Dalgleish v. Selvaggio (In re Dalgleish)

225 Cal. Rptr. 3d 900, 17 Cal. App. 5th 1172
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 1, 2017
DocketB266579
StatusPublished
Cited by11 cases

This text of 225 Cal. Rptr. 3d 900 (Dalgleish v. Selvaggio (In re Dalgleish)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dalgleish v. Selvaggio (In re Dalgleish), 225 Cal. Rptr. 3d 900, 17 Cal. App. 5th 1172 (Cal. Ct. App. 2017).

Opinion

LUI, J.

*1174Stacy Dalgleish, the petitioner in a marital dissolution proceeding, and Piero Selvaggio, the respondent in that proceeding, both appeal from postjudgment orders of the trial court. Those orders enforced one of the terms of the parties' stipulated judgment, which required an equalization payment from Selvaggio to Dalgleish following a joint appraisal of certain real property. Dalgleish claims that the trial court erred in awarding interest on that payment from the date of the trial court's ruling rather than the date the payment was due, about 19 months earlier. In his cross-appeal, Selvaggio claims that the trial court erred in finding that the appraisal in fact was a joint appraisal as required by the judgment. We agree with Dalgleish's claim and reject Selvaggio's. We therefore reverse the trial court's orders only with respect to the date when interest on the equalization payment began to accrue.

BACKGROUND

1. The Appraisal

On December 7, 2009, the parties executed and the trial court approved a 37-page "Stipulated Further Judgment on Reserved Issues" (Judgment) addressing property division and other topics. The Judgment stated that it was *1175"the entire agreement of the parties exclusive of the issues of custody and visitation." The Judgment was filed on December 9, 2009.

In paragraph 1.C.iii, under the heading, "Equalizing Payments," the Judgment directed that: "The parties shall forthwith *903engage a joint real estate appraiser to appraise the real properties located at 3115 and 3125 Pico Boulevard, Santa Monica, California as of September 2, 2008 and their fair market values at the time of the Transmutation Agreement executed by the parties on May 1, 2003. If there was an increase in the fair market value of said properties between those two dates, then Respondent shall, within ten (10) days of receipt of the appraisal report, pay Petitioner, tax free, a sum equal to one-half (½) of the increase in value of said properties as determined by the appraiser." The Judgment did not provide any right or describe any procedure to challenge the results of the joint appraisal for purposes of calculating this payment (the Equalization Payment).

In late 2012 and early 2013, Judith Forman, counsel for Dalgleish, and James Eliaser, counsel for Selvaggio, had various communications with each other and with Larry Sommer, an appraiser, about retaining Sommer to conduct an appraisal of the properties on Pico Boulevard (the Pico Property). Sommer did not send out an engagement letter, but he understood that he had been retained by both parties and proceeded to work on appraising the Pico Property. During the course of his work he communicated with both parties jointly concerning the status of the project and when he would finish.

Sommer completed his work on the appraisal of the Pico Property (the Appraisal) and prepared a report that he sent to both parties on July 26, 2013. The Appraisal valued the Pico Property at $1,618,542 as of May 1, 2003, and $3,810,645 as of September 2, 2008. One-half the amount of the appreciation was therefore $1,096,051.50.

After the Appraisal was completed, the parties had various communications with each other about clearing title on the Pico Property. Then, in February 2014, a business lawyer for Selvaggio wrote to Sommer, raising questions about the methodology and the results of the Appraisal. In communications with Forman, Selvaggio's lawyer also questioned whether the parties had in fact jointly retained Sommer. The parties had further communications about the Appraisal and the Equalization Payment, but reached no agreement about the adequacy of the Appraisal and whether Sommer had been jointly retained.

2. Dalgleish's Request for Order Enforcing the Judgment

On August 6, 2014, Dalgleish filed a Request for Order (RFO), seeking enforcement of the Judgment with respect to the Equalization Payment. The *1176RFO asked the trial court to find that the "amount of $1,095,000 was due from Respondent to Petitioner on August 5, 2013 under Paragraph 1.C.iii of the Judgment," and that under Code of Civil Procedure 1 section 685.010, "statutory interest at the rate of 10% per annum has been accruing on the amount of $1,095,000 since August 5, 2013 and shall continue to accrue until paid in full." Selvaggio opposed the motion on the ground that Dalgleish had never agreed to retain Sommer and the Appraisal was therefore not a joint appraisal as required by the Judgment.

The court held a hearing on the RFO on October 31, 2014. The court announced its tentative findings that: (1) there was no right under the Judgment to challenge the Appraisal; (2) Sommer was hired as a joint appraiser pursuant to paragraph 1.C.iii of the Judgment; and (3) even if there had been no agreement to hire Sommer, Selvaggio was equitably estopped from challenging *904whether the Appraisal was joint. During the argument that followed the court's tentative ruling, Selvaggio's counsel, Eliaser, made a request to cross-examine Sommer. After some discussion about the consequences of Selvaggio's failure to file a written request for cross-examination under Family Code section 217, the court asked Dalgleish's counsel, Forman, whether she was willing to agree to an evidentiary hearing at which Sommer would testify, or whether she was satisfied with the record as it stood. The court stated that, if it were to enter a judgment without further proceedings, interest would run from the current date, "not last summer." Forman asked the court to confirm that, if she agreed to a further evidentiary hearing and Dalgleish prevailed, interest would be retroactive to October 31, 2014. The court replied, "Yes, it would be retroactive to today." Forman stipulated to the further hearing on Dalgleish's behalf.

The evidentiary hearing took place on March 11, 2015. Sommer testified that he understood he was jointly retained by Forman and Eliaser. At the conclusion of the hearing, the trial court announced its findings that the Appraisal was joint and that Selvaggio was to pay Dalgleish one-half of the $2,192,103 appreciation amount pursuant to paragraph 1.C.iii of the Judgment. The court stated that, although the Judgment required payment within 10 days, "[t]he court can alter that to be 90-day period with interest accruing as of October 31, 2014 pursuant to the court's prior order."

Eliaser asked to be heard on the issue of interest. He argued that interest could start to accrue only "from the date on which there is a ruling as to a sum certain," and that there was no sum certain until the court's ruling that day. The court accepted that argument and modified its ruling to order interest on the Equalization Payment beginning March 11, 2015. After some additional argument on the issue of interest, the court explained its reasoning that *1177"today's ruling is a type of final judgment at which time the court is entering a specific amount of money that is due," and that therefore interest could not have accrued earlier.

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Cite This Page — Counsel Stack

Bluebook (online)
225 Cal. Rptr. 3d 900, 17 Cal. App. 5th 1172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalgleish-v-selvaggio-in-re-dalgleish-calctapp5d-2017.