Hixson v. Wolfe

Filed 8/23/06 Hixson v. Wolfe CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County.

Frances Rothschild, Judge. Affirmed.

WaxlerÛ°CarnerÛ°WeinrebÛ°Brodsky, Barry Z. Brodsky, Jodi L. Girten and Kevin M. White for Defendant and Appellant.

Parcells Law Firm, Dayton B. Parcells III; Clinco & Fisher and Peter Clinco for Plaintiff and Respondent.

_________________________

Gary Wolfe (Wolfe) appeals from the trial court's denial of his motion to compel Georgiana Breeden Hixson (Hixson) to arbitrate her claims. Her complaint was based on allegations that Wolfe committed multiple torts, including conversion and fraud, while handling her business and legal affairs. All told, the parties entered into 19 written agreements, some of which pertained to business affairs, some of which pertained to nonlitigation legal services, and some of which pertained to legal services involving litigation. Only the parties' fourteenth agreement--a restated and amended retainer agreement that was entered into on June 14, 2001, and expressly applied to future legal services involving litigation--contained an arbitration clause. Though the arbitration clause purports to apply to any disputes arising out of the attorney-client relationship, the trial court correctly construed the arbitration clause in the context of the whole June 14, 2001 retainer agreement, and ruled that Hixson did not have to arbitrate disputes arising out of Wolfe's past services. When the trial court denied Wolfe's motion to compel arbitration, it did so without prejudice because Wolfe did not delineate which issues encompassed by the complaint had to be arbitrated. The trial court ruled within its discretion under Code of Civil Procedure section 1281.2, subdivision (c).[1] Accordingly, we affirm the trial court's order.

FACTS

Hixson and Wolfe's retainer agreements

The parties entered into the following agreements:

1. On November 23, 1999, Hixson and Wolfe signed a retainer agreement in which Wolfe agreed to represent Hixson in the postmarital dissolution proceedings in connection with her divorce from Harry Hixson (Harry) and to provide any other requested legal services.

There was no arbitration provision.

2. On January 12, 2000, Hixson engaged Wolfe to represent her interests to form the Nassau Trust, the Nassau International Business Corporation (IBC), a California limited liability corporation, a California S-corporation, a California living trust, and handle all related tax planning.

There was no arbitration provision.

3. On January 12, 2000, Hixson engaged Wolfe as a trust protector for the Nassau Trust and IBC. Wolfe was authorized, among other things, to select a trustee, overlook investments, and provide income, estate and gift tax/investment tax planning on an annual basis for the Nassau Trust and IBC.

There was no arbitration provision.

4. On January 31, 2000, Hixson and Wolfe signed a retainer agreement confirming that Wolfe was retained as personal counsel for litigation regarding Hixson's dissolution and the Hixson Family Trust.

There was no arbitration provision.

5. On January 31, 2000, Hixson and Wolfe signed a retainer agreement confirming that Wolfe represented Hixson's interests in connection with all her business, real estate and tax matters.

There was no arbitration provision.

6. On March 23, 2000, Hixson and Wolfe signed a retainer agreement confirming that Wolfe represented Hixson's interests in connection with certain income tax planning related to 1998 and 1999. The services pertained to tax consequences regarding embezzlement by David Cheeseman (Cheeseman).

There was no arbitration provision.

7. On June 7, 2000, Hixson and Wolfe signed an addendum to the January 31, 2000 retainer agreement to expand Wolfe's duties to act as Hixson's personal counsel in future legal actions against Cheeseman, Paine Webber and Gary Pike. Wolfe was authorized to retain trial counsel and then supervise that trial counsel in legal actions against Cheeseman, Paine Webber and Gary Pike.

There was no arbitration provision.

8. On June 29, 2000, Hixson and Wolfe signed a second addendum to the January 31, 2000 retainer agreement to specify that Wolfe retained Richard Stone to be supervising litigation counsel.

There was no arbitration provision.

9. On July 13, 2000, Hixson and Wolfe signed a third addendum to the January 31, 2000 retainer agreement to specify that Wolfe's contingent fee was negotiable.

There was no arbitration provision.

10. On November 20, 2000, Hixson and Wolfe signed a fourth addendum to the January 31, 2000 retainer agreement to confirm that Hixson asked Wolfe to audit certain accounts related to Hixson, Harry, the Hixson Family Trust, and the Harry Hixson Separate Property Trust. Hixson and Wolfe agreed that Wolfe's maximum legal fees in connection with legal actions against Cheeseman, Paine Webber and Gary Pike would be capped at $1.5 million, and that Hixson would pay Wolfe 20 percent of her recovery from legal actions on the accounts.

There was no arbitration provision.

11. On November 20, 2000, Hixson and Wolfe signed a fifth addendum to the January 31, 2000 retainer agreement to specify that Wolfe was authorized to hire additional counsel.

There was no arbitration provision.

12. On January 8, 2001, Hixson and Wolfe signed a retainer agreement to confirm that Wolfe was engaged to provide the following services: (1) income, estate and gift tax planning; (2) investment tax planning; (3) business and real estate transactions; (4) asset protection; (5) general advice and counsel; (6) corporation documentation; (7) tax audits; (8) supervision of state and federal tax filings; and (9) financial oversight for investment partnerships. The legal services were to be provided on behalf of GB Family Trust, Keswick Corporation, Jupiter Enterprise, LLC, Tuscany Trust, and Munich Holdings, Ltd.

There was no arbitration provision.

13. On May 10, 2001, Hixson and Wolfe signed a sixth addendum to the January 31, 2000 retainer agreement to confirm that Hixson asked Wolfe to be her personal counsel in connection with the legal action against Harry, and that Wolfe would receive additional, specified legal fees for legal actions against Harry and Cheeseman, Paine Webber and Gary Pike.

There was no arbitration provision.

14. On June 14, 2001, Wolfe sent a document that stated, in the first sentence: â€