Opinion
C042723.
10-28-2003
Estate of CHARLES R. SHINGLE, Deceased. SHARON SHINGLE, as Co-Executor, etc., Petitioner and Appellant, v. WARREN SHINGLE, as Co-Executor, etc., Objector and Appellant; DENNIS SHINGLE, et al., Claimants and Appellants.
FACTUAL AND PROCEDURAL BACKGROUND
The decedent died on January 2, 1998, leaving a Will signed in 1984. Sharon and Warren were appointed co-executors, with letters testamentary issued on June 10, 1998. In March 2001, Warren got his own lawyer and asked the court to order an accounting. Warren alleged his repeated attempts to advance the disposition of the estate had been unavailing. The parties subsequently stipulated to have the case decided by a referee, whose decision would be binding, and the trial court so ordered.
In July 2001, the referee filed a notice of order of disposition of issues, indicating he would decide the case in five phases as follows: (1) discovery issues; (2) issues regarding interpretation of the Will; (3) pending issues regarding removal of Sharon as co-executor, accountings by the executors, retention of accountants, inventory and reappraisals of the estate, debits and credits to the estate, filing of amended tax returns, and fees of the executors and attorneys; (4) distribution of estate assets and allocation of the referees fees; and (5) any remaining issues. The referees notice of order further stated he would then issue a "Final Judgment—To avoid prejudicing a partys right to seek appellate review of any decision made by the Referee and to comply with the single judgment rule, the judgment will consist of incorporating Phase One th[r]ough Phase Five decisions, at which time the Judgment as to all phases will become final."
In July 2001, the referee filed his "Phase One Decision" relating to discovery.
Also in July 2001, the referee filed a "Phase Two Decision," finding parcels of real property were community property and setting forth their disposition. The referee noted Sharon had previously prepared an inventory and appraisal that was never filed with the court because of a dispute between Sharon and Warren as to whether all personal property was included and whether the values were accurate. The referee directed Sharon to file an Inventory and Appraisal by August 15, 2001, and gave Warren until August 31, 2001, to respond.
Also in July 2001, the referee filed a "Phase Three Decision," finding Sharons Inventory and Appraisal deficient, and appointing Pieter J. Van Eckhardt to appraise the real property at current market value, which the referee considered appropriate because partition of the property might not be possible or desirable. The referee appointed Jerome Tenney, a Certified Public Accountant (CPA), to prepare an audit and accounting of the estate. The referee indicated the CPAs fee, estimated at $5,000, would be a charge against the estate, not a surcharge against either co-executor, unless the CPAs fees exceeded the estimate due to a co-executors conduct.
In February 2002, the referee filed a "Phase Four Decision Part 1," which listed the decedents separate personal property and its value on the date of death. It also listed the community personal property and determined Sharon should retain the property and, at the time of final distribution, pay $3,230 (one half the value) to the other beneficiaries. The referee further indicated appraisal fees and attorneys fees for the inventory and appraisal would be charges against the estate.
In July 2002, the referee filed an "Amended Phase Four Decision, Part 2." Among other matters, including distribution of estate assets (real property and mobile home), the referee approved debts paid notwithstanding the lack of formal creditors claims. The referee also determined an extensive accounting by Jerome Crippen was necessitated by Sharons commingling of her personal finances with the estate finances. The referee fixed fees for the executors and their attorneys. The referee surcharged Sharon for $750 of the fees of Warrens attorney, because a portion of his fees were necessitated by the failure to file a timely inventory and appraisal. The referee rejected Sharons argument that the surcharge was inconsistent with the referees prior decisions. The decision stated, "The Referee made it clear throughout these proceedings that surcharging any party would [be] an option available to the Referee when the entire case was finally considered."
On July 29, 2002, the referee filed the "Phase Five Decision," which among other matters amended the amount of attorneys fees, ruled that Sharon owed the estate for one-half of an income tax refund, and denied Sharons claim for credit due to inclusion in the estate of life insurance proceeds, one-half of which was her separate property. The referee concluded the insurance proceeds were offset by benefits Sharon received from the estate.
On September 25, 2002, the referees final 12-page statement of decision was filed as the "Judgment." (See fn. 1, ante.) The judgment, among other things, ordered that Sharon pay $ 39,127 to Warren, Dennis, and Kevin, which included 50 percent of extraordinary attorneys fees allowed to Warrens attorney for preparation of the proposed statement of decision. The referee determined amounts due and source of payment for fees of the attorneys and referee. The judgment stated the estate was to remain open, reserving the courts jurisdiction until the judgment was satisfied.
