Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. P256890.
Sepulveda, J.
Pro per appellant Dale Pennie appeals from an order approving the final distribution of the assets in the estate of his father, George W. Pennie. He raises a number of complaints about payments that the trial court ordered from the estate. Respondent Alice Ponce concedes that the trial court’s order erroneously directed an overpayment of statutory attorney fees. We therefore reverse and remand to the trial court to correct the error. We otherwise affirm.
To avoid confusion, we sometimes refer to members of the Pennie family by their first names.
I. Factual and Procedural Background
Appellant is the son of the deceased, and respondent is the executor for the deceased’s estate. George died on April 25, 2003, and his will was admitted to probate in September 2003. George had another son, Glenn Pennie, who has a conservator because he was declared by police in Oregon as “ ‘missing under mysterious circumstances.’ ” Although the record on appeal does not contain all the relevant filings, it is apparent that the parties were involved in extensive litigation regarding six properties that George owned in Alameda County, as well as other issues.
On June 10, 2010, respondent filed a “Fourth and Final Account and Report of Personal Representative, Petition for Settlement Thereof for Payment of Statutory Commissions and Statutory Attorneys Fees, Reimbursement of Monies Advanced by Alice Ponce and for Fees for Extraordinary Services of Attorney, to Prorate Federal and State Estate Income Taxes and for Final Distribution” (hereafter “the petition”). (Unnecessary capitalization omitted.) The petition alleged that the estate was in a condition to be closed, and requested that the estate be distributed as set forth in an exhibit to the petition. It also requested that respondent be authorized to pay statutory commissions and fees to her attorneys in the amount of $15,088.84, and that she be authorized to pay fees for extraordinary services to her attorneys in the amount of $213,218.35.
Appellant, proceeding without an attorney, filed objections. He argued that (1) the statutory attorney fees should be reduced by the amount already paid by the estate, (2) $500 previously paid in sanctions should be repaid to the estate, (3) money paid to clean up property owned by George should be repaid to the estate, (4) the court should order Glenn’s conservatorship to pay half of the extraordinary fees related to sales of the estate’s real property, (5) extraordinary fees relating to a petition appellant filed pursuant to Probate Code section 850 seeking to void six grant deeds relating to properties owned by George should not be ordered because George’s estate was not a party to that action, and (6) respondent should not be permitted to collect extraordinary fees because the California Rules of Court were not followed insofar as there was no agreement for services as set forth in rule 7.703(d).
All statutory references are to the Probate Code, and all rule references are to the California Rules of Court.
The probate examiner filed a “checksheet” raising various concerns about the petition, and respondent’s counsel filed a declaration addressing those concerns. Respondent’s counsel also filed a separate declaration addressing appellant’s objections, and submitted revised schedules of distribution of assets to reflect a reduction in the amount sought for statutory commissions and attorney fees as well as an allocation of cleanup costs to a specific real property. Appellant filed a response to counsel’s declaration, objecting to various aspects of the revised proposed distribution of assets, and respondent’s counsel filed additional declarations to address points raised by appellant.
A hearing on the petition was held on August 30, 2010. Appellant, still proceeding without an attorney, raised a number of issues, and both the court and respondent’s counsel expressed frustration that appellant had not previously brought those issues to the court’s or counsel’s attention. After hearing from both sides, the court took the matter under submission.
On September 3, 2010, the trial court issued its decree settling the fourth and final account of the estate. The court awarded $205,591.68 in extraordinary compensation (about $7,600 less than what respondent had sought) and $15,088.84 in statutory attorney fees, and ordered distribution of the remaining assets in the estate. On September 7, 2010, appellant filed a “Proposed Findings of Fact and Conclusion of Law, ” further objecting to respondent’s accounting. (Unnecessary capitalization omitted.) Appellant thereafter timely appealed.
II. Discussion
Appellant, still proceeding in propria persona, has filed disjointed and confusing briefs that lack legal support for most of their arguments. (Cf. Rule 8.204(a)(1)(B) [each point in brief must be supported by argument and, if possible, authority]; In re Daniel M. (2003) 110 Cal.App.4th 703, 708 [absence of argument and citation to authority amounts to waiver of issue]; Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1042 [court need not address arguments for which a party provides no supporting authority].) “ ‘ “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.]’ [Citation.]” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449, original italics.)
With these principles in mind, we analyze the issues raised by appellant, focusing particularly on those that are arguably supported by adequate legal argument.
