Sehremelis v. Sehremelis CA4/3 ( 2022 )

Filed 12/2/22 Sehremelis v. Sehremelis CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ANDREA SEHREMELIS, as Trustee,
etc., et al.,
G059941 consol. w/ G060568
Plaintiffs and Respondents,
(Super. Ct. No. 30-2016-00869798)
v.
OPINION
FROSO SEHREMELIS,
Defendant and Appellant.
Appeal from a judgment and postjudgment order of the Superior Court of
Orange County, David l. Belz, Judge. Affirmed.
Bunt & Shaver and David N. Shaver, for Defendant and Appellant.
Klapach & Klapach, Joseph Klapach, and Joseph A. Cardella, for Plaintiffs
and Respondents.
* * *
Froso Sehremelis appeals from the probate court’s judgment on two
petitions, and its postjudgment order awarding attorney fees to respondents Andrea
Sehremelis and Joseph Ressler, Co-Executors of the Estate of George A. Sehremelis.
The first petition sought an order to determine title to George’s personal property in
Greece. The second petition sought an offset to Froso’s inheritance share on a real
property located in Greece. As to the first petition, Froso contends no attorney fees
should be awarded or the award should be reduced because a Greek court ordered the
subject personal property to be placed into judicial escrow. As explained below, we
conclude the Greek court’s judgment has no relevance to the petition. As to the second
petition, Froso contends attorney fees should not be charged to the trust because the
litigation did not benefit the trust. As discussed below, we conclude the litigation
provided a benefit to the trust because it could result in an additional trust asset.
Accordingly, we affirm the judgment and postjudgment order.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Greek Personal Property Petition
In 2014, George established a revocable trust for the benefit of his four
children: Andrea, Froso, John and Peter. George was named the trustee, and after several
amendments, respondents Andrea Sehremelis and Joseph Ressler were named the
successor cotrustees. A year later, George executed a “pour-over” will, which designated
the trust as the beneficiary of any property remaining in his personal estate at the time of
his death. The will designated Andrea and Ressler as the co-executors of George’s estate.
In July 2016, George died in a hospital in Greece. After his death, the
hospital staff gave his personal belongings, including a Rolex watch and 1,250 euros, to
Froso’s husband, who was living in Greece at the time. A few days later, Andrea sent
2
Froso a letter asking for the return of George’s personal property, but Froso did not return
1
the Rolex watch or 1,250 euros.
Subsequently, the estate retained a Greek law firm to recover George’s
personal property from Froso. After the firm’s informal attempts to recover the property
were unsuccessful, on December 23, 2016, the estate filed a Petition for Order to
Determine Title to Personal Property under Probate Code sections 850 and 859, in the
2
United States. Weeks later, the Greek law firm filed a Petition for Security Measures
relating to the personal property in Greece. Both petitions sought attorney fees and costs.
On March 28, 2017, the Greek court granted the security measures petition.
In the security measures order, the court noted it had the power to order as an injunctive
measure judicial escrow where there exists, among others, a dispute about the ownership
of the object or another right in rem and an emergency case or impending danger. The
court ordered the Rolex watch and 1,250 euros placed in judicial escrow. It also awarded
300 euros in court costs.
On December 18, 2020, the probate court granted the section 859 petition.
It found that “Froso acted in bad faith by wrongfully taking and concealing the personal
property of the Trust of George Sehremelis following his death.” The court rejected
Froso’s objections “as to collateral estoppel and comity based on the findings of the
Greek court” because “[t]he issues in that proceeding were not the same” as the issues in
the section 859 petition. The probate court awarded double damages against Froso
pursuant to section 859. It also awarded reasonable attorney fees and costs pursuant to
section 859, but deferred the amount of fees and costs to a later motion. Froso was not
awarded any relief, except a finding that “no evidence was presented in this case that
1
Although George had other personal property in Greece, the parties stipulated at trial
that only the Rolex watch and 1,250 euros would be subject to the Probate section 859
claim.
2
All further statutory references are to the Probate Code, unless stated otherwise.
3
[Froso] is currently in possession of any items of personal property of George
Sehremelis.”
Subsequently, following respondents’ motion for attorney fees, the probate
court awarded a total of $170,095 to be charged against Froso’s share of the inheritance.
