Estate of ROSCOE SAPP, SR., Deceased. ARMURESS SAPP et al., Petitioners and Respondents, v. EDITH ROGERS, Objector and Appellant.
E068030 (Super.Ct.No. PRO067969)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 6/11/19
CERTIFIED FOR PUBLICATION
APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.
Edith Rogers, in pro. per., for Objector and Appellant.
Alexander Law Offices and Thomas M. Alexander, Jr., for Petitioner and Respondent Armuress Sapp.
No appearance for Petitioner and Respondent Brian Lincoln.
In her briefs, Rogers challenges: (1) the 2001 order instructing the coadministrators to sell the estate‘s real property; (2) the probate court‘s 2016 denial of her petition for additional instructions; and (3) the 2017 judgment removing her as personal representative. Only the 2017 judgment is properly before this court. Although we conclude the evidence does not support a finding that Rogers was incapable of executing the duties of administrator, we find the evidence supports her removal because she is not otherwise qualified to act as administrator, and she mismanaged the estate.
I. FACTS AND PROCEDURAL BACKGROUND2
A. Early Years of the Estate, 1994-2000.
Decedent died on March 20, 1994, and on July 26 of that year the probate court issued letters of special administration to Vivian Macon, decedent‘s sister. At the time of his death, decedent was survived by seven children (Gloria Lovett, Robert Sapp, Armelius Sapp, Ronald Sapp, Glenda Sapp, Betty Jo Sapp, & Roscoe Sapp, Jr.).3
A document entitled, “Living Trust of Roscoe Sapp, Sr.” (the will), dated November 6, 1993, was deposited with the probate court on August 25, 1994. Decedent left considerable improved and unimproved real property to his living natural children “to share + share alike,” and the share of any deceased child was to be divided equally to the deceased child‘s children. The same day, the probate court granted Macon‘s petition for letters of administration and overruled a demurrer and objections filed by Rogers. The probate court appointed Macon administrator and issued letters of administration to her on September 8, 1994.
On June 22, 1995, the probate court granted Macon‘s petition for probate of the will, admitted the will to probate, and on July 13, 1995, issued letters of administration to Macon with will annexed. Macon served as administrator for six years, and in 1998 she survived an attempt by Rogers and other heirs to remove her.
B. 2001 Petition for Instructions and Ruling that the Coadministrators Sell the Remaining Estate Property.
On June 22, 2001, the remaining two coadministrators petitioned the probate court for instructions. The petition explained that some of decedent‘s surviving children were disabled and incapable of caring for themselves. The coadministrators were “uncertain as to what effect to give” the document the court had “deemed to be the Last Will and Testament of the decedent,” and they asked for instructions on how to proceed and interpret the will.
According to the petition, one coadministrator believed it was decedent‘s intent that: real property owned by the estate should be liquidated, with the possible exception of one property to be used as a care facility for disabled heirs; the proceeds of the sales be distributed to those heirs who were capable of caring for themselves; and the remaining assets be used to establish a care facility for heirs who were incapable of caring for themselves. The other coadministrator believed the real property should be sold and the net proceeds distributed to the heirs outright. The living heirs executed documents
On August 30, 2001, the Honorable Stephen D. Cunnison (Judge Cunnison) granted the petition and directed the coadministrators to “sell the [estate‘s] property.” The court instructed coadministrators’ attorney to file proofs of service, and to submit a “formal order.” As discussed further, post, the attorney never submitted a formal order, and the court never entered one.
C. Rogers‘s Administration of the Estate from 2001 until 2016, and the 2016 Judgment Denying Her Petition for Additional Instructions.
Coadministrator Roscoe Sapp, Jr., died on May 5, 2003, and on January 24, 2005, the probate court issued amended letters of administration with will annexed to Rogers as sole administrator. In the 14 years following the probate court‘s 2001 ruling on the coadministrators’ petition for instructions, the court had approved the sale of four properties in San Bernardino and approved accounts submitted by Rogers. On February 21, 2014, the probate court set a hearing for July 25, 2014, regarding the filing of a final distribution of the estate‘s assets. That hearing was continued to December 5, 2014. When Rogers and her attorney failed to submit their petition for final distribution, the probate court issued an order to show cause (OSC) why they should not be sanctioned. Rogers filed a status report on February 5, 2015.
