Korff v. Goodrich

• Decision Date: 27 October 2021
• Docket Number: A160917
• Parties: NANCY KORFF, Petitioner and Respondent, v. DONNA GOODRICH, Appellant.
• Court: California Court of Appeals

NANCY KORFF, Petitioner and Respondent,
v.
DONNA GOODRICH, Appellant.

A160917

California Court of Appeals, First District, Second Division

October 27, 2021

NOT TO BE PUBLISHED

Solano County Super. Ct. No. FPR046395

Richman, J.

Appellant Donna Goodrich and respondent Nancy Korff settled a will contest filed by Goodrich, the daughter of the decedent David Bentley, under which Goodrich and Korff would receive assets of roughly equivalent value. The settlement agreement had an attorney fee provision. Korff thereafter took positions inconsistent with the settlement, positions resolved against her by rulings of the probate court. Korff separately appealed three of those rulings. We consolidated the appeals, and in an unpublished opinion affirmed the rulings, easily rejecting Korff s arguments. Indeed, we granted Goodrich's motion for sanctions, and awarded sanctions against Korff and her attorney, jointly and severally, for taking a frivolous appeal, awarding a total on $91, 084-$49, 875 of which was for the work of her attorney Gerald Clausen, the amount, he testified, required to defend against the appeals.

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Following remand, based on the settlement agreement, Goodrich sought in probate court over $103, 000 in additional fees for the work of Clausen on the appeals, seeking a significantly higher hourly rate than that sought in the sanctions motion and claiming substantially more hours spent. Following two rounds of briefing and a lengthy hearing, the trial court filed a comprehensive and thoughtful twelve-page order denying the additional fees, concluding in part that the "equities are against Goodrich." We affirm.

BACKGROUND

As noted, we had an earlier appeal in this matter, in connection with which we filed a 47-page unpublished opinion that contained an exhaustive discussion of the background of this dispute, most of which is not relevant to the issue here. But some of it is, to set the scene for this appeal, and we quote from the opinion as appropriate, taking judicial notice of it on our own motion. (Evid. Code, §§ 452, 459.) Thus:

"David Bentley died on January 23, 2014, leaving an estate whose primary assets included a house on Beelard Drive in Vacaville (Beelard Drive house), 12 vehicles, over $387, 000 in eight separate financial accounts, and a $17, 000 promissory note that was in arrears, for a total estate of just over $700, 000. A month after Bentley's death, Nancy Korff, Bentley's caregiver, filed a petition to probate his will-a holographic will he executed two months before his death that named Korff as the sole beneficiary. The next month, Donna Goodrich, Bentley's daughter, filed a will contest and objection to probate of the will, alleging undue influence, duress, fraud, and mistake. Korff denied the allegations and contended the will accurately reflected Bentley's intent to disinherit his daughter.

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"Because Goodrich also objected to Korff administering Bentley's estate, in August 2014, the probate court appointed respondent Thomas Kiernan as an independent administrator.

"As was seemingly insignificant at the time but would become an issue two and a half years later, on October 22, 2014, counsel for Goodrich emailed counsel for Kiernan inquiring about the status of one of Bentley's eight financial accounts. He advised that Goodrich had received a bank statement indicating that a $73, 730.55 check was posted to the account, leaving a balance of $2.83, and sought confirmation that Kiernan had withdrawn the funds. Kiernan's attorney confirmed that Kiernan had posted a check on Bank of the West (BOTW) account #7367 in the amount indicated. Korff s attorney also received the emails. [¶] . . . [¶]

"On March 27, Kiernan filed a partial inventory and appraisal (I&A). It listed five of Bentley's eight financial accounts by institution name, account number, and date-of-death balance. Two months later, Kiernan filed a final I&A. The final I&A identified Bentley's three other accounts, including BOTW account #7367, again by institution name, account number, and date-of-death balance. The final I&A also listed the Beelard Drive house, valued at $230, 000, and the 12 vehicles. As indicated by the partial and final I&As, which Goodrich and Korff both received, the balance of Bentley's financial accounts on the date of his death was $387, 026.92.

"Korff and Goodrich ultimately mediated the will contest, participating in a third mediation session on January 11, 2016 that resulted in a settlement. Present at the mediation was mediator Edward J. Corey, Jr., Goodrich and her attorneys Edward Nevin and Roger Wintle, and Korff and her attorney Joseph Canning. Neither Kiernan nor his attorney Betty Homer was present, although they were available by telephone.

