Filed 12/21/15 Hayes v. Hayes CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




WILLIAM P. HAYES, as Co-Trustee                                      B259258
etc.,                                                                (Los Angeles County
                                                                     Super. Ct. No. BP141503)
              Plaintiff and Respondent,

v.

BRIAN J. HAYES et al., as Co-Trustees
etc.,

              Defendants and Appellants.


         APPEAL from an order of the Superior Court of Los Angeles County,
Michael I. Levanas, Judge. Affirmed.
         Klapach & Klapach and Joseph S. Klapach for Plaintiff and Respondent.
         Burkley & Brandlin and Walter R. Burkley for Defendants and Appellants.
       Appellants Brian and Randy Hayes appeal the trial court’s order of July 30,
2014, giving their brother, respondent William Hayes, the right to purchase a
parcel of Nebraska farm land owned by their parents’ trust at the price determined
by a Nebraska court order setting the total “clear market value” for Nebraska
inheritance tax purposes.1 Appellants contend the provision giving William the
right to purchase should be construed to require him to pay the property’s
“‘appraised’ value,” as determined by a private appraiser. In addition, for the first
time on appeal, appellants contend that William should be precluded from
purchasing the property for the amount set forth in the Nebraska order because he
obtained the order surreptitiously and without their input.
       A finding that William acted without his brothers’ knowledge and consent
cannot be made without resort to evidence and resolution of factual issues, and
therefore cannot serve as a basis for reversing the trial court’s order. Moreover,
the record establishes that appellants had ample opportunity to provide input into
the determination of the property’s market value in the Nebraska proceeding, but
chose not to do so. Exercising our de novo review of the court’s interpretation of
the language of the purchase provision, we conclude the court’s interpretation was
the only reasonable one. Accordingly, we affirm.


               FACTUAL AND PROCEDURAL BACKGROUND
       A. Background Facts
       Certain essential facts are not in dispute. Appellants, Brian and Randy, and
respondent, William, are the sons of David and Charlotte Hayes. In February
1990, David and Charlotte created the “Revocable Living Trust of David J. Hayes
and Charlotte M. Hayes” (the Trust). The couple transferred into the Trust all of
1
        Because they share a surname, the parties and their parents will be referred to by
their first names.

                                             2
their property, including two parcels of farm land located in Chase County,
Nebraska that Charlotte had inherited from her parents and that had been in the
family for more than 100 years. The Trust provided that upon the death of both
David and Charlotte, the couple’s assets would be distributed equally to appellants,
William and a half-sibling, John Hayes.2 The Trust required that upon the death of
the first spouse, two subtrusts would be created: Trust A, which would include the
surviving spouse’s separate property and interest in the couple’s community
property, and Trust B, which would include the balance of the Trust estate and
become irrevocable.
       In 1998, David and Charlotte amended the Trust to provide: “Prior to the
distributions of the assets of Trust A or Trust B, after the death of both Trustors,
[William] is granted the option to purchase the land in Nebraska owned by the
Trustors at the appraised value of such land as determined for inheritance tax
purposes . . . .”3
       Charlotte died in 2004. In 2005, David divided the couple’s assets between
the two new trusts, executing an “Allocation Agreement and Assignment of Trust
Assets to Sub-Trust A and to Sub-Trust B,” which allocated Parcel No. 2 of the
Nebraska farm land to Trust A (his survivor’s subtrust), and Parcel No. 1 of the
Nebraska farm land, to Trust B (Charlotte’s irrevocable subtrust).4 In 2005, David
executed a restatement of Trust A, which omitted William’s option to purchase.
When David died in 2012, appellants and William became co-trustees of the Trust
and subtrusts.

2
       John is not a party to these proceedings.
3
       By 1998, William had been living in Nebraska and managing the farm for more
than 20 years.
4
       The document stated Parcel No. 1 had a value of $76,000 and Parcel No. 2 had a
value of $60,000.

                                             3
      B. Nebraska Proceedings
      In early 2013, William retained a Nebraska attorney, who wrote to the Chase
County Attorney inquiring whether the “fair market value” of the Nebraska farm
land for inheritance tax purposes could reasonably be determined by dividing the
assessed value of the parcels by 75 percent, the countywide ratio for assessed value
to sales price. William thereafter filed in the Chase County court a “Petition for
Determination of Inheritance Tax.” Attached was an “inheritance tax worksheet,”
stating that Parcel No. 1 had an assessed value of $109,186 and an “[e]stimated fair
market value” of $145,581.33, and that Parcel No. 2 had an assessed value of
$61,985 and an “[e]stimated fair market value” of $82,646.66, for a total of
$228,227.99.5 (Caps omitted.)
      On March 21, 2013, the Nebraska court issued an order “[d]etermining and
[a]ssessing [i]nheritance [t]ax,” which stated: “Upon consideration of the evidence
and the Petition for Determination of Inheritance Tax and all supporting documents
. . . filed and incorporated by reference, the Court Finds, Orders, and Determines
that: [¶] . . . [¶] [t]he County Attorney for [the] county in which the property
described in the petition is located has executed and filed with this Court a Waiver
of Notice to show cause . . . [¶] [t]he values set forth in the Petition for
Determination of Inheritance Tax and the Inheritance Tax Worksheet accurately
reflect the total clear market value of the assets listed therein subject to Nebraska
inheritance tax . . . .” Based on those values, the court assessed inheritance taxes
of $1,045.35.