At the March 6, 2015 hearing on the OSC, the Honorable Thomas H. Cahraman (Judge Cahraman) stated he was not inclined to approve Rogers‘s most recent status report because it broached, but ultimately failed to address, questions about the 2001
After conducting a hearing on Rogers‘s petition, Judge Cahraman issued a tentative decision denying the petition. Judge Cahraman noted the 2001 petition for instructions had presented Judge Cunnison with two options: “(1) partial liquidation, partial distribution, and maintenance of a home where heirs unable to properly care for themselves could visit on the weekends or live in as a care facility, or (2) complete liquidation and distribution.” After reviewing the minutes and the transcript of the 2001 hearing, Judge Cahraman concluded, “The court ordered the co-administrators to do the latter.” (Underscoring omitted.)
Judge Cahraman noted Rogers had at least implicitly requested the probate court set aside the 2001 ruling, but she provided no support for such an order. In light of his interpretation of the 2001 ruling, Judge Cahraman concluded the remainder of Rogers‘s petition was moot. “There is no need to determine whether the will creates a testamentary trust in light of the August 30, 2001 order to distribute the property outright.” Therefore, he denied Rogers‘s petition and directed her to file “a final accounting and petition for final distribution within 90 days that distributes any
D. Petition to Remove Rogers as Administrator.
Two of decedent‘s grandsons, Brian Lincoln and Armuress Sapp, filed separate petitions to remove Rogers as administrator and to be appointed as administrator. In his trial brief, Armuress argued Rogers “never demonstrated an actual intent to distribute the estate to any of the heirs of Roscoe Sapp,” despite being ordered to do just that by Judge Cunnison. According to Armuress, “none of the heirs have received anything, [and] none of the creditors have been paid.” Armuress argued Rogers had “her own agenda, which is not that of Roscoe Sapp, and that agenda makes her incapable of administering the estate.”
1. Petitioners’ evidence.
At trial, Armuress introduced testimony from a commercial broker. Based on his review of the documentation Rogers submitted with her declaration of progress, the expert opined Rogers was not effectively marketing the estate‘s remaining parcels of real estate because she had removed the properties from active listings, and she had failed to adjust the asking price when the market dropped significantly. Rogers had the properties listed for a total asking price of more than $9 million, yet the expert testified the property had been on the market for so long that its real value had dropped to just over $6.1 million. In light of the decrease in property values, the expert testified he considered the property to be “effectively off the market.”
Armuress testified it was his understanding decedent‘s wishes were to divide his estate evenly between his heirs and their descendants. Rogers told Armuress that if he cooperated with her, he “would get something from the estate,” but he “would not get anything if [he] didn‘t cooperate with her.” Armuress testified Rogers told him “it was up to her . . . who gets what in the estate, and if she didn‘t want [his] father to get anything, he won‘t get it. And she said that to [Armuress] numerous of times.” Rogers told Armuress he should “ask the Court to have the estate removed from probate so that she can control the estate and divide the money. That way it wouldn‘t be in the Court‘s hand, and we won‘t have to worry about the Court.”
Armuress also testified that, when he and his siblings petitioned to be conservators of their father Ronald Sapp, Rogers mislead the court by accusing Armuress of being on drugs and keeping his father on drugs. When the heirs and Armuress tried to find out what Rogers had been doing with the estate, Rogers refused to communicate with them. Armuress testified that if he was appointed administrator of the estate, he would follow the probate court‘s orders and close the estate as quickly as possible. “The heirs are really interested in receiving their inheritance. I would like to fulfill that for the family.”
