Miller v. Miller
Filed 6/14/13 Miller v. Miller CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
ROBIN G. MILLER,
Plaintiff and
Respondent,
v.
KORI MILLER,
Defendant and
Appellant.
G046462
(Super. Ct.
No. 30-2011-00448506)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Robert J. Moss, Judge.
Affirmed.
Kori Miller, in pro.
per.; Bauer & Associates, Sandra L. Bauer and James M. Lloyd for Defendant
and Appellant.
Emge Law Group and Holly
M. Emge for Plaintiff and Respondent.
*
* *
This
appeal arises from a dispute between siblings Robin G. Miller and Kori Miller
over the terms of a trust.
name="_ftnref1" title="">[1] On the first day of a trial that was to
determine whether certain purported amendments to the trust were valid, the
parties settled, orally stating the terms on the record. Kori later claimed the settlement was
invalid, but the court enforced the settlement under Code of Civil Procedure
section 664.6.
title="">[2] Kori appeals from that order. Kori’s brother Robin has moved to dismiss the
appeal on two grounds: (1) Under the
“disentitlement doctrine,†Kori’s violation of a court order should preclude
her from seeking the assistance of this court; and (2) Kori’s acceptance of the
benefit of a portion of the judgment waived her
motion to dismiss.
On the merits of the
appeal, Kori argues (1) the court lacked jurisdiction to enforce the settlement
because the parties did not request the court to retain jurisdiction, (2) the
settlement was unenforceable because the parties did not express their assent
to the settlement in the same manner — Kori consented orally in open court and
Robin later consented in writing outside of court, (3) a condition precedent to
the settlement agreement was that it be reduced to writing on the same day, and
it was not, and (4) the oral settlement agreement omits material terms. We reject each of these arguments. The court retained jurisdiction, despite the
absence of an express request by the parties, because a final judgment had not
yet been entered at the time the agreement was enforced. Section 664.6 does not require each party to
express their assent in the same manner.
It is enough if each party expresses their consent in a manner specified
by the statute; i.e., orally on the record or in writing outside of court. Kori waived the asserted condition precedent
to the effectiveness of the agreement.
And finally, the contention that the oral settlement omitted material
terms lacks record support. Accordingly,
we affirm the judgment.
FACTS
The largely undisputed
facts stated below are taken from the parties’ various declarations in
connection with the motion to enforce the settlement.
In August of 2010 Robert
B. Miller passed away. His trust
contained approximately $1 million in cash and stocks and an ocean-front house
appraised at $1.5 million, where he had lived for some time with Kori and
Kori’s boyfriend. Kori and her boyfriend
continued to live rent free in the home after Robert’s death.
Robert was survived by
four children, including Kori and Robin.
Under the terms of the trust, each surviving sibling was entitled to an
equal share of the res. As originally
drafted in 1996, the trust named Robin as the sole successor trustee.
Shortly before Robert’s
death, however, Kori revealed to Robin certain purported amendments to the
trust that benefitted Kori. In
particular, Kori was granted a life estate in the house, and all four siblings
were made co-trustees such that any action concerning the trust required the
unanimous consent of all four siblings (which, of course, gave Kori veto
power).
Robin, suspicious of the
validity of the purported amendments, filed the underlying petition in the
superior court to determine the validity of the amendments. According to Robin’s verified petition, his
handwriting expert would testify that the signatures on the amendments were
forged. Further, the notary who
purportedly notarized the amendments would testify that he did not do so, but
rather notarized a different document, and that the notarization on the
amendments themselves show signs of tampering and being fraudulent. Robin also claimed any amendments that were
signed by the decedent were procured by undue influence.
Kori denied Robin’s
allegations. She claimed Robert made the
amendments in response to Robin’s attempt to assert control over the trust
during Robert’s lifetime when Robin falsely claimed Robert was no longer of
sound mind.
Trial was set for November 14, 2011. Robin appeared with counsel and witnesses
prepared to begin. Kori showed up late,
and the trial was continued until the next day.
The next day, Kori indicated she wanted to talk to the judge about
settlement. As a result, the parties had
an unreported settlement conference with the trial judge in chambers.
The parties reached a
settlement and read the terms of the settlement into the record as
follows: “The first term is that Kori
Miller will . . . have 90 days to purchase the residence . . . for 75 percent
of the value of $1,550,000. If Ms.
Miller is unable to purchase the home for that amount of money, then she will remove
herself, her occupants, and all of her personal belongings immediately. The trust will pay to Ms. Miller $6,000
towards the cost of her living elsewhere.
In addition to that, the trust will pay the other three beneficiaries
$6,000. The trust will immediately
disburse to Ms. Miller and the other three beneficiaries $10,000 each. Upon the 91st day from today, the amendment
subject to this lawsuit will be set aside and will be deemed invalid, and the
parties will enter into a . . . written settlement agreement, and that will be
signed by 4:30 this afternoon, and if not, we will proceed with trial tomorrow
morning.†After the recitation, the
court confirmed Kori’s understanding and acceptance of the terms: “Ms. Miller, we’ve discussed those terms in
chambers. Do you understand those terms? [¶]
Ms. Miller: Yes, I do. [¶]
The court: And do you agree to
those terms? [¶] Ms. Miller:
Yes. . . .
[¶] . . . [¶]
The court: And do you understand
that this is a settlement that’s on the record†“and therefore it’s enforceable
if anybody should breach this agreement?â€
“Ms. Miller: Yes.†The court did not confirm Robin’s acceptance
on the record.
Later that day Kori
arrived at Robin’s counsel’s office to review a draft written agreement but
refused to sign it, claiming it contained material terms the parties had not
agreed upon. Accordingly, the parties
showed up in court the following day for trial.
The judge brought the parties and counsel into chambers for a conference
where Kori stated she did not want to go to trial and once again reiterated she
understood the settlement as stated on the record to be binding on her and
Robin. She indicated she wanted it to be
binding on her other two siblings as well, but the judge explained he had no
power to do that because the other siblings were not parties to the
lawsuit. Kori reaffirmed, nonetheless,
that the settlement was valid. On that
basis the judge vacated the trial and ordered Robin to dismiss his witnesses. Afterwards, the judge took the bench again
and stated, “[A]s far as I’m concerned, we have a settlement on the record, and
we’ll see what happens next.â€
What happened next was
that Kori denied the settlement was binding.
She claimed through her new attorney (her fourth in the litigation up to
that point) that the settlement was not binding because there was no written
settlement agreement.
Robin then filed an
the settlement under section 664.6, or alternatively, to shorten notice for the
hearing of the motion. Robin sought
expedited relief based in part on his concern that Kori had engaged in a
pattern of stalling so as to give herself and her boyfriend additional rent
free time in the residence. Robin
expressed the additional concern that Kori and her boyfriend had let the house
fall into disrepair. Although Kori
threatened to call the police if any of the other beneficiaries tried to come
into the residence, pursuant to a discovery request Robin was permitted to
inspect the home and take photographs, which revealed the house was in poor
condition. In connection with the
enforcement motion, Robin filed a declaration stating his acceptance of the
terms of the settlement and attached a copy of the reporter’s transcript of the
hearing where the terms were recited.
Kori opposed on the
grounds the settlement agreement had not been reduced to writing and was,
therefore, not binding, and also that the proposed written agreement had
contained material terms the parties never agreed upon.
The trial court heard
the motion on shortened 17-day notice, and granted it, finding the oral
settlement agreement on the record in open court was binding on the parties,
and enforced the terms due for performance at that time. “The court finds that the oral settlement
placed on the record was binding on the parties thereto. While the parties did contemplate reducing
the settlement to writing, this was not a material term. The oral agreement placed on the record
contained the material terms of the agreement.
