Powell v. Sup. Ct.

Filed 6/28/06 Powell v. Sup. Ct. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Catherine Powell and the Estate of Elizabeth Rees appeal a family court judgment invalidating a deed of trust. We conclude that the judgment is not a final, appealable judgment. We reach the merits, however, by construing the appeals as petitions for extraordinary writ review. We dismiss the appeals and deny the writs.

Background

Catherine Powell figures in this appeal in several roles: (1) spouse in the dissolution proceeding; (2) debtor to Elizabeth Rees; (3) attorney-in-fact for claimant Elizabeth Rees; (4) beneficiary of the Estate of Elizabeth Rees; and (5) personal representative of the Estate in the probate proceeding.

Roger and Catherine Powell (Husband and Wife) lived together as husband and wife from 1956 to 2000. In 1991, they became good friends with Elizabeth Rees, a wealthy older woman. In about 1992, Rees gave the Powells power of attorney over her financial affairs. Rees developed dementia and was mentally incompetent by the time Husband filed for divorce in 1999.

Rees loaned the Powells substantial sums of money during their 12-year friendship. Some but not all of the loans were memorialized in promissory notes and secured by deeds of trust and some were paid off during the marriage. In the dissolution proceeding, Wife maintained the Powells owed Rees $466,405.47, not including amounts owed on the family home. Husband contended they owed Rees nothing.

In 1994, Rees purchased a house on Mission Boulevard in Fremont. In early 1998, she sold the house to the Powells. The full terms of the sale were disputed at trial. The Powells exchanged their condominium which had about $85,000 in equity and took out a $300,000 loan for the purchase.

Husband argued these were the only terms of the contract and that the couple paid Rees what she had paid for the house, about $390,000. Husband did not dispute that the house had increased in value by about $240,000 in the four years Rees owned it, but he contended the lack of compensation for that increase in equity â€