McDonnell v. Jarvis
Filed 2/24/12 McDonnell v. Jarvis CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
JOHN MCDONNELL, JR., as
Trustee,
etc.,
Petitioner and
Respondent,
v.
TODD JARVIS,
Objector and
Appellant.
H035553
(Monterey
County
Super. Ct.
No. P31598)
INTRODUCTION
The Jarvis
Ranch, which includes more than 300 acres of agricultural land in Monterey
County, is an asset of the Jarvis
Replacement Administrative Trust (the Trust).
Appellant Todd Jarvis and his brother James Jarvis
are beneficiaries of the Trust.
Respondent John McDonnell, Jr. is the court-appointed trustee.
In his capacity
as trustee, McDonnell filed in the probate
court on December 23, 2009,
a petition for authority to execute and perform right of way contracts with the
State of California Department of Transportation (CalTrans). The right of way contracts included the
settlement of three eminent domain actions brought by CalTrans to acquire
portions of the Jarvis Ranch. The terms
of the Trust required McDonnell to petition the court for authority to execute
and perform the right of way contracts, because James had consented to the
CalTrans contracts while Todd had objected.
The probate court granted the petition on February 9, 2010.
On appeal,
Todd argues that the order should be reversed because the probate court lacked
jurisdiction and made several procedural and evidentiary errors. McDonnell has filed a motion to dismiss the
appeal on the ground that an event occurring during the pendency of the appeal
has rendered the appeal moot; specifically, the probate court’s subsequent
order of April 26, 2010,
finding that that Todd has a right to appear as a defendant in the eminent
domain actions and granting his motion
for joinder.
As we will
further discuss, we agree with McDonnell that the appeal is moot as a result of
Todd’s joinder as a party defendant in the underlying eminent domain
actions. We also agree that the
appropriate disposition under the circumstances of this case is to reverse the
order with directions to the superior court to dismiss the petition for
authority to execute and perform right of way contracts with CalTrans as
moot. (Paul v. Milk Depots, Inc. (1964)
62 Cal.2d 129, 134 (Paul);
Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945 (
FACTUAL AND PROCEDURAL BACKGROUND
Todd and
James executed the Trust in 2004 and are both beneficiaries of the Trust. The Trust assets include the Jarvis Ranch,
which is located near Salinas and consists of 333.5 acres on the west side of
Highway 101 and two parcels on the east side of Highway 101. CalTrans filed three
portions of the Jarvis Ranch for traffic and highway improvements. (People
v. McDonnell (Super. Ct. Monterey County, No. M98919); People v. Jarvis Properties, et al. (Super. Ct. Monterey County,
No. M98920); People v. McDonnell (Super.
Ct. Monterey County, No. M98921).) Todd
was not a party to the eminent domain actions prior to April 26, 2010.
McDonnell
retained counsel for the three eminent domain actions, who recommended
settlement of the actions as negotiated with CalTrans and incorporated in two
right of way contracts. Pursuant to the
terms of the Trust, in November 2009 McDonnell served a notice of proposed
action regarding the right of way contracts on the Trust beneficiaries. Todd filed an objection to the notice of
proposed action, while James consented.
The Trust provides that where only one beneficiary has consented to this
type of proposed action, the trustee must seek and obtain court approval to
proceed.
In December
2009 McDonnell filed in the probate court a petition for authority to execute
and perform right of way contracts with CalTrans. Among other things, the petition stated,
“[t]he bottom line recommendation of eminent domain counsel is that all three
actions should be settled, so long as they contain the clear non-waiver
language relating to future drainage and hydrology impacts and so long as
Petitioner is given some discretion to finalize other details.”
On February 9, 2010, the probate court
issued its order granting McDonnell’s petition for authority to execute and
perform right of way contracts with CalTrans.
Todd filed a notice of appeal from the order on April 9, 2010.
Subsequently,
on April 23, 2010, a
hearing was held on Todd’s motion for joinder as a party defendant in the
eminent domain actions. On April 26, 2010, the trial court
issued its order granting the motion for joinder and finding that “he has an
equitable interest in the properties and the right to appear as a defendant in
these three actions under [Code of Civil Procedure] section 1250.230.”
