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Don Gregory Kunit, As Trustee, Etc v. George Kingston

December 23, 2010

DON GREGORY KUNIT, AS TRUSTEE, ETC., PLAINTIFF AND APPELLANT,
v.
GEORGE KINGSTON, DEFENDANT AND APPELLANT.



Super. Ct. No. PN28006 APPEALS from an order of the Superior Court of San Diego County, Richard G. Cline, Judge. Affirmed.

The opinion of the court was delivered by: McDONALD, J.

Kunit v. Kingston CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Don Kunit (Don) appeals a probate court order that approved the second account and report of George Kingston (George), the former trustee of the Kunit Family Trust dated September 28, 1994 (Trust), and awarded George $80,095.20, representing 60 percent of the attorney fees he requested in that account. On appeal, Don contends the trial court abused its discretion by: (1) approving the second account without requiring substantiation by George; and (2) awarding George any attorney fees. George cross-appeals, contending the trial court abused its discretion by awarding him only 60 percent of his requested attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

In 1994, John and Ethyl Kunit established the Trust, naming themselves as trustees. Their three children, Don, Elene (aka Elaine), and Gene Kunit, were beneficiaries of the Trust. George is Elene's son. In August 2001, John (but not Ethyl) executed a deed transferring his community property interest in their Alpine residence to Elene. In October 2001, Ethyl died, leaving John as the sole trustee. In 2002, George was appointed as an LPS conservator of John and acted as the successor trustee of the Trust.

In November 2004, Don filed a petition to determine title to certain Trust property (i.e., the Alpine residence).*fn2 George then filed a petition for instructions regarding title to Trust property. At some point prior to George's petition, Elene had placed a reverse mortgage on the Alpine residence and withdrawn substantial funds, increasing the mortgage on the property. In December 2004, John died, apparently leaving George as the Trust's successor trustee.

In 2005, George filed an amended first and current account and report of trustee. In April 2007, the trial court issued an order stating that: (1) John's deed to Elene was a valid and enforceable transfer of his community property interest in the Alpine residence; (2) Ethyl's community property interest in the Alpine residence remained as residual Trust property; (3) the residue of the Trust estate shall pass one-third each to Gene, Elene, and Don; (4) George is removed for cause as the Trust's trustee and Don is appointed as its successor trustee; (5) George acted with gross negligence in delaying to seek instructions from the court; (6) George's amended first and current account and report of trustee is disapproved; and (7) George is directed to prepare and file a second account and report current through January 31, 2007.

In April 2007, George filed a second and current account and report of trustee (Second Account). In April 2008, he filed a supplement to the Second Account. On May 2, 2008, a hearing was held on the Second Account, as supplemented. The trial court's minutes for that hearing set forth the court's findings, as follows:

"The court has found that the Trustee [i.e., George] violated his fiduciary duties. He should not be allowed attorney's fees for any work related to his improper conduct. However, [George] and his attorney were required to perform work necessitated by acts or omissions of others. In particular, the Trustors did not document their intent in a clear fashion. A large part of the trial dealt with the question of determining what trust documents governed. In addition, Elene Kunit, not [George], is the person who improperly received money directly from the [T]rust. Finally, much of the controversy relates directly to the animosity that existed among the three children of Trustors. In view of the foregoing[,] it would be inequitable to deny [George] all of his attorney's fees. The court finds that a reasonable award is sixty percent of the attorneys fees claimed in the Second Account, or the sum of $80,095.20. The report and account, as supplemented, is otherwise approved. [George] will prepare a formal order."

On September 14, 2009, the trial court issued its written order after its hearing on the Second Account, awarding George 60 percent of the attorneys fees claimed in the Second Account (i.e., $80,095.20) and disallowing the remaining amount of $53,396.80. In all other respects, the court approved the Second Account, as supplemented, in its entirety.

On October 15, 2009, Don filed a notice of appeal challenging that order. On November 6, George filed a notice of cross-appeal ...


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