Brian Lincoln testified decedent‘s intent was to divide his estate evenly between his children. When he spoke to Rogers about the distribution of the estate, she told him “everything was hers and get an attorney.” Around 2007, Rogers offered to pay Lincoln and approximately nine other family members $10,000 each “if we just sign off and walk
Former coadministrator Jennifer Sapp, one of decedent‘s granddaughters, also testified decedent‘s intent was to divide his estate evenly between his heirs, and stated Rogers had offered to pay family members $10,000 “just to settle and walk away, leave everything alone.”
2. Rogers‘s evidence.
Armelius Sapp, another of decedent‘s grandsons,4 testified he was not in agreement with the petitions to remove Rogers as administrator. Armelius testified Rogers had been willing to answer his questions about the administration of the estate, and it was his opinion the estate property that had already been sold was sold for the “highest amount possible.” He did not believe a “quick sale” of the remaining estate property was the best way to close the estate. Armelius testified he believed Rogers was doing a reasonable job managing the estate.
A real estate broker retained by Rogers in March 2015 testified she had nine estate properties currently listed. For example, the broker testified the largest parcel, comprising 73 acres, had been listed for $10,240,000 from April 2004 to April 2005. In
The broker had received a request from a Chinese company for mineral exploration of the 73-acre property and was in the early stages of negotiations. The broker testified the property had a history of confirmed natural resources deposits (copper and gold), and the requesting party wanted to explore for rare earth minerals known to be found in San Bernardino. The prospective buyer was “willing to pay for the exploration, compensate the family for royalties, and determine a fair market value for this property.” The broker testified the exploration might take years, but it would go more quickly with approval by the United States Department of the Interior, Bureau of Land Management. If the contracts were completed, the family would receive compensation during the exploration and receive royalties later. Two other potential buyers had also recently expressed interest in the property.
On cross-examination, the broker testified she had not received any solid offers to explore the property, and no money had been paid to the family yet for mineral exploration on the 73-acre parcel.
On March 13, 2017, the probate court filed a tentative decision granting the petitions to remove Rogers as administrator and appointing Armuress as successor administrator. The court noted 15 and a half years had elapsed since Judge Cunnison instructed Rogers and her coadministrators, “but Ms. Rogers still has not liquidated the remaining parcels.” Although Rogers sold four parcels in 2004, in the 12 years that followed she had failed to sell the remaining nine parcels. The court concluded Rogers had “an inherent conflict in handling this estate to conclusion, because she has consistently taken the position that certain language in the will, which could be construed to preclude some beneficiaries from taking outright, is enforceable and should be enforced. In other words, all the way up to the present she has effectively taken the position that the court‘s final decision in 2001 was wrong.” Therefore, the court concluded Rogers was “‘incapable of properly executing the duties’ of administrator, pursuant to subsection (b) of
The probate court also concluded Rogers had acted in bad faith toward the heirs. The testimony that Rogers “tried to buy out various beneficiaries for $10,000 per person,” although the properties were worth millions of dollars, “tends to show that she is not capable of acting as an impartial fiduciary.” That evidence, according to the court, provided further support for removing Rogers under
Finally, the probate court concluded Rogers should be removed for mismanagement under
Rogers filed a notice of appeal on March 24, 2017.
On April 6, 2017, the probate court filed formal orders suspending the letter of administration issued to Rogers and appointing Armuress Sapp as special administrator. The same day, the court entered judgment granting the petitions.
II. DISCUSSION
A. Scope of Appeal.
The parties agree this appeal was properly taken from the probate court‘s order and judgment removing Rogers as personal representative. However, they disagree about what other rulings this court may review. In other words, there exists a dispute about the scope of this appeal. Because appealability goes to the question of this court‘s jurisdiction, we must address that threshold question before addressing the merits of
1. 2017 judgment removing Rogers as administrator.
In her notice of appeal filed March 24, 2017, Rogers purported to appeal from the probate court‘s March 13, 2017 tentative decision granting petitions to remove her as administrator of the estate. Orders removing a personal representative and revoking the letters of administration issued to the personal representative are appealable. (
After Rogers filed her notice of appeal, the probate court entered its April 6, 2017 formal order and judgment removing Rogers as personal representative. We therefore deem Rogers‘s premature notice of appeal to have been timely filed from the subsequent order and judgment. (Cal. Rules of Court, rule 8.104(d)(1).)
