Opinion
G044247
01-04-2012
VIRGINIA CONDE, Plaintiff and Appellant, v. HAROLD CONDE, et al., Defendants and Respondents.
Law Office of John K. York and Celinda Tabucchi for Plaintiff and Appellant. Harold Conde, in pro. per., William Conde, in pro. per., Terie Osburn formerly Mary Therese Osborn, in pro per., for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. A236420)
OPINION
Appeal from a judgment and order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
Law Office of John K. York and Celinda Tabucchi for Plaintiff and Appellant.
Harold Conde, in pro. per., William Conde, in pro. per., Terie Osburn formerly Mary Therese Osborn, in pro per., for Defendants and Respondents.
Virginia Conde appeals from a judgment awarding her $490,623.74 in compensatory damages against her brothers, Warren and Arthur Conde, the final distribution of all assets in the M. Therese Conde Living Trust, dissolution of the trust, and the denial of her motion for a new trial. She contends the trial court abused its discretion by entering a judgment that does not conform to its previous statement of decision. We affirm.
We refer to the siblings by their first names for clarity.
I
FACTS
This is our third attempt to resolve the issues left in the wake of M. Theresa Conde's (Mrs. Conde) death. The following statement of facts is gleaned from the record on appeal and our two prior opinions (Conde v. Conde (Jan. 5, 2005, G032067) [nonpub. opn.] (Conde I); Conde v. Conde (June 29, 2009, G040237) [nonpub. opn.] (Conde II)).
In 1993, Mrs. Conde created a trust for the benefit of her six children, Virginia, Warren, Arthur, Harold, William, and Terie Osburn, the former Mary Therese Osburn. Mrs. Conde was the initial trustee, although the trust made provision for the appointment of successor trustees. The trust also provided for the distribution of various assets upon Mrs. Conde's death, including two homes in Costa Mesa.
The trust was amended six times before 2000 when Mrs. Conde died. The third amendment, which was made in September 1997, left the smaller of the Costa Mesa homes, or 25 percent of the trust residue if the home had been sold at the time of Mrs. Conde's death, to Virginia. The remaining real property was to be sold with the residue of the trust to be divided into five equal shares. Warren, Arthur, Harold and William were to each receive an equal share with the fifth share to be divided between Terie Osburn and her daughter, Rina. The third amendment also added a no contest clause, which revoked any bequest to a beneficiary who, directly or indirectly, contested, attacked, or sought to invalidate any provision of Mrs. Conde's trust.
In July 1998, Mrs. Conde gave Virginia joint tenancy in some stock she owned as a birthday gift. In January 1999, a fourth amendment confirmed the gift of the small Costa Mesa house to Virginia, but cut Terie Osburn out of her interest in the trust residue in favor of Rina.
In March 1999, Mrs. Conde resigned as sole trustee. She was succeeded by Warren and Arthur, and she executed a general power of attorney in their favor. The brothers used their new status to evict Virginia from an apartment behind Mrs. Conde's home and to assume responsibility for their mother's care. Later in the year, Warren and Arthur applied for a domestic violence restraining order to prevent Virginia from having any contact with her mother.
In November 1999, a fifth amendment to the trust eliminated Virginia's interest in the small Costa Mesa home in favor of a provision for the sale of all real estate with the proceeds to be split into five equal shares. Mrs. Conde's four sons were to receive equal shares with the remaining fifth share to be divided between Terie, Rina, and Virginia. Virginia's inclusion in the distribution was contingent upon her returning the stock her mother gave her in 1998.
In March 2000, a sixth amendment changed the allocation of any proceeds from the sale of real property from five to six shares, one to each child, but again Virginia's interest in the distribution was contingent upon her returning the stock gift made during Mrs. Conde's lifetime. Virginia did not return the stock before Mrs. Conde's death in September 2000.
In June 2001, Virginia filed a lis pendens against the small home in Costa Mesa and an action for undue influence, fraud, constructive fraud, and fiduciary abuse. She sought to rescind the fifth and sixth amendments, alleging her mother had been mentally and physically dependent on others and in need of 24-hour-a-day care since February 1999. She also alleged her siblings had decided to undo the third amendment to the trust, the amendment which left the small Costa Mesa house to Virginia, when they first learned of it, and they had resolved to take advantage of their mother's incapacity by inducing her to execute the fifth and sixth amendments to her trust. A cross-complaint set out causes of action for financial abuse and infliction of mental suffering, alleging Virginia had wrongfully obtained joint ownership of stock while she was her mother's caretaker.