Sharon, as co-executor of the estate, filed a notice of appeal from the September 25, 2002, judgment.
Warren filed a cross-appeal.
DISCUSSION
I. Sharons Appeal
A. Personal Jurisdiction
Sharon argues the referee erred in forcing her to pay money, because there was no personal jurisdiction over her. However, apart from the question whether Sharon can wait until after a judgment is entered before raising such a challenge, Sharon has failed to cite any legal authority supporting her contention. She merely cites a probate treatises introductory comment that probate is an in rem proceeding over the decedents property. (Ross & Moore, Cal. Practice Guide: Probate (The Rutter Group 2002) § 3:1, p. 3-1 (Ross & Moore).) The in rem nature of the proceeding does not negate personal jurisdiction over Sharon. The probate court is a court of general jurisdiction. (& sect; 800.) Jurisdiction over personal representatives such as Sharon is apparent in statutory provisions imposing personal liability on such persons. (E.g., § 8804 [personal representative who fails to file timely inventory and appraisal may be personally liable for injury to the estate or to interested persons]; § 9601 [personal representative is chargeable for breach of fiduciary duty].)
Since Sharon fails to provide any legal authority supporting her jurisdictional argument, we need not consider it further. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court need not consider points unsupported by legal authority].)
B. Abatement
Sharon contends the referee ignored the abatement statute, section 21402, in order to create a residue of the estate. Sharons argument is incomprehensible.
She cites from a treatise that when an estate does not have sufficient cash to pay all of the decedents debts, estate property will have to be sold to satisfy those obligations, and accordingly some or all of the devises must be reduced (abated). (Ross & Moore, supra, at § 16:568, p. 16-165.) Sharon cites the order of abatement in section 21402, whereby residuary gifts abate before specific gifts. Sharon also cites from another treatise, that "Specific devises are not and may not be completely exonerated from liability for debts, but they do not abate, and cannot be resorted to for payment of debts, until there is a deficiency of other assets with which to meet demands of creditors." (25 Cal.Jur.3d (1995) Decedents Estates, § 816, p. 210, fns. omitted.)
However, Sharon fails to show how these authorities win her a reversal. She says the decedent had debts and was insolvent. She says, "Since the Appellant [Sharon] failed to disgorge her share of the Glenmore property proceeds, the Referee elected to ignore the law and penalize the Appellant [Sharon] for the benefit of the residuary beneficiaries." We see nothing on the cited page of the record to support this assertion. Moreover, Sharon fails to describe where in the statement of decision any error by the referee is shown. Instead, she merely cites the entire 12-page judgment.
"`A judgment or order of the lower court is presumed correct.[[]] All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also, Cal. Const., art. VI, § 13 [no judgment shall be set aside unless error has resulted in a miscarriage of justice]; Code Civ. Proc., § 475 [no judgment shall be reversed unless error was prejudicial and caused substantial injury to the "party complaining or appealing"].)
As indicated at footnote 1, ante, the referees decision constitutes the judgment of the court.
We conclude Sharon has failed to meet her burden as appellant to show any reversible error concerning abatement.
C. Surcharges
Sharon complains of surcharges the referee imposed against her due to her breach of fiduciary duties, pursuant to section 9601.[] We see no basis for reversal.
Section 9601 provides in part: "If a personal representative breaches a fiduciary duty, the personal representative is chargeable with any of the following that is appropriate under the circumstances: [¶] (1) Any loss or depreciation in value of the decedents estate resulting from the breach of duty, with interest [unless the court finds the person acted reasonably and in good faith]."
The probate court has discretion in the matter of surcharging personal representatives. (§ 9601; Ross & Moore, supra, § 16:203.4, p. 16-59.) Sharon has failed to show any abuse of discretion. She complains the referee at an earlier juncture of the proceedings said he had no intention of surcharging her. However, the referee at the same time said, "I have not made any decisions."
The referees "Amended Phase Four Decision, Part 2," filed on July 29, 2002, said, "A surcharge is appropriate even though there was and is no finding of misconduct sufficient to order discharge of the co-executor, as requested by Warren Shingle. In the Referees view, the inventory and appraisement of the personal property should have been timely and properly done long before it was, and because it was not, [Warrens attorneys] additional fees were unnecessarily incurred. It is for that reason that [Sharon] is surcharged in the amount indicated. [Sharons attorneys] comments that surcharging [Sharon] for anything was inconsistent with the Referees prior decisions, or prior comments is incorrect. The Referee made it clear throughout these proceeding[s] that surcharging any party would [be] an option available to the Referee when the entire case was finally considered."
