Conservatorship of O'Connor
| Decision Date | 19 August 1996 |
| Docket Number | No. A066822,A066822 |
| Citation | 56 Cal.Rptr.2d 386,48 Cal.App.4th 1076 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 96 Cal. Daily Op. Serv. 6194, 96 Daily Journal D.A.R. 10,219, 96 Daily Journal D.A.R. 10,529 CONSERVATORSHIP of the ESTATE of Gerald O'CONNOR. Judith O'CONNOR, as Administrator, etc., Petitioner, v. OLD REPUBLIC SURETY COMPANY, Objector. OLD REPUBLIC SURETY COMPANY, Plaintiff and Respondent, v. Judith O'CONNOR, as Administrator, etc., Defendant and Appellant. |
Martin N. Lettunich, Edward J. Niland, Jr., Saratoga, for Appellant Judith O'Connor.
Leonard J. Martinet, Williams & Martinet, P.C., San Francisco, for Respondent Old Republic Surety Company.
Judith O'Connor, administrator of the estate of Gerald O'Connor, appeals from a judgment rendered in favor of Old Republic Surety Company (Old Republic) which absolves Old Republic of liability for damage caused to the conservatorship estate of Gerald O'Connor by Richard Bronson (Bronson), a San Francisco attorney appointed to act as "successor conservator" for Gerald O'Connor's estate. 1 The judgment declares to be void both an April 9, 1992, order appointing Bronson successor conservator for Gerald O'Connor's estate, and Letters of Conservatorship issued to Bronson pursuant to that order. The judgment also rescinds a bond issued by Old Republic guaranteeing the faithful performance of Bronson's duties as successor conservator of Gerald O'Connor's estate.
We conclude that the order appointing Bronson successor conservator and Letters of Conservatorship issued to him are not void and that Old Republic is precluded from challenging their validity. We also find that Old Republic is not entitled to rescission. Accordingly, we reverse.
On August 30, 1984, Kathleen Porter and Grace Coyne were appointed conservators for the estate of their brother, Gerald O'Connor. Bronson was the attorney of record for Porter and Coyne. Gerald O'Connor died on December 7, 1989. Porter died several days later, on December 26, 1989, and Judith O'Connor was appointed administrator of Porter's estate. Then, in August 1990, Coyne became incapacitated and Judith O'Connor was appointed as Coyne's conservator. 2 Judith O'Connor did not, in her capacity as conservator for Coyne, prepare a final account and report to close Gerald O'Connor's conservatorship estate. 3 In fact, that estate was not formally closed until almost three years after Gerald O'Connor died.
On April 9, 1992, Bronson filed an ex parte petition in the San Francisco probate court seeking appointment as successor conservator of Gerald O'Connor's estate (the Petition). Among other things, the Petition stated that Gerald O'Connor was deceased and that appointment of a successor conservator was necessary to prepare a final accounting and distribute the assets of the estate. The Petition also indicated that Bronson had filed a separate petition in San Mateo County to be appointed administrator of Gerald O'Connor's estate. 4
There is no evidence Bronson gave notice of the Petition to anyone, that a court investigation was conducted, or that a hearing on the Petition was held. 5 On the same day the Petition was filed, the court issued an ex parte order appointing Bronson successor conservator of Gerald O'Connor's estate (the April 9 Order). The April 9 Order stated that Bronson was not required to give notice of his appointment and fixed a bond at $400,000. Letters of successor conservatorship (the Letters) were also issued to Bronson on April 9, 1992.
Old Republic issued a bond dated April 9, 1992, in the matter of the Conservatorship of Gerald O'Connor (the Bond). The Bond named Bronson as Principal and recited that he had been appointed "Successor Conservator." The Bond was signed by Old Republic's attorney-in-fact, identified Gerald O'Connor as the obligee, and obligated Old Republic to pay $400,000, which obligation was to continue until Bronson "faithfully execute[d] the duties of the trust according to law...." 6 The parties dispute whether the Bond was filed in the probate court. Substantial evidence supports the trial court's factual determination that the Bond was never filed. 7
The Bond is not in the court file for this case and there is no record in the Registry of Actions that it was ever filed. Carolyn Moran, the deputy clerk who issued the Letters of Conservatorship to Bronson on April 9, 1992, testified that, if a bond was required, it was her "standard practice" to request that the bond be presented before she would issue letters. Indeed, Moran claimed that she would not issue letters unless a bond was presented to her. However, Moran could not recall whether, in the present case, Bronson actually presented the Bond to her before she issued the April 9 Letters. Julita De Chavez, Moran's supervisor, testified unequivocally that if the Bond had been filed it would be recorded in the Registry of Actions.
On April 30, 1992, the original Bond, which should have been filed with the probate court when the April 9 Letters of Conservatorship were issued, was returned to Old Republic's agent, Dave Carter, in some manner not disclosed by the evidence. Carter testified at trial that he knew the Bond had not been filed with the court because it was not file-endorsed. Carter also testified that he was aware this original document was supposed to have been filed when the Letters of Conservatorship were issued. Indeed, Carter stated that, in other cases, it was his practice to request file-endorsed copies of documents that needed to be filed with the court. This confirmed prior testimony by an Old Republic executive that Old Republic regularly received copies of filed bonds "the next day through the mail."
