Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Received for posting 11/5/08.
Alameda County Super. Ct. No. HP05209240
Richman, J.
Elaine Francis Conrad died, survived by two sons, Rick and Joseph, who were equal beneficiaries under her will. Rick appeals portions of the judgment settling first and final account and order for final distribution. We affirm.
The record before us is sparse indeed, consisting of a clerk’s transcript of 158 pages and a seven-page reporter’s transcript of one court session, that of January 10, 2008.
Elaine Conrad died on April 1, 2005, and her will was admitted to probate on July 1, 2005. Under the will Rick and Joseph were to share equally in their mother’s estate, and letters testamentary were issued to them, to serve as co-executors. The brothers could not get along, and on May 9, 2006, pursuant to agreement of the parties, letters of administration with the will annexed were issued to Charles M. Fisher. Fisher was granted full authority under the Independent Administration of Estates Act (Prob. Code, § 10400 et seq.) to administer Elaine’s estate without court supervision.
The antagonism between Rick and Joe apparently continued even after they were replaced by Fisher. As Joseph’s attorney described it at the one hearing for which we do have a transcript: “We went through a lot in the first part of this probate and didn’t stop after the brothers were removed. I think Mr. Frost [former counsel for Rick] and I are entitled to combat pay for breaking up a fistfight between the two brothers. This is one horrific file. My file is three folders about this thick, representing about two year’s worth of work on this.” The details of the antagonism are not in the record. Suffice to note that a reasonably straightforward estate, involving some $750,000, took over two and a half years to conclude.
The principal assets in Elaine’s estate were two parcels of real property: her home in Castro Valley, ultimately sold for $459,132, and land in Atwater, Merced County, ultimately distributed to Rick at a value of $250,000, with a cash equalization to Joseph in the same amount.
Fisher selected Hometown GMAC (Hometown) to act as the real estate listing broker for both properties. The Castro Valley home was sold (via another broker) and Hometown was paid its commission, apparently without incident. Not so the Atwater property which, as noted, was ultimately to be distributed to Rick.
On July 31, 2007, Fisher filed a notice of proposed action, planning to pay Hometown an $11,250 commission on the Atwater property. The $11,250 amount was a compromise between the amount Hometown claimed ($15,000) and the amount Fisher offered ($7,500). On August 16, 2007, Rick filed written objection to the proposed payment, his objection stating that “Hometown GMAC Real Estate did not produce a buyer. There is no sale of the real property.”
Meanwhile, on August 14, 2007, Fisher filed a petition for settlement of first and final account and final account and final distribution (the Petition). Exhibit E to the Petition was Fisher’s declaration, which set forth in eight detailed paragraphs his efforts on behalf of the estate. As germane to the primary issue involved here, the $11,250 payment to Hometown, Fisher’s declaration explained the following:
“5. I also attempted to sell decedent’s real property at 1576 Buller Street, Atwater, California, and this sale was objected to by the heirs. One heir, Rick Conrad, the tenant of the Buller Street property, offered a cash purchase of the property. That offer was rejected as too low. Because he did not cooperate in the showing of the property and put up barriers to inspections, I hired counsel to bring an unlawful detainer action to evict him from the premises. Eventually, through his counsel, I agreed that if he would ‘purchase’ the property at its reappraisal for sale value, I would seek to have that property distributed to him using an offset of cash he would otherwise be entitled to receive. The proposed distribution carries forward that proposed offset.
“6. Because Rick Conrad had been contacted by my real estate agent as a potential buyer of the property, Hometown GMAC Real Estate claimed a commission was due it based on the entire value of the property. I maintained that since only one-half of the property was actually ‘sold’ to Rick Conrad, the commission should be based only on one half the value. Ultimately, pursuant to Probate Code Section 10552(b), I settled potential litigation with Hometown GMAC Real Estate by paying a commission representing 4.5% of $250,000 rather than 6% of that amount. This compromise is exactly in the middle of what each side contended was due.”
A later declaration by Fisher included a copy of the compromise agreement and mutual release executed by Hometown and Fisher, on behalf of the estate.
The Petition was set to be heard on October 5, 2007. On September 29, 2007, Rick filed “Objections to Fiduciary’s Account and Request for Surcharge of Fiduciary . . . .” Objection “D” related to the $11,250 payment to Hometown, claiming that this was like a “gift” of estate funds and should not have been paid. Objection “F” objected to the request that 100% of the statutory compensation be paid to the final administrator and that 100% of the statutory attorney’s fee be paid to the attorneys for the former co-executors, Rick and Joseph. In support of his objections, Rick filed a declaration in which he set forth claimed statutory services by the co-executors and his “opinion” that these constituted about twenty percent of the total statutory services. As to the surcharge of Fisher, the pleading used that term only in connection with the $11,250 commission to Hometown—and only as an alternative to the amount being recovered “from the broker.”
On October 4, 2007, Fisher filed a response to objections and request for surcharge.
As noted, the Petition was set to be heard on October 5, 2007, before the Honorable Carl Morris, a most experienced judge. A minute order of that date reflects that “Attorney Charles Wilson [Rick’s attorney] objects to the Courts [sic] decision to grant the Petition for Final Distribution.” The matter was continued to November 16, 2007.
A response filed by Rick’s former counsel represents that the matter apparently came on for hearing on that date and “the court was prepared to grant the respective petitions and deny the objections . . . .”
On November 9, 2007, Rick filed a two and a half-page declaration in support of objections to account, which, among other things, said that the “handling of the Atwater real property is [his] major objection.” A two-page “Points and Authorities” accompanied the declaration.
