Haslerig v. Dyson CA4/1

Filed 9/10/15 Haslerig v. Dyson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FARRIS HASLERIG et al., D066315

Plaintiffs and Appellants,

v. (Super. Ct. No.
37-2012-00088478-CU-PN-CTL)
PHILIP H. DYSON,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Randa

Trapp, Judge. Affirmed.

Jerome John Schiefelbein, Law Offices of James E. Swingley and James E.

Swingley for Plaintiffs and Appellants.

Pettit Kohn Ingrassia & Lutz, Douglas A. Pettit and Matthew Charles Smith for

Defendant and Respondent.
 I.

INTRODUCTION

Appellants Farris Haslerig, Tammy Haslerig, Stephanie Haslerig, Kyanna

Haslerig, and Kaileigh Haslerig (jointly, appellants) appeal from a judgment in favor of

defendant Phillip H. Dyson entered after a jury trial. Appellants raise three challenges to

the judgment. We conclude that appellants have forfeited two of their appellate

contentions because they have failed to present a sufficient appellate record to enable this

court to review the challenged rulings. We further conclude that appellants have failed to

present a cogent appellate argument with respect to the third challenge raised. We

therefore affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants are descendants of George Haslerig, who won several million dollars in

the California State Lottery in 1991. Prior to his death in 2003, George established a

complex set of trusts and a limited partnership for the benefit of his family. Appellants

were intended beneficiaries of these various entities under George's estate plan. Upon

George's death, however, his sole surviving son, Garland, remained as the sole trustee of

the various trusts and the sole general partner of the limited partnership. Garland

thereafter controlled the lottery winnings and other assets that George had accumulated,

and refused to make distributions or accountings to appellants, despite their requests.

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 Appellants hired a series of attorneys who attempted to obtain information from

Garland and his attorneys regarding appellants' rights to George's estate. All of the

attorneys' efforts were rebuffed. Eventually, in 2006, Appellants hired Dyson to pursue

appellants' legal interests with respect to the estate, and entered into an hourly fee

agreement with him. Less than a year later, after having paid Dyson approximately

$6,000 in fees, appellants informed Dyson that they could no longer afford to pay him,

and they asked him to stop work.

Not long after this, Dyson began receiving documents from Garland's attorneys

regarding the estate. Dyson and Farris Haslerig discussed whether Dyson would be

willing to represent appellants on a contingency fee basis. After considering Dyson's

contingency fee proposal, appellants entered into a contingency fee agreement with

Dyson. In exchange for "consultation, review, research, and litigation services related to

various trusts of George Haslerig and the Estate of George Haslerig," appellants agreed

that Dyson would receive a fee equal to 40 percent "of all proceeds" recovered as a result

of his work.

With Dyson as their counsel, appellants filed suit against Garland and the limited

partnership. Dyson and appellants entered into a third fee agreement, which involved

essentially the same terms as the second fee agreement, but added two minors to the

group of plaintiffs, and provided more detailed information about the entities in George's

estate in which appellants were claiming an interest.

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 In 2008, after much litigation, and after appellants were successful in having

Garland removed as trustee, appellants and Garland reached a settlement of all claims.

The negotiated settlement provided appellants with more than half of the property that

was in dispute, including real property and cash payouts. Pursuant to Dyson's fee

agreement with appellants, Dyson spoke with appellants as to how he could be paid his

fee. Dyson and appellants agreed to form a limited liability company (the LLC) to hold

and manage the real properties that appellants received in the settlement.

At some point in 2010, appellants became unhappy with their arrangement with

Dyson and no longer wanted him to be part of the LLC. Farris Haslerig demanded

documents from Dyson. According to Dyson, he provided her with a "zip drive" that

contained an electronic copy of appellants' file.

Two years later, in 2012, appellants voted to remove Dyson as manager of the

LLC. Appellants apparently filed this lawsuit against Dyson in December 2012, and filed

a first amended complaint in June 2013.1 According to appellants, they asserted five

causes of action: negligence (legal malpractice), fraudulent misrepresentation, fraudulent

concealment, breach of fiduciary duty, and conversion.