When the original Bond was returned to Carter, his assistant wrote "void" across the face of the Bond and, under the word "void," "see corrected bond." Carter then forwarded the original Bond to Old Republic which put it in a file. Old Republic subsequently issued a "duplicate original" Bond in the matter of the conservatorship of Gerald O'Connor, which identified Bronson as the Principal, stated he was appointed successor conservator, and had the same effective date of April 9, 1992, as the original Bond. According to the San Francisco Branch Manager for Old Republic, the duplicate original Bond was prepared because the original was "not correctly issued" in that it improperly identified Bronson as a "temporary successor conservator" instead of simply the "successor conservator."
Carter gave the executed original of the duplicate original Bond to Bronson and kept a copy for his files. The duplicate original Bond is not in the court file for this matter, and there is no evidence it was ever filed. Indeed, the copy of it in the surety's files was not file-stamped nor did it even show Bronson's signature as Principal.
In early November 1992, the probate court settled Bronson's account as successor conservator of Gerald O'Connor's estate, approved his request for attorneys fees, terminated the conservatorship, and ordered Bronson to deliver the assets of the conservatorship to Judith O'Connor who had been appointed administrator of Gerald O'Connor's estate. The order calculated estate assets to be $413,441.38, authorized Bronson to credit himself $9,945.00 for legal fees, and provided that, upon delivery of the balance of the assets to Judith O'Connor, Bronson and the surety that posted his bond would be discharged.
On December 3, 1992, Judith O'Connor's attorney made a claim with Old Republic for payment of the Bond. According to this claim, Bronson had delivered to Judith O'Connor only $95,057.84 from Gerald O'Connor's estate. On May 20, 1993, Old Republic denied Judith O'Connor's claim for payment on the Bond and attempted to refund the Bond premium.
On June 8, 1993, Judith O'Connor filed a motion for judgment on the Bond in the probate court. The probate court denied Judith O'Connor's motion as untimely because a motion to surcharge Bronson needed to be heard first. On October 6, 1993, the probate court issued its order surcharging Bronson as conservator of Gerald O'Connor's estate on the grounds that he embezzled and converted estate property. Bronson was ordered to pay Judith O'Connor, as administrator of Gerald's estate, $300,412.85 as the amount that had been wrongfully converted, $24,076.32 in interest, and $15,000.00 in punitive damages.
On December 24, 1992, a few weeks after Judith O'Connor first made her claim against the Bond, Old Republic sued Bronson to recover losses it incurred by reason of issuing bonds to Bronson in this and other estate matters. On May 27, 1993, after it denied Judith O'Connor's claim, Old Republic amended its complaint against Bronson and named Judith O'Connor as a defendant. In the amended complaint, Old Republic sought a declaration that the April 9, 1992, Order and Letters were null and void, and also sought to rescind the Bond on various grounds including fraud, mistake, and the alleged fact that the Bond never became effective.
On December 3, 1993, the superior court consolidated Old Republic's civil action with the probate proceeding. Issues pertaining to the dispute between Judith O'Connor and Old Republic were bifurcated and tried first to the court. On March 14, 1994, the trial court filed a tentative decision in favor of Old Republic declaring the April 9 Order and Letters void and also ordering the Bond rescinded. On May 12, 1994, the trial court adopted Old Republic's proposed Statement of Decision without change and entered judgment in favor of Old Republic. 8
The...
To continue reading
Request your trial
-
Schrage v. Schrage
...at p. 661, 16 Cal.Rptr.3d 76, 93 P.3d 1020 ; Abelleira , supra , 17 Cal.2d at p. 288, 109 P.2d 942 ; Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1087-1088, 56 Cal.Rptr.2d 386.)For example, in Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 76 Cal.Rptr.3......
-
People v. Allen
...fundamental jurisdiction are void; an act "in excess of jurisdiction" is not void but merely voidable. (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1088, 56 Cal.Rptr.2d 386.) The distinction between void and voidable acts is important in many cases because voidable acts are subj......
-
In re Stier
...may, by its conduct, be estopped from contesting an action in excess of jurisdiction.' [Citation.]" (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1092, 56 Cal.Rptr.2d 386; People v. National Automobile & Casualty Ins. Co., supra, 82 Cal.App.4th 120, 125-126, 97 Cal. Rptr.2d 858; ......
-
People v. Burnett
...sense' (i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable." (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1088, 56 Cal.Rptr.2d 386 [citations and emphasis omitted].) "The doctrines of waiver and estoppel apply only to voidable acts (i.e., ......
-
CHAPTER 11 Surety Bonds
...of Industrial Relations v. Fidelity Roof Co., 60 Cal. App.4th, 70 Cal. Rptr.2d 465 (1997); Conservatorship of Estate of O’Connor, 48 Cal. App.4th 1076, 56 Cal. Rptr.2d 386 (1996); Arntz Construction Co. v. St. Paul Fire & Marine Insurance Co., 47 Cal. App.4th 464, 54 Cal. Rptr.2d 888 (1996)......
-
Chapter 10
...of Industrial Relations v. Fidelity Roof Co., 60 Cal. App.4th, 70 Cal. Rptr.2d 465 (1997); Conservatorship of Estate of O’Connor, 48 Cal. App.4th 1076, 56 Cal. Rptr.2d 386 (1996); Arntz Construction Co. v. St. Paul Fire & Marine Insurance Co., 47 Cal. App.4th 464, 54 Cal. Rptr.2d 888 (1996)......