Estate of Herrmann, Matter of

• Decision Date: 23 January 1984
• Docket Number: No. 11154,11154
• Citation: 100 Nev. 1,677 P.2d 594
• Parties: In the Matter of the ESTATE OF Walter E. HERRMANN, deceased; Peter L. FLANGAS and John Tom Ross, Appellants, v. Ralph HERRMANN, Executor of the Estate of Walter E. Herrmann, deceased, Respondent.
• Court: Nevada Supreme Court

Page 594

677 P.2d 594

100 Nev. 1

In the Matter of the ESTATE OF Walter E. HERRMANN, deceased;

Peter L. FLANGAS and John Tom Ross, Appellants, v. Ralph HERRMANN, Executor of the Estate of Walter E.

Herrmann, deceased, Respondent.

No. 11154.

Supreme Court of Nevada.

Jan. 23, 1984.

Rehearing Denied March 8, 1984.

[100 Nev. 2] John E. Stone, Las Vegas, for appellants.

Woodburn, Wedge, Blakey & Jeppson, and Casey W. Vlautin, Reno, for respondent.

OPINION

PER CURIAM:

This appeal challenges an order of the Ninth Judicial District Court entered by Judge Howard McKibben, which purported to award appellant Peter L. Flangas and his co-counsel John Tom Ross the sum of $6,000 as attorneys' fees for services rendered in the Estate of Walter Herrmann, instead of the sum of $70,000 which Judge Richard Waters had previously awarded to them by a judgment duly and lawfully entered. ¹ Because Judge McKibben lacked jurisdiction to ignore the final judgment that Judge Waters had rendered with complete propriety, we reverse the order entered by Judge McKibben.

THE FACTS

In this case, governing legal principles become quite obvious once the relevant facts are adequately understood. However, comprehending those facts requires review of a rather extended procedural history leading to entry of conflicting orders by Judge Waters and Judge McKibben.

Events Leading to Judge Waters' Award

At the time Walter Herrmann died of cancer on January 20, 1973, he and his wife Shortly before his death, Walter Herrmann undertook to provide for the disposition of his share of the community properties. To that end, he caused Carson City attorney Carl Martillaro, who had been representing him in matters related to development of the Lyon County ranch, to prepare a last Will for his execution. The Will named Walter Herrmann's son, respondent Ralph Herrmann, as his executor, and it designated the following beneficiaries and disposition of property:

Fern Herrmann owned substantial community property, including real estate in California and in Washoe County and Lyon County, Nevada. One real property holding that figures somewhat prominently in this litigation was a valuable ranch of 2,478 acres in Lyon County, which is adjacent to the Carson River, and which enjoys valuable rights to use waters from said stream.

(1) To his widow, Fern, Herrmann left a specific bequest of "any interest I may have in all household furniture, furnishings and fixtures, jewelry, china, silverware, books, pictures, clothing, and all other items of domestic, household or personal use, and all automobiles which at the time of my death shall be in, about, or used in connection with my home."

(2) To his daughters, Mary Louise Franklin, Ruth Fern Estep, and Ethel May Colthern, Herrmann left specific bequests of $20,000.00 each.

(3) To his son, respondent Ralph Herrmann, Walter Herrmann left all of the residue of his estate. ²

On March 7, 1973, pursuant to petition of respondent Herrmann, the decedent's Will was duly admitted to probate by the Honorable Richard Waters of the First Judicial District, which then encompassed Lyon County. At the same hearing--Mary Louise Franklin, Ruth Fern Estep, and Ethel May Colthern being non-residents--Judge Waters appointed appellant Flangas as their counsel pursuant to NRS 136.200. Subsequently, on March 20, 1973, Judge Waters appointed appellant Ross as co-counsel to Mr. Flangas. It appears of record that Mr. Flangas and Mr. Ross had special qualifications, known to Judge Waters, which had application to a matter of vital importance to the Estate of Herrmann, to-wit: the subdivision and development of the Lyon County ranch for residential housing purposes.

Prior to his death, Walter Herrmann had undertaken extensive preparations for the development of the Lyon County ranch. Inter alia, he had made substantial expenditures to preserve a State grant of water rights by building a dam and placing land under irrigated cultivation. A master plan had been prepared, contemplating that the entire ranch ultimately would be subdivided, embracing an airport, some small lakes suitable to be stocked with game fish, and a golfcourse designed by the firm of Robert Trent Jones, a nationally renowned golfcourse architect. The planned first phase of this project was a subdivision consisting of some 142 lots, on 161 acres of the Lyon County ranch. At the time of his death, however, all of the decedent's plans and expectations were threatened by actions of officials in Lyon County, purporting to impose a moratorium on subdivision development in the area of the Herrmann ranch.

Appellant Flangas previously had served as District Attorney in Lyon County, and, therefore, was well acquainted with zoning procedures in that county and also with various public officials who were charged with application of those procedures. Indeed, the record indicates Flangas had drafted at least one of the very ordinances on which contentions of the parties concerning the moratorium were expected to center. Appellant Ross formerly had served as District Attorney of Carson City After their appointment, Flangas and Ross participated in the eventual efforts which culminated in approval of the proposed initial subdivision of 161 acres. When negotiations with officials and administrative proceedings ultimately proved unavailing, a mandamus action was instituted in the First Judicial District Court, for Lyon County, to compel the county commissioners to file the subdivision map.

and, as such, had become well experienced in zoning procedures and disputes. Since leaving public office, it appears Ross had concentrated his professional and business activities principally in the areas of construction and real estate development.

It stands uncontroverted that Ross did the legal research for this lawsuit, and assisted in the trial with respondent Herrmann's counsel, Martillaro, while Flangas was also present. It also appears that, following a judgment by Judge Waters favoring the Herrmann Estate, Lyon County initiated an appeal to the Supreme Court of Nevada. Again, it is uncontroverted that counsel for the non-resident heirs aided respondent Herrmann's counsel in defeating the county's appeal. It appears Ross developed the strategy of seeking a hearing to compel a large bond to secure against extreme monetary damages that arguably would result from construction delays. Ultimately, following these further court proceedings before Judge Waters, Lyon County conceded defeat and withdrew its appeal, and the Estate of Herrmann thus gained full approval for the initial subdivision of 161 acres.

The record is replete with evidence that the efforts of Flangas and Ross were not limited to participation in this critical zoning litigation. Flangas and Ross were active in resolving other important concerns of the Estate. