Opinion
A141816
07-07-2017
DONNA LEE PARKER, Plaintiff and Appellant, v. LAUREN BELL PARKER-SANDERS, as Executor, etc., Defendant and Appellant.
COPY
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. PTR-12-295742, CGC-12-526951)
Two sisters were equal beneficiaries under their parents' trust, the principal asset of which was the family home. The parents passed away, one sister became successor trustee, and by 2012, more than eleven years after the last surviving parent died, the trust assets still had not been finally distributed. Although the home has now been sold, for a number of years the sisters shared occupancy of it, agreeing it should remain in the trust while they wished to live there. Ultimately, their shared occupancy arrangement came to a fractious end. One sister, who has since passed away, locked the other one out, effectively ejecting her.
After a bench trial in these consolidated actions, the probate court found no breach of fiduciary duty by the sister who served as successor trustee, denied a request for her removal and surcharge, and decided various claims to reimbursement from both sisters out of the proceeds from the sale of the home. Among the issues addressed was the ejected sister's claim for recovery under the doctrine of ouster. The court ordered the ejecting sister's estate to pay the trust the fair rental value of the home for most, but not all, of the period of the ejectment.
Both sides remain dissatisfied and seek reversal, focusing the appeal and the cross-appeal solely on issue of ouster. The ejected sister claims that the amount awarded was too low, and that she personally, not the trust, was entitled to recovery for her ouster. The ejecting sister's estate claims, on the other hand, that no ouster damages should have been awarded at all. We agree with neither position. Seeing no error warranting reversal, we shall affirm.
I. BACKGROUND
In 1990, Donald A. Parker and Twila M. Parker (the Parkers) created a revocable living trust (the Trust), the primary asset of which was their family home at 2066 36th Avenue in San Francisco (the 36th Avenue House, or the House). The Parkers' two daughters, Donna Lee Parker (Donna) and the late Twila Adele Parker (Twila), were equal beneficiaries of the Trust. The Trust was amended three times, once by the Parkers together on March 6, 1992, and then, after the death of Donald A. Parker in 1996, twice by Twila M. Parker, on December 23, 1997, and on November 19, 1999.
Since, as family members, several of the individuals involved share a variation of the same name, we refer to the key players by their first names for ease of reference. We mean no disrespect.
The first amendment granted Twila a right to live in the 36th Avenue House during her lifetime; the second amendment altered this arrangement and gave Donna and her husband, Paul Fappiano, the right to live in the 36th Avenue House, along with Twila, also for life; the third amendment was silent as to whether either sister was entitled to occupancy, singly or together. According to Donna, "[o]ur mother made this final change because she began to have doubts as to whether her daughters would be able to share one household. Accordingly, she did not want to impose this sharing arrangement . . . but still was hopeful that a shared housing arrangement could be worked out between Twila . . . and me."
The original Trust and the first two amendments granted relatively small percentage interests in the 36th Avenue House to some other beneficiaries—the Parkers' son, Ronald, who died in 1992, and their two grandchildren, Lauren Belle Parker-Sanders (Lauren) and Donald William Parker, who are Twila's children—while granting Donna and Twila ownership of much larger percentages, in equal proportion. Ronald's interest was deleted after his death. Under the third and last amendment, only Donna and Twila were granted interests in the 36th Avenue House, each receiving 50 percent, and Lauren and Donald William received small cash bequests.
The family matriarch, Twila M. Parker, died on April 29, 2001. At that point, the Trust became irrevocable and, as provided in the third amendment, Donna became successor Trustee, succeeding to all of the powers her parents had granted themselves as Trustees, including the power to manage, control, lease, or sell Trust property. Along with those powers came ample discretion. Article V of the Trust, as amended, provides that "[u]nless specifically limited, all discretion conferred upon the Trustees or Successor Trustee shall be absolute, and their exercise thereof conclusive upon all persons interested in the Trust."
For a period of years, in accord with their mother's desire, Donna and Twila were able to work out an arrangement under which they shared occupancy of the House. According to the Statement of Decision, dated February 3, 2014, the terms of this arrangement were outlined in a letter "Twila wrote to Donna on February 8, 2002 . . . [stating] that Donna and Paul would have the primary occupancy of the 'whole back of house,' the parties would share taxes, insurances, and upkeep according to the number of occupants, and if Donna and Paul moved out from the residence Twila would rent out two of the bedrooms to recoup the 'cost of the tub downstairs that was recently installed.' The letter proposed that no change be made to the title of the residence, that is, it would remain in the Trust."
