Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County No. 24199. Ronald W. Hansen, Judge.
George Darrell Berglund, for Defendant and Appellant.
Canelo, Wilson, Wallace & Padron, and James H. Wilson for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
On January 18, 2007, respondent, Alfred Whitehurst, as successor trustee of Joel A. Whitehurst and Cecilia Whitehurst Living Trust Agreement dated May 30, 1991 (hereinafter "the Trust"), filed a "Petition for Order Passing Upon Trustee's Proposed Non Pro Rata Distribution of Trust Assets" pursuant to Probate Code section 17200, subdivision (b)(5).
Appellant, Anne Whitehurst, a beneficiary of the trust, opposed the petition. On February 22, 2007, the court, sitting in probate, granted the trustee's petition. The court found the trust granted the trustee power to make a non-prorata distribution and the proposed distribution was reasonable.
On March 28, 2007, appellant filed three motions, to wit: (1) "Motion to Vacate Judgment under Code of Civil Procedure Section 473," (2) "Motion in Equity to Set Aside Judgment," and "(3) Notice of Intent to Move for New Trial." Each motion attacked the order approving the trustee's petition for non-prorata distribution.
The court denied all three motions.
On June 11, 2007, appellant filed a notice of appeal from the court's denial of the three motions, as well as from "all other orders and judgments entered or decided in the proceedings in this litigation adverse to Appellant." In her opening brief, however, the only other order appellant identifies as being the subject of her appeal is the probate court's order approving the trustee's plan for non-prorata distribution of the trust assets.
APPELLANT'S CONTENTIONS
Appellant contends that the court erred in denying her three motions and in approving the respondent trustee's proposed non-prorata plan of distribution of the trust property. As we shall explain, the orders denying the three motions are not appealable, and the trustee did not abuse his discretion in approving the trustee's proposed non-prorata plan of distribution. We will therefore dismiss the appeal from the orders denying the three motions and will affirm the court's order approving the non-prorata plan of distribution.
I.
THE ORDERS DENYING THE MOTIONS ARE NOT APPEALABLE
After the court approved the non-prorata plan of distribution, appellant hired a new attorney and filed her motion to vacate judgment under Code of Civil Procedure section 473, motion in equity to set aside the judgment, and motion for a new trial. As aforementioned, the court denied all three motions.
Code of Civil Procedure section 904.1, subdivision (a)(10) states that an appeal may be taken "[f]rom an order made appealable by the provisions of the Probate Code or the Family Code." (Code Civ. Proc., § 904.1, subd. (a)(10).) "There is no right to appeal from any orders in probate except those specified in the Probate Code." (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1126.) "The jurisdiction of an appellate court in probate matters extends only to such orders and judgments as are made appealable by the Probate Code. [Citation.] The provision that an appeal may be taken from a special order made after final judgment has no application to probate proceedings. [Citation.] Even if the court acted in excess of its jurisdiction …, the nonappealable order of the court was not thereby made appealable. [Citation.]" (Guardianship of Morro (1940) 36 Cal.App.2d 623, 627.) This has long been the rule. "The courts have consistently held that appeals in probate matters are limited to those expressly provided by statute." (Estate of Schechtman (1955) 45 Cal.2d 50, 54; in accord, see also Estate of Bussinger (1964) 60 Cal.2d 756, 759; Estate of Muller (1969) 2 Cal.App.3d 259, 262, fn. 1; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §203, and authorities therein cited.) "What [appellant] really seeks on her appeal is to have this court establish an exception to the general rule that the only appealable orders in probate are those provided for by statute.… There is in the cases no authoritative recognition of such an exception." (Estate of Schechtman, supra, 45 Cal.2d at pp. 55-56.) The "principal reason" for limiting appeals in probate matters "is to avoid delay in distribution of estates." (9 Witkin, supra, at §203.) Probate law "abhors delaying tactics and if there was a free appeal in every probate matter, estates could be unreasonably delayed." (Conservatorship of Smith (1970) 9 Cal.App.3d 324, 327.) "[A]n order's legal effect, rather than its form, determines its appealability." (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755.) An order refusing to vacate an appealable probate order previously made, however, is not appealable. (Estate of Muller, supra.)
Orders made appealable by the Probate Code are found in Probate Code sections 1300 through 1304. (See also 9 Witkin, Cal. Procedure, supra, at §203.) Appellant calls our attention to no statute authorizing an appeal from the denial of any of her motions. We are aware of none.