2. 2016 judgment denying Rogers‘s petition for instructions.
In her opening brief, Rogers contends this appeal is also from the probate court‘s ruling on her June 29, 2015 petition for additional instructions. An order instructing or refusing to instruct a personal representative (
On July 20, 2016, we granted Rogers‘s motion to reinstate the appeal. In our order, we noted the probate court‘s May 9, 2016 tentative decision did not appear to be an appealable judgment or order, and we directed Rogers to either submit a copy of the judgment or appealable order, or to explain why the tentative decision was, in fact, appealable.5 Rogers submitted a letter in which she explained the probate court‘s tentative decision, by its terms, became the court‘s statement of decision when neither party timely objected that the court had failed to address controverted issues. (See Cal. Rules of Court, rule 3.1590(c)(4).) Because a statement of decision is usually not appealable (Estate of Reed, supra, 16 Cal.App.5th at p. 1126, quoting Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 [statement of decision generally not appealable, but appellate court may treat statement of decision as appealable if it constitutes trial court‘s final decision on the merits]), and Rogers failed to provide us
On September 2, 2016, the probate court issued its judgment denying Rogers‘s petition for additional instructions. The remittitur issued on our dismissal of Rogers‘s appeal on October 19, 2016. Eight days later, Rogers moved to recall the remittitur. She attached to her motion a copy of the probate court‘s September 2, 2016 judgment. But, because we found no “good cause” to recall the remittitur (Cal. Rules of Court, rule 8.272(c)(2); see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶¶ 14:36 to 14:44, pp. 14-8 to 14-10 [addressing proper grounds for recalling remittitur]), we denied Rogers‘s motion on November 17, 2016.
This court‘s August 17, 2016 order dismissing Rogers‘s first appeal did not expressly say it was without prejudice, so by operation of law it was with prejudice. (
Finally, much of Rogers‘s argument in her briefs is premised on her continued assertion that the August 30, 2001 ruling on the coadministrators’ petition for instructions “was wrong.” As noted, ante, an order instructing or declining to instruct an administrator, and an order directing or declining to direct the distribution of property is appealable. (
The minute order for August 30, 2001, indicates the probate court granted the coadministrators’ petition for instructions and directed their attorney to prepare and submit a “[f]ormal order.” But, as the probate court stated in its May 9, 2016 tentative decision denying Rogers‘s petition for additional instructions, “that never happened.”
It is unclear from the record before us whether the 2001 ruling became appealable at some later point in the intervening 15 years or so, but we need not decide that issue. At the very latest, the August 30, 2001 ruling was subject to appellate review when the probate court entered a formal order and judgment on September 2, 2016, denying Rogers‘s petition for additional instructions. On appeal from an appealable judgment or order, “the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party,” except for “any decision or order from which an appeal might have been taken.” (
As already recounted, ante, Rogers did appeal from the denial of her petition for additional instructions, but we dismissed the appeal when she defaulted by failing to timely provide us with an appealable judgment or order. To repeat, the now-final dismissal had the effect of affirming the 2016 judgment denying Rogers‘s petition. (In re Jasmon O., supra, 8 Cal.4th at p. 413; Linn v. Weinraub, supra, 85 Cal.App.2d at p. 110.)
In sum, we conclude this appeal is limited to the probate court‘s April 6, 2017 order and judgment removing Rogers as personal representative.
B. The Probate Court Did Not Abuse Its Discretion When It Removed Rogers as Personal Representative.
Rogers argues the probate court‘s findings of fact are not supported by the record and, therefore, the court abused its discretion by removing her. We are not persuaded.
