Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo Nos. FL 03-0421 Dissolution Action, CV 04-0212 Partition Action, E. Jeffrey Burke, Judge
Michael T. LeSage, in pro per and Dale Gustin, Eschwig & Gustin, for Appellant.
John F. Hodges, Suzan E. Boatman; Clarkson & Boatman, for Joanne E LeSage, Respondent.
YEGAN, J.
Michael T. LeSage appeals from post judgment orders in a martial dissolution and partition action that were consolidated for trial in 2006. The trial court ordered the community property division of a cabin and office building and the partition sale of a 65 acre parcel (Vineyard Drive) near Paso Robles. We affirmed the judgment in a prior appeal. (B189730.)
Undaunted, appellant claimed that a nunc proc tunc modification of the judgment to correct a clerical error permitted him to refile motions for new trial/mistrial and a motion to vacate the amended judgment. The trial court denied the motions and imposed $15,000 sanctions. (Fam. Code, § 271; Code Civ. Proc., § 128.7) We affirm the sanctions order and conclude that the appeal from other orders cited in the notice of appeal is either untimely or barred by the doctrine of law of the case. (See e.g., In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.)
Facts and Procedural History
Michael LeSage (Michael) and Joanne LeSage (Joanne) were married 19 years and separated in 1987 but continued to live in the family home on a 65 acre parcel near Paso Robles (the Vineyard Drive property). They purchased the property in 1968 with Joanne's parents, George Schwarz and Virginia Schwarz, each couple owning an undivided 50 percent interest, as tenants in common.
We refer to the parties by their first names to ease the reader's task.
After Joanne's mother died, George Schwarz transferred his undivided interest in the Vineyard Drive property to The George P. Schwarz Trust U/T/D April 30, 1992 (Schwarz Trust). As trust beneficiaries, Joanne and her siblings became beneficial owners following George Schwarz's death in 1996.
Consolidated Trial
In 2003, Joanne filed a marital dissolution petition and joined the trust and trust beneficiaries to determine the respective ownership interests in the Vineyard Drive property. (Fam. Code, § 2021, subd. (a).) Michael filed a separate civil action for declaratory relief, quiet title, specific performance, and partition. (Civ. Action No. 04-0212.) After the trial court sustained a demurrer, Michael entered into a written stipulation to consolidate the partition cause of action and the martial dissolution for trial. The stipulation provided for a partition by sale and that the trial court would determine credits for improvements.
All statutory references are to the Family Code unless otherwise stated.
Following a lengthy trial, the trial court found that Michael and Joanne owned, as community property, an undivided 50 percent interest in the Vineyard Drive property, and owned a Bass Lake cabin and a Paso Robles office building. Because of the dilapidated condition of the Vineyard Drive property, the trial court concluded that the house and improvements added no value to the property. The trial court appointed a referee to sell the Vineyard Drive property and the Bass Lake cabin. Michael was awarded the office building with adjustments for Watts charges (In re Marriage of Watts (1985) 171 Cal.App.3d 366) and Epstein credits (In re Marriage of Epstein (1979) 24 Cal.3d 76).
The referee listed and sold the Vineyard Drive property for $1.975 million on February 20, 2007.
Michael, an attorney with more than 40 years experience, filed a flurry of motions claiming, among other things, that the trial court lacked jurisdiction to order the partition sale. The trial court found that the motions were groundless and designed to delay and obstruct the distribution of three discrete, easy-to-sell properties. Joanne was awarded $45,000 sanctions (§ 271), $30,000 appellate attorney fees (§ 2030), and $5,070 supplemental attorney fee sanctions (§ 271).
On November 29, 2007, we affirmed the judgment in the marital dissolution and partition action (B189730) and denied a writ petition to correct the judgment and vacate the order to sell the Vineyard Drive property (B193970). The writ petition was moot because the property was already sold and the judgment corrected by a February 7, 2007 nunc pro tunc order.
The Current Appeal
Michael's June 22, 2007 notice of appeal seeks review of all "Minute Orders and Orders" entered on April 18, 2006. The record on appeal reflects that no order was entered on that date, but assuming there is such an order, the appeal is untimely. (Cal. Rules of Ct., rule 8.104(d)(2).)
February 7, 2007 Nunc Pro Tunc Judgment
Michael also appeals from an order denying his motion to vacate the amended judgment. On February 6, 2007, the trial court corrected a clerical err in the judgment, so the caption reflected the civil case and family law case numbers. A Nunc Pro Tunc Judgment On Consolidated Partition Action was filed February 7, 2007 and entered nunc pro tunc as of December 21, 2005, i.e., the date of the original judgment.
The trial court found that Michael's objections to the amended judgment were meritless. "It appears a case number was left off of a judgment due to a clerical error that can be corrected at any time. No one was misled. And that's apparently what the parties have wanted all along."
In a form-over substance argument, Michael claims that, due to a clerical error (i.e., no civil case number in the caption), the trial court lacked jurisdiction to order the partition sale. Michael raised the same argument in the first appeal (B189730) and in the September 28, 2006 writ petition (B193970). We concluded that the trial court had jurisdiction to consolidate the partition action with the dissolution and that the court retained jurisdiction to correct clerical errors in the judgment. Based on the law of the case doctrine, Michael is precluded from relitigating those claims. (Clemente v. State of California (1985) 40 Cal.3d 202, 210-212.) "Under the law of the case doctrine, when an appellate court ' "states in its opinion a principle or rule of law necessary to the decision, that principle becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal. . . ." ' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 246.)