Until 2008, Donna and Paul maintained residences in Connecticut and Florida and visited San Francisco for 30 to 60 days per year, staying at the 36th Avenue House during those visits. On these visits, Donna and Paul occupied the back and the downstairs portion of the House. In 2002, Twila was estranged from her daughter, Lauren, but the two eventually reconciled when Lauren gave birth to a son. In July 2008, Lauren took up residence in the 36th Avenue House with her husband and son, occupying rooms that were typically occupied by Donna and Paul on their periodic visits to San Francisco.
At the beginning of 2008, Donna and Paul sold their houses in Connecticut and Florida and returned to San Francisco in July of that year, intending to live in the 36th Avenue house. But when they arrived in San Francisco, Twila relegated them to a small bedroom instead of their customary larger rooms. That created escalating tensions between the sisters. Twila sent Donna an email dated July 12, 2008, in which she stated "I have allotted the rooms as for the # of people and amount of time spent there—you have the small bedroom which is almost completely empty . . . if you don't want it, please find other accommodations . . . ."
On July 21, 2008, Twila locked Donna out of the House and called police, requesting to have Donna evicted. Around July 23, 2008, Twila put dog feces on Donna's car and threatened to "key" the car if she continued parking in the driveway. The next day, Twila smashed the mirror on Donna's car with a large wrench and then, in the early morning hours of July 25, 2008, threatened Donna with a knife. That evening, she also smashed a coffee pot. As a result of this behavior, Twila was placed in an involuntary 72-hour detention under Welfare & Institutions Code section 5150. Upon her release, Twila informed Donna she did not need to be concerned about her safety if she did not come to the House. In Fall 2008, Twila changed the locks on the House.
Twila continued living at the House—occupying all of it, with Lauren and her family—rent free. As successor Trustee, Donna tried to negotiate a lease with Twila and Lauren, but the negotiations were unsuccessful. Donna then decided it would be best to sell the 36th Avenue House and distribute the proceeds, but she delayed because, "if the house was sold, [Twila] would have had nowhere else to go, as she had no money, worked only part time and could have eventually become homeless as she had never been able to handle money or manage a budget based on her own funding."
In 2010, a neighbor on 36th Avenue, Olive Hilldebrandt, died and bequeathed significant assets to Twila, including Olive's house at 2006 36th Avenue. The prospect of that inheritance to Twila apparently changed Donna's perspective on what to do with the 36th Avenue House. As she explained things, "[o]nce [Twila] had the means to live elsewhere . . . , I first sought to offer to sell my interest in the property to my sister . . . . Next I sought [her] cooperation to vacate the house so that it could be sold." But Twila refused to cooperate.
In January 2011, Donna sent a "Notice of Rent Increase," purporting to raise the rent for the 36th Avenue House effective April 1, 2011, from zero to $3,295 per month. Along with the notice of rent increase, Donna filed a landlord petition for arbitration before the San Francisco Residential Rent Stabilization & Arbitration Board (Rent Board) seeking a determination that the rent she proposed to charge was valid. The Rent Board held a hearing on March 11, 2011, but at the hearing Donna and Twila stipulated that Twila was not a "tenant," and as a result, it dismissed the petition for lack of jurisdiction.
Donna made some other decisions in 2011 as successor Trustee that, while not directly relevant to the issue of occupancy of the House, have some peripheral relevance here. In July 2011, she submitted a First Account and Report of Successor Trustee, claiming, among other things, trustee fees for 10 years, the rental value of the property from 2008 to 2011, and various amounts she had paid for property expenses. That same month, as successor Trustee, she also deeded herself a 52.45 percent interest in the 36th Avenue House, purporting to increase unilaterally the 50 percent interest she held as a beneficiary in an apparent effort to reflect what she claimed was the disproportionate share of the property expenses that she had paid. She later stipulated to an order cancelling the deed in December 2012. And she ultimately withdrew the accounting, apparently because she felt "it was based on an erroneous notion from her prior attorney, that Twila owed money to the Trust rather than to Donna personally."
