Opinion
A150798
03-19-2018
Estate of IZORA RHODES, Deceased. JONE HARRIS, Petitioner and Respondent, v. WARREN A. RHODES, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RP05196068)
Objector Warren A. Rhodes, the former personal representative of decedent's estate, appeals from an order imposing a surcharge of $53,005, suspending him as personal representative, and appointing petitioner Jone Harris as successor personal representative. Objector contends the probate court lacked jurisdiction to issue the order. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 28, 2005, objector filed a petition for letters of administration and authorization to administer the estate of decedent Izora Rhodes (Estate).
On December 10, 2014, objector filed a petition for final distribution of the Estate.
On July 16, 2015, the probate court filed its final distribution order.
In a letter dated August 24, 2015, objector admitted that he had $47,437 on hand remaining from a total of $169,257, representing royalties accrued by decedent since her death. He indicated that $70,000 of these royalty payments had already been distributed to decedent's seven heirs.
On May 9, 2016, the probate court ordered objector to pay the sum of $68,500 to petitioner's counsel on behalf of the Estate's heirs.
On May 13, 2016, the probate court filed an order to show cause as to why objector and his counsel should not be held in contempt for failure to comply with the May 9 order.
On June 3, 2016, the probate court filed an order holding objector and his counsel in contempt for failure to appear and for failure to comply with the court's payment order.
On November 17, 2016, petitioner filed a petition for a surcharge against objector.
On March 8, 2017, the probate court suspended objector's letters and issued a surcharge against him in the amount of $53,005 for failure to distribute funds to the Estate beneficiaries. The sum was arrived at based on the $68,500 amount previously ordered, plus 10 percent interest calculated from May 2016 to March 2017. Additionally, objector's surety, Platte River Insurance Company, was ordered to make payment to petitioner's counsel under an existing bond if objector failed to comply with the order. This appeal followed.
The amount in the second order is lower because the probate court deducted two shares from the original sum, one for objector and one for another of decedent's heirs, Aloysius Rhodes, who had served as co-administrator of the Estate.
DISCUSSION
I. Violations of Rules of Court
It is fundamental that " '[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.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see Cal. Const., art. VI, § 13 [no judgment shall be set aside unless error has resulted in a miscarriage of justice]; Code Civ. Proc., § 475 [no judgment shall be reversed unless error was prejudicial and caused substantial injury to the "party complaining or appealing"].)
We commence by addressing a glaring flaw in objector's briefing of his appeal. The rules of court require litigants to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) Thus, stating facts without providing any record cite, or citing to only a document rather than to a page, violates this rule. (See, e.g., Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 (Evans) ["plaintiffs repeatedly cite to 170 pages of their motion to vacate without directing us to specific pages"]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990 ["Sections of the statement of facts in the appellant's opening brief include no record citations at all."].) When a litigant repeatedly provides no page citations to the record, the rule violation is "egregious," significantly burdening the opposing party and the court. (Evans, at pp. 166-167.)
In this appeal, objector has submitted an opening brief of approximately 20 pages that fails to include any page-specific citations to the record. Plaintiff's briefing egregiously violates the rules of court and provides little help in analyzing the merits of his challenges.
The consequences of these rule violations can be severe. "[I]t is counsel's duty to point out portions of the record that support the position taken on appeal," and "[t]he appellate court is not required to search the record on its own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Accordingly, "any point raised that lacks citation may, in this court's discretion, be deemed waived" or disregarded. (Ibid.; see Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1267 ["To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation" but "[w]e are entitled to disregard such unsupported factual assertions"]; Hernandez v. Vitamin Shoppe Industries Inc. (2009) 174 Cal.App.4th 1441, 1453; Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 788 ["No record citation is given for this assertion, therefore we disregard it."].)
We have discretion pursuant to California Rules of Court, rule 8.204(e)(2)(B) to strike objector's brief and order him to file an amended version that attempts to correct his errors. However, based on our review of his briefs and the record, we do not think doing so would change any of our conclusions about the merits of his appeal. And while we would have based our understanding of the parties' dispute on the portions of the record correctly cited by petitioner, the respondent's brief also fails to properly cite to the record. Notwithstanding this circumstance, in the interest of finality we will exercise our discretion to address objector's challenge. II. Objector Fails to Demonstrate Error
Objector contends the February 21, 2017 order goes against the finality of this probate matter, citing to Probate Code section 7025. The citation is incorrect, as it appears he is actually referring to Probate Code section 7250, which provides that an estate is final absent a showing of fraud. Probate Code section 7250, subdivision (a) provides: "When a judgment or order made pursuant to the provisions of this code concerning the administration of the decedent's estate becomes final, it releases the personal representative and the sureties from all claims of the heirs or devisees and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment or order. For the purposes of this section, 'order' includes an order settling an account of the personal representative, whether an interim or final account." Probate Code section 7250, subdivision (c) provides: "This section shall not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment as to any material fact. For purposes of this subdivision, misrepresentation includes, but shall not be limited to, the omission of a material fact."
It is undisputed that the probate court was "carrying through" on the May 9, 2016 order when it issued the surcharge order. Objector challenges the surcharge order on the basis that the May 9, 2016 order is "suspect and questionable." He faults that order, contending the probate court lacked jurisdiction because the final distribution order had already been entered. He also asserts the royalty payments are not part of the Estate because they accrued after decedent's death. However, the time for appellate review of the merits of the May 9, 2016 order is long past. That order is final, and we will not consider any arguments as to its merits.
As to the March 8, 2017 order, we note that neither objector nor his attorney appeared at the February 21, 2017 hearing during which the probate court heard the matter.
DISPOSITION
The March 8, 2017 order is affirmed. The parties are to bear their own costs on appeal.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.