Filed 5/28/20 Carthen v. Jory CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Nevada)

—-

LINDA CARTHEN,

Plaintiff and Respondent,

v.

WILLIAM J. JORY et al.,

Defendants and Appellants.

C089553

(Super. Ct. No. P1515749)

This is the second appeal arising from a dispute between siblings — Linda Carthen (plaintiff and respondent) and William Jory (defendant and appellant with his wife Jodene Jory, collectively the Jorys) — relating to their mother’s trust. In the first appeal, we upheld the trial court’s finding that the siblings entered into a contract to divide their mother’s trust estate into equal shares. (Carthen v. Jory (Aug. 28, 2018, C084767) [nonpub. opn.] (first appeal).) We, however, agreed with the Jorys that the trial court incorrectly calculated the amount owed to Carthen under the contract, concluding the correct amount owed was $63,700. We further upheld the trial court’s award of prejudgment interest to Carthen, but remanded for the trial court to determine the appropriate date such interest began to accrue.

In this appeal, the Jorys challenge the trial court’s order on remand awarding prejudgment interest to Carthen as of March 4, 2015. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Jorys filed a memorandum in advance of the hearing on remand, arguing the appropriate date prejudgment interest began to accrue was December 18, 2018, when the remittitur issued following the first appeal because it was “the first and only time there was a determination of a certain and liquidated claim.” Carthen responded that the issue of whether the damages were certain and liquidated was decided in the first appeal because this court concluded the Jorys could have reasonably calculated the value of the trust. She further asserted the breach of contract occurred on March 4, 2015, based on her testimony at trial that her brother had reneged on his promise to pay her the balance owed on that date. She, accordingly, requested that the trial court award prejudgment interest from March 4, 2015.

The trial court issued a memorandum decision, stating this court had already concluded in the first appeal “that there was a liquidated claim.” As such, the trial court applied the law of the case doctrine. It awarded prejudgment interest to Carthen from March 4, 2015, because that was the date the breach of contract occurred. The Jorys appeal.

DISCUSSION

The Jorys assert the trial court abused its discretion in selecting March 4, 2015, as the date prejudgment interest began to accrue because there was no liquidated claim on that date given the parties were still in dispute regarding what assets were to be included in the trust estate, as well as the value of those assets. They further assert this court erred in the first appeal by concluding prejudgment interest was appropriate and request that we reconsider the issue in this appeal. Specifically, they argue there was no agreement between the parties to divide their mother’s trust estate into equal shares.

Carthen also requests that we reconsider an issue decided in the first appeal — the total value of the trust estate — because she believes “confusion as to the total value of the trust estate is what is causing additional confusion related to the existence of the contract and the date of liquidation of the damages from which prejudgment interest is to be calculated.” She asserts the confusion does not stem from the analysis in this court’s opinion but rather from the absence of the January 2014 share and share alike statement (January statement) in the record of the first appeal, which the Jorys attached to their opening brief in this appeal as exhibit B. She believes the January statement “clearly demonstrates the true value of the trust estate.” As to the trial court’s order on remand, Carthen argues the damages were easily calculable by the Jorys and March 4, 2015, was the appropriate date prejudgment interest began to accrue because it was the date her brother breached the contract.

We decline the parties’ requests to reconsider issues decided in the first appeal. The Jorys provide no basis for their request. As to Carthen’s request, even if we were to consider the January statement attached to the Jorys’ opening brief, it would not change the outcome of the first appeal. While the January statement was not included in the record of the first appeal, we were able to discern its content from information in the record. We explained the trial court erred in finding the siblings were each entitled to a distribution of $206,400, as noted in the January statement, because the value of the trust was only $224,460. Each child was thus entitled to $112,230. The content of the January statement was fully considered in the first appeal; thus, we find no merit in Carthen’s request for reconsideration.

The Jorys’ challenge to the trial court’s date determination on remand also lacks merit. The trial court appropriately found this court had already concluded “that there was a liquidated claim.” In the first appeal, we had to determine whether damages were certain or capable of being made certain by calculation (i.e., whether the claim was liquidated) when we considered whether prejudgment interest was appropriately awarded under Civil Code section 3287. (See Civ. Code, § 3287, subd. (a) [“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day”].) We concluded “the Jorys could reasonably calculate the value of the trust estate subject to the contract and the amount Carthen was owed to make her distribution equal.” We thus already resolved that the claim was liquidated, and the trial court appropriately applied the law of the case doctrine on remand. The order on remand is therefore affirmed.

CONCLUSION

The order on remand setting the date prejudgment interest began to accrue is affirmed. Carthen shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/

Robie, Acting P. J.

We concur:

/s/

Renner, J.

/s/

Krause, J.