Opinion
No. 2-152 / 01-1016
Filed April 10, 2002
Appeal from the Iowa District Court for Mahaska County, Annette Scieszinski, Judge.
Violet Vander Linden appeals from a ruling denying a motion to vacate an order on fee payment and for a new trial on the issue of the fees. AFFIRMED.
Thomas Jackowski of Babich Renzo, P.C., Des Moines, for appellant.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellee Carol DeRonde.
Michael Brice of Brice Smith, L.L.P., Oskaloosa, for appellees Lola Kramer, Althea DeBruin, and Willeda Van Essen.
Randall Stravers and Randy DeGeest, Oskaloosa, for appellee Iowa Trust and Savings Bank.
Garold Heslinga of Heslinga, Heslinga, Dixon Moore, Oskaloosa, for appellee Mahaska State Bank.
Craig Shannon of Grefe Sidney, P.L.C., Des Moines, guardian ad litem.
Considered by Hayden, Peterson, and Snell, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Appeal is from a ruling denying a motion to vacate an order on fee payment and for a new trial on the issue of the fees. We affirm.
The law firm of Babich and Renzo, P.C., represented Violet Vander Linden, one of five children of the wards, in the process of establishing a guardianship and conservatorship for each of the wards. The children were not in accord in the process. The extent of the contentiousness which existed among the children is reflected in an order entered in the proceedings after the conservatorship was established which precluded any direct contact by the children with the conservator except through the conservator's designated counsel. The order further directed that the conservator's counsel not be an attorney affiliated with any of the daughters, past or present, including firm members.
The initial "Order Appointing Guardian and Conservator" entered upon a "Petition for Guardianship and Conservatorship" filed by the law firm of Babich and Renzo, P.C. on behalf of Violet Vander Linden was successfully challenged by other children of the ward on the premise that the court did not have proper jurisdiction to enter an order appointing a guardian and conservator for each of the wards. Violet Vander Linden asserted there was a conflict of interest of an attorney representing one of the daughters and also representing the conservator resulting in a resignation of the conservator and appointment of a substitute conservator.
On September 29, 2000, Renzo filed an "Application for Attorney's Fees and Expenses" supported by an affidavit itemizing the services and expenses. The order approving the fees and expenses in the amount of $7,201.50 was entered on the same date without notice or hearing thereon.
On March 9, 2001, pursuant to notice and hearing, the court acknowledged the initial conservator's resignation, appointed a successor conservator, and scheduled a hearing on the initial conservator's final report, "on its request for fiduciary and attorney fees, and on any and all other fee requests which have not previously been the subject of hearing for April 6, 2001." (Emphasis added.) Anthony Renzo was present at the hearing representing Violet Vander Linden, and a copy of the order was mailed to him on March 12, 2001.
On April 6, 2001, the matters came on for hearing as scheduled. The initial conservator and the successor conservator appeared by counsel. The guardian ad litem appeared as well as the respective counsel for four of the daughters. Neither Violet Vander Linden nor her counsel, Anthony Renzo, appeared for the hearing. On April 11, 2001, the court made findings that determined that Anthony Renzo provided legal services that ultimately accomplished the lawful establishment of the conservatorships with a reasonable value of said services being in the amount of $1000. The court further found that additional services on behalf of Renzo's client were not of real or direct benefit in the initiation of the conservatorships. The order of September 29, 2000, approving the fees was vacated, and fees in the amount of $1000 was approved as a reasonable and fair legal expense for the work performed and of benefit to the conservatorships. Renzo was directed to reimburse the conservatorships for the amount in excess of $1000 paid to him by the conservator pursuant to the original order on fees.
The motion to vacate the order of April 11, 2001 and allow a new trial on the issue was denied by the court. This appeal is from the ruling denying the motion to vacate.
The issues to be resolved by this court are whether the adequate notice of the hearing to reconsider the attorney fees awarded to Renzo was provided, whether the court had jurisdiction to enter the fee order, and if so, whether the ultimate determination of the fees chargeable to the conservatorships was reasonable.