The case proceeded to trial before a jury in April 2014. The jury returned a

verdict in favor of Dyson on all of appellants' claims. The trial court entered judgment on

the verdict on May 7, 2014. On May 22, appellants filed a document entitled "Combined

1 Neither the complaint nor the first amended complaint was designated as part of
the record on appeal. We therefore take these facts from the appellants' and respondent's
briefs.
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Notice of Motions for NOV and Notice of Intent to File Motions for New Trial." The

record does not disclose whether, and if so, when, appellants filed supporting memoranda

or declarations with respect to the motion for judgment notwithstanding the verdict or the

motion for new trial and supporting documents.

The trial court denied appellants' posttrial motions, stating:

"Plaintiffs' MOTION FOR NEW TRIAL is DENIED.

"Defendant's objections to the jurors' declarations concerning
communications from other jurors and the thought processes of other
jurors are sustained.

"The court finds no irregularity in the proceedings of the jury or
adverse party. [Citations.] The weight of the evidence is not
contrary to the findings of the jury and damages are not inadequate
given the jury's verdict.

"Plaintiffs' MOTON FOR JUDGMENT NOTWITHSTANDING
THE VERDICT is DENIED.

"The Motion is not timely. [Citations.]

"Moreover, viewing the evidence in the light most favorable to the
party securing the verdict, there is substantial evidence to support the
verdict. [Citation.]"

Appellants filed a timely notice of appeal.

On appeal, appellants filed an opening brief, but did not file a reply brief in

response to Dyson's respondent's brief.

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 III.

DISCUSSION

Appellants raise three broad contentions of error: (1) that the trial court erred in

denying their motion for new trial; (2) that the trial court erred in denying their motion

for judgment notwithstanding the verdict; and (3) that the "verdict is contrary to the

evidence."2

We are unable to address appellants' contentions because they have failed to

provide an adequate record on appeal, and/or have failed to properly identify any

appellate issue for review.

A. The motion for new trial

Appellants first contend that the trial court "err[ed] in denying Plaintiffs' motion

for new trial." They assert five main grounds on which they claim the trial court should

have granted them a new trial. These grounds include (1) insufficiency of the evidence to

justify the verdict with regard to the negligence and breach of fiduciary duty claims; (2)

the trial court "allowing irregularities in the [c]onduct of [o]pposing [c]ounsel over the

2 Appellants' entire argument with respect to the third "issue" on appeal consists of
the following two sentences:

"Appellants incorporate by reference as though set forth in full
herein and for all purposes, each of its arguments made under Points
of Error Nos. 1 and 2, in support of its contention that the verdict
rendered by the jury is simply contrary to the evidence adduced at
trial. A proper application of Rule 3-300 and 4-200 of the California
Rules of Professional Conduct require[s] that the verdict be reversed
and that this matter be remanded to the trial court for further
proceedings consistent with an appropriate application of said rules."
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objection" of Appellants' counsel; (3) "[i]rregularities in the manner in which the jury

misapplied or otherwise failed to follow the law"; (4) "[i]rregularities in the [p]roceedings

of the jury"; and (5) "[i]nsufficiency of the [d]amages [a]warded by the [j]ury."

"[W]e review an order denying a new trial motion under the abuse of discretion

standard," but "in doing so, we must review the entire record to determine independently

whether there were grounds for granting the motion." (Santillan v. Roman Catholic

Bishop of Fresno (2012) 202 Cal.App.4th 708, 733.) Appellants have failed to provide

the court with the entire record of the relevant proceedings in the trial court. As a result,

the record on appeal is insufficient to permit us to assess whether appellants' contentions

regarding the propriety of the trial court's denial of their new trial motion have merit.

In addition to the duty to set forth, discuss, and analyze all of the evidence, it is the

burden of an appellant to produce an adequate record on appeal that demonstrates that the

trial court erred. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Baker v. Children's

Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) "The [appellant] must

affirmatively show error by an adequate record. [Citations.] Error is never presumed. It

is incumbent on the [appellant] to make it affirmatively appear that error was committed

by the trial court. [Citations.] . . . '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 . . . .' " (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) In

the absence of a proper record on appeal, the judgment is presumed correct and must be

affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

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 Appellants have failed to meet their burden on appeal by failing to provide a

sufficient record to permit this court to adequately review the errors that they assert.

