S.F. Opera Ass'n v. Flickinger (In re Estate of Kampen)

Decision Date14 November 2011
Docket NumberNos. A129849,A130313,A129856.,s. A129849
Citation2011 Daily Journal D.A.R. 17691,201 Cal.App.4th 971,11 Cal. Daily Op. Serv. 14869,135 Cal.Rptr.3d 410
CourtCalifornia Court of Appeals Court of Appeals
PartiesEstate of Roger Preston KAMPEN, Deceased. The San Francisco Opera Association, Petitioner and Appellant, v. Chandler Flickinger, as Executor, Objector and Respondent. Estate of James Lawrence Ellington, Deceased. The San Francisco Opera Association, Petitioner and Appellant, v. Chandler Flickinger, as Executor, Objector and Respondent.

OPINION TEXT STARTS HERE

Charles Paul Wolff, Evans, Latham & Campisi, San Francisco, for Petitioner and Appellant.

Rowena Cuevas Navia, Kato Feder & Suzuki, Kevin Michael Solan, Solan & Park, San Francisco, for Objector and Respondent.

LAMBDEN, J.

In 1996, Chandler Flickinger became the executor of the estate of Roger Preston Kampen and the estate of James Lawrence Ellington. Two bonds were issued and filed with the court by the Great American Insurance Company (the bonding company). Both Kampen and Ellington left the assets in their estates to the San Francisco Opera Association (the Opera Association) as the contingent beneficiary. In 1996, the Opera Association knew it was the sole beneficiary of both estates.

In 1999, Flickinger obtained a final order for distribution in the Ellington estate. Flickinger did not take any further action for many years. In January 2009, the Opera Association filed separate petitions with regard to both estates to, among other things, surcharge Flickinger.

The probate court conducted a trial on the petitions in both estates. At the end of the trial, the court found that Flickinger breached his fiduciary duty. The court surcharged Flickinger for the loss of value to the estates caused by his unreasonable delay and also surcharged him the compensation he had received in 1999 related to the Ellington estate. The court, however, found that Flickinger had not used the funds or mingled them with his own funds and it, therefore, rejected many of the Opera Association's claims for damages and found that Flickinger's affirmative defense of laches barred any claims for damages not based on a statute. Evidence at trial established that bank accounts had previously been included in the Ellington estate that were actually part of the Kampen estate. The court amended the earlier final distribution order in the Ellington estate to reflect this reduction in the total cash.

The Opera Association appeals from three orders and claims that it was entitled to interest on the assets in both of the estates for the period of time that Flickinger failed to distribute the assets. The Opera Association also objects to the lower court's refusal to use alternative measurements of damages that the Opera Association proposed. Additionally, it challenges the lower court's application of Flickinger's defense of laches. Finally, the Opera Association asserts that the lower court did not have the authority to amend the original order of distribution in Ellington's estate. We are not persuaded by the Opera Association's arguments, and affirm the lower court's orders.

BACKGROUND
19961999

On May 6, 1996, both Kampen and Ellington separately executed wills with similar provisions. Flickinger drafted both wills. Both wills had provisions that left the estate to the other if the other survived the testator by at least 90 days. Both men left their entire estate to the Opera Association if the other man did not survive the testator by 90 days. Each man designated the other as executor and nominated Flickinger as the alternate executor.

Sixteen days after executing his will, on May 22, 1996, Kampen died. Less than 90 days later, on June 10, 1996, Ellington died. Flickinger, represented by his then law partner, R. Hollis Elliott, filed petitions for probate for the Kampen and Ellington estates in June and July 1996, respectively; Flickinger became the executor for both. The wills were admitted into probate and Flickinger was appointed executor of the estates. Two bonds were issued and filed with the court by the bonding company. Notices of both petitions were mailed to the Opera Association.

On June 25, 1996, Caroline Mason,1 the Associate Director of Planned Gifts for the Opera Association, wrote a memorandum stating that Flickinger indicated that the Opera Association could expect “between $250,000 and $500,000 combined from the Kampen and Ellington estates.” The memorandum stated that Flickinger opined that the Opera Association would receive “all the money within one year.” Mason wrote that [t]hese bequests combined would be ideal for a production co-sponsorship for 1997.”