Sharon argues there was no determination that her conduct caused financial harm to the estate, as required by section 9601. She argues her commingling actually benefited the estate.
However, Sharon fails to show her commingling benefited the estate. She mentions there was no evidentiary hearing, however, she does not assign this as error, does not cite any authority, and does not develop any analysis of the matter on appeal. Clearly, the referee allowed the parties to submit in writing any points they wanted to make. Sharon does not claim she was precluded from showing a benefit to the estate.
As to the argument that the referee made no determination of harm to the estate, Sharon fails to confront the referees reasoning expressed in the statement of decision. For example, the referee stated, "The extensive accounting by Jerome Crippen was partially due to the manner in which [Sharon] co-mingled the books and records of her personal finances and estate finances." The referee also found one appraisal would have been unnecessary had Sharon disclosed the appraisal she obtained in November 2000 for refinancing purposes.
Sharon cites no authority advancing her appeal. She cites a treatise that the probate court has the power to reimburse a representative for advances made for the benefit of the estate. (25 Cal.Jur.3d, supra, Decedents Estates, § 845, p. 260.) However, nothing in the quoted portion of the treatise addresses commingling.
Sharon states the referee ultimately elected to ignore the current values in the appraisal that she was required to pay for. However, she fails to show why that should relieve her of the surcharge. Sharon "presume[s]" the referee wanted to create a larger residue, and she asks, "Why is [she] now penalized for the costs of this exercise in futility?" What Sharon does not do, however, is show any abuse of discretion by the referee.[]
In the introductory pages of her brief, under the heading "Factual Background and Statement of the Case," Sharon complains the referee, by having an appraisal made at current value, violated section 8802. Section 8802 provides: "The inventory and appraisal shall separately list each item and shall state the fair market value of the item at the time of the decedents death in monetary terms opposite the item." We need not address this point because it has not been properly briefed under an appropriate heading with a developed argument and authority. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1346.)
We conclude Sharon is not entitled to reversal with respect to surcharges.
D. Sufficiency of Evidence
Sharon argues some of the referees findings lacked evidentiary support. We shall conclude her points are without merit.
Sharon acknowledges the rule of law that an appellant who raises a substantial evidence challenge must cite all the material evidence on the point and not merely the evidence favoring the appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman).) Substantial evidence review is waived if the appellant fails to cite evidence favorable to the judgment. (Ibid.)
Sharon professes uncertainty as to whether the Foreman rule applies, because (according to Sharon) no evidence was presented in this case. However, the lack of an evidentiary hearing with live witness testimony does not mean there was no evidence. The evidence consisted of written submissions, including accountings, appraisals, letters, and other writings. Sharons professed uncertainty is a transparent attempt to evade the Foreman rule.
1. Life Insurance
Sharon argues half of the decedents $11,165 life insurance proceeds belonged to her, as her share of community property, but was improperly included in the estate. The referee stated: "Although [Sharons] fifty percent (50%) interest in the insurance proceeds was included in the estate, [Sharon] received more in benefits than that amount from the Estate. Accordingly, no credit is allowed to her for these insurance proceeds."
Sharons argument is as follows: "Where is the evidence? What benefit did Appellant receive?"
This is not a winning appellate argument. Sharon does not dispute the referees finding that Sharon received a benefit from the estate in that the estate made principal payments on the loan against Sharons real property.
Having failed to acknowledge matter favorable to the referees decision, Sharon has waived her contention concerning the life insurance proceeds. (Foreman, supra, 3 Cal.3d 875, 881.)
2. Second Account of CPA
Under the heading of insufficiency of the evidence, Sharon complains the referee accepted Crippens accounting for the period ending March 31, 2001, but disregarded as incomplete Crippens subsequent report (for the period ending in 2002).
Sharons entire argument is as follows: "Why? And upon what basis, as there is nothing in the record to support this disregard."
Sharon ignores the referees statement in the Phase Five Decision that Sharons claim for an additional credit from the residual estate based upon the latter Crippen accounting was offset by a credit of the residual estate for payments made on the mortgage for Sharons community property interest for the period of time covered by the latter Crippen accounting.