Appellants set forth multiple contentions of error on the part of the trial court with respect

to the court's denial of their motion for new trial and motion for judgment

notwithstanding the verdict, but they did not include in the record on appeal any of the

briefs or supporting documents related to those motions, including the memorandum of

points and authorities in support of the motion, their reply, declarations, or any other

documents that the parties may have submitted to the trial court in connection with the

motion. Although appellants included a document titled "Combined Notice of Motions

for NOV and Notice of Intent to File Motions for New Trial," this document does not

include any legal argument or analysis in support of the motions.3

The significance of the supporting papers to this court's ability to address the

appellant's contentions cannot be overstated. As noted, an order denying a motion for

new trial is reviewed for an abuse of discretion. However, "[a] trial court may not be

held to have abused its discretion as to a particular issue which it was never asked to

consider." (Martin v. U-Haul Co. of Fresno (1988) 204 Cal.App.3d 396, 407.)

Our inability to review the papers that were before the trial court when it ruled on

appellants' new trial motion precludes us from being able to properly review the basis for

3 The "Combined Notice of Motions for NOV and Notice of Intent to File Motions
for New Trial" does provide a very basic summary of potential arguments the appellants
apparently planned to set forth, however, it does not actually set forth any legal argument
or application of the law to what occurred in this case.
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the trial court's ruling. Appellants have, therefore, failed to carry their burden of

establishing prejudicial error in the trial court's ruling. (See Hernandez v. California

Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).)

B. Appellants' challenge to the trial court's denial of their motion for judgment
notwithstanding the verdict

Appellants next contend that the trial court erred in failing to grant "a judgment

NOV" in their favor. Specifically, appellants contend that they were entitled to judgment

in their favor: (1) on their negligence claim "because Respondent Dyson admitted in his

sworn testimony to facts which constitute actionable professional negligence" (i.e., his

purported failure to obtain court approval of minor's compromise for minors Karissa and

Kendall Haslerig Furlough, who were both under the age of 10 at the time of the

settlement); (2) as to their breach of fiduciary duty cause of action because "Respondent

Dyson admitted that he had his existing clients sign two contingent fee agreements and a

settlement agreement that, on their face, are detrimental to the legal and financial interest

of his then-existing clients without first complying with Rule 3-300 of the California

Rules of Professional Conduct"; (3) as to the breach of fiduciary duty cause of action

because Dyson "admitted" that he had his clients sign an operating agreement for the

LLC "by submitting for their signatures a document that purported to be a Rule 3-300

disclosure form, but which in fact failed to comply with Rule 3-300 and was thus legally

ineffectual"; (4) as to the breach of fiduciary duty cause of action because Dyson charged

an excessive and unconscionable fee in violation of Rule 4-200 of the California Rules of

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Professional Conduct; (5) as to the fraudulent misrepresentation cause of action "because

the evidence established fraudulent misrepresentation as a matter of law"; (6) as to the

fraudulent concealment cause of action "because the evidence established fraudulent

concealment as a matter of law"; and (7) as to the conversion cause of action "because the

evidence established conversion as a matter of law."

The record with respect to this aspect of appellants' appellate argument suffers

from the same infirmity as their challenge to the trial court's denial of their motion for

new trial, i.e., the papers that appellants presumably filed in support of their motion for

judgment notwithstanding the verdict are not contained in the record on appeal. It is,

essentially, impossible for this court to review the correctness of a trial court's ruling on a

motion when we do not have a full record of the arguments and documents that were

presented to the trial court.

The trial court denied appellants' motion for judgment notwithstanding the verdict

on multiple grounds, one of which was that the motion was untimely.4 With respect to

motions for judgment notwithstanding the verdict and motions for new trial, although

they are often filed concurrently, different procedural time constraints apply to these two

motions. (See Wegner, Fairbank, Epstein & Chernow, Cal. Practice Guide: Civil Trials

& Evidence (The Rutter Group 2013) ¶ 18:37.2 ["Supporting papers on a new trial

motion may be served and filed within 10 days after the notice of intent to move for new

4 The trial court also provided an alternative basis for denying the motion—i.e., that
there was substantial evidence to support the verdict.
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trial [citations]. [¶] . . . CAUTION: This 10-day extension for filing and service of

supporting papers does not apply to JNOV motions. [¶] Therefore, in the usual case

where motions for JNOV and for new trial are filed together, the entire JNOV motion

(notice of motion, declarations and points and authorities) must be served and

filed . . . along with the usual single-page notice of intent to move for new trial!"].)