A contract to sell the smaller Costa Mesa house was signed in August 2001 and escrow closed on February 25, 2002. Warren and Arthur distributed $59,000 to both Harold and Walter, and $21,600 to Terie before the close of escrow. This was a partial distribution of trust assets according to a notation on the receipts. After the close of escrow, Warren and Arthur distributed $44,000 to Harold, and $22,000 each to Walter and Terie. This time the receipts included the following clause, "I understand that litigation involving the trust is continuing and that it is possible that some or all of the funds I am receiving may have to be returned to the Plaintiff in that action if she is successful."
The case proceeded to trial in 2002, but by that time the parties were challenging the third, fourth, fifth and sixth amendments to the trust. The central question was Mrs. Conde's mental condition from September 1997, the date of the third amendment, to the date of the sixth amendment in 2000. After hearing the evidence, the trial court (Judge Monarch) determined Mrs. Conde had been dependent on others since March 1995, and ruled all the contested amendments and the stock gift had been obtained by undue influence. The judgment rescinded the third through sixth amendments and the stock gift, and directed the cash proceeds, plus the value of the stock, to be divided equally among the six siblings. (Conde I, supra, at p. 7.) Virginia appealed.
In January 2005, we issued an opinion striking down the fourth, fifth, and sixth amendments to the trust, upholding the third amendment, which gave Virginia the sole interest in the small house in Costa Mesa, and reaffirming the stock gift. (Conde I, supra, at pp. 9-11.) We directed the trial court to enter a new judgment based on the validity of the third amendment and to divide the trust assets accordingly. (Id. at pp. 14-15.) The trial court entered a new judgment on April 25, 2005 that eliminated the findings of undue influence with respect to the third amendment, but did not specify the sum of money to be distributed to Virginia. (Conde II, supra, at p. 2.)
In 2006, Virginia filed a second action, alleging Warren and Arthur breached their duties as trustees when they refused to distribute either the small house or its proceeds to Virginia, and again when they failed to provide an annual accounting. A second cause of action alleged Virginia's siblings had violated a no-contest clause contained in the third amendment when they sought the 1999 restraining order against Virginia, defended the prior action, and filed a cross-complaint. She sought removal of Warren and Arthur as trustees, her appointment as trustee, an accounting, a declaration her siblings had forfeited their interests as beneficiaries, and punitive damages.
The matter was heard over four days in May 2007. In a written "Ruling After Trial," the court (Judge Geoffrey T. Glass) answered 28 questions to resolve the issues "as framed by the parties." Among the issues decided, the court found no evidence of willful misconduct or gross negligence on the part of the trustees (Warren and Arthur) as a result of the sale of the Costa Mesa house. The court also wrote, "[b]y virtue of the decision of the court of appeal, the trustees now have an obligation to distribute the estate of Therese Conde in accordance with her 3rd amendment, which might require the beneficiaries to return a portion of the distribution made in 2002. This procedure was contemplated by the receipts signed by all recipients."
The court specifically found the beneficiaries did not violate the no-contest clause. On the other hand, the court also found valid a provision in the trust that precluded any attempt to invalidate an inter vivos gift. The court concluded Warren and Arthur violated this no-contest clause by seeking revocation of the inter vivos stock gift to Virginia. The court also found Virginia violated the no-contest clause by challenging the fifth and sixth amendments on grounds of undue influence and lack of capacity. Thus, the trial court found Warren, Arthur, and Virginia were not entitled to recover anything as a result of the no-contest clause in the third amendment to the trust. However, the court affirmed the inter vivos gift of stock to Virginia. The court also found "[t]he trustees have no further liability to Virginia Conde and no further responsibilities under the trust, as the trust assets have been distributed." Virginia appealed.
In 2009, we concluded Virginia's action to recover the proceeds from the 2002 sale of this house did not violate the no-contest clause contained in the third amendment. We then directed the trial court to determine the net proceeds from the sale, plus rents collected and interest, less Virginia's prorated share of taxes and the expenses, and to enter a judgment in her favor for this amount plus interest. (Conde II, supra, at pp. 2-3, 8-9.)
The trial court entered the following judgment in June 2010: "Petitioner, Virginia Conde, recover from Warren Conde and Arthur Conde jointly and severally the sum of $330,218.75, plus interest from August 1, 2005, to the date of this judgment $160[,]404.99 (June 10) ($90.47 per day), for a total judgment of $490,623.74 as compensatory damages for the improper sale of the real property known as 233 Sierks, Costa Mesa, California." The court also found Arthur and Warren forfeited their share of other trust assets not associated with the Costa Mesa property in the amount of $59,000 each. The court distributed the $118,000 forfeited by Arthur and Warren to the remaining beneficiaries equally, dismissed with prejudice all remaining claims, awarded Virginia her costs, and dissolved the trust.
