Estate of Gerstein

Filed 3/23/06 Estate of Gerstein CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Marjorie Laird Carter, Judge. Affirmed.

No appearance for Petitioners and Respondents.

Jacqueline King, in pro per., for Objector and Appellant.

Objector Jacqueline King appeals from an order approving an accounting of her brother's estate and authorizing the administrator to pay executor commissions and attorney fees. She contends the estate should not pay the administrator and his attorney because they have a conflict of interest. Apparently, the alleged conflict of interest arises because the attorney is representing the estate in separate litigation against objector. We are at some disadvantage here, because objector filed a skimpy brief and record. Respondents filed no brief at all. Nevertheless, we affirm.

FACTS

We have cobbled together some context for the reader. We start with some speculations and unsupported assertions. Mother died, leaving a trust naming her three children -- Jacqueline King (objector), Allen Gerstein (brother), and Shelley Keylor (sister) -- as the beneficiaries. Brother was the trustee. He retained Kathryn Turner as his attorney.

Now some facts: Brother and sister sued objector for breach of contract and fraud, alleging she clouded title to trust assets by filing fraudulent encumbrances, causing them to incur legal fees. Turner eventually substituted in as counsel for brother and sister in this litigation.

Brother died intestate in 2002, survived by sister and objector. Sister, represented by Turner, petitioned for letters of administration appointing J. Benjamin Selters, III (administrator), as the administrator and special administrator of brother's estate. The court granted the petition. In 2004, the administrator filed an accounting and petition to pay statutory executor commissions and attorney fees. The petition alleged Turner had rendered ordinary and extraordinary legal services to the administrator.

Objector filed an objection to the payment of executor commissions and attorney fees. She claimed Turner owed various duties to her because Turner was the lawyer for both the trustee of mother's trust (namely, brother) and the administrator of brother's estate, and objector was a beneficiary of mother's trust and an heir of brother's estate. She further contended Turner committed malpractice by representing brother's estate and sister in the still-pending litigation against her. Objector similarly contended the administrator breached his fiduciary duty to objector by continuing to retain Turner in that litigation. The docket indicates the administrator and sister -- respondents in this appeal -- did not file a written response to the objection.

The court held a hearing on objector's objection. We do not know what the parties argued at the hearing because objector failed to provide us with a reporter's transcript. But respondents must have said something good, because the court approved the petition, even after accepting additional briefing from objector. The court did reduce the amount of extraordinary attorney fees the administrator could pay Turner, but without prejudice to the administrator resubmitting her invoices at the final accounting.

DISCUSSION

This is an appeal both sides deserve to lose.

We first consider respondents. Respondents failed to file a brief within 30 days of objector's brief. We notified them we would decide the case on the basis of the record, objector's brief, and any oral argument if they did not file a brief within 15 days. (Cal. Rules of Court, rule 17(a)(2).) Sister did not respond to our notice. The administrator responded by requesting an extension, which we granted. He failed to file a brief on the extended due date. We sent him another Rule 17 notice. He finally filed a brief, which was so poorly formatted our clerk's office refused to accept it. (Cal. Rules of Court, rule 14(e).) We granted him the opportunity to correct the brief and submit it with a motion to file an untimely brief. He chose not to avail himself of our offer. Thus, we have no respondent's brief before us. As promised, we â€