Accordingly, Sharon has waived her contention. (Foreman, supra, 3 Cal.3d 875, 881.)
3. Mobile Home of Residuary Beneficiary
Sharons complete discussion of this point is as follows:
"One of the residuary beneficiaries owns a mobile home on the real property, and has now rented it to a third party. Appellant is being charged rent by the Referee. The Referee, in his Amended Phase Four Decision, Part 2, states with respect to this mobile home: `In so far as the mobile home belonging to Dennis Shingle, that is a matter between Dennis, his brothers and [Sharon] and no order is made herein relative to it. Apparently, rent is a one way street. Why?"
The cited statement of the referee states: "The reasonable rental value of the 20.55-acre parcel AP# 6-130-091 is $1,000 per month. The residual estate is entitled to one-fourth (1/4) or $250 for fifty-four (54) months from January 1998 through June 30, 2001 for a total amount of $13,500."
Plaintiffs argument is incomprehensible. She fails to meet her burden as appellant to show grounds for reversal.
4. Appraised Value for Residuary Mobile Home
Sharon claims she is being forced to pay the appraised value for another mobile home on the property. She says the estate included a 1973 Santa Anita mobile home appraised at $10,000, which the referee determined was the decedents separate property which passed pursuant to the residuary clause. Sharon then argues as follows: "Once again desiring to reward the residuary beneficiaries, the Referee concluded that Appellant must either purchase the mobile home for the appraised value, and if she does not, upon sale of the real property—both the estates interest and presumably the separate community interest of [Sharon]—there would be deducted from [Sharon]s community interest the sum of $10,000.00. Instead of applying the rules under . . . Section 21402 , the Referee elected to augment the residuary by additional cash bequest."
The cited portion of the referees decision stated: "The Santa Anita mobile home shall be removed by the residuary beneficiaries no later than ninety (90) days following payment in full by [Sharon] to the residuary beneficiaries as stated in this Judgment. However, if it becomes necessary to enforce this judgment by execution on the subject property, the mobile home may be sold with the 20.55 acre parcel and the value of the mobile home is fixed at $10,000, and that $10,000 shall be added to the amounts already set forth in this judgment."
Again, Sharons argument is incomprehensible. Her citation to section 21402, the abatement statement, is perplexing at best. Sharon fails to show any reversible error on this point.
5. Attorneys Fees
Under the heading, "Statutory and Extraordinary Attorneys Compensation," Sharon attempts to make some sort of argument about such compensation. Sharon fails to show grounds for reversal.
Sharon cites authority for the proposition that compensation for the personal representative and for the attorney, when approved by the court, is afforded the highest priority in the right to payment, as an expense of the administration of the estate. (§ 11420; Ross & Moore, supra, § 16:261, p. 16-78.) The probate court does not have discretion regarding the amount of compensation, which is set by statute as a percentage of the value of the estate. (§§ 10800, 10810; Ross & Moore, supra, § 16:263, p. 16-78.) The court does have discretion to authorize additional "extraordinary" compensation. (§§ 10801, 10811.)
Sharon cites the referees decision that Robert Islip (Sharons attorney) and John Guth (Warrens attorney) each receive $2,744 from the residual estate. Sharon claims Warren, acting for the residuary beneficiaries, tendered $550 less than that amount, with no explanation for the deduction.
Warren responds the deduction was an offset because the judgment indicated Sharon was holding an estate checking account in her name alone, and the referee directed the balance of $550 to go to the Guth (Warrens attorney) Trust Account.
In her reply brief, Sharon argues the judgment nowhere directs that the $550 be deducted from Islips fees.
However, the judgment, in addition to ordering $2,774 to each attorney, also ordered $2,774 to each executor (Sharon and Warren) as executors fees. Sharon does not contend she was shortchanged with regard to her executors fees. Assuming the $550 should have been deducted from Sharons executors fees rather than the attorneys fees, Sharon fails to show any prejudice warranting reversal of the judgment. (Cal. Const., art. VI, § 13 [no judgment shall be set aside unless error has resulted in a miscarriage of justice]; Code Civ. Proc., § 475 [no judgment shall be reversed unless error was prejudicial and caused substantial injury to the "party complaining or appealing"].)