“The probate court or judge is the guardian of estates of deceased persons and all proceedings are under the direction of the judge. An executor or administrator derives his power to act from the order of the court.” (County of Los Angeles v. Morrison (1940) 15 Cal.2d 368, 371.) “[T]he executor or administrator occupies a fiduciary relationship in respect to all parties having an interest in the estate including heirs, beneficiaries under the will and creditors [citations] and, as a fiduciary, has the duty towards such parties to protect their legal rights in the estate.” (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 364-365Estate of Bonanno (2008) 165 Cal.App.4th 7, 17-18, quoting Estate of Denman (1979) 94 Cal.App.3d 289, 292; see
Any interested person may petition the probate court to remove the personal representative of an estate and appoint a successor representative. (
When the probate court removes a personal representative, it “shall revoke any letters issued to the personal representative, and the authority of the personal representative ceases.” (
“A personal representative may be removed from office for any of the following causes: [¶] (a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so. [¶] (b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative. [¶] (c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative. [¶] (d) Removal is otherwise necessary for protection of the estate or interested persons. [¶] (e) Any other cause provided by statute.” (
§ 8502 .)
The party seeking removal bears the burden of proving grounds for such. The personal representative, in turn, has “the right to rely on the presumption of fair conduct and faithful performance of official duty until something [is] offered to overcome it.” (Estate of Buchman (1954) 123 Cal.App.2d 546, 554.) “While it is the clear duty of the court to remove an executor or administrator when his [or her] unfitness has been proved, it is at the same time the right of every trustee to receive full acquittance of charges impugning his [or her] integrity or competence which are not established by clear and satisfactory evidence.” (Estate of Wacholder (1946) 76 Cal.App.2d 452, 464.)
The probate court‘s decision removing or declining to remove a personal representative is reviewed for abuse of discretion. (Estate of Effron (1981) 117 Cal.App.3d 915, 930; Estate of Wemyss (1975) 49 Cal.App.3d 53, 61; Estate of Cole (1966) 240 Cal.App.2d 324, 328-329.) ” ’ “To the probate court is given, in the first instance, the supervision and protection of estates of deceased persons, with power, in the exercise of that supervision, to remove an executor when, in its discretion, such step is necessary for the protection of the estate; and that power is not to be interfered with by the appellate court, unless there has been a clear abuse of that discretion.” ’ ” (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1633-1634 (Hammer), quoting Luckey v. Superior Court (1930) 209 Cal. 360, 370.)
The abuse of discretion standard applies “even [when] the evidence is of such a nature that reasonable minds would possibly differ regarding the facts.” (Estate of Wemyss, supra, 49 Cal.App.3d at p. 61.) ” ‘The test is not whether we would have made a different decision had the matter been submitted to us in the first instance. Rather, the discretion is that of the trial court, and we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court‘s action, no judge reasonably could have reached the challenged result.’ ” (Hammer, supra, 19 Cal.App.4th at p. 1634.)
As with all factual determinations, the probate court‘s findings of fact underlying its discretionary decision to remove an administrator are reviewed for substantial
“It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that the appellant has the burden of showing reversible error, and in the absence of such showing, the judgment or order appealed from will be affirmed.” (Estate of Armstrong (1937) 8 Cal.2d 204, 209; accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “If the decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower court reached its conclusion.” (Estate of Beard, supra, 71 Cal.App.4th at p. 776.)
3. Analysis.
a. Incapacity.