On April 26, 2012, Donna's attorney sent a letter to Twila stating that Twila's occupancy was pursuant to a "license granted from the Trust that is terminable at will without notice to you." Following that letter, Donna, acting on behalf of the Trust, filed an unlawful detainer action against Twila on June 1, 2012. The complaint and the first amended complaint in that action both allege that Twila resides in the House under a license from the Trust and that license had been revoked.
Twila responded on June 14, 2012 by filing this action, case No. PTR-12-295742, styled as a "Petition for Order Removing Trustee, Appointing Successor Trustee, Objection to First Account and Report of Successor Trustee, for Order to Return Assets Taken from Trust, for Surcharge of Trustee, and for Attorney's Fees." She then filed a lis pendens. Within weeks of this flurry of legal activity, on July 8, 2012, Twila died by her own hand at the 36th Avenue House.
On October 9, 2012, Lauren was appointed executor of Twila's estate. Donna voluntarily dismissed the unlawful detainer action a short time later, and filed a creditor's claim in the proceedings to probate Twila's will. By her creditor's claim filed in the probate proceedings on Twila's will, Donna, as an individual, sought to recover the fair market rent for Twila's occupancy of the 36th Avenue House from April 1, 2011 through her death. That claim was rejected.
In December 2012, Donna filed a complaint in her individual capacity, case No. CGC-12-526951, styled as a "Complaint for Damages after Rejection of Creditor's Claim," naming Lauren as defendant as executor of Twila's estate. She also filed a petition in her capacity as successor Trustee, styled as a "Petition for Orders (1) Cancelling Deed; (2) Expunging Lis Pendens; and (3) Awarding Attorney's Fees and Costs" in Lauren's probate action in connection with Twila's estate, case No. PTR-12-296043.
On stipulation of the parties, an order issued May 24, 2013 consolidating case Nos. PTR-12-295742 and CGC-12-526951 for trial before Judge Mary E. Wiss in the probate department of the San Francisco Superior Court. Judge Wiss held a two-day bench trial on December 13 and December 20, 2013. By that time, with Lauren's consent, Donna, as successor Trustee, had sold the 36th Avenue House, and the net proceeds from the sale, $835,092.68, were sitting in an account in Donna's name, held on behalf of the Trust.
The probate court issued its final Statement of Decision on March 10, 2014. The court ruled, among other things, as follows: "[Lauren's] request to remove Donna as trustee is denied. The property has now been sold and the cash proceeds deposited. [¶] Lauren [also] claims that the eleven year delay in distribution of the trust is a breach of trust for which Donna should be surcharged. The facts reveal otherwise. The trust should have been timely distributed . . . . [But] Donna should not be penalized now when Twila suggested the real property remain in the name of their parents' trust and the parties should share occupancy."
As is specifically pertinent here, the probate court found that Donna and Twila, as beneficial owners of the 36th Avenue House, each had a right of occupancy, and that, as of July 2008, Twila "effectively excluded" Donna from the House; beginning in April 2011, Twila was ordered to pay the Trust the rental value of the House for the continuing exclusion. Although Donna framed this issue—and continues to frame it here on appeal—as one of ouster, the court did not explicitly cast the recovery in those terms. It explained as follows:
"As trustee, Donna had the right to demand rent for the property. She did not do so until January 12, 2011when she gave Twila notice to pay rent of $3,295.00 effective April 1, 2011. Twila is not required to pay rent for the period prior to Donna's demand. After the demand by Donna on January 12, 2011, Twila is required to pay rent for her exclusive use of the property in the amount of $3,295.00 per month. On July 7, 2011, Donna deeded 52.45% of the trust property to herself. At that point, the trust had the right to demand one half of the rent as the remaining 48.55% was in Donna's name as an individual. [¶] The Court finds that Twila must pay rent for her exclusive use of the property at the rate of $3,295.00 from April 1, 2011 to July 7, 2011 in the amount of $9,885 (approximately 3 months) and one half of that amount from July 7, 2011 to the date of Twila's death on July 8, 2012 or $19,770.00 ($1,647.50 x 12 months) for a total of $29,655.00."
Both parties seek reversal. In the main appeal, Donna contends the court should have awarded ouster damages running from July 2008, when she claims an ouster occurred, and that she should be awarded 100 percent of the rental value of the House (an adjustment that would increase the recovery to $79,080). She also claims the court should have awarded ouster damages to her personally, not to the Trust. For her part, Lauren, on behalf of Twila's estate, cross-appeals, claiming the court erred by awarding any ouster damages at all.