In reliance on the settlement, the trial did not go forward. At this time the trust is ordered to disburse
to the beneficiaries $10,000.00 each.
Since the time limits on the other terms of the agreement are not yet
completed, the court shall reserve jurisdiction to enforce the remaining terms
as they become due.†The court held only
the terms stated on the record were binding, not any additional terms in the
proposed written agreement. Kori timely
appealed.
After Kori filed her
notice of appeal, Robin moved under section 917.9 to require an undertaking to
maintain the stay on appeal. Finding
Kori was in possession of property (the house) in which Robin held a partial
interest, the trial court set a bond of $80,000 to protect against lost rental
income. In response, Kori filed a motion
for an immediate distribution of funds from the trust to pay for the bond,
which the trial court granted. Kori did
not post a bond, but instead used the funds for personal expenses. As a result, the trial court lifted the stay
on appeal.
Thereafter, Robin moved
to enforce the remaining terms of the settlement, which the court granted,
ordering Kori to vacate the residence.
a letter to Robin’s attorney stating that Kori would not move out unless Robin
paid her the $6,000 owed under the settlement agreement. Kori’s attorney stressed this was not a
concession that the settlement was valid:
“In addition, since you have proceeded despite the filing of the appeal,
my client’s demand for the funds due to her is in no way [a] waiver of my
client’s right to her appeal. Nor is it
an acknowledgment that the purported settlement is valid and accepted. You cannot have it both ways.†On the same day that Kori was evicted, Robin
paid the $6,000, and Kori subsequently deposited the check.
DISCUSSION
Regardless of whether an
appealability challenge is raised, “[t]he existence of an appealable judgment
is a jurisdictional prerequisite to an appeal. A reviewing court must raise the
issue on its own initiative whenever a doubt exists as to whether the trial
court has entered a final judgment or other order or judgment made appealable
by . . . section 904.1.â€
(Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Kori appeals from the
trial court’s order enforcing the settlement agreement under section
664.6. Section 664.6 provides that a
court may enter a “judgment†enforcing the settlement agreement, which the
court did not do. Nonetheless, absent a
formal entry of judgment, an appellate court may amend an order to include a
judgment if the effect of the order is to finally determine the rights of the
parties in the action. (
(2001) 25 Cal.4th 688, 698–700.) In
nearly identical circumstances the courts in Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1252 and
1174, 1183, applied this rule to amend an order under section 664.6 to become a
final judgment where it appeared the trial court intended to finally determine
the rights of the parties in the action.
Here, the sole relief
Robin sought in his petition was a finding that the purported amendments to the
trust were invalid (together with a prayer for fees and costs). The settlement provided for that relief. We conclude, therefore, that the trial court
intended the order enforcing the settlement to finally dispose of the rights of
the parties to the action. Accordingly,
we will amend the order to include a final appealable judgment and deem Kori’s
appeal to be from the judgment.
Motion
to Dismiss
Robin’s motion to
dismiss the appeal asserts two grounds:
(1) the “disentitlement doctrineâ€; and (2) Kori’s acceptance of the
$6,000 settlement payment.
The Disentitlement Doctrine
A reviewing court has
the inherent power to dismiss an appeal by any party who has refused to comply
with trial court orders. (TMS, Inc.
v. Aihara (1999) 71 Cal.App.4th 377, 379.)
The disentitlement doctrine is based on the equitable notion that a
party to an action cannot seek the assistance of a court while the party
“stands in an attitude of contempt to legal orders and processes of the courts
of this state.†(MacPherson v.
MacPherson (1939) 13 Cal.2d 271, 277.)
A formal judgment of contempt, however, is not a prerequisite to
exercising our power to dismiss; rather, we may dismiss an appeal where there
has been willful disobedience or obstructive tactics. (Alioto Fish Co. v. Alioto (1994) 27
Cal.App.4th 1669, 1683; In re Claudia S.