A. Independent Party Accounting.
Appellant first argues that the trial court erred by not ordering an independent party accounting of the estate. This is a reference to appellant’s request, made for the first time at the hearing on the petition, that the court order “an independent accounting of my father’s estate, an independent accounting, not through their accounting people.” Respondent’s counsel stated that such an accounting might cost $400 an hour or more, and that the money would be paid by the beneficiaries of the estate. The trial court asked both sides whether an agreement could be reached over the terms of an accounting, and it was clear that it would be difficult to reach agreement. The court then stated, “Anyway, that’s not the subject that I was intending to deal with today. That may be something that the two, three, four, five or however many of you it is might want to discuss as far as future [sic] is concerned. But right now, there is an objection. And I’m going to have to look at the stack of accountings to see what I think.” (Italics added.) The court’s final order did not address the request for an independent accounting.
Appellant offers no reason why the trial court erred in not ordering an independent accounting. Appellant did not file a formal, written motion below, so it is unclear that all parties (such as Glenn’s conservator) received proper notice of appellant’s request. The trial court suggested that all parties discuss the matter at some point in the future, and appellant offers no reason why this was not the proper approach. Appellant has failed to demonstrate that the trial court erred.
B. Statutory Attorney Fees.
Appellant next argues that the trial court erred when it ordered statutory attorney fees in the amount of $15,088.84 pursuant to section 10810, which authorizes compensation for the ordinary services of the personal representative’s attorney, based on the estate’s value. The amount of statutory attorney fees respondent requested in the petition is $15,088.84. Appellant objected that the trial court previously had ordered statutory attorney fees in the amount of $8,000 and that the statutory attorney fees should be reduced in the amount of this advanced payment. Respondent’s counsel acknowledged in a declaration that the $8,000 previously paid “was inadvertently overlooked” and that revised schedules were being submitted “indicating this reduction.” However, the trial court’s final order (prepared by respondent’s counsel) awards the original $15,088.84 requested by respondent.
In response to appellant’s argument that the trial court “ordered an over payment of $8,000.00, ” respondent states that “[i]n this case there was a typo in the Decree of Final Distribution signed by the Honorable Carl Morris. As with the Statutory Commissions, the Statutory Attorneys Fees should have been reduced by the sum of $8,000.00 (payment already received per a prior Court approved Accounting) for the total sum of $7,088.84 (Amount in Decree of Final Distribution $15,088.84 [minus] payment already received per a prior Court approved Accounting $8,000.00). The correct amount of Statutory Attorneys Fees in the sum of $7,088.84. Therefore this is a moot point.” Respondent later asserts, “The Estate will only pay Statutory Attorneys Fees in the sum of $7,088.84. Therefore this is a moot point.” We understand respondent to concede that the trial court’s final order erred in awarding $15,088.84 in statutory fees and that the final order should have awarded only $7,088.74, but that respondent considers this a “moot point, ” because the error was a “typo” and because respondent intends to pay a different amount from what is specified in the order. However, respondent does not address how the $8,000 erroneously ordered in attorney fees will be, or should be, distributed.
In light of respondent’s concession that the trial court should have ordered only $7,088.74 in statutory attorney fees, we do not consider this error to be a “moot point.” We therefore shall remand the matter to the trial court to reduce the statutory attorney fees award by $8,000 (the amount that respondent concedes was previously paid) and to determine the appropriate distribution of that amount.
C. Trustee Account.
Appellant next contends that “[t]he trial Court erred when it did not question the fact that there was a trustee account.” Appellant contends that respondent’s counsel stated at the hearing on the petition that “there was a trustee account for the Estate that checks were paid out of. [Record citation.] This money is the Estate’s money. Probate Code [section] 9650 (2)(b)[.] The personal representative is responsible for management of the estate not the attorney.” (Original underlining.) It is unclear whether appellant raised an objection below to any trust account, and appellant does not specify on appeal what remedy he seeks from this court on this issue. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [appellant waives argument not raised below].) We therefore reject appellant’s argument.
D. Attorney Fees for Extraordinary Services.
Appellant next argues that the trial court’s award of attorney fees for extraordinary services was not reasonable under the circumstances. Respondent requested below an award of $213,218.35 in extraordinary fees. The trial court’s final order awarded $205,591.68 in extraordinary fees, but did not explain why it awarded $7,626.67 less than requested.