The probate court concluded Rogers was “‘incapable of properly executing the duties of the office‘” of administrator (
The probate court appears to have interpreted Probate Code section 8502, subdivision (b), to provide for removal of a personal representative who is simply unwilling to perform her duties or unwilling to comply with lawful orders of the probate court. But for our purposes, “incapable” is not a synonym for unwillingness. Rather, “incapable” refers to legal incapacity. For instance, for reasons of public policy, a minor is legally incapable of entering into a contract based solely on her minority, whether or not she is willing and able to perform. (
Incapable has the same meaning when it comes to personal representatives. Inter alia, “a person is not competent to act as personal representative” and, therefore, shall not be appointed as such, if “[t]he person is under the age of majority” or “[t]he person is subject to a conservatorship of the estate or is otherwise incapable of executing, or is otherwise unfit to execute, the duties of office.” (
The appellate court concluded “there is insufficient evidence of incapacity . . . .” (Hammer, supra, 19 Cal.App.4th at p. 1642.) “In a case interpreting the terms ‘incapable’ and ‘incompetent’ in predecessor statutes, the court stated: ‘The legislature has classified death, insanity, and conviction of an infamous offense under the designation “incapable,” and other matters affecting the integrity or qualification for the discharge of the duties of an administrator as “incompetency.” The embezzler, the thief, the man who hesitates at no fraudulent scheme to despoil an estate, or who is so careless and indifferent as to habitually and grossly neglect his duties may have capacity to properly discharge all the duties of an administrator, but the man who is dead, or insane, or civiliter mortuus is “incapable.” Whether the word “incompetent” was wisely chosen or not, the context leaves no room to doubt the sense in which it was used, and that it was used to designate a different class from those characterized as “incapable.” ’ ” (Hammer, at pp. 1642-1643, quoting In re Blinn (1893) 99 Cal. 216, 221.)
However, the court concluded the evidence supported removal of the executor because he “was ‘otherwise not qualified.’ ” (Hammer, supra, 19 Cal.App.4th at p. 1642.)
As in Hammer, the record before this court does not show Rogers suffered from physical or mental incapacity. But, the evidence supports the conclusion she was “otherwise not qualified for appointment as personal representative.” (
In addition, the record supports the probate court‘s conclusion that Rogers acted in bad faith and was not an impartial fiduciary. Armuress testified Rogers threatened to disinherit him and his father if they did not cooperate. Both Brian Lincoln and Jennifer
In sum, we conclude the record supports the probate court‘s factual findings that Rogers resisted implementing the 2001 instructions and acted in bad faith toward the heirs. And, we find Rogers was properly removed as administrator because she was “otherwise not qualified.” (
b. Mismanagement.
The probate court also found that, “based upon the 15 1/2 year delay” in winding up the estate, and “testimony which suggests that this administrator is asking the parties to wait some more while she pursues a novel theory,” Rogers “mismanaged” the estate and should be removed. (
There is scant authority on what constitutes mismanagement for purposes of removal under section 8502, subdivision (b). Seventy-four years ago, the Third Appellate District held “[m]ismanagement of an estate which may authorize the revocation of letters under [former] section 521 of the Probate Code [(the precursor to
In Estate of Feeney (1983) 139 Cal.App.3d 812, the probate court removed an executrix for mismanagement under former section 521 when she refused to sign petitions requesting the probate court vacate the sale of estate property to one buyer and approve a sale to another buyer. (Estate of Feeney, at pp. 816-817.) On appeal, the executrix argued the removal statute had to be read in conjunction with former section 758, which governed orders directing a personal representative to sell property and, at most, the probate court should have directed her to file the petitions. (Estate of Feeney, at p. 819.)
Although removal of a personal representative for embezzlement or fraud clearly requires an affirmative showing of moral wrongdoing, and we assume intentional wrongdoing by an administrator will normally establish mismanagement, we must disagree with Feeney that all bases for removal set forth in former section 521 or current section 8502, subdivision (a), of the Probate Code require a showing of intentional wrongdoing. For example, the same list that includes mismanagement, fraud and embezzlement as causes for removal also includes waste. (
The fact that waste is not necessarily a “moral wrong” calls into serious question our conclusion in Feeney that all four bases for removal under former section 521, including mismanagement, must be interpreted to require an affirmative showing of moral wrongdoing.8 Therefore, we overrule our decision in Feeney to the extent it held a personal representative can only be removed for mismanagement upon a showing of moral wrongdoing9 and, instead, adopt the more commonsense definition of the term “mismanagement” from Estate of Palm, supra, 68 Cal.App.2d at page 210.
III.
DISPOSITION
The judgment removing Edith Rogers as administrator and revoking the letters of administration issued to her is affirmed. Armuress Sapp will recover his costs on appeal.
CERTIFIED FOR PUBLICATION
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.