(2005) 131 Cal.App.4th 236, 244.) “This
penalty . . . is particularly likely to be invoked where the appeal arises out
of the very order (or orders) the party has disobeyed.†(Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2012) ¶ 2:340, p. 2–172 (rev. # 1, 2012).)
Robin asserts we should
dismiss this appeal based on Kori’s refusal to post a bond with the $80,000 she
asked the court for. Based on the
limited record we have, it does appear Kori misled the trial court. She filed a motion “for immediate partial
distribution of beneficiary’s trust funds for the payment of undertaking on
appeal and attorney’s fees.†As a
result, the trial court granted her request and specifically ordered her to use
the funds for the undertaking. She used
them for personal expenses instead.
While we strongly
disapprove of her conduct, we decline to dismiss the appeal for several
reasons. First, Robin had an adequate
remedy that he has already exercised, enforcement of the judgment in the
absence of a stay on appeal. Second, the
order to post a bond is not the order on appeal in this case. While it is related, Kori’s violation of that
order in no way threatens the integrity or effectiveness of the appeal,
particularly since Robin had the option to enforce the settlement. Finally, Kori is not currently in
contempt. Typically, the disentitlement
doctrine is applied under circumstances in which the appellant is presently
disobeying a court order, such as, for example, a parent challenging a custody
order while absconding with the child (MacPherson v. MacPherson, supra, 13 Cal.2d at p. 277), or a criminal
defendant appealing a conviction but fleeing and hiding from law enforcement (
619, 621). Here, by contrast, there is
no ongoing violation. We would not
expect Kori to post a bond now that Robin has already enforced the court’s
order. Thus we decline to dismiss the
appeal under the disentitlement doctrine.
2. Acceptance of the $6,000 Payment
“‘It is the settled rule
that the voluntary acceptance of the benefit of a judgment or order is a bar to
the prosecution of an appeal therefrom.’â€
(Gudelj v. Gudelj (1953) 41
Cal.2d 202, 214; see In re Estate of
Shaver (1900) 131 Cal. 219, 221 [“The right to accept the fruits of a
judgment, and the right of appeal therefrom, are not concurrent. On the
contrary, they are totally inconsistent. An election to take one of these
courses is, therefore a renunciation of the otherâ€].) That rule, however, is “subject to
qualifications,†including that “the appellant must demonstrate a clear and
unmistakable acquiescence in, or, to put it another way, an ‘“unconditional,
voluntary and absoluteâ€â€™ acceptance of, the fruits of the judgment.†(In re
Marriage of Fonstein (1976) 17 Cal.3d 738, 744.)
We find no such
unqualified, unconditional acquiescence in Kori’s acceptance of the
$6,000. To the contrary, even as Kori
accepted the $6,000, Kori’s attorney continued to insist the settlement should
not be enforced at all. This was not an
election, rather, it was a conditional acceptance: If Robin
insisted on enforcing the settlement despite the appeal, then he would have to comply with his obligations under the
agreement and pay Kori. This sort of
conditional acceptance does not constitute an “unconditional†and “absoluteâ€
election of the judgment over the appeal.
We, therefore, deny Robin’s motion to dismiss.
We turn now to the
appeal. As a threshold matter, Kori
contends the trial court lacked jurisdiction to enforce the settlement under section
664.6 because the parties never agreed to have the court retain jurisdiction
under that statute. Section 664.6
provides: “If parties to pending
litigation stipulate, in a writing signed by the parties outside the presence
of the court or orally before the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to the terms of
the settlement. If requested by the
parties, the court may retain jurisdiction over the parties to enforce the
settlement until performance in full of the terms of the settlement.†The trial court held there was no need for
the parties to agree to retain jurisdiction because the matter was never
dismissed, and thus the court never lost jurisdiction. We agree.
