Beneficiary’s Contention That Trial Court Erred In Concluding His Objections Were Made In Bad Faith Was Not Supported With Evidence Or Authority.
In Ettinger v. Gaskin, Case No. B287857 (2d Dist., Div. 3 November 4, 2019) (unpublished), two brothers, Roger and Arnold, were beneficiaries to their parents’ trust. After their father passed, their mother divided the trust into 3 sub-trusts. She named her grandnephew attorney as successor trustee to one (the “Survivor’s” trust), and Roger and Arnold as co-successor trustees to the other two. Grandnephew assumed his duties about a year before mother passed and, at some point, also assumed ministerial duties on the other two trusts.
When grandnephew filed his second accounting for the Survivor’s trust, Roger filed objections – just as he had unsuccessfully done with the first accounting and the accountings filed for the other two trusts.
Substantial evidence presented at trial showed Roger as having malicious intent, his continuous efforts to obstruct Arnold’s and grandnephew’s attempts to administer the trusts, his efforts to hire an assassin to kill Arnold and Arnold’s wife, and Roger’s efforts to sabotage other litigation matters related to the mother’s estate. Additionally, Roger’s visitations with his mother before her death had been court restricted.
To perform his duties as successor trustee, grandnephew had hired two attorneys to represent him – one specializing in estate law and elder abuse, the other in estate law and accounting. The two attorneys provided reasonable explanation and careful analysis for their billing practices and apportionment of litigation issues between them – which the trial court found to be reasonable under the circumstances. Roger’s testimony, however, was found to be “manifestly not credible” and “patently false” by the trial court.
In the end, all fees and costs in the second accounting were approved, and all of Roger’s objections were overruled as being made without reasonable cause and in bad faith. Grandnephew filed a petition requesting a surcharge amount against Roger’s share of the Survivor Trust, of $153,245.25 in attorneys’ fees and $11,339.79 in costs – which was granted in full.
Roger apparently found the trial court’s decision objectionable because he appealed. However, he went to the appellate court without evidence, argument, or authority supporting his contention that the trial court erred in its conclusion that his objections were unreasonable and made in bad faith. Instead, he complained that the trial court had denied his request for a trial continuance and had excluded an exhibit at trial.
When this happens, the appellate court may decline to consider the issue and treat the appellant’s contentions as waived. However, the 2/3 DCA addressed the appellant’s contentions – despite the shortcomings in the appellate brief.
First, his complaint about the denial of the trial continuance – made on the day before trial – was without merit. Roger had requested a 60-day continuance to allow his attorney, who had substituted into the case, to get up to speed with the case. This motion was renewed on the day of trial with Roger’s attorney informing the court that a 7-day continuance would suffice. The 7-day continuance was granted over the objections of Arnold and grandnephew.
Next, the 2/3 DCA found no abuse of discretion in the trial court’s exclusion of one exhibit. The exhibit was a declaration that was not included on the joint exhibit list, had not been shared with opposing counsel, and did not pertain to the main issue at trial. Therefore, there was also no prejudice to Roger in the exclusion of this exhibit.
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