Sharon also complains of the award of extraordinary attorneys fees to be paid from her portion of the estate. She argues such fees can only be a charge against the estate, not against a beneficiary. However, she cites no authority supporting her position. Instead, she misreads the following quote from Ross & Moore, supra, at section 16.261, page 16-78:
"The personal representatives or his or her attorneys right to receive compensation in estate administration, and the amount thereof, is based strictly on statute [italics omitted]. Payments are allowed out of the estate only to the extent authorized by statute [italics added] and, unless otherwise provided by decedents will, only in accordance with the payment schedules and supplemental provisions contained in the statutes . . . . When approved by the court, compensation is classed as an `expense of administration, afforded the highest priority in right to payment." (Ibid., citing § 11420, subd. (a)(1).)
In the foregoing quote, Sharon highlights the words "estate only," so she reads the quote as saying, "Payments are allowed out of the estate only." However, it is clear "only" attaches to "only to the extent." Thus, the treatise does not provide support for Sharons position.
Since Sharon has supplied no legal authority, we need not further consider her contention. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th 974, 982.)
6. Referee Bias
Still under the heading of insufficiency of evidence, Sharon contends the referees decision was pre-ordained, because he had prior business dealings with the decedent, prior involvement with Warrens attorney, and a lack of expertise in probate matters. We shall conclude she fails to show grounds for reversal.
The factual assertions pertinent to this contention were asserted in a "petition for instructions" filed by Sharon on November 22, 2002, two months after judgment was entered (and the same day she filed a notice of appeal from the judgment). The "petition for instructions" sought an "instruction" that Sharon did not need to comply with the judgment for various reasons, including bias of the referee. We granted Sharons motion to augment the record to include the postjudgment filings and minute order denying the petition, though the postjudgment order is not the subject of this appeal, in which Sharon appealed only from the judgment dated September 25, 2002.
Although the petition papers are not the subject of this appeal, we shall see they discredit Sharons appellate contention that referee bias warrants reversal of the judgment.
Sharons accusation about the referees lack of expertise was based on the concluding paragraph of a letter from the referee to the attorneys dated February 21, 2002, (seven months before the judgment), which stated: "I do not claim to be an expert on Estate matters, so you will not offend me in any way by citing to any existing authority which supports your recommendations."
With her petition for instructions, Sharons attorney, Robert Islip, submitted a declaration, attesting that on July 16, 2002 (two months before the judgment), Islip learned from an individual—not involved in this case—that the individual was looking for an attorney to handle an estate matter. The individual had occasion to speak with Al J. Carrion, the referee in this case, and Al J. Carrion referred the individual to John Guth, who is the attorney for Warren in this case.
Islip further asserted, without explanation, that the referee had "fail[ed] to disclose that the Reference [sic] was a purchaser of business property from the decedent." Neither Islip nor Sharon declared when they became aware of this purchase. The petition itself, which was verified by Sharon, merely asserted the referee at the time of his appointment in June 2001 "neglected to advise counsel that some years prior he had business dealings with Bill Shingle, the decedent, in that he was one of the purchasers of Shingle Travel Agency in Marysville, California, and employed Mr. Shingle for a short period of time."
Even assuming for the sake of argument that these matters would provide a basis to remove the referee, Sharon fails to show any grounds for reversal.
She fails to cite any authority on removal of referees or judges. She merely cites the Code of Judicial Ethics, that matters relevant to disqualification should be disclosed. Sharon has therefore waived the contention. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th 974, 979.)
Additionally, we note Sharons own papers reflect she knew the alleged basis for the claim of referee bias before the judgment, but waited until after the judgment to assert bias. Challenge to judges must be brought "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (Code Civ. Proc., § 170.3, subd. (c)(1).)
Although Sharons showing did not disclose when Sharon or her attorney learned of the alleged business dealings, Sharon did not claim she was unaware of the dealings; she merely claimed the referee did not disclose them to her attorney. In her reply brief, Sharon argues there is no evidence she knew of the prior dealings. However, it was her burden to demonstrate she did not know of the business dealings. Though not necessary to our disposition, we cannot help but observe that the mere fact the referee had business dealings with the decedent does not appear to give cause for concern that the referee would be biased in favor of the decedents son, against the decedents wife.
We conclude Sharon fails to show any basis for reversal of the judgment on the ground of referee bias.
II. Warrens Cross-Appeal
We now turn to Warrens cross-appeal. In his reply brief on the cross-appeal, Warren admits the only reason for his attack on the judgment is that Sharon is attacking the judgment.
A. Surcharge for Barred Debts
Warren contends Sharon paid four debts that were barred for lack of formal creditors claims, and she should therefore be surcharged for the those amounts.
