Opinion
No. 310660
04-25-2013
In re AWAD Estate. CATHOLIC FAMILY SERVICES, Personal Representative for the Estate of EMIL ELIAS AWAD, Appellee, v. MARIE AWAD, Appellant.
UNPUBLISHED
Bay Probate Court
LC No. 09-047102-DE
Before: BECKERING, P.J., and METER and RIORDAN, JJ. PER CURIAM.
Interested person and appellant, Marie Awad ("Awad"), appeals as of right the probate court's order granting appellate attorney fees and costs to Catholic Family Services (CFS), the personal representative of her father's estate, and authorizing CFS to satisfy this outstanding claim against the estate solely by collection from the non-probate assets that Awad received. We remand to the probate court to exclude the portion of the appellate expenses that were incurred defending the costs and attorney fees earned in the original case. We affirm in all other respects.
I. FACTS AND PROCEDURAL HISTORY
Awad's father, Emil Elias Awad ("the decedent"), died intestate on May 4, 2009. The decedent's heirs were his three daughters: Awad, Camille Hanley ("Hanley"), and Nadia Awad ("Nadia"). CFS became the estate's personal representative. As of October 2009, the estate consisted of $50,000 in cash and an undermined sum with respect to household furniture, furnishings, and personal effects. A sizable sum passed to the heirs outside of probate. By October 2010, CFS's amended final account of fiduciary and amended petition for complete estate settlement reflected an estate balance of $50,576 and fees, expenses, and claims against the estate totaling $72,585, $24,512 of which was for attorney fees sought by CFS's attorney, George Phillips. CFS requested $3,982 in fees for its services, proposed allotments of over $5,000 to both Nadia and Hanley for funeral expenses, and requested that the probate court sanction Awad under MCR 2.114 for filing frivolous, legally unsound, and factually inaccurate pleadings. After a hearing on October 14, 2010, the probate court approved the fees requested by CFS, awarded Phillips $19,512 in attorney fees, sanctioned Awad under MCR 2.114 by eliminating a proposed distribution of $2,345 to her for attorney fees that she incurred in the guardianship and conservatorship proceedings, allowed distributions of $5,672 apiece regarding Nadia and Hanley's claims for funeral expenses, and awarded Nadia and Hanley each an additional $1,022.
Awad appealed. On January 12, 2012, this Court issued an unpublished opinion resolving all claims in favor of CFS. In re Awad Estate, unpublished opinion per curiam of the Court of Appeals, issued January 12, 2012 (Docket No. 300891), slip op at 14. We awarded CFS taxable costs under MCR 7.219 for having fully prevailed on appeal. Id. CFS did not request attorney fees for the appeal, and we did not award appellate attorney fees. See id.
After the appeal, CFS filed in the probate court a post-appeal petition to restructure final distributions. CFS argued that Awad's appeal resulted in "significant additional administrative expense" to the estate, i.e., $15,246.94 in attorney fees and costs. Thus, CFS requested that the court award it these additional expenses; CFS suggested that the court should allow the claims to be collected from the nonprobate transfers received by the heirs. On April 12, 2012, the probate court issued an opinion and order on the post-appeal petition. The court concluded that "MCL 700.3720 provides for payment of attorney fees for defending the estate" and, therefore, granted CFS's request for $15,246.94 in attorney fees and costs The probate court also concluded that MCL 700.3805(3) allows an insolvent estate to request that nonprobate transfers be returned to the estate to satisfy claims against it. The court determined that it was equitable for Awad to bear the cost of the appeal without any contribution by the other heirs because Awad was the only one who participated in the appeal. Thus, the court authorized CFS to collect the $15,246.94 in attorney fees and costs from Awad's nonprobate transfers. Awad moved the court for reconsideration, and the court denied the motion.
II. ANALYSIS
A. FEES FOR FEES
Awad's first argument on appeal is that the probate court erred by permitting CFS to charge the estate for the time it spent defending the attorney fees it earned in the original proceedings. We agree.
