Opinion
A161729
08-17-2021
Estate of GISTEEN ANDERSON, Deceased. v. EUGENE SCHNEIDER, Claimant and Appellant. JERROLL RAY HUNT, Petitioner and Respondent,
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RP1475794
MARGULIES, J.
Appellant Eugene Schneider represented the administrator of the estate of Gisteen Anderson in a probate proceeding initiated in 1992. After the letters of administration were issued, the estate went dormant until 2007 when appellant filed a motion to be relieved as counsel which was granted. Seven years later, after a different personal representative, represented by attorney William A. Taylor, filed a new petition to administer the estate in the probate court, appellant objected to the final accounting, seeking a portion of the statutory compensation as attorney for the prior personal representative. The probate court, finding appellant lacked standing, denied appellant's request for his apportioned share of statutory attorney fees. Appellant filed an appeal. We reversed and remanded, instructing the trial court to hold a hearing on appellant's entitlement to a portion of the statutory fee as attorney for the prior personal representative. (Estate of Anderson (Sept. 14, 2018, A145255) [nonpub. opn.] (Estate of Anderson I).) On remand, the court ordered the “heirs Addie Thompson and Lewan Hoof of the Estate of Gisteen Anderson” to pay appellant's apportioned share of statutory attorney fees in the amount of $3,570, and an additional $50,285 in attorney fees and costs on appeal. Appellant contends the fees and costs awarded by the probate court should be paid by counsel for the personal representative, William A. Taylor. We disagree and affirm.
We take the facts leading up to the current appeal from our 2018 opinion, Estate of Anderson I, supra, A145255.
This case has a long history. Gisteen Anderson died intestate in January 1992. The following month, Addie Thompson, represented by appellant, filed a petition to be appointed administrator of Anderson's estate. The court appointed Thompson as administrator, a bond was filed, and letters of administration issued in September 1992. However, aside from the rejection of a Sears, Roebuck & Co. creditor's claim, there is no record of activity in the register of actions for approximately 15 years between October 1992 and September 2007.
In September 2007, appellant filed a motion to withdraw as counsel which was granted two months later. That same day, appellant filed a draft final account, unsigned by Thompson, and a petition for distribution that included a proposed allowance of compensation for appellant in the amount of $3,570 and costs in the amount of $1,079.75. Appellant filed a request for special notice under Probate Code section 1250, requesting notice on all matters for which special notice may be requested.
All statutory references are to the Probate Code.
The following month, the probate court held a hearing on an order to show cause issued by the court. Thompson failed to appear to show cause why sanctions should not be imposed for failure to file a petition for final distribution. Curiously, rather than appointing a special administrator to ensure the estate would eventually be distributed and closed, the court dismissed the probate petition.
Seven years later, in 2014, a new probate proceeding was initiated, and Anderson's grandson, Jerroll Ray Hunt, was appointed administrator of the estate. Hunt was represented by attorney Taylor. After learning of the new probate proceeding, appellant filed an objection to Hunt's petition for final distribution, compensation, and reimbursement of expenses. In his objection, appellant asserted he was a “creditor” entitled to compensation and reimbursement of expenses incurred in representing the former personal representative Thompson in the prior probate proceeding.
At a hearing on the petition for final distribution on March 10, 2015, the trial court told appellant that because the prior probate proceeding had been dismissed, it did not believe appellant had standing to recover attorney fees, and he must seek recovery from the prior personal representative. Appellant filed a petition for writ of mandate, prohibition, supersedeas or other appropriate relief, contending the trial court erred in denying him standing and seeking to prevent the court from signing the final order of distribution. The writ was summarily denied.
Later in March 2015, the court held a further hearing on the petition for final distribution and appellant's objections. The court found appellant lacked standing, the prior probate had been a separate proceeding, and any rights appellant had in that matter did not give him any rights in the pending estate to ordinary or other fees. The court approved the final account and petition for final distribution order, awarding costs to appellant for his work in representing Thompson in the prior case. As the attorney for the personal representative of the estate, Taylor was awarded $4,300 in statutory attorney fees for ordinary services.
Appellant appealed, contending that because he served as the attorney for the personal representative in the prior proceeding, he was an “interested person” entitled to compensation from the estate for his attorney fees. Based on section 10814 and California Rules of Court, rule 7.704, we concluded that as the attorney for a former personal representative in the administration of the Anderson estate, appellant could seek a portion of the one statutory fee available for such services. In so ruling, however, we emphasized, “we do not determine whether [appellant] is actually entitled to any portion of the statutory attorney fee, or how much he is entitled to obtain if so.” (Estate of Anderson I, supra, A145255.) We concluded only that the trial court's decision that appellant lacked standing to assert a claim of attorney fees based on dismissal of the prior probate proceeding was error. (Ibid.) The matter was remanded to the probate court for a hearing on appellant's entitlement to a portion of the statutory attorney fee for representing the prior personal representative. (Ibid.)
Following remand, on January 7, 2019, appellant filed a “Petition for Determination of Compensation for Ordinary Services and Appellate Attorney Fees” seeking statutory attorney fees and $36,860 in compensation for time spent in establishing and defending his attorney fee claim under Estate of Trynin (1989) 49 Cal.3d 868. The probate court ordered appellant to file a due diligence declaration reflecting his attempts to locate heirs where service by mail was returned undeliverable and provide his billing records “for his costs and Trynin fees on appeal.” Appellant complied by filing a due diligence declaration and his billing records.