B. Greek Real Property Petition
George and his first wife Athena owned a house in Distomo, Greece. In
December 2000, they executed a Parental Grant Deed. The deed transferred “bare
ownership” in the real property to Froso, but George and Athena retained a life-estate-
type “usufruct” interest. The deed further provided that: “[t]he above mentioned property
grant be calculated into . . . their daughter’s inheritance share.” At the time of the
transfer, neither George nor Athena had a will or trust. George and Athena divorced in
2002. Their divorce judgment stated that they had given “all right, title and interest in the
parties’ residence located in Distomo, Greece” to Froso as a gift.
On June 13, 2018, the trust filed a Petition for Instructions Regarding
Adjustment to Froso Sehremelis’ Inheritance Share. The petition sought an offset against
Froso’s share of the trust assets for the Greek real property, based on the language in the
parental grant deed. It also sought attorney fees in connection with the petition.
On December 18, 2020, the probate court denied the offset requested in the
petition. However, it ordered that attorney fees incurred in connection with the petition
to be paid from the Trust.
II
DISCUSSION
A. Personal Property Petition
Section 859 provides in relevant part: “If a court finds that a person has in
bad faith wrongfully taken, concealed, or disposed of property belonging to a . . . a trust,
or the estate of a decedent, . . . , the person shall be liable for twice the value of the
property recovered by an action under this part. In addition, . . . the person may, in the
4
court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies
provided in this section shall be in addition to any other remedies available in law to a
person authorized to bring an action pursuant to this part.”
Here, the probate court found Froso had wrongfully taken and concealed
the Rolex watch and 1250 euros, and it awarded double damages based on the value of
the personal property. The court also awarded attorney fees for legal work related to the
section 859 petition.
Froso contends that pursuant to the doctrines of comity and collateral
estoppel, the probate court should have denied respondents’ request for attorney fees
because the Greek court denied attorney fees. “The doctrine of comity prescribes that a
court of this nation recognize the judgment of a court of a foreign nation when the foreign
court had proper jurisdiction and enforcement does not prejudice the rights of United
States citizens or violate domestic public policy. [Citations].” (In re Stephanie M.
(1994) 7 Cal.4th 295, 314.) Collateral estoppel or “issue preclusion applies: (1) after
final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in
the first suit and (4) asserted against one who was a party in the first suit or one in privity
with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) The
Greek judgment, however, has no preclusive effect on the section 859 petition because
that judgment did not finally adjudicate whether Froso was liable under section 859.
Rather, it merely held that the subject personal property should be placed in judicial
escrow. The Greek court denied attorney fees in connection with the petition requesting
the injunctive relief of judicial escrow, but that ruling did not decide whether attorney
fees, including the Greek firm’s fees, incurred in connection with the section 859 petition
also should be denied. In sum, the Greek judgment had no preclusive effect on any
attorney fee award made pursuant to section 859.
Froso next contends the attorney fee award should be reduced because “the
right to recover attorney fees . . . terminate[d] on March 28, 2017,” when the Greek court
5
ordered the Rolex watch and the 1,250 euros “be turned over to a judicial escrow.” She
argues that as a matter of law, she cannot have “‘wrongfully taken, concealed, or
disposed’” of the personal property “when she no longer had possession, custody or
control” of the property. Lack of physical possession or control over the personal
property is not dispositive to section 859 liability. Case law interpreting the tort of
conversion, which encompasses the wrongful taking or retention of another’s property, is
instructive. Our high court has held that conversion “is a continuing tort—as long as the
person entitled to the use and possession of his property is deprived thereof. Contrary to
appellant’s argument, it does not necessarily end when the original wrongdoer transfers
physical possession to another.” (de Vries v. Brumback (1960) 53 Cal.2d 643, 647.)
Similarly, the transfer of the personal property to judicial escrow, as opposed to the trust,
does not discharge Froso’s violation of section 859.
More importantly, section 859 provides that the damages are calculated
based on “the value of the property recovered by an action under this part,” that is,
recovered by an action or petition brought pursuant to section 859. Black’s Law
Dictionary defines “recover” as follows:
“1. To get back or regain in full or in equivalence . [¶] 2. To obtain (relief) by judgment or other
legal process . [¶] 3. To obtain
(a judgment) in one’s favor .
[¶] 4. To obtain damages or other relief; to succeed in a lawsuit or other legal proceeding
.” (Black’s Law Dictionary (11th ed. 2019).)
The Greek judgment, issued on March 28, 2017, did not determine liability
or damages under section 859. Respondents thus did not recover the subject personal
property until the probate court issued its order on the section 859 petition on December
18, 2020. Stated differently, respondents did not obtain relief or a judgment on the
6
section 859 claim until December 18, 2020. Accordingly, the attorney fees award under
section 859 was not limited to fees incurred prior to March 18, 2017.