5
       The estimated market values were obtained by dividing the assessed values by 75
percent (.75), resulting in a step up in value of approximately 33 percent. Appellants do
not dispute that $109,186 and $61,985 were the assessed values for the parcels in 2012.

                                            4
      C. The Parties’ Petitions
      In May 2013, William filed a petition in the court below alleging, among
other things, that appellants were failing to follow the Trust’s terms by refusing to
allow him to exercise his option to purchase the Nebraska farm land. The petition
sought an order allowing William to purchase both parcels.
      After William’s petition was filed and served, appellants obtained an
appraisal from a certified Nebraska appraiser, who expressed the opinion that
Parcel No. 1 had a market value of $336,000 in 2012, and that Parcel No. 2 had a
market value of $192,000. In August 2013, appellants wrote to the Chase County
Attorney, asserting that “material misinformation was made in the . . . petition for
Inheritance Tax Determination,” and that the parcels had been appraised for
$336,000 and $192,000. Although the Nebraska court had issued its order
evaluating the property for tax purposes several months earlier, the Chase County
Attorney wrote back asking whether appellants intended “to file an amended
inheritance tax worksheet, to show the amended values, and the corresponding
correct inheritance tax,” and stating that he “assumed that [appellants] would in
fact be mak[ing] new filings, since [they] informed [him] of the incorrect
valuations.” Nothing in the record suggests appellants did so.
      In October 2013, appellants filed a response to William’s petition in the
instant action, stating that the farm land could not be sold because the parties “had
differences of opinion as to what the proper appraised value of [the Nebraska farm
land] was for inheritance tax purposes.” In December 2013, appellants filed a
Petition for Instructions, asking the court to “fix the appropriate value of certain
farm land in Nebraska that William has an option to purchase [Parcel No. 1] at
$336,000,” and to rule that there was no option to purchase Parcel No. 2. The
petition stated that the brothers disagreed on the value of the Nebraska farm land,
that William “claimed Parcel #1[’s] value to be $145,581 in a petition for
                                           5
inheritance tax determination filed in Chase County, Nebraska,” and that
appellants had obtained an appraisal with a higher value. Neither the opposition to
William’s petition nor appellants’ petition for instructions suggested that William
had gone behind his brothers’ backs in having his attorney contact the Chase
County Attorney or obtaining the Nebraska court’s evaluation.
       At several preliminary hearings, the trial court indicated that the dispute over
William’s right to purchase the Nebraska farm land would be resolved by the
court’s interpretation of the Trust language. The parties filed points and authorities
outlining their positions. William contended he should be allowed to purchase
both parcels for $228,227.99, in accordance with the Nebraska court’s evaluation.
Appellants argued that Parcel No. 2 was no longer subject to the right to purchase
provision, and that the court should fix the value of Parcel No. 1 at $336,000 in
line with the June 2013 appraisal. Appellants argued the Nebraska court order did
not represent “appraised value,” but did not contend the Nebraska court’s
evaluation was void for having been obtained without their knowledge and
consent.


       D. Court’s Order
       At the May 28, 2014 hearing on the parties’ competing petitions, the court
expressed the view that only Parcel No. 1, allocated to Subtrust B, would be
subject to the right to purchase. It further stated its intent to rule that the purchase
price of Parcel No. 1 would be determined in accordance with the Nebraska court
order. The court explained: “The language that I think is compelling . . . says ‘it
may be purchased at the appraised value of such land.’ [¶] Now, if it stopped there
and just said that, I would say [appellants’] argument has a little more strength.
But it doesn’t. It says, ‘as determined for inheritance tax purposes.’ . . . [¶] . . . [¶]
So if the language just said, ‘appraised value,’ I think [appellants would] have a
                                             6
better argument, but it doesn’t. That extra language . . . is telling to the court.”
Counsel for appellants argued that appraised value should be interpreted as
appraised market value. He did not request an evidentiary hearing, or raise any
objection based on the manner in which the Nebraska evaluation was obtained.
       On July 30, 2014, the court issued its final order, finding: (1) that the
provision of the Trust giving William the option to “purchase the land located in
Nebraska owned by the Trustors at the appraised value of such land as determined
for inheritance tax purposes” applied to Parcel No. 1 of the Nebraska farm land
held in Trust B, but not to Parcel No. 2 held in Trust A; (2) that Parcel No. 1 had a
value of $145,581.33, as determined by the order of the Nebraska court; and (3)
that William would be permitted to purchase Parcel No. 1 for $145,581.33. Brian
and Randy appealed.6