For the reasons explained below, we conclude that Lauren has the better of the argument on the issue of ouster—the doctrine does not apply here—but we also conclude that neither party is entitled to reversal.
II. ANALYSIS
In reviewing a judgment based upon a statement of decision following a bench trial, we apply a substantial evidence standard of review to the trial court's findings of fact (Niko v. Foreman (2006) 144 Cal.App.4th 344, 364), giving the judgment the usual presumption of correctness and indulging all "intendments and presumptions . . . in favor of its correctness [citations]." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133). We must affirm the judgment if any possible grounds exist for the trial court to have reached its factual conclusions. (See Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) We review questions of law de novo. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765.)
Ouster is grounded in the law of tenancy in common and is based upon the principle that "[e]ach tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from any part of it." (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.) The relation of tenants in common with equal rights to occupancy of real property is one of co-owners. Neither owes rent to the other, but "where one cotenant wrongfully ousts the other and prevents him from enjoying joint possession . . . , the wrongfully ousted cotenant may recover the damages resulting from the ouster, which ordinarily are his share of the value of the use and occupation of the land during the period of the ouster." (Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176-177 (Brunscher); see also De Harlan v. Harlan (1946) 74 Cal.App.2d 555 (DeHarlan).)
Section 843, subdivision (a) of the Civil Code, which codifies the common law cause of action for ouster, provides in pertinent part as follows: "If real property is owned concurrently by two or more persons, a tenant out of possession may establish an ouster from possession by a tenant in possession in the manner provided in this section. This section does not apply to the extent the tenant out of possession is not entitled to possession or an alternative remedy is provided under the terms of an agreement between the cotenants or the instrument creating the cotenancy or another written instrument that indicates the possessory rights or remedies of the cotenants." (Italics added.)
Civil Code Section 843 was enacted in 1984 on the recommendation of the California Law Revision Commission. "Citing Brunscher[, supra, 164 Cal.App.2d at p. 174] and DeHarlan[, supra,74 Cal.App.2d 555] the commission first explained that in California 'in order for the cotenant in possession to be held to account for a proportionate share of the use value of the property, the cotenant must forcibly exclude or prevent use by the cotenant out of possession.' (17 Cal. Law Revision Com. Rep. (1984), p. 1028.) It then recommended a statute 'so that a tenant out of possession of property may establish an ouster and recover damages, without the need to show that the tenant in possession has forcibly excluded or prevented use of the property by the tenant out of possession.' (Ibid.) Adopting [this] recommendation[,] . . . the Legislature enacted Civil Code section 843 permitting a cotenant out of possession to make a written demand for concurrent possession of the property." (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612-1613.) This statutory demand procedure is not the exclusive means by which an ouster may be established. As Donna sought to do here, "[a] claim for damages for an ouster [may be pursued] . . . by an independent action . . . ." (Civ. Code, § 843, subd.(c)).
A claim for ouster was not available to Donna in her capacity as Trustee. Donna, who argues in the main appeal that ouster damages should have been awarded to her personally, not to the Trust, concedes this point, and for good reason. Because co-owners do not have the right to exclude one another from possession, the doctrine of ouster is what the law provides as a means to protect their possessory rights vis-a-vis one another. A trustee, by contrast, does have the power to exclude others from occupying trust property without permission, and that relief may be sought against beneficiaries as well as strangers. The doctrine of ouster is not the vehicle for it, since a trustee may sue for unlawful detainer or trespass.
Nor was a claim of ouster available to Donna in her personal capacity. She claims that, since she and Twila both held equitable title to the 36th Avenue House prior to distribution, they are co-owners, each with a right to sue for ouster upon ejectment by the other. But the equitable ownership interest of a trustee beneficiary to real estate assets held in trust does not confer a right of possession. Neither Donna nor Twila was entitled to occupancy of the 36th Avenue House based on the mere expectancy of distribution. (See In re Estate of Piercy (1914) 168 Cal. 750, 753 ["During its administration, the heir, although succeeding to the legal title, was not entitled to the possession of the property. Until distribution, the right of possession was in the administrator."].)
