Hines v. Hines
Filed 4/5/13 Hines v. Hines CA1/5
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Appellant,
and Respondent.
A135365
(
Super.
Memorandum Opinion
Appellant
Derrick B. Hines (Derrick) was trustee of the Hines Family Trust (the
Trust). Respondent Claire C. Hines
(Claire), a remainder beneficiary of the Trust, filed a petition to remove
Derrick as trustee. On April 2, 2009, the Alameda County
Superior Court granted Claire’s petition and removed Derrick as trustee “due to
his breach of the trust, his failure to perform his
other good cause.â€
After
the superior court’s order, Derrick refused to vacate one of the Trust’s
properties. Claire instituted
Derrick was ordered evicted.
On
August 29, 2011,
Claire filed a petition requesting, among other relief, imposition of a
surcharge against Derrick’s share of the Trust estate. The superior court held an evidentiary
hearing on the petition March 26 and 27, 2012, at which both Derrick and
Claire testified. On March 28, 2012, the court
approved the petition and ordered that Derrick be surcharged $330,366.66 with
compound interest. On May 3, 2012, the superior court
filed a written order approving the surcharge and interest against Derrick’s
share of the Trust estate.
Derrick
filed a notice of appeal from that
order the following day. On May 25, 2012, Derrick filed
Judicial Council form APP-003, “Appellant’s Notice Designating Record on
Appeal.†Derrick checked the box in
section 2(a) of the form and elected to proceed without a record of oral
proceedings in the superior court. Next
to the checked box appears the following statement: “I understand that without a record of the
oral proceedings in the superior court, the Court of Appeal will not be able to
consider what was said during those proceedings in determining whether an error
was made in the superior court proceedings.â€
As
appellant, it is Derrick’s “affirmative duty to show error by an adequate
record†(Osgood v. Landon (2005) 127
Cal.App.4th 425, 435) and to “formulate a coherent
1488, fn. 3), but he has done neither.
The record contains no reporter’s transcript, and in violation of
California Rules of Court, rule 8.204(a)(1)(C), Derrick’s opening brief is
devoid of any citations to the
clerk’s transcript, which is the only record before us. Derrick is not excused from compliance with
this rule merely because he is unrepresented by counsel. (See Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246 [self-represented party required
to comply with rule governing record citation].)
Moreover,
the arguments Derrick presents in his briefs are not coherent enough to merit
consideration. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [court will
consider only “those arguments that are sufficiently developed to be
cognizableâ€].) His opening brief is
extremely difficult to understand, but insofar as we can discern, he appears to
challenge the lower court’s failure to consider certain evidence before
imposing the surcharge against his share of the Trust estate. These claimed facts would seem to include the
poor condition of the premises from which he was evicted and the alleged
existence of a rental agreement
between Derrick and “the deceased mother.â€
Such factual matters appear to raise issues of the sufficiency of the
evidence to support the challenged order.
(See Nwosu v. Uba, supra, 122
Cal.App.4th at pp. 1245-1246.)
Because
Derrick failed to include in the record the reporter’s transcript of the
evidentiary hearing based on which the superior court imposed the surcharge,
“the judgment must be conclusively
presumed correct as to all
evidentiary matters. To put it
another way, it is presumed that the unreported trial testimony would
demonstrate the absence of error.†(
973, 992 [rejecting challenge to award of surcharge and attorney fees in
probate proceeding].) Derrick is
therefore precluded from raising any challenge to the sufficiency of the
evidence. (Ibid.) As no error is
apparent on the face of the existing appellate record (ibid.), and the law is clear that a beneficiary’s interest in a
trust may be used to satisfy a surcharge based on the beneficiary’s wrongful
conduct as trustee (Chatard v. Oveross
(2009) 179 Cal.App.4th 1098, 1110), we are compelled to affirm the order from
which the appeal is taken.
To
the extent Derrick seeks to raise issues arising out of his eviction from the
Trust property, those matters are not before us because they were not decided
in the probate proceeding below. Nor may
we entertain Derrick’s apparent claims of ineffective assistance of
counsel. There is no authority that
would permit us to reverse a judgment or order in a
ineffective assistance of counsel. (See
975, 978-979.)
Disposition
The
May 3, 2012 order
approving surcharges and compound interest against the share of Derrick B.
Hines is affirmed. Claire C. Hines shall
recover her costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1), (2).
_________________________
Jones,
P.J.
We concur:
_________________________
Simons,
J.
_________________________
Bruiniers,
J.
name="_ftn1" title="">* We resolve this case by a Memorandum Opinion pursuant
to California Standards of Judicial Administration, Standard 8.1.