In July 2010, Virginia filed a notice of motion and motion for a new trial "for the purpose of requesting a statement of decision on the following issue: whether a judgment in favor of petitioner, Virginia Conde, should be entered against Harold Conde, William Conde, and Mary Therese Osburn in the amount of trust distributions that were due to petitioner that trustees instead distributed to Harold Conde, William Conde, and Mary Therese Osburn."
Virginia alleged irregularity in the proceedings and accident or surprise prevented her from obtaining a fair trial and adequate damages. Relying on California Rules of Court, rule 3.1590, she argued the trial court's failure to issue a tentative decision and statement of decision prior to entry of the 2010 judgment constituted an irregularity in the proceedings. Virginia claimed the court's failure prevented her "from pointing out the inconsistency between the pre-appeal statement of decision (that the individual beneficiaries are personally liable for excessive trust distributions) and the court's post-appeal judgment (providing no restitution from the individual trust beneficiaries)." She also contended a judgment limited to Warren and Arthur would be inadequate to compensate her loss.
The trial court denied the motion for a new trial on August 12, 2010. Virginia filed a timely notice of appeal from the order denying her new trial motion and "from the portion of the judgment that fails to impose liability for restitution on the individual respondents: Harold Conde, William Conde and Mary Therese Osburn."
II
DISCUSSION
Virginia contends the trial court found the trust beneficiaries liable for the return of trust monies that should have been distributed to her, but failed to order an award against the beneficiaries. Thus, in her opinion, the trial court abused its discretion by limiting the judgment to Warren and Arthur.
Virginia focuses on issue No. 6 of the trial court's ruling: "Are the trust beneficiaries personally liable to Virginia Conde to the extent that her beneficial interest under the 3rd amendment has been distributed by them?" As mentioned above, the court stated, "By virtue of the decision of the court of appeal, the trustees now have an obligation to distribute the estate of Therese Conde in accordance with her 3rd amendment, which might require the beneficiaries to return a portion of the distribution made in 2002. This procedure was contemplated by the receipts signed by all recipients. It would be impossible for the trustees to distribute the house to Virginia Conde, as it has been sold." (Italics added.) Relying on the first and final paragraphs of the court's answer, Virginia argues the trial court found the beneficiaries personally liable to her, but later dismissed the beneficiaries and terminated the trust. She contends this inconsistency invalidates the judgment and eliminates "the possibility of anyone recovering the wrongfully distributed house proceeds," thereby resulting in an unjust enrichment of beneficiaries." Although interesting, her argument lacks merit.
First, to the extent Virginia appeals from the trial court's denial of her new trial motion, it is important to note the theories she articulated. In her new trial motion, Virginia argued there is an inconsistency between the trial court's "pre-appeal statement of decision" and "post-appeal judgment." She claimed to have requested a tentative ruling and statement of decision during the 2007 proceedings. California Rules of Court, rule 3.1590, subdivision (a) provides for either oral or written tentative decision upon request, but there is no evidence Virginia requested either an oral or a written tentative decision in 2007.
With respect to the 2010 remand proceedings, they did not involve a "trial of a question of fact," as required by California Rules of Court, rule 3.1590. To the contrary, the judgment was reversed and the matter remanded with specific directions to determine the amount of the net proceeds from the sale of the Costa Mesa property and awarded damages against the trustees. No trial was required, so no statement of decision was necessary. Although Virginia claims the trial court found the beneficiaries liable for the proceeds from the sale of the house and provides a citation to the record in support of this claim, the portion of the record she cites does not support her assertion. It indicates only the trial court's initial concern that parts of the 2002 distribution "might" have to be returned - a concern the court later determined to be unwarranted.
As noted above, Judge Glass concluded the trustees' sale of the Costa Mesa house was "reasonable under the circumstances," there was no evidence of "willful misconduct or gross negligence," and he found no reason to implicate the beneficiaries in Arthur and Warren's decision to file a cross-complaint seeking to invalidate the inter vivos stock gift. In short, Virginia fails to demonstrate an abuse of the trial court's discretion by denying her new trial motion, or that the judgment fails to conform to the trial court's 2007 posttrial statement of decision.
III
DISPOSITION
The judgment is affirmed. Respondents to recover their costs on appeal.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
O'LEARY, J.