Opinion
A164547
09-21-2023
Estate of ROMELL QUEEN, Deceased. v. JON R. VAUGHT, as Executor, etc., Objector and Respondent. LELA M. HENRY, Petitioner and Appellant,
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. P244156
BOWEN, J. [*]
This dispute regarding the estate of Romell Queen has been ongoing for almost three decades. Appellant Lela M. Henry is purportedly an heir of one of the decedent's sons, Alvin Queen, who died in 2016. She appeals an order denying her motion to vacate and set aside the final distribution order pursuant to Code of Civil Procedure section 473 and Probate Code section 7250, subdivision (c). Although such orders are ordinarily not appealable, Henry argues in supplemental briefing requested by this court that the order is appealable on equitable grounds because the administrator misrepresented to the court that Romell died intestate, and Henry, through no fault of her own, was not given an opportunity to appeal from the order. As we will explain, the order denying her motion to vacate is not appealable, even on equitable grounds. We therefore dismiss the appeal.
Because Romell Queen and Alvin Queen share the same last name, we will refer to them by their first names for the sake of clarity and intend no disrespect.
I. BACKGROUND
Romell died in January 1994. Romell's son, Leroy Johnson, petitioned for letters of administration and for probate of will. He included with his petition a copy of a will dated November 12, 1992 (the 1992 will). His Judicial Council form petition does not check the box for a "self-proving" will, and it states "Original lost ...." The 1992 will devised Romell's estate equally between Johnson and Romell's other son, Alvin.
A few weeks later, Alvin filed a "Contest and Grounds of Objection" to the probate of the 1992 will, alleging that the will was fraudulent. He attached to his filing what he contended was the true will, which was dated April 19, 1985, and which devised Romell's entire estate to Alvin (the 1985 will).
The superior court's online docket, a screenshot of which was attached to Henry's motion to vacate, indicates that nothing else occurred in the matter for over twenty years until Henry filed a petition for letters of administration and for probate of will in February 2017. Henry is allegedly an heir to Alvin, who died in 2016. The record does not include her petition, but it appears that she sought to probate the 1985 will, because later in February 2017, the probate court issued an order appointing Jon R. Vaught as special administrator of Romell's estate and noting that Romell died testate with a will dated April 19, 1985.
The "Order for Probate" from the February 7, 2017 hearing is ambiguous in that although it refers to the 1985 will, it does not reference a date on which that will was purportedly admitted for probate.
In April 2017, Johnson filed an opposition to Henry's petition for probate of will, claiming that the 1985 will was fraudulent. He requested that the court admit the 1992 will to probate.
A. The Court's Intestacy Order
At a hearing in May 2017, the court noted that "[w]e have no - we have no '92 will, nor do we have an '85 will, originals." Counsel for Johnson and Henry told the court that "[i]nstead of contesting [the] two wills," they would recommend to their clients that they settle. The court responded, "That was my suggestion .... Why don't we forget these wills, and we'll do an intestacy, since nobody has an original." The court set a hearing for August 2017 for a status update.
The transcript from this hearing is one of several documents included in the record for one of Henry's prior appeals, i.e., Vaught et al. v. Henry (A156406). Having complied with Evidence Code sections 455, subdivision (a), and 459, subdivisions (a) and (c), we now take judicial notice of the record in that appeal, which provides much of the factual background relevant to the appealability issue in this appeal. We also grant Vaught's unopposed request for judicial notice in its entirety for the same reason. (Evid. Code, §§ 452, subd. (c), 459.)
Neither Henry nor her attorney appeared at the August 2017 hearing. Johnson's counsel said that he was "prepared to just proceed through intestacy." After the hearing, the court issued an order finding that Romell had died intestate (the intestacy order).
Less than two months later, in October 2017, Henry filed a "Notice of Error, Petition for Order to Invalidate and Cease Probate of the Estate of Romell Queen." She argued that even though her (now former) attorney told the court that "the parties were going to agree that . . . Romell . . . died intestate", the agreement was never discussed with her and she did not consent to proceed intestacy. She further argued that Johnson and his attorney knew that Romell did not die intestate because her former attorney had provided them a copy of the "case file." Therefore, she contended, "[t]he standing presumption that Romell [] died intestate [was] false, misleading and contrary to facts in evidence as can be seen" by the 1985 will produced by Alvin in 1994. She attached to her petition a copy of that will. She also included a declaration from attorney Michael Wohlstadter, in which Mr. Wohlstadter stated that he had prepared the 1985 will in accordance with Romell's wishes.
Nearly a month later, Henry filed an opposition to Vaught's ex parte application for an order confirming the sale of real property. She argued in relevant part that Vaught was "deliberately perpetuating a known false narrative" that Romell died intestate. She further claimed that Johnson's April 2017 opposition, in which he had claimed that the 1985 will was fraudulent, was "absolutely absurd, has no evidentiary support whatsoever and is full of hearsay nonsense."