Given that the record on appeal does not include the supporting papers for appellants'

motion for judgment notwithstanding the verdict, appellants have not met their burden of

demonstrating that the trial court erred in concluding that the motion was untimely. We

must therefore presume that the trial court's ruling was correct. (See, e.g., Hernandez,

supra, 78 Cal.App.4th at p. 502.)

C. Appellant's "Point of Error No. 3"

The third main topic heading identified in the appellants' brief is "Point of Error

No. 3." Again, appellants' entire "argument" on this point consists of the following two

sentences:

"Appellants incorporate by reference as though set forth in full
herein and for all purposes, each of its arguments made under Points
of Error Nos. 1 and 2, in support of its contention that the verdict
rendered by the jury is simply contrary to the evidence adduced at
trial. A proper application of Rule 3-300 and 4-200 of the California
Rules of Professional Conduct require that the verdict be reversed
and that this matter be remanded to the trial court for further
proceedings consistent with an appropriate application of said rules."

It appears that appellants are attempting to make an argument such as would be

made on a motion for judgment notwithstanding the verdict, as opposed to an appellate

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argument. California Rules of Court rule 8.204, sets out certain requirements for

appellate briefs submitted by a party. Rule 8.204(a)(1)(B) provides that each brief must

"[s]tate each point under a separate heading or subheading summarizing the point, and

support each point by argument and, if possible, by citation of authority." (Italics added.)

The heading here, "Point of Error No. 3," clearly does not indicate the nature of the

question being presented or the point being made, and the supporting argument

essentially consists of arguments "incorporate[d] by reference" from other portions of the

brief—arguments in which appellants attempted to challenge the trial court's rulings on

motions for which appellants' supporting papers were not provided on appeal. Issue "No.

3" raised by appellants thus fails to meet the basic requirements for appellate briefing.

Although we might otherwise presume that appellants were attempting to

challenge the sufficiency of the evidence with respect to certain of the jury's

determinations, the standards of review that appellants cite in their brief on appeal

indicate that such a presumption would not be correct. In setting forth the applicable

standards of review on appeal, the appellants offer three possible standards. First, they

state that "[t]he denial of a motion for new trial is usually reviewed under an abuse of

discretion standard." Next, appellants offer that "[o]n appeal, an order granting or

denying a motion for judgment JNOV [sic] is reviewed under varying standards of

review, as follows: (a) in the care of a purely legal issue, the JNOV ruling is reviewed de

novo; (b) if the issue being considered relates to the sufficiency of the evidence, the

substantial evidence rule applies; and (c) if the issue being reviewed is based upon

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undisputed evidence, it becomes a purely legal issue, and is reviewed de novo." (Italics

omitted.) Finally, the appellants state, "In construing statutes and ordinances at issue in

either the JNOV motion or the new trial motion, the Court is not limited to . . . the trial

court's interpretation of the statute or the evidence presented in the trial court." We

provide these standards, as set forth by the appellants, to demonstrate that the issues that

the appellants raise in their briefing on appeal relate solely to the propriety of the trial

court's denial of their motion for new trial and their motion for judgment notwithstanding

the verdict, and clearly are not direct challenges to the sufficiency of the evidence

supporting the judgment.

As we have previously recounted, it is a fundamental rule of appellate review that

a judgment or order from which an appeal is taken is presumed correct, and " ' "all

intendments and presumptions are indulged in favor of its correctness." ' " (State Farm

Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is therefore incumbent

upon appellants to provide argument and legal authority to support their contentions on

appeal. This burden requires more than simply asserting that the judgment or order is

wrong; it requires setting forth the particular issues being raised by the party, as well as

the presentation of legal argument, including the applicable standard of review, related to

that party's contentions. "Issues do not have a life of their own: if they are not raised or

supported by argument or citation to authority, [they are] . . . waived." (Jones v. Superior

Court (1994) 26 Cal.App.4th 92, 99.) It is not the appellate court's role to construct

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theories or arguments that would undermine the judgment and defeat the presumption of

correctness.

Given the state of the record and the state of appellants' briefing, we conclude that

there is no basis on which it would be appropriate to reverse the verdicts of the jury or the

resulting judgment of the trial court.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McINTYRE, Acting P. J.

O'ROURKE, J.

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