Appellant cites Estate of Frazer (1941) 43 Cal.App.2d 324, as authority for her argument that an order denying a motion for a new trial in a probate proceeding is appealable. It is not. The court in Frazer stated: "On the question of an attempted appeal from an order denying a motion for a new trial, we refer to Gray v. Cotton 174 Cal. 256 (162 P. 1019), where almost twenty-five years ago the court held such an appeal unauthorized. [Citation.] [¶] ... [¶] The attempted appeal from the order denying motion for a new trial is dismissed." (Estate of Frazer, supra, 43 Cal.App.2d at pp. 327-328.) Eight years after Frazer, the California Supreme Court expressly cited Frazer in Estate of Dopkins (1949) 34 Cal.2d 568, a case which expressly held that an order denying a motion for a new trial "is not appealable [citations, including Estate of Frazer, supra] and the attempted appeal therefrom will be dismissed." (Estate of Dopkins, supra, 34 Cal.2d at p. 569.) See also Estate of Horman (1968) 265 Cal.App.2d 796, 801 (an "order denying new trial in a probate proceeding is nonappealable") and 9 Witkin, Cal. Procedure, supra, at §206 ("[a]n order denying a new trial is not appealable either in ordinary actions or in probate").
"It is of course fundamental that an appellate court has no appellate jurisdiction to entertain and pass upon an appeal from a nonappealable order. [Citations.] If it be determined that the appeal is from a nonappealable order and the reviewing court is without appellate jurisdiction, that court has no recourse other than to dismiss the appeal on its own motion. [Citations.]" (Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 152.)
II.
THE TRUSTEE DID NOT ABUSE HIS DISCRETION IN APPROVING THE TRUSTEE'S PROPOSED NON-PRORATA DISTRIBUTION
A. Facts
Appellant Anne Whitehurst is one of four adult children of the late Joel Whitehurst, Sr. and the late Cecilia Whitehurst. The other three are her brothers Joel, Jr., Anthony and respondent Alfred. Cecilia died in 1999. Joel, Sr. died in 2002. Joel, Sr.'s 1991 will devised most of his estate to a living trust, also created in 1991. Alfred, an attorney, was appointed executor of his father's estate. He also became trustee of the trust upon the death of his father. In November of 2006 the probate court issued a "Judgment Settling and Approving First and Final Account and Second and Supplemental Report and Account of Executor and of Trustee of Devisee Trust, Allowing Compensation for Ordinary Services of Executor's Attorney and for Reimbursement of Costs Advanced and Allowing Compensation of Extraordinary Services of Outside Litigation Counsel for Executor and for Final Distribution." This judgment stated in part that "[b]y the terms of the decedent's will, all the property in the hands of executor remaining after the foregoing payments ... together with any other property of the decedent or the estate not now known or discovered are hereby distributed to ALFRED WHITEHURST as trustee of the [trust] ...."
In January of 2007 the trustee petitioned the court for an order pursuant to Probate Code section 17200, subdivision (b)(5) approving the trustee's proposed non prorata distribution of trust assets and instructing the trustee to make the proposed distribution. Appellant opposed the petition. Her written opposition argued that the proposed distribution was "not reasonable, ... constitutes and [sic] abuse of discretion on the part of the trustee and is contrary to the wishes of the testator ...." The proposed distribution states that the trust assets were valued at $10.6 million. Each of the four children were to receive one-fourth ($2.66 million worth) of the trust assets. The three brothers would each receive an undivided one-third interest in certain trust property worth a total of $7.98 million. The distribution to appellant would be of completely different property than that received by the brothers. Appellant would receive two parcels of land valued at $800,000 each, shares of stock valued at just under $1 million, and some cash. The brothers' distribution included two parcels of commercial property in Los Banos worth a total of $3.7 million, $1.33 million worth of stock in a funeral chapel business, a parcel of agricultural land valued at $1.95 million, and various other items and properties valued at lesser amounts.
The court held a hearing on the petition on February 22, 2007, and approved the proposed distribution, subject to some adjustments ordered by the court to expressly account for the values of three other items of trust property - a gun collection, a propeller collection and an airplane. Those adjustments were made, and the court's written order approving the distribution was filed on March 12, 2007.
B. The Trustee's Powers and Judicial Review of The Trustee's Actions
"Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust." (Prob. Code, § 17200, subd. (a).) "Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes: [¶] ... [ (5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers." (Prob. Code, § 17200, subd. (b).) "With respect to a trust, the grant or denial of the following orders is appealable: (a) Any final order under Chapter 3 (commencing with Section 17200) of Part 5 of Division 9 ...." (Prob. Code, § 1304.)
"If discretion is conferred upon the trustee in the exercise of a power, 'the court will not interfere unless the trustee in exercising or failing to exercise the power acts dishonestly, or with an improper even though not a dishonest motive, or fails to use his judgment, or acts beyond the bounds of a reasonable judgment. The mere fact that if the discretion had been conferred upon the court, the court would have exercised the power differently, is not a sufficient reason for interfering with the exercise of the power by the trustee.'" (Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1209.)
Section 13.01of the 1991 trust, entitled "Trustee's Powers," states in pertinent part:
"Subject to any limitations stated else where in this Trust Agreement and subject always to the discharge of the fiduciary obligations of the Trustee, the Trustee shall have the following powers in addition to those now or hereafter conferred by law affecting the trust. [¶] … [¶]
"Subsection (c). In apportioning or distributing any property of the trust estate, to apportion or distribute such property in kind, or to sell all or any part of such property deemed necessary to facilitate such apportionment or distribution in cash, or partly in case and partly in kind. Any such apportionment or distribution may be in absolute or common interests, either pro rata or non-pro rata." (Italics added.)