We review for an abuse of discretion a trial court's ruling on a request for attorney fees. Smith v Smith, 278 Mich App 198, 207; 748 NW2d 258 (2008). "An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes." Id.
"The general rule in Michigan is that absent authorization by statute, court rule, or contract, attorney fees are not recoverable." In re Temple Marital Trust, 278 Mich App 122, 129; 748 NW2d 265 (2008). Under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., there is statutory authority for awarding attorney fees in this case. See MCL 700.3715(w)-(x) (stating that a personal representative may prosecute and defendant a claim or proceeding and employ an attorney who shall receive reasonable compensation for his or her employment); MCL 700.3720 (stating that a personal representative that defends or prosecutes a proceeding in good faith, whether successful or not, is entitled to receive from the estate necessary expenses and disbursements, including reasonable attorney fees incurred). Nevertheless, this Court has held that "legal services rendered in behalf of an estate are compensable where the services confer a benefit on the estate by either increasing or preserving the estate's assets." In re Sloan Estate, 212 Mich App 357, 362; 538 NW2d 47 (1995). Fees-for-fees claims, i.e., claims seeking payment from an estate of attorney fees and costs incurred in establishing or defending a petition for attorney fees, "clearly do not benefit the estate because they do not increase or preserve the estate's assets." Id. at 363. Instead, "the ordinary fees and costs incurred in establishing and defending a fee petition are inherent in the normal course of doing business as an attorney, and the estate may not be diminished to pay those fees and costs." Id. Fees-for-fees claims are claims "brought in behalf of the attorney seeking the fees." Id.
In this case, Awad argued the following in the initial appeal: the attorney fees and costs awarded by the probate court were excessive, the probate court erred by granting CFS's petition to approve a plan of administration, CFS should have commenced an action against her sisters to recover $50,000 allegedly stolen from the estate, CFS mismanaged the estate, her due-process rights were violated because she was not given evidentiary hearings on her claims and objections, and the probate court erred by rejecting her claim for certain expenses that she incurred on behalf of her father. In re Awad Estate, unpub op at 6-13. Although not all of the issues on appeal involved the defense of the costs and attorney fees awarded by the probate court, at least some of the time CFS spent defending the appeal was time spent defending the costs and fees awarded to it. The time spent on such defense did not benefit the estate because it did not increase or preserve the estate's assets. See In re Sloan Estate, 212 Mich App at 363.
Therefore, the probate court abused its discretion by awarding costs and attorney fees for these specific expenses. See id. at 362-363. Thus, we must remand this case to the probate court to exclude the portion of the appellate expenses that were incurred defending the costs and attorney fees earned in the original case.
B. INVASION OF AWAD'S NONPROBATE ASSETS
Awad next argues that the probate court erred by authorizing CFS to collect the attorney fees and costs solely from Awad's nonprobate transfers. We disagree.
We review de novo as questions of law issues of statutory interpretation. In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). We review for an abuse of discretion the probate court's dispositional rulings. In re Lundy Estate, 291 Mich App 347, 352; 804 NW2d 773 (2011).
MCL 700.3805(3) states the following:
If there are insufficient assets to pay all claims in full . . . [and if] the personal representative is aware of other nonprobate transfers that may be liable for claims . . . the personal representative shall proceed to collect the deficiency in a manner reasonable under the circumstances so that each nonprobate transfer . . . bears a proportionate share or equitable share of the total burden.
Awad asserts that MCL 700.3805(3) requires a personal representative to collect equally from each nonprobate asset if nonprobate assets are used to satisfy a deficiency and, thus, that the probate court erred by authorizing collection solely from Awad's nonprobate assets and ignoring the word "each" in MCL 700.3805(3). Awad misconstrues the statute.