The probate court did not cite any of the ouster cases Donna relies upon here, but it did cite Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298 in support of a finding that "[w]hen the trust became irrevocable Twila and Donna were the de facto equitable owners of the property, each with the right to occupy the property." We are not convinced Steinhart supports this finding. That case involved a property tax valuation dispute under article XIII A, subdivision (a), section 2 of the California Constitution, popularly known as Proposition 13. In it, a home subject to property tax in Los Angeles was among the assets in a revocable living trust, and the question presented was whether, upon the death of the settlor, there "was a change in ownership" sufficient to trigger a reassessment of the home's value.
The County of Los Angeles took the position that when the trust became irrevocable upon the settlor's death there was a "change in ownership" for purposes of article XIII A, section 2, subdivision (a), and it reassessed the home valuation accordingly, which nearly tripled the annual property tax. Steinhart and her siblings were the trust beneficiaries. When the settlor, Helfrick, died—which triggered irrevocability— her trust granted Steinhart, alone among the sibling beneficiaries, the right to occupy the home for life. By the terms of the trust, the home was to be sold and the proceeds distributed to all beneficiaries, but only upon Steinhart's death.
Steinhart argued that even though she gained a lifetime right of occupancy at Helfrick's death, the home remained an asset of the trust, and was not subject to reassessment. The California Supreme Court held to the contrary. "[U]pon Helfrick's death," the Court pointed out, "the entire equitable estate in the residence was transferred from Helfrick to, collectively, Steinhart and her siblings (or their issue) as beneficiaries of the irrevocable trust. In other words, upon Helfrick's death, real ownership of the residence . . . transferred from Helfrick to Steinhart and her siblings (or their issue) as beneficiaries of the irrevocable trust." (Steinhart, supra, 47 Cal.4th at p. 1320, italics omitted.)
Emphasizing the Supreme Court's characterization of the sibling beneficiaries in Steinhart as "real owners" upon irrevocability, Donna argues that the rationale of that case applies here even though it did not involve any question of ouster. As proof that Twila and Donna considered themselves the "real owners" of the House after their parents' death, Donna points to the occupancy sharing agreement they made. But that argument ignores the fact that, as part of their shared occupancy arrangement, the sisters also agreed the House would remain an asset of the Trust. Granted, the same could be said about the scenario presented in Steinhart, but Donna's intent focus on the "real owners" language in that case leads her to miss the key point of its holding. What distinguishes Steinhart from this case is that, there, the trust instrument granted a right of lifetime occupancy to Steinhart. Thus, at Helfrick's death, the bundle of rights transferred was, for valuation purposes, the equivalent of fee ownership.
See Steinhart, supra, 47 Cal.4th at p. 1324 ["Steinhart's argument fails for the simple reason that it erroneously focuses only on the interest Steinhart received, rather than the total extent of the interest Helfrick transferred when the trust became irrevocable . . . . [A]t the time of her death, Helfrick personally held the entire equitable estate in the residence and was regarded as the residence's real owner. Under the terms of the trust, upon her death, Helfrick transferred not just a life estate, but the entire fee interest—i.e., the full bundle of rights—to, collectively, Steinhart and her siblings (or their issue) . . . . [B]ecause 'the value' of the interest Helfrick transferred in toto was 'substantially equal to the value of the fee interest,' Steinhart's argument that there was no change in ownership . . . fails." (Italics in original, citations omitted.).]
Here, neither Donna nor Twila had a pre-distribution right of occupancy, and certainly not an exclusive right. Prior to transfer of legal title by distribution from the Trust, Donna and Twila, as beneficiaries, had nothing more than a privilege to occupy the 36th Avenue House at the pleasure of whoever was successor Trustee. On this point, the intent of the Parkers, as expressed in the language of the Trust itself, is key. In the third amendment, Twila M. Parker—who was empowered to amend the Trust following her husband's death, while it was still revocable—left the issue of entitlement to possession unaddressed, deleting prior references to it in previous amendments. By her considered silence, she effectively conferred upon Donna as successor Trustee the power to grant pre-distribution possessory rights to herself and Twila on a permissive basis.
The shared occupancy agreement struck by the two sisters did not somehow transform the nature of their beneficial interests in the 36th Avenue House into outright fee ownership, as Donna suggests it did, but simply evidences the fact that Donna exercised her power as successor Trustee to grant permissive use of the House on terms acceptable to her. To read the Trust as empowering Donna to grant Twila an indefeasible pre-distribution right of possession would, in effect, give her the ability to amend the terms of the Trust after it became irrevocable, reversing her mother's decision to pull back from granting such a right. Moreover, as the two sisters stipulated in the Rent Board proceedings, at no point was Twila a tenant of the Trust, with a tenant's right of exclusive possession. She was nothing more than a licensee, at least until Donna decided in April 2012 that the terms of Twila's occupancy of the House were no longer acceptable and gave notice that the license she had previously enjoyed was revoked. In fact, breach of license is the claim Donna was pursuing in the wrongful detainer action at the time of Twila's death.
