph 14 provides, “Buyer and Seller[s] shall post and maintain all bonds required for approval of the Final Map.” (Italics added.) Although the Contract goes on to provide that Sellers would bear the cost of the bond premium and of maintaining the bond up to the close of escrow, with Buyer to then assume those costs, these funding provisions do not negate the parties’ shared responsibility to ensure that the bond was posted.
There was no evidence presented that Sellers somehow frustrated Buyer’s efforts to ensure posting of the bond. The trial court found, “To the extent that the Sellers failed to post and maintain the bonds, the Sellers failed to the same extent that the Buyer[] did,” and this finding is supported by substantial evidence. Challenging the finding,[9] Buyer cites the testimony of Sellers’ attorney, Sanford Skaggs, that a bond had to be posted before a final map could be approved, and Kinsella’s testimony that he asked the Sellers’ attorney 20 times to assist him in getting the bond posted, yet the bonds were never posted. Buyer also cites Donald Pacini’s deposition testimony that he understood the bond had to be obtained in order to finalize the land deal and that “[i]t was our responsibility” to pay the cost of the bond.[10] However, when Donald Pacini was asked whose responsibility it was to obtain rather than pay for the bond, he testified, “I don’t recall us having to obtain the bond, because it was a stupid thing to have to do anyway. If we got . . . the final map is whe[n] they . . . would require the bond. And until you get the project together and get a bond enforced what do you need with the property [final map] in force‌” The trial court specifically found that Buyer ultimately made the same assessment of the situation: “The testimony of Mr. Kinsella and Mr. Coon collectively establishes that it was not possible to separate the bonding requirements and the final map from the mitigation. It is clear from their testimony, correspondence and e-mails that in their minds all of these issues were intertwined in one merged track and that taken together there was no way to proceed with the final map, and obtain the bonds[,] without first getting the required agreements from USFWS which Mr. Kinsella and Mr. Coon had not been able to accomplish.”[11] (Italics added.) Kinsella testified that he told Sellers’ attorney he was reluctant to seek a final map until the USFWS issues were resolved and that mitigation issues ultimately interfered with bank approval of a loan and the bond. In sum, the trial court impliedly found that the bond was not obtained because both Buyer and Sellers concluded that it would have been pointless to do so without a mitigation decision by the USFWS. The purpose of the bond was to guarantee completion of County required site improvements as part of the development plan. Development could not proceed at all without a mitigation agreement. Because, as the trial court found, Buyer and Sellers shared the responsibility to obtain the bond and because they both concluded it would be a bad business decision to do so without a mitigation agreement in place, the failure to post the bond was not a breach of Contract by Sellers and was not a “condition beyond the control of the Buyer” that required Sellers to extend the Contract.
D. Alleged Bad Faith Conduct by Sellers
Buyer characterizes Sellers’ refusal to sign Amendment 10 as a bad faith effort by Blaine Pacini to exact a higher purchase price from Buyer. However, the portions of the record Buyer cites do not support this characterization.[12] Buyer cites Blaine Pacini’s testimony that he told other Sellers’ representatives in August 2007 that he thought Buyer could resell the property for $15 million to $20 million if a final map was approved. However, Pacini testified that these figures were simply some of “many numbers being thrown around” during his discussions with “close to 100” realtors, developers, and brokers in an effort to try to make an informed decision about whether to extend the Contract. Moreover, “if the final map were approved” was a significant qualification on the valuation. As noted, other evidence at trial established that neither Buyer nor Sellers considered it wise to obtain a final map until mitigation issues were resolved, and in August 2007 there was little prospect of a prompt or affordable mitigation decision. Pacini testified that the idea that Buyer was close to obtaining the Final Map from the county in August 2007 was “just a joke[,] . . . not even close to the realm of reality.” Thus, the court could reasonably infer that in Pacini’s mind the $15 million to $20 million valuation was a speculative figure based on an unlikely contingency and that Pacini did not refuse to sign Amendment 10 because he thought the Contract purchase price was too low.
Pacini provided another credible reason for declining to further extend the Contract. He testified the Contract was a bad deal for Sellers because they were incurring ongoing costs without any assurance of an ultimate sale to the Buyer: “[T]he problem was we were carrying the full load of everything, paying all the bills. There was no end in sight that we could see, because there was no firm information. So, . . . [the Contract] was not structured well” for the Sellers. Moreover, he testified that the discussions he had with other potential developers had not produced any promising leads on a more lucrative land deal for Sellers than the one they had with Buyer. He approached the developers to help him “understand[] what the project even looked like and if it was possible at all before we kept throwing more and more money into it, because it became a huge drain[.] . . . [¶] . . . [¶] . . . We didn’t know if we had . . . even a viable project any more[.]” At least two of the developers indicated they would not be interested in the project in the event Buyer dropped out.
In short, the evidence supports the trial court’s findings that Blaine Pacini acted in good faith, and consistent with his fiduciary responsibilities as trustee, in investigating the value of the property and of the development project, and that there was “no evidence that the [S]ellers gained anything financially by not renewing the contract[.] [Instead,] the evidence shows they lost significant sums as a result of the failure of this venture.”
E. Lack of Damages
One of the bases on which the trial court rejected Buyer’s claims was its failure to meet its burden to establish damages arising from the claimed contractual breach by Sellers. The court specifically rejected the testimony presented by Buyer’s experts, and found the damage claims to be speculative. Buyer argues here that it would still have been entitled to recover at least nominal damages. As Sellers correctly observe, Buyer pointed to nothing in the record that such a claim was made in the trial court, and cannot now make it here. (See Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800–801.) We need not address the argument in any event, since we conclude that the court correctly found no breach of the Contract.
F. Summary
The trial court properly rejected Buyer’s position that the Contract Extension Clause “entitled [Buyer] to unlimited and unconditional extensions if a final map was not recorded.” As the trial court aptly perceived, the economic reality which both parties recognized was that the development of the property was economically feasible only if the USFWS issued a mitigation decision and the costs of the required mitigation could be realistically absorbed. The court found that at the time Sellers declined to sign Amendment 10 there was no foreseeable prospect of a prompt USFWS decision, and there were indications that the costs of ultimately required mitigation would be unacceptable. In these circumstances, Buyer and Sellers understandably did not pursue the recording of a final map. The Contract Extension Clause did not give Buyer the right to force unlimited extensions of the Contract and incur ongoing costs with little prospect of a profitable outcome for either party. The failure to post a bond and record a final map were not breaches of contract and were not conditions beyond the Buyer’s control that required Sellers to extend the Contract pursuant to the Contract Extension Clause.
III. Disposition
The judgment is affirmed. Appellant shall bear respondents’ costs.



_________________________
Bruiniers, J.


We concur:


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Jones, P. J.


_________________________
Needham, J.

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