Estate of McDonald

Filed 1/31/07  Estate of McDonald CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE

            APPEAL from an order of the Superior Court of Los Angeles County, Ronald Hauptman, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

            Law Offices of Ollie P. Manago and Ollie P. Manago for Petitioner and Appellant.

            Law Offices of Larry D. Lewellyn and Larry D. Lewellyn for Objector and Respondent.

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I.  Introduction

            Teresa Smith is the former executor of the Estate of Leticia McDonald (the estate).  Wanda Smith is the current executor of the estate.^[1]  As will be noted, as part of the mediation process, the parties agreed the mediator, Retired Judge Edward M. Ross, could make binding findings.  Teresa appeals from a probate court order which confirmed Retired Judge Ross's report surcharging her $80,557.14 for breach of her duties as the former executor of the estate.  We affirm.

II.  Background

            The record in this case is incomplete.  The following matters have been gleaned from what has been provided.  Mrs. McDonald, who died testate on April 1, 2002, was the grandmother of Teresa and Wanda.  The primary asset of the estate was a single family residence (the residence), which had a purported value of $275,000 in April 2002 but which sold for $875,000 in December 2004.   

            Teresa received her letters testamentary on May 24, 2002.  On September 3, 2003, Teresa obtained a loan from World Savings Bank in the amount of $232,000, which was secured by a deed of trust on the residence.  It is undisputed that, after disbursements, Teresa received $161,255.47 in loan proceeds.  A controversy subsequently arose over Teresa's use of the loan proceeds.  The parties were ordered to mediation to resolve the controversy. 

            On May 11, 2004, the parties entered into a handwritten stipulated settlement agreement.  The agreement provided that Wanda would sell the residence, acting as general administrator with limited powers.  The agreement further stated that Teresa would provide an accounting under the terms specified in the agreement.  The settlement agreement was signed by Teresa and Wanda as well as their attorneys.  The stipulated settlement agreement provides in part:  â€