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"In the hours preceding the settlement, the parties received from attorney Homer an asset inventory prepared by Kiernan. In addition to the Beelard Drive house (with a listed value of $230, 000), the 12 vehicles, and miscellaneous household goods, the inventory identified only two bank accounts, neither of which was one of the eight accounts that existed on the date of Bentley's death. Both were BOTW accounts, one a checking account with a balance of $12, 235.37 (#1746), the other a money market fund with a balance of $344, 018.08 (#4398), for a total of $356, 253.45 in cash assets."

Korff and Goodrich memorialized the settlement in a written "Settlement Agreement and Mutual Release" (settlement agreement) signed by them and their attorneys. The distributive clause of the settlement agreement contained three subparagraphs that divided the estate's assets between Korff and Goodrich this way: Korff would receive the Beelard Drive house, 12 specifically identified vehicles and motorcycles, and "remaining personal property" not specifically to go to Goodrich; Goodrich would receive eight specifically listed estate accounts, a promissory note (to the extent she "wishes to receive it"), and "to the extent these items are still in existence," four items of personal property.

The settlement agreement also governed the fees for the administration of Bentley's estate, providing that fees "shall be paid one-half by [Goodrich] and one-half by [Korff], except [Korff s] 50 percent shall not exceed a total of $20, 000. Therefore to the extent that the total statutory fees, extraordinary fees, and administrator fees exceed $40, 000, [Goodrich] shall be responsible for all fees and costs in excess of this amount." Finally, as relevant here, the settlement agreement had this attorney fee provision: "In the event that any party to this Agreement files any petition or institutes litigation to enforce the terms of this Agreement, the Parties expressly agree that the prevailing

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party or Parties, in addition to any other relief provided by law, will be entitled to such reasonable attorneys' fees and court costs as may be incurred."

Various petitions were thereafter filed in the probate court, beginning with Korff s petition for preliminary distribution. This generated objections by Goodrich and a response by Kiernan, ultimately leading to the probate court ruling that Kiernan provide an accounting. We quote from our opinion as to what happened next.

"On December 28, Kiernan filed a 'First and Final Account and Report of Administrator, and Petition for Approval Thereof and Petition for Final Distribution, Allowance of Compensation to Administrator and Attorneys for Statutory and Extraordinary Services' (petition for final distribution). The petition informed the court that while Goodrich, who was 'waiting to receive the entirety of her distribution under the terms of the settlement agreement,' waived her right to an accounting, Korff, who had received her distribution 'in full,' would not, thereby necessitating the accounting.

"As to the estate assets, Kiernan's accounting showed that the estate had assets of $370, 980.91, comprised of the promissory note and BOTW accounts #1746 and #4398. Kiernan requested statutory and extraordinary fees for him and his attorney in the amount of $62, 908.11 and authority to reserve $10, 000 for closing expenses and additional liabilities, which amounts he proposed deducting from the assets on hand. This would leave a cash balance of $298, 072.80, which he proposed distributing to Goodrich.

"On February 21, 2017, Kiernan's petition for final distribution came on for hearing. The court granted his request for statutory compensation for him and his attorney and extraordinary compensation for him. It denied his attorney's request for certain extraordinary fees and continued the request

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for other extraordinary fees to allow counsel an opportunity to provide additional supporting information. At the hearing, Canning advised that Korff intended to hire separate counsel to review the accounting and that she intended to object to it."

Attorney Thomas Tagliarini entered the picture representing Korff, and thus began a series of pleadings that we would go on to describe for over 14 pages in our opinion, which description began with this: "On April 14, Korff, now represented by attorney Thomas Tagliarini, filed a verified objection, followed by a verified amended objection, to Kiernan's petition for final distribution. Her primary objection was to the distribution of the funds in BOTW accounts #1746 and #4398 to Goodrich. For the first time- 15 months after the settlement-Korff claimed that under the terms of the settlement agreement, she, not Goodrich, was entitled to the funds in those accounts. She asserted that the settlement agreement allocated only the eight original accounts to Goodrich, and since BOTW accounts #1746 and #4398 were not allocated to Goodrich, they were in fact allocated to her under the residuary clause in the settlement agreement." This, we said, was a "novel theory-a theory, we might add, absolutely contradicted by the...