February 20, 2007 Order Confirming Sale
Michael also appeals from the February 20, 2007 order approving the referee's sale of the Vineyard Drive property. The notice of appeal was filed four months after the order and is untimely. (Cal. Rules of Court., rule 8.104(d)(2).)
On the merits, Michael argues that the sale resulted in an unequal division of community property and the trial court erred in finding that the dilapidated home added no value to the property. Michael complains that the referee, in listing the Vineyard Drive property, advertised that the property needed only cosmetic repairs and sold it for $1 million more than its appraised value.
All claims concerning valuation of the property, the respective ownership interests, credit allocations for improvements and repairs, and the listing of the property were decided in the first appeal. (B189730.) The law of the case doctrine bars Michael from relitigating those issues in this appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, pp. 928-929; In re Marriage of Balcof, supra, 141 Cal.App.4th at p. 1518.)
April 18, 2007 Orders
After the Vineyard Drive property was sold, Michael filed motions for new trial/mistrial and motion to vacate the amended judgment based on the theory the trial court lacked jurisdiction to amend the judgment nunc pro tunc or order the partition sale. At an April 18, 2007 hearing, the trial court denied the motions and approved the referee's final accounting with instructions to distribute the sale proceeds.
Michael states, in his notice of appeal, that the orders were entered May 22, 2007. A statement of decision was filed May 22, 2007, awarding Joanne sanctions, but no other orders were entered on that date. We conclude that the appeal from the April 18, 2007 orders denying the motions for new trial/mistrial and motion to vacate the amended judgment is untimely and barred by the law of the case doctrine. "Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court." (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312.)
The 60-day appeal period commenced to run on April 18, 2007 when the orders were entered in the minutes. (Cal. Rules of Ct., rule 8.104(d)(2); Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410.) The trial court also ordered the referee to report the sale to federal and state tax authorities. Joanne was directed to prepare an order "after consulting with a C.P.A. and/or tax attorney to ensure that the form and substance of the order will satisfy taxing authorities and clearly expresses the court's ruling." The order was signed and filed June 25, 2007, three days after the notice of appeal, but did not extend the appeal period on the other orders denying the motions for new trial/mistrial and motion to vacate the amended judgment. (See e.g., In re Marriage of Adams (1987) 188 Cal.App.3d 683, 689; Eisenberg & Horvitz, Cal. Practice Guide, Civil Appeals & Writs (The Rutter Group 2007) [¶] 3:49, p. 3-22.)
$15,000 Sanctions
In a prior appeal (B195405) we affirmed an order awarding Joanne $45,000 sanctions (§ 271), $30,000 appellate attorney fees (§ 2030), and $5,070 supplemental sanctions (§ 271). After the order issued, Joanne incurred an additional $22,000 in fees responding to Michael's motions, stay requests, and objections to the partition sale. This was the subject of a sanctions motion.
In a May 22, 2007 statement of decision, the trial court awarded Joanne $15,000 sanctions. (§ 271; Code Civ. Proc., § 128.7.) Although the sanctions order was entered five days after the notice of appeal, we treat the statement of decision as an appealable order. (See e.g., County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1344.)
We take judicial notice of the Findings and Order After Hearing, filed June 27, 2007. (Evid. Code, §§ 452, subd. (d)(1); 459.)
The statement of decision provides a history of Michael's frivolous litigation tactics, noting that Michael "objected to the form and substance of judgments and orders simply to reiterate arguments rejected many times before. [¶] . . . His most recent filings include another motion for a new trial, a motion for a mistrial and a motion to amend the Final Statement of Decision issued in 2005."
The trial court reasonably found that the nunc pro tunc correction of the 2005 judgment did not permit Michael to file a new round of motions for new trial/mistrial and motion to vacate the judgment. (See e.g., George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 480-481.) "[A]n amendment to correct a clerical error leaves the original judgment otherwise effective and unimpaired and such an amendment does not operate as a new judgment or decree from which a new appeal may be taken . . . . [Citation.]" (O'Connor v. Skelton (1961) 195 Cal.App.2d 612, 615;.)
Michael's 86 page opening brief attempts to resurrect issues decided in the first appeal. It misstates the facts and the law and merits no further discussion. (See e.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) The opening brief does, however, illustrate Michael's spurious tactics to vex, hinder, and delay a final resolution of this case. The motions, petitions, objections, and stay requests fill ten volumes of superior court files and have required Joanne to divert tens of thousands of dollars from her retirement savings for attorney fees and costs. The trial court found that Michael's "motions, petitions and other pleadings were intended to delay and obstruct the delivery of a just outcome to all the parties. Mr. Le Sage must do so on his own dime by reimbursing Ms. Le Sage for a portion of the fees and costs he created by obstructive and uncooperative conduct."
The record amply supports the imposition of $15,000 sanctions. No abuse of discretion occurred. (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 400-401.) Michael's "argument to the contrary – peopled with straw men, swimming with red herrings, and strewn with irrelevancies – is unworthy of even passing consideration." (In re Marriage of Green (1992) 6 Cal.App.4th 584, 592.)
The June 27, 2007 order awarding $15,000 sanctions is affirmed, as are the other orders referenced in the notice of appeal. Joanne is awarded attorney fees and costs on appeal, in an amount to be determined by the trial court on noticed motion. (§ 2030.)
We concur: GILBERT, P.J., COFFEE, J.