NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Helen Lock, administrator with will annexed of the estate of decedent Robert Clifford Reed, appeals an order granting the petition for partial distribution of the estate filed by claimants David Cunnyngham, Kristy Fyffe, Amy Austin, and Mirna Cunnyngham (together Claimants). That petition, in effect, sought enforcement against the estate of a judgment enforcing a settlement agreement, the subject of a prior appeal we decided in Lock v. Cunnyngham (Apr. 25, 2013, D062047 [nonpub. opn.]) (Lock I). In Lock I, we affirmed, as modified, the trial court's March 22, 2012, judgment ordering Lock to pay Claimants $91,500 out of property in the estate in the course of administration. Claimants subsequently filed, and the probate court granted, a petition for partial distribution from the estate based on that judgment. On appeal, Lock contends the probate court erred by issuing the order granting Claimants' petition for partial distribution.
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2010, Reed died testate. Lock was appointed as administrator of his estate. After Lock rejected their claims against the estate, Claimants filed a wrongful death action against the estate based on Reed's murder of Mitch and Diane Cunnyngham. In December 2010, the parties entered into a pretrial settlement agreement in the wrongful death action that required Lock to convey to Claimants all estate assets after payment of court-approved administrative expenses. On March 2, 2011, a judgment was entered reflecting the terms of that settlement agreement.
On June 2, 2011, Lock filed her first and final account and report of administrator and petition for settlement, final distribution of insolvent estate and reserve, and statutory compensation to attorney and administrator (Final Account). She alleged the estate currently had assets with a total value of $1,126,352.37. She requested the probate court order that the estate be closed, approve the Final Account, and authorize her to distribute the estate's real property (valued at $365,000) to Claimants and distribute its cash on hand (approximately $757,852.37) to her for statutory administrator's fees ($25,197.89), her probate counsel ($25,197.89 for statutory attorney fees and $8,527.50 for extraordinary attorney fees), her litigation counsel ($68,441.68), Arlette Reed ($1,585.00 for funeral expenses), and Claimants' counsel for his client trust account ($623,902.41).
Claimants objected to the Final Account. In general, they asserted that the proposed payments to Lock, her probate counsel, and her litigation counsel, as well as to certain other individuals, were excessive and should be reduced. Claimants asked the probate court to order the immediate distribution of all estate assets, except for the amounts they contested.
On July 22, 2011, the probate court issued an order approving the Final Account for the most part, ordering distribution of real property to Claimants, cash to Claimants' counsel, and $25,197.89 as statutory attorney fees for Lock's probate counsel, except for a $155,000 reserve to be held until the remaining issues were resolved. The probate court also ordered Lock, Claimants, and their counsel to participate in a mandatory settlement conference with San Diego County Superior Court Judge Jay M. Bloom.
On August 12, 2011, following settlement negotiations, the parties signed a settlement agreement and Judge Bloom read into the record the terms of that settlement agreement. Judge Bloom stated:
However, because of the parties' disagreement regarding the terms of the settlement agreement, the probate court did not sign a written order enforcing the agreement.
Claimants thereafter filed a motion to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6. They argued the settlement agreement required Reed's estate to pay them $91,500. Lock opposed the motion, arguing that because the parties did not know at the time of the settlement that the estate had substantial income tax liabilities, the settlement should be interpreted as allowing her to pay all administrative costs, expenses and income taxes before any amounts would be paid to Claimants.
On March 2, 2012, after hearing counsel's arguments, Judge Bloom granted Claimants' motion to enforce the settlement agreement. On March 22, he entered a judgment after settlement (Judgment) in Claimants' favor. Lock timely filed a notice of appeal challenging the Judgment. In Lock I, we affirmed the Judgment as modified. (Lock I, supra, D062047, at p. 17.)
On April 19, 2012, Claimants filed the instant petition for partial distribution of the estate and for an order compelling Lock to act. Based on the Judgment, Claimants requested the probate court order Lock to pay them $91,500. On May 23, the court heard arguments of counsel and granted the petition. On June 20, the court issued a written order (Order) after hearing granting the petition for partial distribution of the estate and compelling Lock to act. The Order stated:
Lock timely filed the instant notice of appeal challenging the Order.
Lock's Contentions on Appeal
Lock contends the probate court erred by granting Claimants' petition for partial distribution after the Judgment was entered. Her entire argument in her opening appellant's brief is as follows:
By so arguing, Lock, in effect, incorporates her appellate briefs in Lock I and relies solely on those briefs and their arguments in contending the probate court erred by issuing the Order involved in this appeal. Because in our Lock I opinion we rejected the substantive arguments Lock raised in that appeal and affirmed the Judgment as modified, we likewise must reject those same arguments raised in the context of this appeal.
As we concluded in Lock I, to the extent Lock repeats her argument that the probate court cannot order her to distribute estate assets (e.g., $91,500) to Claimants before the estate's income taxes are paid, she has not carried her burden on appeal. In any event, at the time of the Order, there had not yet been any final account and report and/or petition for final distribution approved by the probate court. Accordingly, it appears the probate court has yet to decide the issue of income tax liabilities of the estate and any statutory prohibitions against distributions of estate assets until those income taxes are paid. As we concluded in Lock I, "[i]n the event the probate court determines there are insufficient estate assets to pay both the estate's tax liabilities and Claimants' $91,500, the appropriate remedy for the deficiency will be a matter for the probate court to determine in the first instance. It is not a matter for us to decide in this appeal." (Lock I, supra, D026047, at p. 16, fn. 6.)
The order is affirmed. Claimants are entitled to costs on appeal.
HALLER, Acting P. J. and O'ROURKE, J., concurs.