When interpreting EPIC, we adhere to well-established principles of statutory interpretation:
The primary goal of statutory construction is to give effect to the Legislature's intent. This Court begins by reviewing the language of the statute, and, if the language is clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the statute. Judicial construction of an unambiguous statute is neither required nor permitted. When reviewing a statute, all nontechnical words and phrases shall be construed and understood according to the common and approved usage of the language, and, if a term is not defined in the statute, a court may consult a dictionary to aid it in this goal. [Coventry Parkhomes Condo Ass'n v Fed Nat'l Mtg Ass'n, 298 Mich App 252, 259; 827 NW2d 379 (2012), quoting McCormick v Carrier, 487 Mich 180, 191-192; 795 NW2d 517 (2010).]EPIC does not define "equitable" or "proportionate." See MCL 700.1101 et seq. The common meaning of "equitable" is "fair and impartial or reasonable; just and right." Random House Webster's College Dictionary (2005). The common meaning of "proportionate" is "proportional," which means "having the same or a constant ratio or relation." Id. In contrast, the common meaning of "equal" is "as great as; the same as . . . like or alike in quantity, degree, value, etc." Id. Thus, "equitable" does not mean the same thing as "equal." Instead, it refers to what is fair and just. Furthermore, "proportionate" does not require that something be "equal." Therefore, MCL 700.3805(3) does not require that an equal share be taken from each nonprobate asset.
We conclude that the probate court's decision to authorize CFS to collect the attorney fees and costs solely from Awad's nonprobate transfers did not fall outside the range of reasonable and principled outcomes. See Smith, 278 Mich App at 207. It is inequitable to charge all nonprobate assets equally when only a single beneficiary's actions—Awad's actions— incurred additional administrative costs for the estate. Cf. In re Hammond Estate, 215 Mich App 379, 388; 547 NW2d 36 (1996) ("[I]t would be grossly unjust and inequitable to assess a portion of the attorney fees against those beneficiaries who declined to participate in appellants' efforts to "reprobate" [the] estate."). Furthermore, by collecting from only Awad's assets, the share assessed to each asset was proportional with the amount of additional costs to the estate that each beneficiary incurred. Specifically, Awad's actions incurred 100% of the costs, so her proportionate share was 100%. The other beneficiaries did nothing to incur additional costs, so their proportionate share was nothing. Therefore, regardless of whether we view the nonprobate assets as being equitably or proportionally used to pay the expenses, MCL 700.3805(3) authorized the probate court's invasion of only Awad's nonprobate assets.
Accordingly, the probate court did not abuse its discretion.
C. FACTUAL ERRORS
Awad also argues that the probate court made "serious and fundamental errors regarding the facts underpinning many of its earlier decisions." In particular, Awad contends that the court made factual errors regarding an alleged conversion of $50,000 from the decedent, the reimbursements for funeral expenses, and the reason the initial attorney fees were so high. For these reasons, Awad insists that the probate court's award of appellate attorney fees and costs should be reversed. We reject this argument.
Generally, we review for clear error a probate court's findings of fact. In re Temple Marital Trust, 278 Mich App at 128. To the extent Awad's allegations of factual error involve the application of the law-of-the-case doctrine, we review the issue de novo. KBD & Assoc, Inc v Great Lakes Foam Tech, Inc, 295 Mich App 666, 679; 816 NW2d 464 (2012).
"Under the law-of-the-case doctrine, this Court's determination of an issue in a case binds both the trial court on remand and this Court in subsequent appeals." Augustine v Allstate Ins Co, 292 Mich App 408, 425; 807 NW2d 77 (2011). The doctrine applies to questions specifically determined in a prior decision and to questions necessarily determined to arrive at the prior decision. Schumacher v DNR, 275 Mich App 121, 128; 737 NW2d 782 (2007); Kalamazoo v Dep't of Corrections (After Remand), 229 Mich App 132, 135; 580 NW2d 475 (1998).