See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1040 [difference between tenancy in real estate and license to real estate is that tenant has right of exclusive possession while licensee has right of nonexclusive use].
We therefore agree with Twila that the doctrine of ouster does not apply here, but we do not agree with her conclusion that reversal is required. The order directing Twila's estate to make the Trust whole for her "takeover" of the House was legally justified not for ouster, but for breach of license, or for restitution. While the probate court did not articulate its rationale in those terms, we sustain its decision on that basis. Factually, the court found that Twila appropriated for herself and Lauren—without right—the exclusive possession of the 36th Avenue House from July 2008 until her death, and that finding is supported by substantial evidence. Rather than move immediately to rectify the situation, Donna forbore in seeking eviction and demanding rent until Twila had independent means to pay for housing. Whether the trial court's award for the fair rental value of the 36th Avenue House after that point is characterized as compensation for breach of license or as a restitutionary remedy for an unjust enrichment, we see no basis to overturn it.
See 11 Corbin on Contracts (Interim Edition) § 992, p. 5 ["[One who commits a breach of contract must make compensation therefor to the injured party . . . [and in] determining the amount of compensation as the 'damages' to be awarded, the aim in view is to put the injured party in as good a position as he would have had if performance had been rendered as promised."].
See Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315 ["The phrase 'unjust enrichment' is used in law to characterize the result or effect of a failure to make restitution of or for property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor."]; Estate of Jimenez (1997) 56 Cal.App.4th 733, 741, fn. 5 ["in matters over which the probate court otherwise has jurisdiction, it may apply general equitable principles and give equitable remedies," italics omitted, citing 12 Witkin, Summary of Cal. Law (9th ed. 1990) Wills and Probate, § 333, p. 367.)]. --------
We also reject Donna's contention that the award should have gone to her personally. This is the theory on which her complaint in case No. CGC-12-526951 is founded, and it is the notion she appears have been pursuing since withdrawing her First Account and Report of Successor Trustee. (See ante at p. 5, fn. 3.) The Trust suffered the loss here, and any detriment to Donna was merely derivative of her status as a beneficiary. Even if compensation for past rent was owing to the Trust rather than to her personally, Donna further contends the amount awarded, $29,655.00, was too low. She argues that any ouster damages should have been measured from July 2008, the date of the claimed ouster, and by the same token, she would no doubt claim that any amount awarded to the Trust for breach of license or for restitution should accrue from that date as well. But here, too, we defer to the probate court's assessment of the evidence.
The probate court found that, as successor Trustee, Donna's first demand for rent took effect April 1, 2011 (entitling the Trust to 100 percent of the rental value of the House for three months until July 2011) and that she then deeded herself a 52.45 percent interest in the House during the period July 7, 2011 to July 8, 2012 (entitling the Trust to 50 percent of the rental value of the House for those 12 months). Although Donna later cancelled the deed, and a stipulated order of cancellation was entered in December 2012, the court was not required to find—and did not find—that that cancellation was retroactive. Whatever tactical reasons drove Donna to grant this deed to herself, her decision to do so had consequences: It reduced the Trust's ability to seek anything more than half of the rental value of the House from Twila's estate during the time the deed was in effect. As for Donna's claim to recovery of rent going back to 2008, she made a discretionary judgment as successor Trustee to charge zero rent until April 1, 2011 and not to seek immediate eviction when Twila locked her out. She appears to have done that because she recognized Twila was psychologically troubled and, at least until the spring of 2011, had no independent means of paying for her own housing. This stance seems consistent with Donna's fiduciary duty as Trustee to place Twila's interests ahead of her own. It also means she waived the right to collect anything more than she demanded.
All in all, we are satisfied that the probate court's approach to calculating the amount of past rent chargeable to Twila's estate is consistent with the rights and obligations of the parties and reflects a thoughtful weighing of the evidence in light of the equities.
III. CONCLUSION AND DISPOSITION
The judgment is affirmed. The parties are to bear their own costs.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.