DISCUSSION
On appeal,
Todd contends that the probate court erred in granting McDonnell’s petition for
authority to execute and perform right of way contracts with CalTrans because
the court lacked jurisdiction and made several procedural and evidentiary
errors. As we will discuss, we will not
consider the merits of the appeal because we agree with McDonnell that the
appeal is moot due to an event that occurred while the appeal was pending.
A. The
Motion to Dismiss the Appeal
On August 3, 2011, McDonnell filed a
trial court’s April 26, 2010
order granting Todd’s motion for joinder and finding that he had the right to
appear as a defendant in the three eminent domain actions has rendered the
appeal moot.
McDonnell
explains that “[t]he effect of the joinder orders is to render the settlements
in the eminent domain actions between the Trustee and CalTrans incapable of
fully resolving the eminent domain actions without first considering the interest
of [Todd] in the settlements or other outcome of the eminent domain
actions. Thus, the authorization granted
by the probate court to execute the settlement agreements (by Right of Way
contracts) cannot be effectively exercised.
[¶] . . . [T]he joinder orders in
the eminent domain actions also make the order on appeal here erroneous, as the
probate court likewise did not consider the interest of [Todd] in the
settlements or other resolution of the eminent domain proceedings as a
defendant therein.”
Todd filed
opposition to the motion to dismiss. He
argues that the appeal is not moot because “material questions” remain
regarding the “clarification of [his] rights during the trial or his rights to
object to a deprivation of his rights to due process and just compensation
under the guise of trust law and a trust agreement in which he reserved
significant rights.”
We will
begin our analysis of the merits of McDonnell’s motion to dismiss with an
overview of the rules governing the appellate court’s determination of
mootness.
B. Mootness
The rules
governing the determination of whether an appeal is moot are well
established. “It is settled that ‘the
duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the matter in issue in the case before
it. It necessarily follows that when,
pending an appeal from the judgment of a lower court, and without any fault of
the defendant, an event occurs which renders it impossible for this court, if
it should decide the case in favor of plaintiff, to grant him [or her] any
effectual relief whatever, the court will not proceed to a formal judgment, but
will dismiss the appeal.
[Citations.]’ [Citations.]” (Paul,
supra, 62 Cal.2d at p. 132; see also
San Jose (2003) 106 Cal.App.4th 204, 214 [case is moot when reviewing
court’s decision can have no practical impact or provide parties with effectual
relief].)
In the
present case, Todd seeks reversal of the probate court’s order granting
McDonnell, as trustee, the authority to execute and perform right of way contracts
with CalTrans that include settlement of three eminent domain actions involving
a trust asset, portions of the Jarvis Ranch property. We understand McDonnell to contend that that
the right of way contracts and settlements cannot be completed because Todd was
not a party defendant to the eminent domain actions at the time the right of
way contracts and settlement agreements were negotiated, and therefore Todd’s
interests were not taken into consideration.
Consequently, the probate court’s February 2010 order authorizing
McDonnell to execute and perform the right of way contracts became moot when
Todd’s motion for joinder as a party defendant in the eminent domain actions
was granted in April 2010, and reversal of the order on appeal would not afford
the parties any effectual relief. (
Todd argues
that the appeal is not moot because “material questions” remain regarding his
“rights to due process” and “just compensation.” We understand this argument to implicitly
request this court to provide an advisory opinion regarding Todd’s rights with
respect to the trustee’s authority to execute right of way contracts that
include settlement of the eminent domain actions. However, we must decline Todd’s request,
since “ ‘[t]he rendering of advisory opinions falls within neither the
functions nor the jurisdiction of this court.’
[Citation.]” (
860; Ebensteiner Co., Inc. v. Chadmar
Group (2006) 143 Cal.App.4th 1174, 1178-1179.)
Moreover,
the decision relied upon by Todd for the proposition that an appeal is not moot
if “material questions” remain, Hartke v.
Abbott (1930) 106 Cal.App. 388 (Hartke),
does not alter our determination that Todd is seeking an advisory opinion in a
moot appeal. In Hartke, as later noted by the California Supreme Court, the court
determined that “when there has been a payment of the judgment by the
appellant, he [or she] does not lose his [or her] right to appeal if it is
compulsory, such as under execution or other coercion. [Citations.]”
