Hollaway v. Edwards

Opinion

CROSBY, J. Patricia Hollaway successfully defended probate petitions by her cotrustee, Linda Edwards, to remove her as trustee of the Dick Denio Revocable Inter Vivos Trust. More than 60 days later—that is, beyond the time in which ordinary civil litigants must move for attorney fees—Hollaway petitioned the probate court for, among other things, reimbursement of the attorney fees she incurred in her removal defense. The court allowed the petition and ordered the fees be reimbursed by the trust. Edwards nevertheless appeals, arguing Hollaway is entitled to no reimbursement because her petition was untimely. We affirm.

I

The facts are relatively simple and, for the most part, undisputed. In addition to being sisters, Linda Edwards and Patricia Hollaway are cotrustees and beneficiaries of the trust which became irrevocable upon the settlor’s December 24, 1993, demise.

[96]Discord between the sisters quickly reared its head. On April 8, 1994, Edwards petitioned under several Probate Code provisions for Hollaway’s removal as cotrustee, alleging she breached her fiduciary duties in sundry respects not relevant here. Shortly thereafter, Hollaway filed a response (tantamount to an answer) to this petition, in which she prayed, among other things, to be awarded “appropriate costs and attorney fees.” Edwards subsequently filed an amended removal petition, adding allegations that Hollaway, in essence, wrongfully obtained and withheld property belonging to the trust. And Hollaway’s amended response again prayed for attorney fees.

Hollaway moved for summary judgment on April 20, 1995, asserting essentially that there had been no breach of trust justifying her removal as trustee and the court was without jurisdiction to determine ownership of the properties allegedly wrongfully withheld from the trust. Neither Hollaway’s notice of motion nor the supporting memoranda mentioned attorney fees. Edwards’s opposition to this motion was in vain. By order dated July 18, 1995, the court granted the motion in its entirety; and in so doing the court uttered nary a word concerning costs or attorney fees.

Hollaway sought reimbursement of her attorney fees directly from the trust. But because the trust instrument requires trustee unanimity, and cotrustee Edwards opposed reimbursement, Hollaway came away empty-handed. Accordingly, she next sought court intervention. On November 14, 1995, nearly four months after service of the summary judgment order, Hollaway petitioned the court under Probate Code sections 15684 and 17200, subdivision (b)(9) for reimbursement from the trust of attorney and trustee fees incurred in connection with the attempted removal litigation.1 Surprising no one, Edwards opposed this petition, arguing that, among other things, the summary judgment order was silent concerning costs and fees (hence none could be collected) and, in any event, Hollaway’s fee petition was brought more than 60 days after service of the summary judgment order and was therefore untimely under California Rules of Court, rule 870.2.