However, the referee in the July 29, 2002, Phase Four Decision, stated, "The debts paid and charged to the residuary estate as set forth in [Crippens] report are approved as proper, notwithstanding the lack of the filing of a formal creditors claim." Our review of the whole record discloses no miscarriage of justice, so that the judgment may not be reversed. (Cal. Const., art. VI, § 13.)
B. Fees
Warren contends Sharon should have been denied her statutory executors fee ($2,744) and should have been surcharged for all of Warrens extraordinary attorneys fees ($9,000 and counting), because of a litany of shortcomings and misconduct by Sharon.
"Only a clear abuse of discretion will lead us to overturn such a determination [for statutory fees and extraordinary fees]." (Estate of Bonaccorsi (1999) 69 Cal.App.4th 462, 471-472.)
Warren lists his view of Sharons transgressions: (1) She conveyed full title to the estates interest in the real property to herself so she could refinance it to increase the debt and move some debt from one parcel to another; (2) she operated an estate checking account without knowledge or consent of Warren as co-executor; (3) it took her three years to file an inventory and appraisal; (4) she commingled her personal funds with estate funds; (5) she failed to disclose an income tax refund, one-half of which belonged to the estate; (6) she failed to disclose an estate account balance of $1,273 in her accounting to the court; and (7) she generally mismanaged the estate and refused to work with her co-executor and generally acted in bad faith.
The referee did impose some surcharges on Sharon, as reflected ante, but Warren wants more.
Warren cites Estate of Bonaccorsi, supra, 69 Cal.App.4th 462, which disallowed certain surcharges imposed on the administrator of an estate, but affirmed other surcharges imposed by the probate court, where the evidence showed the administrator (1) unreasonably voted the beneficiaries stock to run a "corporation" (whose principal asset was the decedents private residence) outside probate; and (2) proceeded to bleed the corporation of its liquid assets by paying himself excessive fees and reimbursements. (Id. at p. 465.)
In Estate of Bonaccorsi, however, the probate court did impose the surcharges and deny fees to the administrator, and the appellate court concluded that decision was not an abuse of discretion. Here, the referee did not impose the surcharges or deny the fees, as urged by Warren. Since our standard of review is abuse of discretion, the circumstance that the probate court in Bonaccorsi reached a certain decision does not compel a similar decision from the probate court in this case, even assuming similar facts.
Warren fails to show an abuse of discretion and he fails to show grounds for his request that this court direct the trial court to award him postjudgment fees.
C. Current Market Value
Warren argues the residuary beneficiaries interest in the real property should be recalculated based upon current market value.
Warren notes the referee found the reasonable value of the residual estates interest in the real property was $27,047. Warren says it is not clear how the referee arrived at this number, but the figure is clearly not representative of the residual estates present day interest in the property. He cites section 9601, which says that if a personal representative breaches a fiduciary duty, the personal representative is "chargeable" with "[a]ny profit made by the personal representative through the breach of duty, with interest." (§ 9601, subd. (a)(2).) Warren argues: "Due to the increase in value of the real property, [Sharon] will unfairly profit by the delays associated with bringing this Estate to conclusion."
However, Warren fails to cite anything in the record supporting his assertion that the figure in the judgment is unrepresentative of the present day interest. We need not consider the matter further. (Cal. Rules of Court, rule 14 [any reference to a matter in the record must be supported by a citation to the record]; Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113-114 [reviewing court may disregard factual assertions unsupported by proper page citation to the record].)
Warren says "if" this court agrees to modify the judgment based on current value, then other adjustments should also be made. Since we do not agree to modify the judgment, we need not consider the other points.
D. Disregard of Accounting
Warren argues the accounting should be disregarded and the residuary beneficiaries damages calculated based upon a distribution after one year.
Apart from Warrens failure to explain his point factually, he fails to cite any legal authority supporting his position. He merely appends to his brief a copy of an exhibit with his proposed figures, and he cites to an account summary in the record, apparently the one accepted by the referee. He refers us to an argument contained in a memorandum he submitted to the referee, which is not a proper manner for presenting a case on appeal. (Garrick Development Co. v. Hayward Unified Sch. Dist. (1992) 3 Cal.App.4th 320, 324 [appealing party may not simply incorporate by reference arguments made in papers filed in the trial court].)
We decline to consider the matter further.
DISPOSITION
The judgment is affirmed. Cross-appellants request for postjudgment fees is denied. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a)(4).)
We concur: DAVIS, J., ROBIE, J.