On December 13, 1996, Flickinger filed an inventory and appraisement reflecting that Kampen's estate had $131,242.59. On January 29, 1997, he filed an inventory and appraisement indicating that Ellington's estate had $293,491.17.

On May 22, 1998, Allison Groves, the successor to Mason, wrote an email to another employee of the Opera Association regarding the Ellington and Kampen estates.2 She stated she had contacted Flickinger and he indicated that he had “one sizable problem with each estate and as a result ha[d] no idea when everything [would] be settled.”

On December 17, 1998, Flickinger filed a first and final account and report for Ellington's estate and a petition for its settlement. A copy of the notice of the hearing on the petition was mailed to the Opera Association on December 22, 1998.

On January 29, 1999, the probate court issued an order for “judgment settling first and final account and report of executor; allowing compensation for ordinary services; and for final distribution” (the 1999 order).3 The 1999 order authorized Flickinger to pay Elliott, his attorney, $7,019.81. It authorized Flickinger to pay himself “$7,019.91 as statutory compensation for services rendered in administering the estate and $7,375.27 as the 10 percent of gross sales price of items sold by him in the estate as instructed in decedent's will.” It further provided: “The estate in the possession of the administrator remaining for distribution shall be distributed to the beneficiary of the estate as follows: The residue of cash in the estate's [accounts] to the San Francisco Opera Association, being cash of approximately $283,900.59 total.” The court identified this money as being in accounts in Washington Mutual Bank, in individual retirement accounts (IRAs) with Great Western Bank, and in certificate of deposit (CD) accounts in California Federal Bank and Bay View Federal Bank.

On February 3, 1999, Flickinger paid Elliott his statutory fees and paid himself his statutory fees and commissions in the amounts set forth in the 1999 order. In 1999, Flickinger cashed out two of Ellington's CD accounts and deposited the proceeds into checking accounts belonging to Ellington's estate.

20002008

Between the 1999 order and his retirement in 2005, when he moved to San Diego, Flickinger did not contact the Opera Association regarding either Ellington or Kampen's estate. The Opera Association believed one of its employees or agents contacted the attorney for Flickinger in 2002 to inquire about Ellington's estate. It also believed that it received a copy of the 1999 order in 2002.

In 2005, as part of a periodic review of open estate files, Stacy Cullison, the senior director of planned giving at the Opera Association, and another person at the Opera Association, identified the Ellington file. At first Cullison supposed that the Opera Association had received the bequest but the sum had not been entered into the electronic database “or the receipt had not been sent to development.” In August 2006, the Opera Association hired Sam Leask, a planned giving manager. In 2007, the Opera Association investigated whether it had received the funds from Flickinger and determined that it had not received the money. The Opera Association then retained counsel.

Counsel for the Opera Association located Flickinger and contacted him in late October 2008. On January 5, 2009, Flickinger sent a check to the Opera Association from the Ellington estate for the amount of $248,879.59. He stated in the letter that this amount was “at least a start” and that he would be away for the rest of the month but would contact counsel for the Opera Association when he returned.

The Petitions Filed by the Opera Association and the Accounts Filed by Flickinger

On January 23, 2009, the Opera Association filed two petitions in the superior court regarding the Ellington estate and the Kampen estate. The Opera Association served the bonding company with both petitions.

With regard to the Ellington estate, the Opera Association asserted that Flickinger failed to comply with the 1999 order and had provided no explanation for his delay. In its prayer, the Opera Association requested that the court order Flickinger to distribute the remaining assets of the estate as set forth in the 1999 order, order Flickinger to provide an accounting, order a surcharge of Flickinger for the full value of all undistributed assets of the estate plus interest from the date of the 1999 order through the date of distribution of all assets, order Flickinger to reimburse the estate for all compensation previously received from the estate plus interest on those sums, and order exemplary damages against Flickinger under Probate Code section 859.

Similarly, in the Opera Association's petition related to the estate of Kampen, the Opera Association sought an accounting and to surcharge Flickinger for his delay in administering the estate. The Opera Association requested exemplary damages against Flickinger under Probate Code section 859. The Opera Association also sought Flickinger's removal.

On March 24, 2009, the court held a hearing on both petitions. Counsel appeared for the Opera Association and the attorney for Great American Insurance Company appeared. Flickinger appeared in propria persona. With regard to...

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