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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 At some point prior to George's petition, Elene had placed a reverse mortgage on the Alpine residence and withdrawn substantial funds, increasing the mortgage on the property.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 also challenging that order.*fn3

DISCUSSION

DON'S APPEAL

I

Substantiation of Second Account

Don contends the trial court abused its discretion by approving the Second Account without requiring substantiation by George. He argues that because the court previously found George had breached his fiduciary duties and acted with gross negligence as the Trust's trustee, the court should have required substantiation or proof of the Second Account filed by George.*fn4 However, Don does not provide any citations to pages in the record on appeal to support his assertions regarding George's misconduct. It is the appellant's duty to support arguments in his or her briefs by references to the record on appeal, including citations to pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) If an argument is not supported with necessary citations to the record on appeal, that portion of the brief may be stricken and/or the argument may be deemed waived. (Ibid.) It is not our burden on appeal to search the record for support for an appellant's arguments. (Schmidlin v. City of Palo Alto, supra, 157 Cal.App.4th at p. 738.) Because Don has not met his burden to provide specific citations to the record to support his contention, we deem he has waived or forfeited the contention that the trial court abused its discretion by accepting the Second Account without substantiating documentation. (Ibid.)

Assuming arguendo Don has not waived or forfeited that contention, we nevertheless would conclude he has not carried his burden on appeal to show the trial court abused its discretion by accepting the Second Account without substantiating documentation and that the purported error was prejudicial. On appeal, a judgment or order of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) All intendments and presumptions are made to support the judgment or order on matters as to which the record is silent. (Ibid.) An appellant has the burden to provide an adequate record and affirmatively show reversible error. (Ibid.; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Accordingly, we begin our analysis by presuming the trial court considered its previous findings regarding George's misconduct and presuming it properly exercised its discretion in accepting the Second Account, as supplemented, without substantiation. It is Don's burden on appeal to show the court abused its discretion. However, he does not present any compelling substantive argument of the facts or law showing the court abused its discretion. As Don notes, a trustee's account generally does not require substantiating documentation. Probate Code section 16063 sets forth the specific requirements for a trustee's account and does not include any requirement for substantiating documentation.*fn5 Don does not cite any statutory or case authority providing or holding that a trial court must require substantiation of a trustee's account if the court previously found the trustee had breached his fiduciary duties or otherwise committed misconduct as a trustee. Accordingly, he has not carried his burden to show the trial court abused its discretion in the circumstances of this case by approving the Second Account without requiring substantiating documentation.

Furthermore, because Don has not presented any substantive analysis showing the purported error was prejudicial (i.e., it is reasonably probable he would have obtained a more favorable result absent the error), we conclude he has waived or forfeited any assertion that the error was prejudicial. "Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Stanley (1995) 10 Cal.4th 764, 793.) In any event, Don has not carried his burden on appeal to show it is reasonably probable he would have obtained a more favorable result absent the purported error. (People v. Watson (1956) 46 Cal.2d 818, 836.) As noted above, an appellant has the burden to affirmatively show reversible error. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Ballard v. Uribe, supra, 41 Cal.3d at p. 574.) We conclude Don has not carried his burden on appeal to show the trial court abused its discretion by approving the Second Account, as supplemented, without requiring substantiating documentation, or that the purported error was prejudicial to him.

II

Award of Attorney Fees

Don contends the trial court abused its discretion by awarding George any attorney fees. He argues that because George's actions as the Trust's trustee did not benefit the Trust and George engaged in misconduct, the court should not have awarded him any attorney fees.

As Don notes, a trustee generally may receive reimbursement for attorney fees and other expenses reasonably incurred for the benefit of a trust. (Prob. Code, §§ 15684, 16243, 16247; Hollaway v. Edwards (1998) 68 Cal.App.4th 94, 97.) However, contrary to Don's assertion, the trial court could reasonably award George attorney fees incurred on behalf of the Trust, including fees incurred in representing the Trust in proceedings on Don's petition regarding Trust property and in obtaining the court's approval of the Second Account. To the extent the trial court found George breached his fiduciary duties or otherwise committed misconduct as a trustee, the trial court expressly disallowed 40 percent of his requested attorney fees and allowed the remainder as properly incurred for the benefit of the Trust. As quoted above, the trial court stated:

"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.

We conclude the court did not abuse its discretion. The fact that George violated his fiduciary duties or committed other misconduct as a trustee in certain actions on behalf of the Trust does not contradict or preclude the trial court's implicit finding that George did, in fact, provide a benefit to the Trust in his other actions as a trustee. Don has not carried his burden on appeal to show the trial court abused its discretion in so finding or, for that matter, in determining George was entitled to an award of 60 percent of his requested attorney fees.*fn6 (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Ballard v. Uribe, supra, 41 Cal.3d at p. 574 [appellant has burden to affirmatively show reversible error].) We conclude the court properly awarded George $80.095.20 in attorney fees.

GEORGE'S CROSS-APPEAL

In his cross-appeal, George contends the trial court abused its discretion by awarding him only 60 percent of his requested attorney fees. He argues the court erred by not supporting its award with specific factual findings or evidence and by not explaining why it reduced his fee request by 40 percent (in contrast to a different percentage). He argues he should have been awarded greater attorney fees because most of the Trust litigation involved the Alpine residence and not his purported misconduct as trustee.

However, George does not provide any citations to pages in the record on appeal to support his arguments. As noted above, it is the appellant's duty to support arguments in his or her briefs by references to the record on appeal, including citations to pages in the record. (Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.) If an argument is not supported with necessary citations to the record on appeal, that portion of the brief may be stricken and/or the argument may be deemed waived. (Ibid.) It is not our burden on appeal to search the record for support for an appellant's arguments. (Schmidlin v. City of Palo Alto, supra, 157 Cal.App.4th at p. 738.) Because George has not met his burden to provide citations to the record to support his contention, we deem he has waived or forfeited the contention that the trial court abused its discretion by awarding him only 60 percent of his requested attorney fees. (Duarte, at p. 856.)

Assuming arguendo George has not waived or forfeited that contention, we nevertheless would conclude he has not carried his burden on appeal to show the trial court abused its discretion by awarding him only 60 percent of his requested attorney fees. As noted above, on appeal a judgment or order of the trial court is presumed to be correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) All intendments and presumptions are made to support the judgment or order on matters as to which the record is silent. (Ibid.) An appellant has the burden to provide an adequate record and affirmatively show reversible error. (Ibid.; Ballard v. Uribe, supra, 41 Cal.3d at p. 574.) However, George has not cited any statutory or case authority showing a trial court must cite specific evidence or facts in reducing an attorney fee request or explain the mathematical calculations underlying a reduction. Furthermore, we note the trial court explained its reason for reducing George's fee request, stating George "violated his fiduciary duties" and "should not be allowed attorney's fees for any work related to his improper conduct." George has not carried his burden on appeal to show the trial court was required to be more specific in its findings or in its calculations in reducing his requested attorney fees. We conclude the trial court did not abuse its discretion by reducing George's requested attorney fees by 40 percent.

DISPOSITION

The order is affirmed.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.


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