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Estate of Nitowski

California Court of Appeals, Second District, Fourth Division
Mar 27, 2008
No. B198460 (Cal. Ct. App. Mar. 27, 2008)

Opinion


Estate of ANN NITOWSKI, Deceased. DIANE WESTIN, Petitioner and Appellant, v. JOHN A. NITOWSKI, as Executor, etc. Respondent and Objector. B198460 California Court of Appeal, Second District, Fourth Division March 27, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. YP009131, Dudley W. Gray II, Judge.

Rogers & Harris and Michael Harris for Petitioner and Appellant.

Haney, Buchanan & Patterson, Jacqueline A. Patterson; Law Office of Carol L. Vallely and Carol L. Vallely for Respondent and Objector.

MANELLA, J.

INTRODUCTION

Appellant Diane Westin appeals from the denial of her first amended petition to bring certain real property into the probate estate of her deceased mother, Ann Nitowski. Appellant contends that at the time of her death, Ann owned an interest in the subject real property as a tenant in common with two others, rather than as a joint tenant, and thus her interest passed to appellant under her will. Respondent John A. Nitowski, Ann’s son and executor of her probate estate, contends that Ann was a joint tenant, and that at her death, all interest in the property passed to the surviving joint tenants, Frederick F. Nitowski (Ann’s other son) and his wife Gwen S. Nitowski. Both parties support their contentions with the language of the grant deed by which Ann and the others took title, and both parties contend that the language is unambiguous. The probate court agreed with respondent. Because appellant has not shown the court erred in rejecting her interpretation, we affirm the court’s determination.

“A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s). [Citations.] Nothing ‘passes’ from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created. [Citations.]” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1317.) “There is no right of survivorship in a tenancy in common. Instead, each tenant may pass his or her interest in the property to heirs and devisees. [Citation.]” (Dieden v. Schmidt (2002) 104 Cal.App.4th 645, 650.)

There are several persons named Nitowski who figure in this case. To avoid confusion, we refer to them by their first names after they are first mentioned.

Appellant also contends that the court denied her due process by failing to give her a reasonable opportunity to argue at the hearing on the petition. We conclude that appellant has forfeited this point and, in any event, suffered no prejudice. We therefore affirm the court’s order.

BACKGROUND

Appellant Westin’s original petition, filed in August 2006, was taken off calendar when she failed to appear at the time set for hearing. In February 2007, appellant filed a first amended petition (petition). Attached to the petition was a copy of Ann’s will, dated August 27, 2002, in which she bequeathed her interest in property located at 8418 Kittyhawk Avenue to Westin. Ann died in 2005. Her husband Walter predeceased her. Also attached to the petition was a “JOINT TENANCY GRANT DEED” on a preprinted form, with a partially handwritten recital, by which appellant’s brother Frederick granted the Kittyhawk property to Ann, Walter, himself and his wife Gwen. The deed was recorded in 1977.

The manner in which the property was taken by the grantees is the subject of dispute. The petition alleged that after Ann’s death, a controversy arose between Westin and her brother Frederick, the grantor, with Westin claiming that the grant deed provided that their parents, Walter and Ann, took the property as the joint tenants of each other, while Frederick and Gwen took the property as tenants in common with Walter and Ann. Under this construction, Walter’s death would have left Ann as Walter’s surviving joint tenant, succeeding to a one-half undivided interest in the property as a tenant in common with Frederick and Gwen. Frederick, on the other hand, claimed that the joint tenancy grant deed created a joint tenancy among all grantees, so that when Walter died, his interest passed to Ann, Frederick and Gwen as the surviving joint tenants; thus, when Ann died, her interest passed to Frederick and Gwen as the surviving joint tenants.

The petition and the opposition both averred facts relating to the intent of the grantor and grantees. However, no evidence was taken at the hearing on the petition. In his opposition to the petition, respondent asked the probate court to deny the petition on the ground that the deed was unambiguous in creating a joint tenancy among all grantees.

While the parties have referred to these facts in their briefs, matters not admitted into evidence are outside the scope of review. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 815.) Thus, we disregard the alleged facts.

On the date of the hearing on the petition, Westin’s newly retained counsel appeared and sought to submit a document entitled “MEMORANDUM,” with two exhibits attached. Respondent’s counsel objected to the untimely submission, noting that it was not in proper form, had apparently been prepared months earlier and was being offered for the first time at the hearing. After hearing from both counsel, the court permitted the document to be lodged and proposed taking the petition and the objection under submission: “I’ll look at the document, and if it’s inappropriate, I’ll sustain the objection. If not, I’ll overrule it and consider it.” Neither party objected to the proposed procedure, and the matter was submitted.

The document was not on pleading paper and appeared to have been prepared for internal use. The first page bore the date of the hearing, March 14, 2007, but the remaining pages were dated January 18, 2007 and bore the notation, “Memo to File.”