B. Settlement of First and Final Account
In May 2018, the court held a hearing, stating that "we're ready to close the estate. We are waiting for a final distribution." Henry objected on the ground that her October 2017 petition was "pending for today." The court continued the hearing to August 2018 to consider her petition, and it directed Vaught to prepare the final distribution to "have it ready to go."
In August 2018, Vaught filed a petition for settlement of first and final account. The petition stated that Romell died intestate, and it proposed distributing one-half of his estate to the estate of Alvin, and one-half to Johnson. At the hearing later that month, Henry appeared but did not raise any issues or objections. The court set a hearing for Vaught's petition for December 2018.
At the December hearing, Henry objected to Vaught's petition for final distribution, again asserting that Romell had "died with a will." She argued that the court's intestacy order did not "invalidate" its previous order admitting the 1985 will for probate, and that the court, in finding that Romell had died intestate, erroneously "allowed [Johnson's] attorney to tell him what she wanted and of course she wanted to go intestate." The court responded, "I am going to grant the petition for final distribution....You have a right to appeal that order. I suppose that's your avenue." After the hearing, the court adopted Vaught's proposed final distribution order, finding the allegations in Vaught's petition for settlement of first and final account true and ordering distributions as specified in the petition.
On December 17, 2018, Henry filed an ex parte "Application for Reconsideration and Revocation of Prior Order." In an order dated January 9, 2019, the probate court denied Henry's application, finding that "[n]o new fact, circumstance, or law is alleged. Additionally, the application should have been presented as a noticed motion."
Henry appealed from the December 2018 final distribution order on January 29, 2019, and that appeal became appeal number A156406. This court dismissed that appeal in December 2020, after Henry failed to file a brief. The remittitur issued in February 2021. This court subsequently denied Henry's motion to recall the remittitur and reinstate the appeal for "lack of good cause shown".
C. Henry's Motion to Vacate and Set Aside
Approximately three months after the remittitur issued in Henry's appeal from the final distribution order, she filed a motion in the probate court seeking to set aside and vacate the final distribution order pursuant to Code of Civil Procedure section 473 and Probate Code section 7250, subdivision (c). In her motion, she made several arguments that the order should be vacated and set aside based on fraud and misrepresentation. First, she claimed that Johnson made false representations in his April 2017 opposition to her petition for will probate in support of his claim that the 1985 will produced by Alvin was fraudulent.
Next, she argued that there was "Fraud upon the Court," citing the May 2017 hearing where her former attorney and Johnson's attorney told the court that their "recommendation" to their clients was that they settle the will dispute. Although her argument is unclear, she appeared to suggest that this hearing was evidence of Johnson "tamper[ing]" with "court records" to conceal the wills from his attorney and the court. She contended that Johnson's counsel's offer to settle was "predicated" on the "old case proceedings [] resurfac[ing]."
She further argued that the parties' attorneys and Vaught had a duty to disclose all relevant facts from the "earlier proceedings," and the court had a duty to determine the validity of the purported wills, regardless of whether the wills were "originals."
Finally, Henry argued that Vaught's proposed order for settlement of the first and final account falsely represented that Romell died intestate and that no will had been found. She contended that Vaught "deliberately" omitted that her former counsel had provided him with copies of the 1985 and 1992 wills. Based on the alleged fraud, therefore, Henry asserted that Alvin's estate was deprived of over $100,000 from Romell's estate, which, in turn, deprived Henry of over $25,000 from Alvin's estate.
She supported her motion with her declaration, in which she asserted that Johnson's April 2017 opposition was false and that she never consented to probate Romell's estate as intestate. She also attached to her motion a copy of the 1985 will and several court records.
The trial court denied the motion, finding that Henry had brought the motion almost three years after entry of the final distribution order and that she had not established extrinsic fraud to warrant vacating the order.
This appeal followed.
II. DISCUSSION
At the outset of our review, it was apparent that Henry filed her notice of appeal from a nonappealable order." 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.'" (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Further, "a reviewing court is 'without jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own motion. [Citations.]'" (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) Accordingly, we requested supplemental briefing from the parties on whether we had jurisdiction to review this appeal. Having considered the parties' supplemental briefs, we conclude that the order denying Henry's motion to vacate the final distribution order is nonappealable.
"Probate Code provisions concerning appealability are exclusive. The appealability of probate disputes in general is governed by [Probate Code] section 1300." (Kalenian v. Insen (2014) 225 Cal.App.4th 569, 575-576 (Kalenian).) "An order denying a motion to vacate and set aside a decree of settlement of final account and of final distribution is not one of the orders so specified and is therefore not appealable." (Estate of Mohr (1962) 208 Cal.App.2d 799, 801; see also Kalenian, at p. 576, citing In re Estate of O'Dea (1940) 15 Cal.2d 637, 638.) "This is so whether the order denies relief sought under section 473 or under any other legal theory." (Estate of Mohr, at p. 802.)