With respect to Awad's argument that the court made factual errors regarding an alleged conversion of $50,000, Awad is essentially asking this Court to "correct" the factual errors that the probate court made regarding the $50,000. She argues that if the probate court had corrected the factual errors and misunderstandings with respect to this money, it would not have assessed all of the appeal expenses against her. We addressed Awad's conversion allegation extensively during her first appeal in which she argued that the estate should have filed a conversion claim against her sisters. See In re Awad Estate, unpub op at 6-9. We explained that under the plan of administration that Awad agreed to, she was required to petition the probate court under MCL 700.3415 concerning her sisters' potential civil liability, but she never did. Id. at 7. We also explained that it was clear that the probate court had rejected Awad's conversion argument and that the alleged conversion had been addressed and resolved during the guardianship and conservatorship proceedings such that her argument was "problematic on res judicata principles." Id. at 8-9. Thus, we denied her any relief on the issue. Id. at 9. Even if the conversion issue was unresolved in some way before the first appeal, our decision in the first appeal has ended the issue. See Augustine, 292 Mich App at 425; Schumacher, 275 Mich App at 128; Kalamazoo, 229 Mich App at135. The matter contested, i.e., the factual circumstances regarding the $50,000, was resolved when we concluded that the issue was procedurally barred. Additionally, even if the probate court "corrected" the factual errors and misunderstandings, it is not clear how that would have altered the court's decision to award appellate attorney fees and costs; Awad simply states in conclusory fashion that it would have made a difference. An argument is abandoned when an appellant provides this Court with a mere conclusory assertion and, thus, leaves it to this Court to discover and rationalize the basis for the claim. PT Today, Inc v Comm'r of Office of Fin & Ins Servs, 270 Mich App 110, 131-132; 715 NW2d 398 (2006). Accordingly, Awad has not demonstrated entitlement to relief on this basis.
With regard to Awad's argument concerning the reimbursements for funeral expenses, Awad states in her appellate brief that "[o]nce again Marie Awad asserts that the claim filed by [her sisters] for reimbursement of funeral expenses is nothing more than a fraud upon this Court." (Emphasis added). She insists that she and her sisters paid equally for the decedent's funeral expenses. In her prior appeal, Awad objected on this basis to the funeral expenses claimed by her sisters, and this Court concluded that the probate court did not err by authorizing the sisters' funeral-expense claims. In re Awad Estate, unpub op at 12-13. We are bound by this earlier determination. See Augustine, 292 Mich App at 425. Thus, the probate court did not err on this basis.
Finally, Awad argues that the probate court erroneously relied on a representation made by Phillips that, because Awad engaged numerous attorneys during the original case, the amount of attorney fees incurred by CFS increased because Phillips spent a large number of hours bringing the attorneys hired by Awad up to speed. This argument lacks merit. The probate court's view of what caused the initial attorney fees to be so high is simply not relevant in this appeal. It does not matter what caused the attorney fees in the original proceedings to be so high because those proceedings are over. This Court already upheld the award of fees connected with the original administration of the estate. In re Awad Estate, unpub op at 10-14. The award of attorney fees and costs for defending the first appeal, i.e., the $15,246.94, is what is now before this Court. And as previously discussed, Awad's actions incurred 100% of these costs for the estate. Awad has not established that she is entitled to relief on this basis.
D. ADDITIONAL ISSUES
As a final matter, we note two additional issues arising in this appeal: (1) Awad's suggestion that the probate court's award of attorney fees is unreasonable under Michigan Rule of Professional Conduct (MRPC) 1.5 and (2) Awad's contention that CFS, Phillips, and the probate court were biased against her. These issues are not properly before this Court because Awad has not raised either issue in her statement of questions presented. See Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008) ("This issue is not contained in the statement of questions presented; it is therefore deemed abandoned."). Moreover, we conclude that Awad's one-sentence argument regarding the reasonableness of the attorney fees is abandoned for the additional reason that it is presented in a conclusory and cursory fashion. See PT Today, Inc, 270 Mich App at 131-132; Houghton v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003).
We remand to the probate court to exclude the portion of the appellate expenses that were incurred defending the costs and attorney fees earned in the original case. We affirm in all other respects. We do not retain jurisdiction.
Jane M. Beckering
Patrick M. Meter
Michael J. Riordan