We granted appellant’s motion to augment the record with the lodged document, as well as a copy of the reporter’s transcript of the hearing.

On March 14, 2007, the court issued a minute order sustaining the objection and denying the petition. Appellant timely filed a notice of appeal from the order.

DISCUSSION

Appellant contends that the probate court erred in its interpretation of the joint tenancy grant deed and denied her due process by precluding her counsel from arguing her position.

1. Interpretation of the Joint Tenancy Deed

Both parties claim the deed is unambiguous, but argue different interpretations. Appellant contends that the deed expressly granted a one-half interest in the property to Ann and Walter as the joint tenants of each other, but did not expressly state that a joint tenancy existed among all grantees. Thus, appellant argues, the deed cannot be construed as granting anything but a tenancy in common between Ann and Walter on the one hand, and Fred and Gwen on the other, because a deed may not be construed as conveying title in joint tenancy unless it expressly so provides. (See Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 242; Civ. Code, § 686.) Respondent rejects appellant’s interpretation, arguing that by its express terms the deed created a joint tenancy among all four grantees.

Civil Code section 686 provides in relevant part: “Every interest created in favor of several persons in their own right is an interest in common, . . . unless declared in its creation to be a joint [tenancy], . . . or unless acquired as community property.”

As extrinsic evidence was not considered by the probate court, the interpretation of the deed is a question of law which we determine under a de novo standard of review. (See Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180.) “‘[W]here no extrinsic evidence has been introduced, the interpretation placed upon the [instrument] by the trial court will be accepted by this court if such interpretation is reasonable, or if the interpretation of the trial court is one of two or more reasonable constructions of the instrument.’ [Citation.]” (Prickett v. Royal Ins. Co., Ltd. (1961) 56 Cal.2d 234, 237.) Thus, when faced with two or more interpretations of an instrument, but no extrinsic evidence, we may reverse the judgment only when we find the trial court’s interpretation erroneous. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866; Estate of Newmark (1977) 67 Cal.App.3d 350, 360.) This does “not mean that the appellate court is absolved of its duty to interpret the instrument.” (Parsons v. Bristol Development Co., supra, at p. 866) Our paramount objective in the interpretation of any written instrument is to determine and effectuate the intent of the transferor. (Prob. Code, § 21102, subd. (a); Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134.) “All parts of an instrument are to be construed in relation to each other and so as, if possible, to form a consistent whole.” (Prob. Code, § 21121.) “The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained.” (Prob. Code, § 21122.)

While the court gave no reasons denying the petition, its ruling makes clear that it rejected appellant’s proffered interpretation.

The rules of interpretation set forth in the Probate Code apply to wills, trusts, deeds and any other instrument, unless a provision in the instrument or its context requires otherwise. (Prob. Code, § 21101.) The rules set forth in the Civil Code for interpreting contracts also apply to deeds. (Civ. Code, § 1066; City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238.)

We set forth below the relevant language of the deed, shading those portions which were preprinted and capitalizing, as they were in the deed, the handwritten portions:

We attach a copy of the deed as Appendix A to this opinion.

JOINT TENANCY GRANT DEED

[¶] . . . [¶]

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, FREDERICK F. NITOWSKI hereby GRANT(S) to HUSBAND AND WIFE WALTER A. NITOWSKI AND ANN NITOWSKI AS JOINT TENANTS.

FREDERICK F. NITOWSKI AND GWEN S. NITOWSKI HUSBAND AND WIFE the following described real property in the CITY OF LOS ANGELES . . .

We note first the obvious, viz., that the instrument is entitled “JOINT TENANCY GRANT DEED.” These words appear at the top of the deed in a font significantly larger than any found elsewhere in the document. This supports respondent’s interpretation that the deed was intended to create a joint tenancy among the grantees. The fact that the preprinted words “AS JOINT TENANTS” closely follow the handwritten listing of Walter and Ann Nitowski does not indicate a contrary intent. It is clear that the form provided insufficient space between the name of the grantor and the preprinted words to list all of the grantees before the term “AS JOINT TENANTS,” thus necessitating the placement of Frederick and Gwen’s names below those of Walter and Ann.

Appellant contends that the preprinted joint tenancy language must be read as referring only to Ann and Walter. Appellant’s contention is inconsistent with her claim that the parties intended to “provide for a joint tenancy as between the spouses of each of the two married couples, but a tenancy in common as to the two couples.” A clear and explicit grant of a tenancy in common as between the couples, but a joint tenancy as to each couple, would have included the words “as joint tenants” a second time, after Frederick and Gwen’s name. It did not. Appellant’s reasoning fails to overcome the reasonable inference--that the joint tenancy grant was not limited to Walter and Ann--which arises from the title, “JOINT TENANCY GRANT DEED,” and from the impossibility of fitting the four names on the line before the term, “AS JOINT TENANTS.”