Robert Frost, Rick’s former attorney, also filed a response, stating that he performed various services, and that Rick’s role was merely to provide information. Thereafter Fisher filed a declaration adopting Frost’s position that Rick merely provided information, adding that Rick also reviewed paperwork and signed it. But that was it: according to Fisher, the brothers’ participation in the management of the estate was “minimal at best, and obstructionist at worst.”
The petition came on for hearing on January 10, 2008 (apparently having been continued from November 16, 2007). Judge Morris heard argument, following which he took the matter under submission. On January 16, 2007, a minute order was entered, ordering as follows:
“The first and final account is settled, allowed and approved.
“Statutory Fees allowed payable to the petitioner the sum of $17,204.01; to Robert M. Frost the sum of $8,652.00; to Davis Hillis the sum of $8,652.00.
“Extraordinary Fees allowed payable to the petitioner the sum of $10,365.00; to Robert M. Frost the sum of $9,580.00.
“Reimbursement for costs advanced allowed payable to the Petitioner the sum of $15.50; to Robert M. Frost the sum of $328.07; to Rick Conrad the sum of [$]44,819.31.
“The sum of $2,000.00 shall be withheld for closing expenses and as a reserve.
“Final Distribution approved.”
A judgment settling first and final account and order for final distribution was then filed. It was a comprehensive five-pages, which began with 30 paragraphs of findings. These were followed by 12 paragraphs of what was ordered and concluded, including, as pertinent here, that “all acts, transactions, sales, and investments of [Fisher] are ratified, approved, and confirmed.” Beyond that, to identify what is apparently before us here, we quote Rick’s brief as to what was found and concluded: Judge Morris “found that the administrator compromised potential litigation by Hometown GMAC against the estate saving $3,750.00 from the full claimed amount. (CT 133). It awarded $17,204.01 (one hundred percent of the statutory compensation) to the administrator Charles M. Fisher (CT 35), and it found that Attorney Robert M. Frost, as former counsel for co-executor Rick Conrad, was entitled to one half the statutory attorney’s fees in the sum of $8,652.00 (CT 134). Similarly, it found that Attorney David Hillis as counsel for former co-executor Joe Charles Conrad was entitled to one half of the statutory fees in the sum of $8,652.00 (CT 134).”
On March 14, 2008, Rick filed his notice of appeal.
Analysis
Rick’s opening brief on appeal does not list the arguments in its table of contents. However, in a portion of the brief entitled “Memorandum of Points and Authorities,” Rick makes four arguments attacking specific components of Judge Morris’s judgment. We discuss them in turn.
The Commission. In a two-page argument, Rich attacks the $11,250 commission paid to Hometown, contending that there was no sale. However, Rick cites no record reference in support of any claimed “no sale,” and on that basis the argument can be deemed waived. (See, e.g., Tiernan v. Trustees of Cal. State Universtity & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1336, fn. 2.)
Beyond that, Judge Morris determined otherwise, and such determination will be upheld, under well-settled principles of appellate review: “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.]” (9 Witkin, Cal. Proc. (4th ed. 1997) Appeal § 349, pp. 394-395; and numerous authorities there collected; Estate of Goulet (1995) 10 Cal.4th 1074, 1077, fn. 1.)
Statutory Attorney’s Fees. Rick’s second argument, consisting of all of two paragraphs, is that the estate is “not responsible for both statutory attorney’s fees and compensation when the personal representative is an attorney.” Rick cites Probate Code section 10804 and California Rules of Court 7.706(a), and then says this: “Therefore, if eighty percent of the statutory duties as personal representative/estate attorney were provided by Mr. Fisher, the estate has not incurred eighty percent of the statutory attorney’s fees.”
Again, the argument has no record reference, so it can be rejected on that basis. Moreover, the brief has no discussion of the standard of review applicable to the determinations by Judge Morris to which Rick objects. While this is perhaps by itself not a basis to reject the argument, the standard of review that does pertain is such a basis. That standard of review is abuse of discretion. (Estate of Parker (1921) 186 Cal. 671, 622 [attorney’s fees]; Estate of Van Every (1945) 67 Cal.App.2d 164, 166 [same]; Estate of Iser (1921) 52 Cal.App. 405, 408 [same].) No abuse is shown—indeed, even attempted—here. Nor the requisite miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Division Five of this court had admonished counsel that “[i]n [the] future, counsel’s failure to acknowledge the proper standard of review might, in and of itself, be considered a concession of lack of merit.” (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
Compensation. Rick’s third argument, contained in two paragraphs in less than a page, is entitled “compensation is apportioned among several representatives by the court.” The argument itself is difficult to comprehend, but does state that “The Court apportions the statutory commission or fee among successive personal representatives or attorneys based on any agreement among them, or in the absence of an agreement, based on the services actually rendered by each of them. C.R.C. Rule 7.704(a). When the apportionment is determined, the total for statutory fees and commissions to be paid should be $17,304.01, not $34,608.02.” Again, there is no record reference.
Perhaps the argument is based on Rick’s “opinion”—which Rick’s brief states was “the only opinion of apportionment in the record”—that the recepients of the fees provided only 20% of the duties. If so, Judge Morris rejected that “opinion.” It was hardly an abuse of discretion.
Surcharge. It will be recalled that with his objections Rick filed a request for surcharge. Fisher responded, and Judge Morris’s conclusion was that “all acts, transactions, sales, and investments of [Fisher] are ratified, approved, and confirmed.” Eschewing any reference to that, Rick’s final argument asserts that the “Court Has Jurisdiction to Impose Surcharges on the Personal Representative.” We agree Judge Morris had such powers. And he refused Rick’s request. Rick argues nothing to the contrary, citing only two boilerplate principles, but never even attempting to show how they apply here. We deem the argument waived. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.)
Disposition
The judgment is affirmed.
We concur: Kline, P.J. Haerle, J.