Standard of Review. Probate proceedings concerning costs of administration are equitable in nature. In re Estate of Wulff, 526 N.W.2d 154, 155-56 (Iowa 1994). Costs of administration include attorney fees. Iowa Code § 633.3(8) (2001).
Notice . The court has authority to allow attorney fees. Iowa Code § 633.200. Orders obtained without notice in probate proceedings are not final and are reviewable by the court at any time. Iowa Code §§ 633.36-37. "Thus, the court has the authority to not only set attorney fees, but to vacate the allowance of fees." In re Estate of Borrego, 490 N.W.2d 833, 836 (Iowa 1992). Subject to notice and the opportunity to defend, the court may order the attorney to return any portion of the fee later found to be excessive. Id. Renzo maintains that the "Order Appointing Successor Conservator and Directing Further Proceedings" in which the court directed: "A hearing shall be held at 1:30 p.m. April 6, 2001 on Mahaska State Bank's final report, on its request for fiduciary and attorney fees, and on any and all other fee requests which have not previously been the subject of hearing." was vague and sufficiently deficient to provide him with notice of the reconsideration of his fees and to give him an opportunity to be heard. Renzo does not challenge the type of notice provided but rather contends the contents of the notice was not adequate to provide him with notice of the intent that the hearing scheduled was to include reconsideration of his fees charged to the estate.
The notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950). Fulfillment of these due process requirements depends on the facts and circumstances in each case. In re Estate of Lemke, 216 N.W.2d 186, 189 (Iowa 1974). The precept mandates notice and opportunity for hearing appropriate to the nature of the case. See Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873. "[I]f with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied." Id. at at 315-16, 70 S.Ct. at 657, 94 L.Ed. at 873. This court concludes that the substance of the notice provided to Renzo which informed him that fee requests "which have not previously been the subject of hearing" adequately apprised him that the fee request which he had previously submitted to the court and approved without hearing would be an issue to be resolved on review by the court in the April 6, 2001, hearing.
Jurisdiction. Renzo, citing section 633.37, contends the trial court was without jurisdiction to enter the order reducing the fees chargeable to the conservatorships because the "Order Approving the Final Report" of the original conservator had been approved six days prior to the entry of the order on the fees. Section 633.37 provides that all orders obtained without notice or appearance are reviewable "at any time prior to the entry of the order approving the final report." Hearing on the final report of the conservator and hearing on the fees was held on the same day. The order approving the final report was entered on April 6, 2001. The order on the fee payment was entered on April 12, 2001. Renzo's position on this issue is without merit. The court did review the issue of the fees on the same date as the presentation of the issues on the final report. The statute does not require the entry of the enrolled order on the review of the ex parte order be entered prior to the entry of the order on the final report.
Renzo further maintains that the conservator had constructive notice and was therefore bound by the ex parte order when it paid the attorney fees prior to the fees being disputed. The ex parte fee order was a valid order of the court to which the conservator was bound to comply and apparently did so. That does not preclude, however, the right of review as prescribed by the statute. Iowa Code §§ 633.36-37.
Attorney fees. Renzo contends the court failed to consider the affidavit of itemized services provided at the time the original fee application was presented, and the conclusion of the judge that signed the original ex parte order which recited that the services performed were necessary and appropriate to establish the conservatorships and guardianships, when the court fixed fees chargeable to the conservatorship. It is reiterated that the original fee order was obtained without notice and hearing thereon. It is reviewable at any time. Borrego, 490 N.W.2d at 836. The allowance of attorney fees in estate actions is left to the considerable discretion of the trial court and subject to appellate review. In re Estate of Olson, 479 N.W.2d 610, 614 (Iowa Ct.App. 1991). It is noted that the court did not decide the fees were unreasonable. The court concluded, after hearing and evidence presented thereon, that the portion of the fees that was of direct benefit to the establishment of the guardianships and conservatorships and properly chargeable to the conservatorships was $1000. The trial court did not abuse its discretion in making that determination.
AFFIRMED.