Opinion
A167212 A167214 A167215 A167216 A167217
03-27-2024
Conservatorship of the Person and Estate of FRANCES A. LEIGH. v. APRILLE RAFIDISON, as Trustee, etc., Objector and Respondent. DEBORAH SHULER, as Conservator, etc., Petitioner and Appellant, [And four other cases.]
NOT TO BE PUBLISHED
Lake County Super. Ct. No. PR502887
Banke, J.
These consolidated appeals comprise the latest chapter in five related probate matters filed after (a) the death of Daniel Leigh, who left a not inconsequential estate in trust, (b) the death of his father, Roger Leigh, who was trustee and a beneficiary of Daniel's trust, and (c) the conservatorship of Roger's wife and Daniel's mother, Frances Leigh, who is the sole beneficiary of two trusts funded through Roger's estate. The appellant, Deborah Shuler, is one of Roger and Frances's two daughters and was named and appointed executor of Roger's estate and appointed conservator of Frances's person. (A professional fiduciary was appointed conservator of Frances's estate.)
We refer to Roger, Frances, and Daniel by their first names to avoid confusion.
Shuler appeals from rulings removing her as executor of Roger's estate and conservator of Frances's person, and declaring she must repay loans made to her by Roger before his death and must inventory and account for numerous personal property items. We dismiss her appeal from the ruling removing her as conservator of Frances's person as moot and reverse the ruling removing her as executor of Roger's estate on procedural grounds and the rulings dependent thereon. We otherwise affirm the rulings.
BACKGROUND
The details of these proceedings are largely immaterial to our disposition of the instant appeal. Briefly, one Daniel Leigh, the son of Roger and Frances Leigh, died in May 2019. Daniel had previously established a trust, and upon his death, his father, Roger, became the trustee. Within short order, disputes arose over the provisions of Daniel's trust, which had been established in 2013 and "restated" in 2014.
About five months after Daniel's death, Roger passed away in October 2019. Roger had named his daughter, appellant Deborah Shuler, as executor of his estate, and she was duly appointed.
Around this same period of time, Frances was declared a conservatee. Aprille Rafidison, a professional fiduciary, was appointed conservator of Frances's estate, and Shuler was appointed conservator of Frances's person.
Roger and Frances had also established two trusts, the Roger and Frances Leigh Trust and the Frances Leigh Trust. On Roger's death, Frances became the sole beneficiary of these trusts, and Rafidison, as the conservator of Frances's estate, was appointed trustee of each.
Much bickering ensued as to the distribution of assets, particularly the assets of Daniel's trust. In December 2021, the disputes over Daniel's trust were resolved through mediation and approval of a settlement. All parties, save Shuler, approved the settlement. Shuler maintained the settlement was not sufficiently generous to Roger's estate, of which she was the executor, and the assets of which would pass to the two trusts of which Frances was the beneficiary. The probate court overruled Shuler's objections and approved the settlement in all but one respect. It ruled the assets of Daniel's trust could not, as contemplated by the settlement, be distributed directly to the two trusts of which Frances was the beneficiary. The court appreciated that direct funding of the two trusts would avoid probate costs and thus conserve the assets destined for Frances, but concluded direct transmission of the assets from Daniel's trust to the two trusts benefitting Frances was not legally permissible. Rather, the trust assets distributed in settlement to Roger had to pass through his estate, of which Shuler was the executor, on their way to the two trusts benefitting Frances.
In the meantime, one of Daniel's two daughters, both of whom became recipients of some of his trust's assets by virtue of the settlement, and Donna Clevenger, Shuler's sister, had filed petitions to remove Shuler as executor of Roger's estate. Several months after the settlement, these removal petitions were dismissed. Shuler, in turn, had filed a petition to remove Rafidison as conservator of Frances's estate and trustee of the two trusts established for Frances's benefit.
Despite the settlement, disputes continued over which assets were part of Daniel's trust, Roger's estate, and Frances's conservatorship estate and who was supposed to marshal and account for this property. It appears these disputes were fueled by animosity between Shuler and Clevenger, and between Shuler and Rafidison, and the probate court was besieged by filings. Eventually, the court extracted an agreement from the parties that it would decide all remaining issues in the multiple probate matters on briefing by the parties.
Accordingly, the parties submitted "trial" briefs and the court eventually issued a statement of decision addressing a multitude of issues. Shuler appeals from some, but not all, of the court's rulings.
DISCUSSION
In her opening brief, under a single argument heading, Shuler challenges several of the probate court's rulings on procedural grounds. She claims the court erred in removing her as executor of Roger's estate and as conservator of the person of Frances Leigh in the absence of any pending removal petitions. She similarly claims the court erred in ruling that she owes a debt of $394,179.16 to Roger's estate and must account for and turn over to Rafidison certain assets in the absence of any notice the court would make such rulings.
Only Rafidison filed a respondent's brief. The sole argument she makes is that Shuler has waived any challenge to the court's other rulings, and specifically the rulings approving Rafidison's accountings and requests for fees, by failing to take issue with these rulings in her appellant's opening brief. Rafidison takes no position as to the other rulings Shuler challenges.