Appellant argues that despite its title, the deed did not expressly convey the property in joint tenancy to all grantees, because it did not use the word, “all.” While a well placed “all” might have helped to clarify the instrument, its absence does not make appellant’s construction of the deed the only tenable one, much less preclude the inference that a joint tenancy was created between the couples. As we do not find appellant’s interpretation more reasonable than respondent’s, we cannot conclude that the trial court erred. (See Parsons v. Bristol Development Co., supra, 62 Cal.2d at p. 866.)

2. Oral and Written Argument

Appellant contends that she was denied procedural due process when the court took the matter under submission without affording her counsel an opportunity to “submit to the court her contentions with regard to the relevant deed.” She does not claim that her counsel requested to be heard on the merits of the petition. Nor does she challenge the court’s decision to sustain respondent’s objection to the court’s consideration of the tardily proffered memorandum. Rather, she contends that without knowing whether the document would be considered, her counsel was deprived of the opportunity to argue her case. The record indicates, however, that appellant’s counsel acquiesced in the court’s proposed procedure, and that she was not prejudiced.

At the time of the hearing, appellant’s counsel, Mr. Michael Harris, sought to submit a document he had never filed and had provided opposing counsel only 10 minutes before the hearing. Respondent’s counsel, Ms. Carol Vallely, noted that the document was not on pleading paper, and that the body of it appeared to have been prepared two months earlier. Appellant’s counsel conceded he had had “some exposure to these issues” since January, and offered no satisfactory explanation for his failure to serve and file the document before the date of the hearing.

The judge proposed that Harris lodge the memorandum and that the court take the objection and the petition under submission, indicating he would consider the memorandum and exhibits only if he decided to overrule the objection. Appellant’s counsel did not object to the proposal, nor did he ask for oral argument on the petition. After appellant waived formal notice, the following colloquy occurred:

“MR. HARRIS: . . . May I leave this with the

“THE COURT: Yes. As well as the substitution of the attorney. And, again, I haven’t ruled on it yet.

“MR. HARRIS: Well, the substitution, sure. I’ll leave the substitution, and I’ll leave my papers. And then it will be submitted?

“THE COURT: Yes. Thank you very much. The matter is under submission.

“MS. VALLELY: Thank you, Your Honor.

“MR. HARRIS: Thank you, Your Honor.”

The hearing was then adjourned without further objection or request for argument.

Appellant claims that because she did not know at the time of submission whether the court would consider her written material, she had no opportunity to argue or explain her contentions, resulting in a denial of due process. We disagree. Appellant was afforded a hearing on the petition, but never sought to address any issue other than respondent’s objection to the court’s consideration of the document offered for the first time at the hearing. The record reveals no obstacle to counsel’s requesting further oral argument on the merits of the petition. Indeed, appellant’s counsel simply inquired whether the matter would be submitted, and when the court answered affirmatively, replied, “Thank you, Your Honor.”

The “denial of the right to present argument cannot be raised for the first time on appeal and . . . the burden is on [each party] to make his desire to present argument known to the trial court. [Citations.]” (People v. Manning (1981) 120 Cal.App.3d 421, 427; see also Bates v. Newman (1953) 121 Cal.App.2d 800, 811-812.) “‘“The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it could be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.”’” (Nave v. Taggart (1995) 34 Cal.App.4th 1173, 1177, quoting Sommer v. Martin (1921) 55 Cal.App. 603, 610.) We conclude that appellant forfeited the issue of oral argument when her counsel failed to request it.

The cases cited by appellant--Cal-American Income Property Fund VII v. Brown Development Corp. (1982) 138 Cal.App.3d 268, 273, footnote 3, and Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, are of no help to appellant, as in both cases counsel objected or requested argument.

Moreover, appellant has failed to show she was in any way prejudiced by the court’s procedure. She does not contend the court was required to accept her 11th hour submission. Indeed, her counsel acquiesced in the court’s proposal to take the matter of the memorandum under submission and, if it deemed the objection meritorious, to decline to consider the document. As the court was well within its discretion in declining to consider the memorandum, appellant cannot demonstrate prejudice from her counsel’s alleged inability to argue the significance of its contents.

DISPOSITION

The order is affirmed. Respondent shall have his costs on appeal.

We concur: WILLHITE, Acting P. J., SUZUKAWA, J.


Summaries of

Estate of Nitowski

California Court of Appeals, Second District, Fourth Division
Mar 27, 2008
No. B198460 (Cal. Ct. App. Mar. 27, 2008)
Case details for

Estate of Nitowski

Case Details

Full title:DIANE WESTIN, Petitioner and Appellant, v. JOHN A. NITOWSKI, as Executor…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Mar 27, 2008

Citations

No. B198460 (Cal. Ct. App. Mar. 27, 2008)