Addressing the provision
in section 664.6 for retention of jurisdiction, the court in
429, stated, “the effect of that amendment is to provide courts with continuing
jurisdiction over parties and their litigation, for the purpose of enforcing
their settlement agreement, despite a
suit’s having been dismissed after the execution of the agreement.†(Id.
at p. 433, italics added.) This comports
with the structure of section 664.6. The
first sentence provides that in “pending litigation†a court may enforce a
settlement as a judgment. The second
sentence states, “If requested by the parties, the court may retain
jurisdiction over the parties to enforce the settlement until performance in
full of the terms of the settlement.†(
There is no indication in the text of the statute that a request for
retention of jurisdiction (the second sentence) is a condition of enforcing a
settlement agreement (the first sentence) where the pending litigation is still
active. As the Wackeen court observed, “When a court has jurisdiction over the
parties and subject matter of a suit, its jurisdiction continues until a final
judgment is entered.†(
court entered its order. Thus the court
had jurisdiction to hear the motion.
Kori next contends the
settlement is procedurally infirm because, while she orally agreed to the settlement on the record,
attorney did. Section 664.6 requires the
parties themselves to agree to a
settlement, not merely the parties’ attorneys.
(Levy v. Superior Court (1995)
10 Cal.4th 578, 584.) And it requires
that both parties agree to the
settlement, not just the party against whom enforcement is sought. (Critzer
v. Enos, supra, 187 Cal.App.4th
at p. 1262; Harris v. Rudin, Richman
& Appel (1999) 74 Cal.App.4th 299, 304.) Here, only Kori stated her agreement on the
record, not Robin. If the record stopped
there, we would have to reverse.
But it does not. In support of the enforcement motion, Robin
filed a declaration agreeing to the terms of the settlement, and he attached a
copy of the reporter’s transcript containing the settlement terms. Robin’s declaration was sufficient to bind
him to the settlement agreement under section 664.6. Elyaoudayan
v. Hoffman (2003) 104 Cal.App.4th 1421 (Elyaoudayan)
is directly on point.
In Elyaoudayan the parties reached a settlement at the beginning of
trial and recited the terms of the settlement on the record. Plaintiff and codefendant Elyaouudayan were
present in court and agreed to the terms, but a family of codefendants referred
to as the Hoffmans were not present. The
Hoffmans’ attorney claimed authority to enter into the settlement on their
behalf and did so. (Elyaoudayan, supra, 104
Cal.App.4th at p. 1425.) The parties
agreed the settlement would be reduced to writing. Afterwards, Elyaoudayan’s counsel drafted a
written stipulation that mirrored the terms agreed to in the transcript and
sent it to each party. Plaintiffs and
the Hoffmans signed. (
concerned that the other parties were not complying with their obligations
under the settlement agreement and thus refused to sign. (Id.
at pp. 1426-1427.) The Hoffmans filed a
motion to enforce the settlement under section 664.6. Elyaoudayan opposed on the ground the
Hoffmans were not present in court to orally agree to the terms of the
settlement. (Elyaoudayen, at p. 1427.)
The Elyaoudayan court succinctly summed up its holding as follows: “The question presented in this appeal is
whether a party who agrees to a settlement in writing outside the presence of
the court may enforce it against a party who agreed to the same settlement
orally before the court. We answer that question in the affirmative.†(Elyaoudayan,
supra, 104 Cal.App.4th at p.
1424.) The court reasoned, “Nothing in
the statutory language suggests that, in a multi-party action, all
parties must agree to the settlement in the same manner. And as long as
the parties agree to the same material terms, be it orally or in
writing, the purpose of section 664.6 is satisfied.†(Id. at
p. 1428.) As our Supreme Court explained
in Levy v. Superior Court,
requiring the parties themselves to
agree to the settlement is that “[t]he litigants’ direct participation tends to
ensure that the settlement is the result of their mature reflection and
deliberate assent. This protects the parties against hasty and improvident
settlement agreements by impressing upon them the seriousness and finality of
the decision to settle, and minimizes the possibility of conflicting
interpretations of the settlement.