A limited exception to this general rule of nonappealability is recognized where a party, through no fault of their own, did not have a fair opportunity to appeal the underlying order and moved to set aside the judgment or order on equitable grounds. (Kalenian, supra, 225 Cal.App.4th at pp. 576-577, 579, citing Estate of Baker (1915) 170 Cal. 578, 582-583 [order denying motion to vacate was appealable because the "case involve[d] a peculiar and unusual situation where a litigant was assured by court staff that a hearing would not proceed and it did" and no notice of the court's ruling was provided].)
In response to our request for supplemental briefing, Henry admits that her motion was "prayed for under [Code of Civil Procedure] § 473 . . . and not under equitable grounds ...." She nevertheless contends that the order denying her motion to vacate may be appealable on equitable grounds. Citing Hudson v. Foster (2021) 68 Cal.App.5th 640 (Hudson), she points out that she had argued in her motion that Vaught misrepresented in his proposed final distribution order that Romell died intestate and that no will had been found, an argument she contends "trigger[ed] the exception" to nonappealability because Vaught was "acting in a fiduciary capacity" as administrator.
Vaught disagrees that the order is appealable, arguing as he did in his response brief that allowing Henry an appeal from the order denying her motion to vacate would provide her a "second opportunity" to appeal the final distribution order, a scenario the court in Hudson cautioned against. (See Hudson, supra, 68 Cal.App.5th at p. 661.) We conclude that Vaught has the better argument.
In Hudson, supra, 68 Cal.App.5th 640, Hudson received a settlement in his personal injury lawsuit. (Id. at p. 649.) The court established a qualified settlement fund and appointed Foster as general conservator of his estate. (Ibid.) Several months after the court approved the disposition of the settlement proceeds, Foster filed a petition in the probate case to approve his first and final account. (Id. at pp. 649-650.) Foster did not disclose to the court that 28 checks shown as paid to third-party claimants were actually paid to Foster or one of his companies. (Ibid.) The probate court approved the final account. (Id. at p. 651.)
Over four years later, Hudson filed a motion to vacate the order approving the final account on the grounds of fraud and misrepresentation of material fact. (Hudson, supra, 68 Cal.App.5th at p. 652.) Hudson stated that he was not aware of any fraud until a third-party claimant had filed a motion to enforce the settlement a few months earlier. (Id. at p. 652.) At that point, Hudson reviewed copies of his bank records and discovered discrepancies between his records and Foster's final account. (Ibid.) He argued that these discrepancies were misrepresentations of material fact that provided grounds to vacate the order approving the final account. (Ibid.) The court denied his motion. (Id. at p. 660.)
The Second District reversed the order denying Hudson's motion to vacate. (Hudson, supra, 68 Cal.App.5th at p. 671.) Regarding the issue of appealability, the court agreed with Hudson that the order was appealable because it was based on the court's inherent equitable authority to vacate an order obtained through extrinsic fraud. (Id. at p. 660.) "The motion seeking to vacate the order was based on equitable fraud in the form of misrepresentations of fact by a fiduciary which deprived the conservatee of a full and fair opportunity to object to the final account prior to entry of the order approving the account. Under the circumstances of this case, the order denying the motion to set aside the order approving the final account is an appealable order." (Id. at p. 661.)
The crucial aspect of Hudson is the party moving to vacate the order approving the final account did not present his claims to the court, and his failure to do so was a result of extrinsic fraud. (See Hudson, supra, 68 Cal.App.5th at p. 661.) "Fraud is extrinsic when a party is prevented from fully participating in the proceeding or deprived of the opportunity to present a claim to the court by the fraudulent conduct of another party, as opposed to the moving party's own negligence." (Id. at p. 664.) A fiduciary's misrepresentations or concealment of material facts are generally considered a form of extrinsic fraud because "the moving party's reasonable reliance on the disclosures of a fiduciary is considered a satisfactory excuse for not presenting a defense in a prior proceeding." (Id. at pp. 666-667.) Hudson is therefore consistent with the cases preceding it, "where the motion to vacate [was] the only way in which an aggrieved party c[ould] protect his rights." (Estate of Cahoon (1980) 101 Cal.App.3d 434, 438, citing Kalenian, supra, 225 Cal.App.4th at p. 579; see also Estate of Baker, supra, 170 Cal. at pp. 582584.)
