Opinion
15-P-374
03-31-2016
IN THE MATTER OF THE ESTATE OF ELIZABETH F. LAWRY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Harold B. Lawry, III and Elizabeth Ventura (heirs), heirs and beneficiaries of the estate of Elizabeth F. Lawry, filed an objection in the Probate and Family Court to the first and final account filed by James Joyce as executor of the estate. The heirs also petitioned the court for the removal of Joyce as executor, and Joyce was subsequently removed as executor. Following a trial on the heirs' objection to Joyce's account, an order entered on August 20, 2013, ordering Joyce to return $20,000 of his original $30,000 fee to the estate. Thereafter, a judgment entered on January 30, 2014, ordering Joyce to pay $7,500 in attorney's fees to the heirs, and denying Joyce's motions for relief from the August 20, 2013, order pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), and for reimbursement of fees and costs. Joyce appeals from the judgment. We affirm.
1. Executor attorney's fees. Joyce relies on G. L. c. 190B, § 3-720, in arguing that he is entitled to reasonable attorney's fees. That statute provides, in pertinent part: "If any personal representative . . . defends or prosecutes any proceeding in good faith, whether successful or not that personal representative or person is entitled to receive from the estate necessary expenses and disbursements including reasonable attorneys' fees incurred." G. L. c. 190B, § 3-720, inserted by St. 2008, c. 521, § 9. In denying Joyce's motion for relief from the order, the judge expressly held that Joyce did not act in good faith. Joyce counters that the findings were improperly based, in part, on conduct that occurred before the parties proceeded to trial on the accounting. Joyce filed his first and final account more than seven months after he was first ordered to do so. In making his findings, we discern no reason to preclude the judge from considering the multiple motions the heirs had to file, and the contempt action required, to compel Joyce to comply with his duty to account. In sum, the judge did not err in considering Joyce's over-all performance as executor in concluding that he was not entitled to his attorney's fees.
The judge found that Joyce: improperly performed his duties as personal representative to the estate; did not record the time he spent settling the estate consistently, in a detailed manner, or with due diligence; charged a higher fee because there was acrimony among the beneficiaries; improperly billed on the basis of a percentage of the value of the estate; made several mistakes; caused unnecessary delays; and otherwise breached his fiduciary duties.
2. Heirs' attorney's fees. Pursuant to G. L. c. 215, § 45, a probate judge has discretion to shift responsibility for the opposing party's fees, "as justice and equity may require." A judge enjoys a wide degree of discretion in shifting fees pursuant to § 45 and "an award of costs and fees by a judge in the Probate Court under § 45 'may be presumed to be right and ordinarily ought not to be disturbed.'" Matter of the Estate of King, 455 Mass. 796, 805 (2010), quoting from Smith v. Smith, 361 Mass. 733, 738 (1972).
In ordering Joyce to pay the heirs' reasonable attorney's fees, the judge reasoned that Joyce had breached his fiduciary duties by failing to settle the estate expeditiously and efficiently and, during the course of litigation, by failing to follow court orders directing the first and final account to be filed. Joyce also paid himself an excessive fee, which, after trial, the judge reduced by two thirds. Moreover, the judge expressly warned both parties at the outset of the trial that the losing party likely would have to pay the other's attorney's fees. Finally, where it was Joyce's own conduct that triggered the need for litigation, it is only fair that he be ordered to pay the expenses arising from that litigation. See Matter of the Estate of King, supra at 804-805, and cases cited. In these circumstances, we discern no abuse of discretion in the judge's decision to shift to Joyce the burden of paying the heirs' fees.
That some of Joyce's misconduct occurred while the heirs were proceeding pro se does not mean that it could not be considered by the judge in the totality of the circumstances. Moreover, while we agree that the heirs did not succeed on all of their claims, the judge considered the award pursuant to § 45 and reduced it by more than $5,000, a thirty-eight-percent reduction of the nearly $13,000 in fees and costs requested. The modest $7,500 award is supported by the affidavit of the heirs' attorney, and, while complaining generally that the judge did not perform the requisite analysis outlined in Matter of the Estate of King, supra at 805, 807-808, Joyce points to no specific charges or fees that are excessive.
We decline to award appellate attorney's fees and double costs.
Judgment entered January 30, 2014, affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 31, 2016.