On September 30, 2020, the court issued a tentative ruling requiring “heirs Addie Thompson and Lewan Hoof of the Estate of Gisteen Anderson” to pay appellant $3,570 in statutory fees plus $50,285 in attorney fees and costs on appeal.,
Thompson and Hoof are two of decedent's children. They appear to be deceased.
The $50,285 includes an additional $12,960 in attorney fees for time spent following the issuance of our prior opinion.
A hearing was set on October 28, 2020. Neither appellant, nor Hunt, the personal representative, appeared at the hearing to contest the tentative decision, nor did Taylor, counsel for the personal representative, nor any of the heirs. The court adopted the tentative decision as its final order, granting appellant his fees and costs as requested and ordering payment by “heirs Addie Thompson and Lewan Hoof of the Estate of Gisteen Anderson.”
II. DISCUSSION
On appeal, appellant maintains the probate court erred in ordering Addie Thompson and Lewan Hoof to pay his fees and costs. Rather, he asserts the probate court “should be directed” to order attorney Taylor to pay the entire amount of attorney fees and costs incurred by appellant.
As noted, the probate court awarded appellant his requested proportionate share of statutory fees and his fees for establishing and defending his attorney fee claim. And though appellant has no objection to the amount of fees awarded, he complains the trial court erred in ordering “two long deceased heirs of the decedent to pay all the fees ordered, including the statutory fees.” Instead, he argues the personal representative's attorney, Taylor, should be held accountable for the payment of these fees.
Relying on our prior opinion, Estate of Anderson I, supra, A145255, appellant posits that under the law of the case doctrine, the probate court was compelled to order Taylor to pay the attorney fees and costs. Explicitly, he focuses on a sentence in the opinion stating, “Hunt also repeatedly claims [appellant] is pursuing the poverty-stricken heirs for the little money they received from Anderson's estate, but the funds [appellant] seeks will come from the statutory attorney fee allocated to Taylor in the amount of $4,300, not from the heirs.” (Ibid.)
“The law of the case doctrine holds that when an appellate opinion states a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to through its subsequent progress in the lower court upon subsequent appeal. [Citations.] For the doctrine to apply, ‘ “ ‘the point of law involved must have been necessary to the prior decision, ... the matter must have been actually presented and determined by the court, and... application of the doctrine will not result in an unjust decision.' ”' ” (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 432.)
Contrary to appellant's assertion, in our prior opinion, we never concluded that the personal representative's attorney, Taylor, was responsible for the payment of appellant's fees. The statement at issue merely responded to and rejected the personal representative's repeated claims that appellant was pursuing the “poverty-stricken heirs for the little money they received from Anderson's estate.” (Estate of Anderson I, supra, A145255.) It was not the law of the case. Accurately speaking, the law of the case held that the court erred in finding appellant lacked standing to pursue a claim for fees and, as such, the matter was remanded for a hearing on appellant's “entitlement to a portion of the statutory fee as attorney for a prior personal representative.” (Ibid.)
More importantly, as explained in Estate of Wong (2012) 207 Cal.App.4th 366, attorney fees whether routine or extraordinary, “ ‘are payable only out of the estate and are not a personal charge against the executor.' ” (Id. at p. 375, italics added.) And as relevant here, “The probate court ‘must order compensation out of estate assets for routine probate services rendered by an executor's attorney. [Citations.] Services that are not involved in the typical probate case, commonly known as “extraordinary services, ” may be paid out of estate assets at the discretion of the probate court.' ” (Estate of Wong, at p. 375.) Because appellant's fees are only payable out of the estate, and he has not provided us with any case or statutory authority to the contrary, Taylor, as the personal representative's attorney, cannot be held responsible for payment of appellant's attorney fees and costs. In fact, the case upon which appellant relies, Estate of Trynin, does not mandate a different result, noting attorney fees are paid from the estate: “An award of attorney fees under [former] section 910[, now sections 10810 and 10811], on the other hand, is not a fee-shifting mechanism at all; attorney fees under [former] section 910 are paid from the estate for which the attorney services were performed, not from a litigation foe.” (Estate of Trynin, supra, 49 Cal.3d at p. 876.)
Indeed, we discussed this principle of law in our prior opinion, Estate of Anderson I, supra, A145255.
In sum, appellant cannot look to the personal representative's attorney for the payment of his attorney fees and costs.
We address one final issue raised by appellant concerning the trial court's order. As noted, the trial court directed payment of appellant's fees from “heirs Addie Thompson and Lewan Hoof of the Estate of Gisteen Anderson.” Appellant contends Thompson and Hoof are not only deceased, but neither “received any distribution” from the estate. In any event, as a matter of law, the source of the payment for statutory and extraordinary attorney fees in a probate matter is the estate. (Estate of Wong, supra, 207 Cal.App.4th at p. 375; Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1339.) Accordingly, we modify the judgment to provide the payment of appellant's fees is to come from the estate of Gisteen Anderson.
III. DISPOSITION
As modified, the judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: HUMES, P. J., BANKE, J.