For the same reasons, we reject Froso’s claim the probate court should have
“apportion[ed]” the fees for “work performed before the Greek Court ruling on March 28,
2017 and after that.” The Greek judgment had no relevance to the section 859 petition.
Finally, Froso argues she cannot be ordered to pay attorney fees pursuant
to section 859 for personal property claims on which she prevailed. At the outset, Froso
does not identify which personal property claims she prevailed on. The house in
Distomo, Greece, is real property, not personal property. The record shows only one
section 859 claim, which encompassed numerous items of personal property. Pursuant to
the parties’ stipulation at trial, the probate court’s order addressed only the Rolex watch
and 1,250 euros. The court ruled in favor of respondents on the section 859 claim
involving those two items of personal property, including awarding double damages.
Froso was not awarded any damages. The only “relief” she obtained was a finding that
she did not currently have any of George’s personal property in her possession, but that
finding does not affect her liability under section 859 for any prior wrongful taking or
concealment. Thus, the record shows only one prevailing party, the respondents. (See
Code Civ. Proc., § 1032 [“‘Prevailing party’ includes the party with a net monetary
recovery”]; see also Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 [“Generally, a
trial court’s determination that a litigant is a prevailing party, along with its award of fees
and costs, is reviewed for abuse of discretion.”].) Froso thus has not shown any factual
basis for apportionment based on the relative litigation success of the parties in
connection with the section 859 petition. In sum, Froso has not shown the attorney fees
award lacked a legal basis.
B. Real Property Petition
As noted, the probate court denied the real property petition’s request to
offset Froso’s share of the inheritance by the value of the Greek house. However, it
7
granted the petition’s request to charge the attorney fees incurred to the trust. Froso
argues there was no legal basis for ordering the trust to pay the attorney fees because the
litigation over the Greek house did not benefit the trust. We are not persuaded.
“A trustee is entitled to the repayment out of trust property for the
following: [¶] (a) Expenditures that were properly incurred in the administration of the
trust. [¶] (b) To the extent that they benefited the trust, expenditures that were not
properly incurred in the administration of the trust.” (§ 15684.) Thus, “‘[t]he underlying
principle which guides the court in allowing costs and attorneys’ fees incidental to
litigation out of a trust estate is that such litigation is a benefit and a service to the trust.’”
(Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1230.) We review the probate court’s
order that attorney fees may be payable from the trust under the abuse of discretion
standard. (Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1461.)
It is well settled that “among the ordinary powers and duties of a trustee of
a private trust are those of doing all acts necessary and expedient to collect, conserve and
protect the property of the trust, to maintain and defend the integrity of the trust for the
benefit of the beneficiaries and to employ such assistants as may be necessary for said
purposes. If the trustee acts in good faith, he has the power to employ such assistants and
to compensate such assistants out of the assets of the trust even though he may not
ultimately succeed in establishing the position taken by him as such trustee.” (Evans v.
Superior Court (1939) 14 Cal.2d 563, 574, italics added.) Here, the trustees had a duty to
collect all assets belonging to the trust. Even though the Greek house was not referenced
in the trust instrument, the “pour-over” will designated the trust as the beneficiary of all
of property in George’s estate. This would include the Greek house, if it had not been
transferred unconditionally to Froso. The trust would have sought to benefit because a
determination that the value of the Greek house would offset Froso’s inheritance share
would increase the trust’s assets. Additionally, there is no evidence respondents acted in
bad faith in filing the petition. The Parental Grant Deed expressly provides that the
8
transfer of “bare ownership” of the Greek house to Froso would be calculated into
Froso’s inheritance share. The trust instrument did not amend the deed’s provision.
Although the divorce settlement stated that George had gifted all rights in the Greek
house to Froso, that statement is inconsistent with the express language of the deed,
which only transferred “bare ownership” rights. More importantly, Froso did not show
the divorce judgment could modify the transfer deed’s inheritance share provision. Nor
is there any other grant deed involving the Greek house in the record. In sum, Froso has
not shown the probate court erred in determining the attorney fees incurred in bringing
the real property petition and having those fees paid from the trust.
III
DISPOSITION
The judgment and postjudgment order are affirmed. Respondents are
entitled to their costs on appeal.
MARKS, J.*
WE CONCUR:
O’LEARY, P.J.
MOTOIKE, J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
9