Estate of Wheeler
Filed 11/30/09 Estate of Wheeler CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
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Estate of JAMES LOWELL WHEELER, Deceased. | |
STEVEN LOREN RUSH, Petitioner and Appellant, v. STEVEN W. WHEELER et al., Contestants and Respondents. | C060304 (Super. Ct. No. S-PR-5003) |
This is an appeal after a successful will contest. The trial court found that the signature on the will offered for probate was not the decedents. On appeal, the petitioner who offered the will for probate contends that the trial court abused its discretion by (1) setting the action for trial before letters of administration were issued and (2) denying a motion to continue. We conclude that the trial court did not abuse its discretion and therefore affirm.
PROCEDURAL HISTORY
On December 27, 2007, petitioner Steven Loren Rush filed a petition to probate the will of James Lowell Wheeler, the decedent. Rush, the decedents son-in-law, was represented by attorney Jennifer S. Rouse. The will attached to the petition for probate bequeathed most of the decedents property, including real property, to his daughters, Charlotte Lola Rush and Claudette Lynn Mustain. It bequeathed one dollar to the decedents son, James Lowell Wheeler, Jr. (James), and specifically disinherited the decedents other son, Steven W. Wheeler (Steven).
Referring to the petition to probate, Rouse filed a notice of pendency of action. In it, she stated that letters of special administration were needed so that she could act to preserve the estates interest in real property. Rouse served the notice of pendency of action on James. The court issued an order of probate, but noted that the appointment of Rush as the personal representative of the estate was not effective until letters of administration were issued.
On February 26, 2008, James filed a complaint, outside of the probate action, to quiet title on the real property identified in the will. In the complaint, James asserted that he was the owner of the real property, not the estate.
On March 7, 2008, Rush filed a petition in the probate action to establish the estates ownership of the real property. The petition noted that James was in possession of the real property and that he was attempting to change the ownership of the property from the estate to a third party.
James filed an objection to the petition to establish the estates ownership of the real property. He again claimed that he owned the real property.
On April 1, 2008, Steven filed a will contest. He claimed, among other allegations, that the decedent did not sign the will. At some point, not reflected in the record on appeal, James joined Stevens will contest.
On May 2, 2008, the trial court held a trial setting conference for the will contest. A settlement conference was scheduled for June 20, 2008, and a trial for July 21, 2008.
On June 20, 2008, the parties met in the settlement conference. Rouse continued to represent Rush. No settlement was reached, and July 21, 2008, continued to be the date set for trial. On July 11, 2008, however, the trial was continued to August 25, 2008, for reasons not shown in the record on appeal.
On July 23, 2008, Rush substituted himself in place of Rouse.
On August 8, 2008, attorney Endy Ukoha-Ajike, purportedly acting on behalf of Rush, filed an ex parte motion to continue the trial and to reopen discovery. The motion states that it is based on an accompanying memorandum of authorities and declarations, but no such documents are in the record on appeal. The court declined to grant a continuance on an ex parte basis and solicited a response from Steven and James. James objected to the motion to continue the trial. The court issued an order denying the motion to continue, noting good cause not shown.
On August 22, 2008, Rush filed his own notarized letter stating that he could not attend the trial and that attorney Ukoha-Ajike had declined to represent him because he could not obtain a continuance. Rush therefore purported to appoint Kelly Smith as his agent to stand in for him at trial.
On August 25, 2008, the court held a trial on the issue of whether the decedent signed the will that was being offered for probate. Smith, who is not an attorney, apparently attempted to represent Rush; however, the court would not allow it. Rush then appeared to represent himself. The trial court entered an order on September 17, 2008, finding that the decedent did not sign the will and directing that the will not be admitted to probate.
On October 10, Rush filed a notice of appeal from the order of September 17, 2008. (See Prob. Code, 1303, subd. (b) [order denying probate of will appealable].)
On October 15, 2008, the trial court entered an order of sanctions in the amount of $810.75 against Rush and in favor of James for unnecessary delay of the court proceedings.
DISCUSSION
I
Setting Case for Trial
Representing himself on appeal, Rush contends that the trial court abused its discretion by setting the will contest for trial before letters of administration were issued. James responds that Rush did not raise this issue in the trial court and, therefore, cannot raise it now. We conclude that Rush forfeited the contention by not raising it in the trial court. In any event, the contention has no merit.
While it appears to be true that the trial on the will contest was held before any letters of administration were issued, nothing in the record indicates that Rush objected to that procedure. Therefore, Rush forfeited consideration of this issue on appeal. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28.)
Even assuming the issue is not forfeited, the contention is without merit. Rush cites no authority for the proposition that the trial courts discretion to schedule a trial in a will contest is limited by whether letters of administration have been issued. Indeed, a will contest can be resolved before the issuance of the letters of administration. (Estate of Duncan (1969) 1 Cal.App.3d 212, 216.)
Rushs argument that the trial court abused its discretion consists of complaints about discovery opportunities and the breakdown of Rushs attorney-client relationship with Rouse. However, these circumstances have no bearing on the timing of the trial as it relates to issuance of letters of administration. Therefore, Rushs argument is unpersuasive.
Furthermore, Rush fails to establish that, even if the trial court abused its discretion, the abuse of discretion caused a miscarriage of justice. No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.) Because there was no miscarriage of justice, we cannot reverse.
II
Denial of Continuance
Rush asserts that the trial court abused its discretion in denying the motion to continue. He recognizes that the trial court granted a 30-day continuance, but, when Rush returned seeking another continuance and to reopen discovery, the trial court found that good cause had not been shown. We conclude that the trial court did not abuse its discretion.
The trial courts ruling on a motion to continue is subject to reversal only for a manifest abuse of discretion. Such an abuse may appear where the denial has the practical effect of denying the applicant a fair hearing. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) The abuse of discretion must affirmatively appear from the appellate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [a party challenging a judgment has the burden of showing reversible error by an adequate record].)
Rush makes several factual representations in connection with his contention about the motion to continue that are not supported by the record. For example, he claims that he had no opportunity to obtain a handwriting expert to analyze the signature or to perform other discovery. The record does not support these statements.
An appellant must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(C).) The appellant must also [p]rovide a summary of the significant facts limited to matters in the record. (Cal. Rules of Court, rule 8.204(a)(2)(C).) Therefore, we must disregard any facts in the opening brief that do not appear in the record on appeal.
Other than the procedural history summarized above, the record on appeal does not give reasons for Rushs motion to continue. The motion, itself, states: This motion is made on the grounds that Attorney Endy Ukoha-Ajike has agreed to a limited representation of Special Administrator Steven L. Rush for an ex parte hearing to obtain the necessary trial continuance and reopening of discovery which will prevent injustice and irreparable harm for Special Administrator Rush and the Estate of James Lowell Wheeler. The motion then states that it is supported by a memorandum of points and authorities and by declarations of Rush and Ukoha-Ajike, none of which appears in the record on appeal.
Therefore, the motion to continue was supported by nothing more than the unsworn assertion that a delay and reopening of discovery were necessary to prevent injustice. This very general assertion did not amount to good cause to grant the motion and it does not support an argument that the trial court abused its discretion in denying the motion to continue.
DISPOSITION
The order is affirmed. The respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
NICHOLSON , J.
We concur:
SIMS , Acting P. J.
CANTIL-SAKAUYE , J.
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