(Reitano v. Yankwich (1951) 38
Cal.2d 1, 3.) Here, there is no money
judgment at issue, and Todd has failed to adequately identify any specific
“material questions” that appropriately remain for determination by this court.
Having
determined that the appeal is moot, and also having declined to issue an
advisory opinion, we turn to consideration of the appropriate disposition.
The general
rule is that “when a case becomes moot pending an appellate decision, ‘the
court will not proceed to a formal judgment, but will dismiss the appeal.’ [Citations].”
(Paul, supra, 62 Cal.2d at p. 134.)
It is also the general rule that “the involuntary dismissal of an appeal
leaves the judgment intact.” (
413.) McDonnell has requested that in
the event this court determines that the appeal is moot, our disposition not
leave the judgment intact, but instead reverse the judgment with directions to
the probate court to dismiss the action in accordance with the dispositions in
re Marriage of McFarlane & Lang (1992) 8 Cal.App.4th 247.
In
that former Code of Civil Procedure section 955 provided that “ ‘[t]he
dismissal of an appeal is in effect an affirmance of the judgment or order
appealed from. . . .’ ” (
Determining that the basis for the judgment in the case before it “had
disappeared,” the Paul court further
determined that “we should ‘dispose of the case, not merely of the appellate
proceeding which brought it here.’
[Citations.] That result can be
achieved by reversing the judgment solely for the purpose of restoring the
matter to the jurisdiction of the superior court, with directions to the court
to dismiss the proceeding.
[Citations.] Such a reversal, of
course, does not imply approval of a contrary judgment, but is merely a
procedural step necessary to a proper disposition of this case.” (Id.
at pp. 134-135.)
In 1968,
Code of Civil Procedure section 955 was repealed and replaced with Code of
Civil Procedure section 913, which provides that “[t]he dismissal of an appeal
shall be with prejudice to the right to file another appeal within the time
permitted, unless the dismissal is expressly made without prejudice to another
appeal.” (Stats. 1968, ch. 385, §§
1, 2, pp. 811, 816.) Although the
statutory language regarding the effect of the dismissal of an appeal has
changed, courts have continued to follow the ruling in Paul that dismissal of an appeal as moot constitutes an affirmance
of the judgment. (See
Courts have
also continued to apply the rule set forth in Paul that “ ‘ “[w]here an appeal is disposed of upon the
ground of mootness and without reaching the merits, in order to avoid
ambiguity, the preferable procedure is to reverse the judgment with directions
to the trial court to dismiss the action for having become moot prior to its
final determination on appeal.
[Citations.]” [Citations.]’
[Citation].” (
206, 229; see also Coalition for a
Sustainable Future, supra,
198 Cal.App.4th at p. 944-945; Wilson
& Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1585-1586;
Malatka v. Helm (2010) 188
Cal.App.4th 1074, 1088, fn. 7; In re
Marriage of McFarlane & Lang, supra,
8 Cal.App.4th at p. 258; City of Los
Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 960 [facts on
which judgment was rendered no longer operative; reversal with directions to
dismiss matter as moot].)
We
determine that a disposition under the rule of Paul and its progeny, rather than a simple dismissal of the appeal,
is appropriate in the present case.
“Reversal with directions to the trial court to dismiss is the
equivalent of dismissal of the appeal, but avoids the ambiguity of the latter
procedure which does not dispose of a subsisting trial court judgment in a case
wherein the issues are moot.” (
Cal.App.3d 629, 637.) Having concluded
that the appeal is moot, and also having declined to reach the merits, we will
appropriately avoid impliedly affirming the order by reversing it and directing
the superior court to dismiss the petition for authority to execute and perform
right of way contracts with CalTrans as moot.
DISPOSITION
The
February 9, 2010 order granting the petition for authority to execute and
perform right of way contracts with the State of California Department of
Transportation is reversed and the matter is remanded with directions to the
superior court to dismiss the petition as moot.
The parties shall bear their own costs on appeal.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
_________________________
ELIA, J.
For ease of reference and meaning no disrespect, we will refer to Todd Jarvis
and James Jarvis by their first names.
