Heinz v. Sommer

Filed 4/19/06 Heinz v. Sommer CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and an order of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Judgment affirmed and appeal from order dismissed.

Ervin Sommer appeals in propria persona from a judgment and an order in favor of Bettina Heinz following a bench trial on Heinz's complaint for negligence, breach of fiduciary duty and permanent injunction arising from Sommer's preparation of a federal estate tax return for her deceased father. Sommer contends that (1) the judgment is not supported by substantial evidence, and that the trial court (2) lacked jurisdiction to decide this dispute; (3) erred in rejecting his statute of limitations defense; (4) was biased against him; (5) erred in permanently enjoining him from representing the estate; and (6) erred in awarding Heinz her costs. We reject Sommer's contentions and affirm the judgment.

Sommer also argues that the trial court improperly sanctioned him; however, we must dismiss the appeal from the sanction order because he failed to include the order in his notice of appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On appeal, Sommer provided a clerk's transcript, but not the reporter's transcript or trial exhibits. Our recitation of the facts is therefore drawn from the clerk's transcript and the trial court's statement of decision, which we must presume to be correct. (Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [evidence is conclusively presumed to support a judgment when an appeal is taken on a clerk's transcript].)

Heinz's father, Dr. Erich Heinz, passed away in Germany in July 1998. Dr. Heinz was a United States citizen and was survived by Heinz and her two siblings. Dr. Heinz had assets in both New York and Germany and probates were opened in both locations, with Heinz granted letters testamentary in New York and appointed the executor of her father's estate in Germany. In August 1999, Heinz hired Sommer to prepare a federal estate tax return and executed an Internal Revenue Service (IRS) form giving Sommer power of attorney to communicate with the IRS. Sommer filed the original estate tax return in October 1999.

In August 2000, Heinz terminated her professional relationship with Sommer and informed the IRS and Sommer that she had revoked the power of attorney. In September 2000, the estate received a letter from the IRS confirming that Sommer no longer represented the estate and that his power of attorney had been revoked. Later that month, Sommer wrote the IRS claiming he still represented the estate and canceling the power of attorney would be erroneous. The IRS then informed Sommer that he must resubmit "Form 2848 or 8821" to reinstate his power of attorney.

Unbeknownst to Heinz, Sommer reinstated the power of attorney, began communicating with the IRS and suggested that it audit the estate return and levy on estate assets. In April 2002, the IRS audited the estate tax return and Sommer agreed that the estate owed an additional assessment of $70,636. Sommer then signed an amended estate tax return without Heinz's knowledge, refused to return her files and petitioned the New York court to find Heinz in contempt.

Heinz filed this action in October 2003, and the matter proceeded to trial in November 2004, with the parties presenting oral testimony and documentary evidence. Heinz's expert witness, Arnold Singleton, testified that Sommer negligently prepared the original return, that Heinz hired him to correct the return, resulting in an abatement of $94,000 from the IRS. In a proposed statement of decision and judgment, the trial court found that Sommer had breached his professional duty to the estate by, among other things, ignoring the revocation notices and reinstating the revoked power of attorney without telling Heinz, resulting in damages of $17,500, the amount of Singleton's fee. It also issued a permanent injunction preventing Sommer from holding himself out as an agent or representative of the estate. The court, however, declined to award punitive damages because it did not receive accurate evidence regarding Sommer's financial worth.

After considering all objections, the trial court entered the statement of decision into the minutes and ordered Heinz's counsel to prepare the judgment. The trial court then entered a judgment in Heinz's favor that also awarded Heinz her costs in the amount of $3,259.50.

Thereafter, the trial court considered Heinz's motion for sanctions against Sommer and ordered him to pay $1,760 to Heinz based on his acts of seeking to change the final statement of decision via an ex parte appearance in violation of the California Rules of Court. Sommer filed a notice of appeal from the judgment entered against him.

DISCUSSION

I. Jurisdiction and Venue

Sommer asserts that the judgment against him is void because California lacked jurisdiction to decide this dispute regarding federal tax law and that jurisdiction and venue of the estate existed in New York and Germany. We disagree.