[Citations.] It also protects
parties from impairment of their substantial rights without their knowledge and
consent.†(Id. at p. 585, fn. omitted.)
We agree with
section 664.6 requires the parties to assent to the settlement in the same
manner. We also agree that the purposes
of section 664.6 are served equally well by oral or written affirmations, or
some combination of both. The important
point is that the party assented, not
simply the attorney. Here, Robin filed a
declaration assenting to the terms as stated on the record and he attached a
copy of the reporter’s transcript in which the terms are recited. Section 664.6 required nothing more. (See
Critzer v. Enos, supra, 187
Cal.App.4th a p. 1258 [distinguishing Elyaoudayan
where two of the parties “neither . . . gave its or his
subsequent written consent by signing a writing attaching the reporter’s
transcript (reciting the Settlement terms)â€].)
Next Kori contends the
settlement agreement is invalid because it was never reduced to writing as
required under the terms of the agreement.
The trial court held the written-agreement requirement was not a
material term of the settlement and enforced it despite the lack of a
writing. Even assuming, without
deciding, that the trial court was wrong and that the written-agreement
requirement was a material term, Kori waived the requirement of a written
settlement agreement.
“It is, of course, well
settled that a contracting party may waive provisions placed in a contract
solely for his benefit.†(
194 Cal.App.2d 816, 828.) “Waiver
requires the intentional relinquishment of a known right upon knowledge of the
facts. . . . As a general rule, doubtful cases will be decided against the
existence of a waiver. [Citations.] Waiver may be express, based on the words of
the waiving party; or implied, based on conduct indicating an intent to
relinquish the right.†(
Co. (2000) 80 Cal.App.4th 1165, 1188.)
It is clear Kori waived
the written-agreement requirement. When
Kori refused to sign the written agreement and showed up in court the next day,
she stated she did not want to go to
trial, even though that was what the oral settlement said was supposed to
happen under these circumstances. She
then expressly reaffirmed the terms stated on the record were binding on her,
even though the parties had not reduced their agreement to writing.
court vacated the trial date. Kori,
therefore, waived the right to a written settlement agreement.
Kori’s final contention
is that the settlement agreement omitted material terms. Her only citation to the record, however, is
to her own declaration where she states, “I believed
that [the other two beneficiaries] would, as part of the subject settlement
agreement, also resolve their future claims against me and release me from all
their related claims.†(Italics
added.) A party’s unexpressed belief,
however, does not form part of the contract.
(Weddington Productions, Inc. v.
Flick (1998) 60 Cal.App.4th 793, 810 [“A settlement agreement is a
contract, and the legal principles which apply to contracts generally apply to
settlement contractsâ€]; id. at p. 811
[“‘The existence of mutual consent is determined by objective rather than
subjective criteria, the test being what the outward manifestations of consent
would lead a reasonable person to believe’â€].)
Kori’s only other
attempt at identifying omitted terms is her comment, without any citation to
the record, that “[t]he oral settlement does not speak to the dissemination of
funds of the trust, which should have been done at [sic] settlor’s death, nor the division of proceeds from the sale of
the home, assuming Appellant could not purchase the home. Indeed,
it is unknown what ‘other terms’ were discussed in chambers, but certainly
it is precisely for such a situation as this, that the agreement was to be set
down in writing.†(Italics added.) In other words, Kori would have us presume
that because the agreement was to be reduced to writing, unknown additional
material terms were to be included. We
do not presume error, however. It is the
appellant’s burden to establish error with citations to the record and relevant
legal authority. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Kori has not met that burden.
DISPOSITION
The appealed order is
modified to include an appealable judgment.
(Hines v. Lukes,
appeal.
IKOLA,
J.
WE CONCUR:
O’LEARY, P.
J.
RYLAARSDAM,
J.
Robin Miller, we refer to them by their first names. We intend no disrespect.
[2] All statutory references are to the Code of
Civil Procedure.