                                     DISCUSSION
       A. Reasonableness of Trial Court’s Interpretation of Trust Language
       In interpreting a trust instrument, a court “seek[s] the intent of the trustors as
revealed in the document considered as a whole.” (Estate of Powell (2000) 83
Cal.App.4th 1434, 1440.) “Ordinary words must be given their normal, popular
meaning and legal terms are presumed to be used in their legal sense.” (Scharlin v.
Superior Court (1992) 9 Cal.App.4th 162, 168; see Probate Code, § 21122.) In
interpreting a written instrument, courts “‘do not engage in forced construction’”
or “‘strain to create an ambiguity where none exists.’” (Advanced Network, Inc. v.
Peerless Ins. Co. (2010) 190 Cal.App.4th 1054, 1064, quoting Ray v. Valley Forge
Ins. Co. (1999) 77 Cal.App.4th 1039, 1044.) “‘We must give significance to every
word . . . , when possible, and avoid an interpretation that renders a word
6
       William did not appeal the finding that the right to purchase did not apply to
Parcel No. 2 held in Subtrust A.

                                             7
surplusage.’” (Advanced Network, Inc., supra, at p. 1063, quoting In re Tobacco
Cases( I) (2010) 186 Cal.App.4th 42, 49.)
      Where, as here, the trial court did not rely on extrinsic evidence to aid its
understanding, we review its interpretation de novo. (Burch v. George (1994) 7
Cal.4th 246, 254.) “‘“[I]n interpreting a document such as a trust, it is proper for
the trial court in the first instance and the appellate court on de novo review to
consider the circumstances under which the document was made so that the court
may be placed in the position of the testator or trustor whose language it is
interpreting, in order to determine whether the terms of the document are clear and
definite, or ambiguous in some respect.”’” (Estate of Powell, supra, 83
Cal.App.4th at p. 1440, quoting Ike v. Doolittle (1998) 61 Cal.App.4th 51, 73.)
      As discussed, the 1998 amendment to the Trust provided that William was
“granted the option to purchase the land in Nebraska owned by the Trustors at the
appraised value of such land as determined for inheritance tax purposes.” Read as
a whole, we find no ambiguity in the purchase provision: once the value of the
land had been determined for inheritance tax purposes, William was given the right
to buy it for that price. There is no dispute that for Nebraska inheritance tax
purposes, the value of the property was determined to be $145,581.33. Although
the provision does not specifically state the value is to be as determined for
Nebraska inheritance tax purposes, the court’s decision to derive the purchase
price from the Nebraska court’s order was reasonable, as Charlotte was from
Nebraska, the property is located in Nebraska and California has no inheritance
tax. (See Estate of Claeyssens (2008) 161 Cal.App.4th 465, 468.) Our de novo
review, achieved by placing ourselves in the position of the trustors and avoiding
an interpretation that renders any phrase surplusage, leads us to conclude that the
trial court properly interpreted the language of the 1998 purchase provision when it
granted William the right to buy Parcel No. 1 for $145,581.33.
                                           8
      Focusing on the fact that the valuation of property for tax purposes is often
referred to as its “‘assessed’ value,” appellants contend that the use of the term
“‘appraised’ value” requires application of the rule that legal terms are to be
construed in their legal sense, creating an ambiguity. But the Trust expressly
defines the value as one “determined for inheritance tax purposes.” This removes
any ambiguity that might otherwise exist. (See County of San Diego v. Ace
Property & Casualty Ins. Co. (2005) 37 Cal.4th 406, 415 [fact that word or phrase
isolated from its context is susceptible of more than one meaning does not create
ambiguity].) “Appraise” can simply mean to estimate the monetary value of or to
assign a value to, and a property may be “appraised” in that sense for tax purposes.
(See Webster’s New College Dictionary (2005), page 69.) Moreover, a provision
will be considered ambiguous only when it is capable of two or more reasonable
constructions. (County of San Diego, supra, 37 Cal.4th at p. 415.) Appellants
posit no reasonable interpretation of the provision as a whole, insisting that we
simply ignore the phrase “as determined for inheritance tax purposes” in order to
prevent an unequal division of property. But the original Trust already required an
equal division. By executing the 1998 amendment, David and Charlotte clearly
intended that William obtain a benefit not provided under the original instrument
in acknowledgement of his efforts in singlehandedly caring for the farm land for
decades.
      Finally, we are not convinced that the valuation of the Nebraska court,
adopted by the trial court, was significantly out of line with the property’s actual
value or will result in a wildly unbalanced distribution of assets. Nebraska courts
strive to determine “fair market value” when making a finding as to a property’s
“clear market value” for tax purposes. (County of Lancaster v. Union Bank &
Trust Co. (In re Estate of Craven) (2011) 281 Neb. 122, 127 [794 N.W.2d 406,
410].) Here, the final valuation used to calculate the inheritance tax was obtained
                                          9
by consultation with the Chase County Attorney, and required use of a countywide
ratio that substantially increased the property’s valuation over its 2012 assessed
value. The trial court’s interpretation of the purchase provision to incorporate this
valuation reflects the reasonable assumption that David and Charlotte wanted the
land to stay in the family by permitting William to purchase the property without
competition at a price that was fair to his brothers, although perhaps less than could
have been achieved on the open market. We find no basis to depart from the
court’s interpretation.