Shuler did not file an appellant's closing brief.
Rafidison is correct that having failed, in her appellant's opening brief, to take issue with any of the rulings approving Rafidison's actions, Shuler has waived any challenge to these rulings on appeal. (See W.S. v. S.T. (2018) 20 Cal.App.5th 132, 149, fn. 7 ["Issues not raised in the appellant's opening brief are deemed waived or abandoned."]; In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1488 ["an appellant ordinarily waives an issue by not raising it in the opening brief"].)
As for Shuler's claim that the removal orders were improper, she is correct that the Probate Code requires issuance of an order to show cause pursuant to either a petition for removal or the probate court's own directive, before an executor can be removed. (Prob. Code, § 8500, subd. (b); see Estate of Buchman (1954) 123 Cal.App.2d 546, 560.) Here, the previously filed petitions for removal had been dismissed, and no order to show cause was issued by the court on its own motion. Accordingly, the ruling removing her as executor of Roger's estate was not issued in accordance with statutory requirements and is therefore invalid, as are the ancillary rulings dependent thereon, namely the ruling appointing Rafidison as executor of Roger's estate and the ruling requiring Shuler to turn over estate property to Rafidison.
The same goes for the ruling removing Shuler as conservator of the person of Frances. Although Clevenger requested such a ruling in her trial brief, she filed no petition empowering the probate court to make such a ruling. In any case, in her respondent's brief, Rafidison states the conservatorship is no longer in place, an assertion Shuler has not disputed, which renders the challenged ruling moot. We shall therefore dismiss Shuler's appeal to the extent it challenges the ruling removing her as conservator of Frances's person. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 ["Ordinarily, of course, when a case becomes moot pending an appellate decision 'the court will not proceed to a formal judgment, but will dismiss the appeal.' "].)
As for the ruling declaring that Shuler owes a debt of $394,179.16 to Roger's estate and must account for certain personal property assets and turn over non-estate assets to Rafidison, Shuler points to no statutory provision requiring a formal petition or issuance of an order to show cause. Rather, she argues these rulings were based on the same allegations leveled in the dismissed removal petitions, and since these were dismissed, she had no notice the court would issue such "turn over" orders.
As we have observed, since we have concluded the ruling removing Shuler as executor of Roger's estate and appointing Rafidison in her place cannot stand, the ruling requiring Shuler to turn over estate assets to Rafidison also cannot stand.
As to the rulings that Shuler owes Roger's estate a sizeable debt and that the assets of the estate were not properly inventoried or were removed from the estate, Shuler agreed to the somewhat unorthodox procedure the trial court employed in reaching and deciding these issues.
After the court approved the settlement of the disputes concerning Daniel's trust, the parties appeared remotely at a hearing on April 26, 2022, to sort out what matters remained pending in the five related probate proceedings. Among the pending matters were Shuler's petition challenging Rafidison's accountings and seeking a surcharge, and Shuler's request for instructions allowing her to sell property in a storage unit. The trial court was understandably frustrated by the continued litigiousness of the parties. Eventually, the court stated it was "a little at a loss what each party wants other than to object to what the other party wants to do." What it wanted from the parties was their "bottom line . . ., like what do you want" set forth in briefing, and "then we will set it for a hearing, and we will decide who gets what." The court proposed briefing of 15 pages, and stated it wanted "a clear, delineated understanding of what it is we expect to get out of this long-cause hearing" and then it would schedule the hearing.
At the end of the hearing, Rafidison's attorney "thr[e]w out" the idea that there would be a great savings of time and resources if there were "a submission of these issues to [the court] for decision, a bench decision, without a long cause"-"We all do our pleadings and let the chips fall where they may, as it were." Shuler's attorney expressed some confusion and asked, "are you saying a submission on the pleadings as they exist today?" The court responded, "Nope. Someone is going to write me another pleading telling me what it is that. . . ." Interrupting, Shuler's attorney replied, "That's what I thought. Okay. Yeah." The court then added the briefing "does not include any reply briefs," stating "I'm not looking for, you know, a lot of replying left and right. Just tell me what it is you want." "[C]over from A to Z in your brief. And if you're really desperate, we'll talk about a reply if there's just something that has to be replied to, but I'd appreciate not." Shuler's attorney made no further comment on the procedure.
Shuler, Rafidison, and Clevenger filed briefs on July 15. Daniel's daughters filed a brief five days later.
In her trial brief, in connection with discussing her request for an order approving the sale of the personal property in the storage container, Shuler discussed in some detail the dispute among the parties as to what was and was not in the container, which was supposed to contain either some or all of the personal property items that had been in, and removed from, Daniel's residence, in which his parents, Roger and Frances had also resided. Rafidison and Daniel's daughters had filed objections to Shuler's request, claiming among other things that Shuler had taken control of not only personal property belong to Roger's estate but also personal property belonging to Frances (and thus to the conservatorship estate). Shuler claimed the objections were frivolous and asked for attorney fees.