A court has jurisdiction to render a judgment when it has authority over the subject matter and the parties. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) A California superior court has original jurisdiction in all cases except those given by statute to other trial courts. (Cal. Const., art VI, § 10.) As a court of general jurisdiction, the superior court is presumed to have jurisdiction over a cause and lack of jurisdiction must be affirmatively shown. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 160.) Although Sommer argues that California lacked jurisdiction to decide this dispute because it involved federal tax law, he cited no relevant authority showing federal courts have exclusive jurisdiction over a negligence or breach of fiduciary duty action involving the preparation of a federal income tax return. Rather, case law reveals that California courts have long addressed negligence actions involving the preparation of federal tax returns. (Moonie v. Lynch (1967) 256 Cal.App.2d 361, 362 [addressing statute of limitations]; International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 609 [same].)

To the extent Sommer asserts that the trial court lacked personal jurisdiction over him, he waived the alleged defect by generally appearing in the action. (Roy v. Superior Court of County of San Bernadino (2005) 127 Cal.App.4th 337, 341.) Furthermore, both parties resided in San Diego, therefore, the trial court had personal jurisdiction over him and venue in San Diego was proper. (Code Civ. Proc., § 395, subd. (a); all undesignated statutory references are to this code.)

II. Statute of Limitations Defense, Sufficiency of the Evidence,

Propriety of the Injunction and Judicial Bias

Sommer claims that Heinz, her expert witness and counsel lied during trial, Heinz failed to meet her burden of proof, the statement of decision had no basis in fact or law, the statute of limitations expired and the injunction against him should be reversed. As explained below, Sommer failed to provide an adequate record demonstrating these alleged errors and we must reject them.

It is a fundamental rule of appellate review that an appealed judgment or order is presumed to be correct. (State Farm Fire & Cas. Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) As the appellant, Sommer had the burden of overcoming the presumption of correctness and needed to provide an adequate record demonstrating the alleged errors. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Failure to provide an adequate record on an issue requires that the issue be resolved against him. (Ibid.)

"Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, 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. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics in original.)

Here, the record reflects that the trial court considered oral and documentary evidence, but Sommer failed to provide a reporter's transcript or the exhibits admitted during trial. This deficiency prevents us from reviewing the evidence and evaluating his arguments on this appeal. We must presume that substantial evidence supported the trial court's express findings that Sommer breached his fiduciary duty of care resulting in $17,500 in damages, as well as its implied finding that the statute of limitations did not expire before Heinz filed her action because no error appears on the face of the record before us. (Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 296.) In fact, Sommer's own argument suggests that the statute of limitations did not run because he worked on the matter through June 7, 2002, and Heinz filed the complaint within two years on October 6, 2003. (§ 339, subd. (1); International Engine Parts, Inc. v. Feddersen & Co., supra, 9 Cal.4th at p. 608.)

The lack of an adequate record also prevents us from evaluating the propriety of the injunction and Sommer's claim of judicial bias. As to the latter argument, there is no indication in the clerk's transcript that Sommer moved to disqualify the trial court (§ 170.3, subd. (c)(1)) or exercised a peremptory challenge (§ 170.6) and he may not raise this issue for the first time on appeal. (In re Steven O. (1991) 229 Cal.App.3d 46, 54.) In any event, the clerk's transcript does not contain any indication of judicial bias and we reject his claim on its merits.

III. Costs and Sanction Awards

Sommer contends that the trial court erred in awarding Heinz her requested costs of $3,259.50, but fails to explain how the trial court erred. Except as otherwise expressly provided by statute, Heinz, as the prevailing party, was entitled to recover her costs in this action (§ 1032, subd. (b)) and she timely filed a costs memorandum seeking her statutory costs. Where, as here, a cost bill lists what appear to be proper charges, the party opposing the costs has the burden of showing they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Stated differently, the claimed costs were presumptively reasonable and necessary until Sommer offered some showing otherwise. Sommer did not carry that burden here and we reject his challenge to the costs award.

Sommer also contends that the trial court erred in awarding Heinz sanctions. Sommer, however, failed to appeal from this order and we lack jurisdiction to review it. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) As such, the appeal from the order awarding sanctions is dismissed. Even if Sommer had appealed from this order, we would reject his claim on its merits as the clerk's transcript does not show that the trial court erred in awarding the sanctions.

DISPOSITION

The judgment is affirmed and the appeal of the sanction order is dismissed. Heinz is entitled to her costs on appeal.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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