The court read this provision to the parties at the hearing and stated: "Those are the Trustee's powers. So the only issue is whether this proposed distribution based upon the appraisals and all the information provided is unreasonable and I can't reach that finding." The court's written order similarly found "[t]hat the trustee has the authority under Article XIII of the [trust] to make distributions from the trust estate to the beneficiaries either prorate or non-prorata and in kind, in the trustee's discretion" and "[t]hat the trustee's exercise of discretion herein is reasonable."
C. Analysis
We similarly conclude that the trustee did not act "beyond the bounds of a reasonable judgment." (Hearst v. Ganzi, supra, 145 Cal.App.4th at p. 1209.) Appellant's argument that the trustee was required either to give each beneficiary a one-fourth ownership interest in every trust asset, or to sell all trust assets and divide the proceeds equally, is belied by the language of the trust instrument itself. Appellant's written opposition to the petition argued that the proposed distribution was "unfair." This appears to have been an argument that the assets she would receive were not really as valuable as the assets distributed to her brothers, but the argument was not supported by any evidence. The valuations of the trust assets were made by appraisers. Appellant and the trustee stipulated at an October 31, 2005 hearing that the property would be appraised. The trustee's petition asserted: "The beneficiaries, by and through their attorneys have previously agreed to use Ronald Whitmer (suggested by ANNE WHITEHURST's attorney ...) to appraise all real property as of January 1, 2006, and to use Herman Natwick to appraise the Corporation. Such appraisals have been obtained by the trustee ALFRED WHITEHURST and provided to ANNE WHITEHURST for her review and she has filed no objections to the appraisals with the trustee or with the court in this proceeding ...." At the February 22 hearing on the trustee's petition, appellant made no attempt to introduce any evidence that the valuations utilized by the trustee in the proposed distribution were inaccurate. Appellant's counsel candidly asserted that what he was arguing for was a prorate distribution of all the trust assets. As we have explained, the language of the trust instrument did not require the trustee to make a prorata distribution.
The trustee explained in his petition his reasons for not wishing to make a prorata distribution of all trust assets:
"The trustee has exercised his discretion to make an in kind non pro rata distribution of the trust estate because ANNE WHITEHURST is actively hostile to the three remaining beneficiaries and civil partition actions regarding the real property would immediately result from a pro rata distribution of assets. ANNE WHITEHURST, one of four (4) equal beneficiaries of this trust has repeatedly instituted litigation against the other three (3) beneficiaries of this trust, to wit, petitioner ALFRED WHITEHURST, ANTHONY WHITEHURST and JOEL WHITEHURST, JR., and her brothers. She filed Objections to the executor's First Report and Accounting and Petition for Final Distribution in 2005 which made allegations of fraud and conspiracy against her three brothers who are the other beneficiaries of the trust. These objections were later withdrawn by her after more than one year and litigation of the matter She subsequently filed a Petition for Removal of the executor and trustee and for various civil actions for money damages against her three brothers in the probate proceeding which was later dismissed without prejudice after a year of litigation. She has also caused a disturbance at the Whitehurst Funeral Chapel in November 2005 while a grieving family was attempting to make funeral arrangements, and when she refused to leave the premises police were called who ultimately arrested her for failing to obey a lawful order from a peace officer and for interfering with a peace officer.
"Because all three of these other beneficiaries desire to have no further dealings with ANNE WHITEHURST and do not wish to take title to any assets as co-owners with ANNE WHITEHURST, the trustee has very reasonably exercised his discretion to distribute the assets of this trust in kind and non pro rata as set forth herein after. ANNE WHITEHURST has filed a separate civil lawsuit against her three brothers named herein above which is now pending. The trustee believes that it is reasonable and in the best interest of all four beneficiaries that ANNE WHITEHURST not take title to any assets distributed to her from this trust as a co-owner with her three brothers whom she is suing. She previously filed a petition in the probate proceeding for a partition of the probate and trust estates and for distribution in kind, but then later withdrew that petition."
The content of the many filings made by appellant in the probate court in this matter independently confirm her hostility toward her brothers. After appellant was unsuccessful at the February 22, 2007 hearing on the trustee's petition, she hired another attorney (at least her third) to file the three motions which resulted in the three unappealable orders addressed above in part "I" of this opinion. Those motions unsuccessfully attempted to vacate the probate court's approval of the non-prorata plan of distribution.
On April 2, 2008 and on August 19, 2008, appellant filed in this court motions asking this court to take judicial notice of various documents that were not presented to the probate court in the proceedings in that court. We deny the motions. "[A]s a general rule the [appellate] court should not take such notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance." (People v. Preslie (1977) 70 Cal.App.3d 486, 493.)
DISPOSITION
The appeal insofar as it purports to appeal from the probate court's May 18, 2007 order denying appellant's three motions is dismissed. The court's March 12, 2007 order approving the non-prorata distribution of trust assets is affirmed. Costs to respondent.
WE CONCUR: Dawson, J., Hill, J.