Clevenger's trial brief maintained Shuler had filed frivolous objections to Rafidison's accountings and had engaged in countless unwarranted actions that were draining the trust and estate assets and delaying final disposition and distribution to Frances. Clevenger's first argument was that Shuler had never repaid loans made to her by Roger and the debt was an asset of Roger's estate. She next argued Shuler had "taken and kept hidden" personal property assets of Roger's estate, and, as executor, was required to inventory the items and distribute them according to the provisions of his will which required distribution to Frances (and specifically, to Rafidison as the conservator of Frances's estate). Clevenger set forth a two-page list of assets she claimed were part of Roger's estate but not inventoried, as well as a half-page list of assets she confusingly claimed had been "put into" Daniel's trust and then "put back into" Roger's estate. Clevenger attached several exhibits to her brief, including a declaration Shuler had filed earlier in the proceedings averring that after Daniel died, her father had told her she had no further obligation to repay the loans. Shuler also declared, without specific details, that she had returned jewelry to her mother that she (Shuler) had had appraised and when she moved her mother to be closer to her those items "were then brought back to my residence."
In their trial brief, Daniel's daughters first asked that they receive the cash payments provided for in the settlement agreement resolving the disputes over Daniel's trust. They also wanted Shuler to turn over gold jewelry belonging to Daniel they claimed Shuler had taken and was not part of Roger's estate. They additionally asked that any claimed gift to Shuler of loans and any forgiveness thereof be voided on grounds there was a dispute as to whether Roger even had the capacity to take such actions and Frances indisputably had no capacity to agree to any such actions.
In her trial brief, Rafidison defended her accountings and other actions against Shuler's objections, pointing out the accountings had been reviewed and approved by the court's investigator and were supported by Frances's court-appointed attorney. Rafidison stated Shuler had become antagonistic towards her since Rafidison had communicated with Clevenger (who was not on speaking terms with Shuler) about accessing the home in which Frances had been residing with Daniel and Roger. Thereafter, Shuler had "systematically filed objections" to any pleading Rafidison filed, including filing a petition to remove Rafidison as trustee of the two trusts benefitting Frances and as conservator of Frances's estate. Rafidison again tendered her resignation, which the court had, as of the time of "trial" briefing, declined to accept. Rafidison said the following as to the conflicting claims about the disputed items of personal property but did not otherwise wade into the accusations of the parties:
"The issue of personal tangible property was a subject of substantial dispute among Shuler and her sister Donna Clevenger. All personal tangible property was comingled at Daniel Leigh's home, and the family members disputed the personal tangible property. Ms. Rafidison inventoried assets to the best of her knowledge, based upon input from Donna and Shuler, and Daniel's children, which personal tangible property allegedly belonged to Frances. The property was secured at Daniel's home pending approval of the settlement at which time [it was anticipated] Ms. Rafidison [would] take control of all the personal tangible property belonging to Frances, Roger, and Daniel; however, the parties later agreed [actually, the probate court ordered] that Shuler would take control of the personal tangible property [although Shuler claims she was responsible only for Roger's share of the property]. Now Shuler, inexplicably and in bad faith, claims Ms. Rafidison has caused a loss to the conservatorship estate but she does not, and cannot, state what the loss is-because there is no loss."
Rafidison closed by stating the probate matters had "been plagued by litigation." She was a neutral party and had inventoried the assets of the two trusts benefitting Frances and Frances's conservatorship estate "to the best of her ability and knowledge, based upon somewhat limited and conflicting information," and she in doing so had "attempted to navigate between two warring sisters." Rafidison sought approval of her first and second accountings and reports and an award of fees and retendered her resignation as trustee and conservator.
It appears Shuler did not request leave to reply to any of these trial briefs.
As this chronology reflects, contrary to her argument on appeal, Shuler had ample notice the court was going to decide whether she was obligated to repay loans she had received and was going to make rulings in connection with the disputed personal property.
DISPOSITION
Shuler's appeal as to the ruling removing her as conservator of the person of Frances Leigh is DISMISSED as moot. The ruling removing Shuler as Executor of the Estate of Roger Leigh is REVERSED solely on procedural grounds. This reversal requires that we also REVERSE the rulings appointing Rafidison as executor of Roger's estate and ordering Shuler to turn over property of the estate to Rafidison. Reversal of these rulings does not preclude the probate court from issuing an order to show cause as to why Shuler should not be removed and making any other rulings necessary to effectuating the court's determination in connection with such an order to show cause. All other rulings challenged on appeal are AFFIRMED. Respondent to recover costs on appeal.
We concur: Humes, P. J. Langhorne Wilson, J.
[*]In re Daniel R. Leigh Trust (No. PR502901); In re The Frances A. Leigh Revocable Trust of 2002 (No. PR502962); The Roger E. Leigh and Frances A. Leigh Revocable Trust of 2002 (No. PR502963); Estate of Roger Erwin Leigh (No. PR502920).