      B. Validity of Nebraska Order
      Citing cases that stand for the proposition that the powers of co-trustees are
joint and exercisable only by unanimous action, appellants contend that William’s
act of “[s]urreptitiously” obtaining the Nebraska order breached his fiduciary duty
or duty of loyalty to his co-trustees, rendering the order void or at least precluding
the trial court from relying on it in setting the purchase price for Parcel No. 1.
Notably, appellants did not raise this argument before the trial court and presented
no evidence that William acted surreptitiously. “As a general rule, theories not
raised in the trial court cannot be asserted for the first time on appeal; appealing
parties must adhere to the theory (or theories) on which their cases were tried.
This rule is based on fairness -- it would be unfair, both to the trial court and the
opposing litigants, to permit a change of theory on appeal; and it also reflects
principles of estoppel and waiver.” (Eisenberg, et. al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2009) ¶ 8:229, p. 8-155, italics deleted;
accord, Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1323; People ex rel.
Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46; Brown
v. Boren (1999) 74 Cal.App.4th 1303, 1316; Mattco Forge, Inc. v. Arthur Young &
Co. (1997) 52 Cal.App.4th 820, 847.)
                                           10
      An appellate court may “in the exercise of its discretion, consider a new
theory on appeal when it is purely a matter of applying the law to undisputed
facts.” (Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 751.)
In their reply brief, appellants contend that the effect of William’s actions in
allegedly initiating the Nebraska petition on his own presents a pure question of
law. We disagree. Pursuant to William’s request and Code of Civil Procedure
section 909 and California Rules of Court, rule 8.252(c), we accepted as additional
evidence emails between the brothers demonstrating that appellants asked William
to handle matters related to the Nebraska property, and that he informed them of
his intent to engage an attorney to assist in getting the Nebraska state inheritance
tax calculated. This evidence refutes appellants’ contention that the issue raised is
purely one of law, and establishes that William could have presented evidence
disproving the allegation that he acted behind the backs of his co-trustees.
      Moreover, even were we to find that William obtained the Nebraska court’s
March 2013 evaluation order without appellants’ knowledge and consent, the
record establishes that they were given ample opportunity to challenge the order
after its issuance. As their letter to the Chase County Attorney attests, appellants
were aware of the Nebraska order by August 2013. After appellants provided the
Chase County Attorney with the June 2013 appraisal, his October 2013 letter
indicated the County’s willingness to reconsider the valuation, and encouraged
them to submit a new filing. (See State ex rel. Nebraska State Bar Assn. v.
Roubicek (1987) 225 Neb. 509, 512 [406 N.W.2d 644, 648] [describing general
procedure by which property is evaluated for Nebraska inheritance tax purposes:
“When the person preparing the inheritance tax worksheet has completed same, he
submits same to the local county attorney who either gives his approval or
rejection. If rejected, usually because of an argument over values placed on listed
inventory, the matter is either negotiated until a settlement is reached or the matter
                                          11
is submitted to the County Court for a hearing to determine the disputed issues.”].)
Nevertheless, appellants elected not to challenge the Nebraska court order setting
the value of the property for inheritance purposes. That the Nebraska court’s
valuation did not include their input is entirely the result of their own inaction.
We, therefore, reject their contention that the Nebraska valuation was obtained by
William unfairly or that the trial court should not have relied on it.
                                   DISPOSITION
      The July 30, 2014 order is affirmed. William is awarded his costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               MANELLA, J.


We concur:




WILLHITE, Acting P. J.




COLLINS, J.




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