In contrast, if the party seeking to vacate an order had the opportunity to present his or her claims prior to the order and either neglected to do so or was unsuccessful, any alleged fraud is not extrinsic, and an order denying the motion to vacate is not appealable. (See Estate of Mohr, supra, 208 Cal.App.2d at p. 801 [order denying motion to vacate is not appealable where appellant did not show how the alleged fraud "resulted in the denial or prevention of a fair adversary hearing to appellant so as to constitute extrinsic fraud"]; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065 [holding that fraud is not extrinsic when a party" 'has had an opportunity to present his case to the court and to protect himself from mistake or from any fraud attempted by his adversary' "].) "Otherwise, an unsuccessful party would have two appeals from the same judgment: one appeal provided by law within a limited time period and another at an indefinite time in the future at the convenience of the litigant after the denial of a motion to vacate the judgment." (Hudson, supra, 68 Cal.App.5th at p. 661; see also Estate of Virgl (1975) 49 Cal.App.3d 590, 595 ["[W]here . . . the facts relied on were available to the party before the order had become final, his remedy was to move, during that interval, to correct the order and then secure relief on his appeal from a nonrevised order"].)
Henry's appeal falls squarely in the latter category. To begin with, looking at the substance of her motion to vacate, it is apparent that it was not based on extrinsic fraud. She did not explain either in her declaration filed in the probate court or in her motion how Vaught's alleged fraud, assuming it did exist, "deprived [her] of a full and fair opportunity to object to the final account prior to entry of the order approving the account." (Hudson, supra, 68 Cal.App.5th at p. 661.) Nor did she claim that she had no notice of any filings or hearings or that she was ever unaware of the facts supporting her claims of fraud. The circumstances here are therefore distinct from those in Hudson, where Hudson did not know about the fraud until it was too late to object because he had justifiably relied on his conservator's representations. (Id. at pp. 652, 661.)
Indeed, Henry's motion to vacate asserted that, "[i]n this case, the fraud was intrinsic...."
Moreover, it is evident from the record that Henry's motion to vacate was simply another attempt to relitigate the court's August 2017 intestacy order. Vaught's alleged misrepresentations in his proposed final distribution order merely followed the court's findings as contained in that order. Henry had ample opportunity to, and did, in fact, raise her concerns about the court's intestacy finding prior to the final distribution order.
As previously mentioned, shortly after the court issued its intestacy order, Henry filed a petition arguing that Romell had died testate. Around the same time, she filed an opposition to Vaught's ex parte application, asserting that he and Johnson were "deliberately perpetuating" a "false narrative" that Romell had died intestate. Her arguments in those filings were largely based on the same facts as those alleged in her motion to vacate: she never agreed to proceed as if Romell had died intestate; Johnson falsely claimed in his April 2017 opposition that the 1985 will was fraudulent; Johnson and the parties' attorneys withheld information from the court showing that Romell died testate; and the 1985 will and Mr. Wohlstadter's declaration were proof that Romell did not die intestate. She repeated her claims that Romell died testate at multiple hearings throughout 2017 and 2018, including at the hearing on Vaught's petition to settle first and final account, which occurred more than a year after the court's intestacy order. Moreover, she brought an ex parte application to reconsider the court's December 2018 order, which was denied. Under these circumstances, we cannot conclude that a motion to vacate was necessary for Henry to protect her rights, as she had multiple opportunities to present her arguments to the probate court in the first instance, and filed but failed to pursue with diligence an appeal of the court's December 2018 order.
In sum, based on the record before us and the documents of which we have taken judicial notice, this appeal does not fall within the narrow exception to the general rule of nonappealability for parties that were deprived, through no fault of their own, of an opportunity to be heard. To the contrary, the record indicates that Henry was aware of the facts relevant to the alleged fraud well before the final distribution order and presented her claims accordingly. Those claims could have been raised in her appeal from the order, but that appeal was dismissed with prejudice under Code of Civil Procedure section 913. We will not extend the exception to a situation where the practical effect of the appeal would be to give a party to the proceeding another opportunity to appeal.
The order dismissing her appeal from the final distribution order does not expressly say it is with prejudice; the order states only that, as a result of Henry's failure to file a brief, the appeal is "dismissed." If an order dismissing an appeal does not say it is without prejudice, then by operation of law under California Code of Civil procedure § 913, it is with prejudice. (Estate of Sapp (2019) 36 Cal.App.5th 86, 100.)
As discussed previously, appellate courts have jurisdiction over a direct appeal only when there is an appealable order or judgment. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) "[I]t is our duty to . . . dismiss the appeal if the order is not appealable." (Winter v. Rice (1986) 176 Cal.App.3d 679, 682.) We therefore dismiss this appeal, which seeks review of a nonappealable order.
III. DISPOSITION
The appeal is dismissed.
WE CONCUR: HUMES, P. J. MARGULIES, J.
[*]Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.