The trial court may award compensation to the personal representative’s attorney for extraordinary services performed “in an amount the court determines is just and reasonable.” (§ 10811, subd. (a).) Rule 7.703(c) provides a nonexclusive list of activities for which extraordinary compensation may be awarded to the personal representative’s attorney, including “[l]itigation undertaken to benefit the estate or to protect its interests.” (Rule 7.703(c)(3).)
The grant or denial of extraordinary fees is reviewed for abuse of discretion. (Rule 7.703(a); Estate of Gilkison, supra, 65 Cal.App.4th at p. 1448.) “ ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice....’ [Citation.]” (Gilkison at p. 1449.)
Appellant establishes no such manifest miscarriage of justice here. He claims that respondent sought payment for extraordinary services for the fees associated with the appointment of a personal representative, which was an inappropriate task for the award of extraordinary fees. However, in light of the fact that the trial court awarded respondent about $7,600 less than what was sought, appellant cannot demonstrate that the amount actually awarded was an abuse of discretion.
Appellant also complains that respondent sought payment for attorney fees associated with litigating (1) a petition appellant filed in November 2005 pursuant to section 850 in a separate proceeding regarding the conservatorship of Glenn, (2) a complaint appellant filed to quiet title and for elder abuse, and (3) a mediation related to appellant’s complaint. He argues that these three tasks “[w]ere not against the Estate” (original italics), presumably meaning that the tasks were not “undertaken to benefit the estate or to protect its interests.” (Rule 7.703(c)(3).) Appellant further complains that respondent sought payment for services related to “the sale of the Real properties on 42nd [S]treet when Glenn owned 50% ownership.” However, he acknowledges that the fees associated with the sale of real properties were “[p]artly” a benefit to the estate.
In the absence of relevant documents that would refute respondent’s claim that the attorney fees associated with these actions were incurred for the benefit of the estate, or any legal argument why it was inappropriate to award fees for these tasks, appellant has failed to demonstrate reversible error. For example, although appellant complains that respondent sought compensation for fees incurred during a mediation, he directs this court to nothing in the record that would reveal the nature of the mediation or why it might not have been for the benefit of the estate. And although he complains about fees incurred in connection with a separate complaint he filed, he simply directs this court to a civil case cover sheet and a request for dismissal in the action, neither of which sheds much (if any) light on whether defending the action benefited the estate.
Finally, although appellant’s argument is somewhat confusing, he apparently also complains about the form of the attorney fee agreement between respondent and the law firm that represented her, and that this objection is an additional basis for reversing the order awarding extraordinary fees. Again, in the absence of any authority that would suggest error, appellant fails to demonstrate that the trial court abused its discretion in awarding extraordinary fees that were incurred pursuant to an agreement between respondent and counsel. We conclude that appellant has fallen far short in his “uphill battle” to establish that the trial court abused its discretion in awarding compensation for extraordinary services. (Estate of Gilkison, supra, 65 Cal.App.4th at p. 1448.)
E. No Award of Sanctions.
Respondent claims in her respondent’s brief that appellant’s appeal is frivolous and that she is therefore entitled to damages and sanctions. Respondent’s informal request for sanctions is denied. First, respondent has failed to file a separate noticed motion seeking sanctions as required by rules 8.54 and 8.276. Second, appellant’s appeal can hardly be considered frivolous in light of the fact that respondent concedes that the final order prepared by her counsel contains a “typo” that erroneously ordered overpayment of $8,000 to counsel.
Third, we note that respondent’s brief was not particularly helpful to this court. For example, although respondent concedes error regarding the award of statutory attorney fees, she omits any proposed remedy for the error, instead simply characterizing the error as a “typo” that was a “moot point.” And in response to appellant’s somewhat detailed arguments regarding the award of extraordinary fees, respondent simply emphasizes the deferential standard of review, without addressing all of appellant’s specific complaints.
III. Disposition
The judgment (order of final distribution) is reversed insofar as it awards $15,088.84 in statutory attorney fees. We remand that part of the judgment to the trial court to reduce statutory attorney fees by the $8,000 that previously was ordered, and to determine the appropriate distribution of that money. In all other respects, the judgment is affirmed, and appellant is not permitted on remand to relitigate issues that were, or could have been, raised in this appeal. Each party is to bear its own costs on appeal.
We concur: Reardon, Acting P.J., Rivera, J.