Opinion
A111848
12-4-2006
VALERIE HAGAN HARLAN et al., Plaintiffs and Respondents, v. BERNARD P. HAGAN et al., Defendants and Appellants.
I. INTRODUCTION
This is an appeal from a probate court order dated September 1, 2005. In this order, the court appointed a special trustee to retain an accounting firm to complete an accounting of the Bernard P. Hagan Trust. The order also required that appellants Hagan and Bertuccelli deposit $50,000 in a trust account to pay fees related to this accounting. Because this order is not appealable, we dismiss the appeal.
Respondents, Valerie Hagan Harlan, Regina Hagan, William Monroe and Michele Hagan (respondents) have also filed a motion for sanctions on the ground that Hagans appeal is frivolous. We deny that motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Hagan Family Trust was established in 1970. Appellant Bernard P. Hagan (Hagan) and his wife were the Trusts beneficiaries. Hagans sister, Rosanne Bertuccelli, was the trustee. Four of Hagans children are respondents in this matter.
In February 2002, respondents sued Hagan. Their petition sought relief for breach of trust and requested an accounting of the Trusts activities.
On January 30, 2004, the court ordered Hagan to provide an accounting of the trust in a format that comported with Probate Code section 1060 et seq. The order required Hagan and Bertuccelli to bear the cost of the accounting, subject to allocation of these costs at the courts discretion. This order was never challenged.
All further statutory references are to the Probate Code, unless otherwise noted.
Hagan and Bertuccelli filed several accountings. The court found that none of these accountings complied with its January 30, 2004, order. When the parties could not agree on an independent accountant to complete a trust accounting, the court, in an order dated April 25, 2005, directed Bertuccelli and Hagan to retain an accounting firm chosen by the court to complete the accounting. At a hearing on May 9, 2005, the court ordered Hagan to pay the $25,000 retainer required by the accounting firm chosen by the court to perform the accounting. Hagan did so on May 11, 2005.
At an August status hearing, the court learned that the independent accountant had requested further funds to complete the accounting and that Hagan had refused to provide such and, in fact, had sued the firm for breach of conflict. The accounting firm refused to continue working on the accounting, given the conflict this suit created.
By an order dated September 1, 2005, the court reiterated its earlier January 30, 2004, order that Hagan and Bertuccelli provide an accounting by an independent accountant and that Hagan advance the funds for this accounting. The court appointed a special trustee to retain an accounting firm to take the place of the firm Hagan had sued. It ordered that Hagan deposit $50,000 with the trustee for payment of accountant fees and trustees fees.
Hagan and Bertuccelli have now appealed the courts September 1, 2005, order.
III. DISCUSSION
A. Appealability
Respondents argue that the September 1, 2005, order is not appealable. We agree. " `There is no right to appeal from any orders in probate except those specified in the Probate Code. [Citation.] `Appeals in general probate . . . matters are limited. [Citation.]" (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126 (Stoddart ).) Section 1304, subdivision (a)(1) provides that an order "[c]ompelling the trustee to submit an account or report acts as trustee" is not an appealable order.
For reasons that are not clear to us, respondents did not move to dismiss the appeal on this ground.
The order dated September 1, 2005, which is the subject of this appeal, simply reiterates the terms of the January 30, 2004, order. That order, imposed for the first time the very conditions about which Hagan complains in this appeal. Both the January 30, 2004, order and the September 1, 2005, order are orders "compelling the trustee to submit an account or reports acts as trustee" and thus are explicitly non-appealable under section 1304, subdivision (a)(1). Second, even if the September 1, 2005, order could be challenged because in it the court imposed conditions regarding the payment of costs, these conditions were first imposed on January 30, 2004. The time to challenge that order has long passed and an appeal to the subsequent order imposing the same conditions is untimely.
Nor can Hagan transform a nonappealable order into an appealable one by characterizing the September 1, 2005, order as a mandatory injunction that compels performance of an affirmative act that changes the position of the parties. (Code of Civ. Proc., § 525.) First, as the court in Stoddart made clear, the Probate Codes provisions regarding what orders are appealable are "exclusive." (Stoddart, supra, 115 Cal.App.4th at p. 1126.) Second, an order that a trustee submit an accounting does not change the position of the parties. A trustee has a duty to provide the beneficiary with an accounting, a duty the probate court may enforce. (Johnson v. Kotyck (1999) 76 Cal.App.4th 83, 86; §16061.)
Accordingly, we dismiss this appeal on our own motion.
B. Sanctions Motion
In a separate motion, respondents argue Hagans appeal is frivolous and request that we award sanctions in the amount of $40,442.50 against Hagan for the costs incurred by respondents on matters related to this appeal. We deny this motion.
"An appeal is frivolous if it raises issues that indisputably have no merit, such as when `any reasonable [attorney] would agree that the point is totally and completely devoid of merit . . . . [Citation.] `An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. (Ibid., italics in original.)" (Depper v. Superior Court (1999) 74 Cal.App.4th 15, 22.) We have concluded that Hagans appeal is without merit. We do not, however, find it frivolous. We note, too, that many of the costs incurred by respondents could have been avoided had respondent simply filed a motion to dismiss after the notice of appeal was filed in this case. The motion for sanctions is denied.
IV. DISPOSITION
The appeal is dismissed on the courts own motion and respondents motion for sanctions is denied.
We Concur:
Kline, P. J.
Lambden, J.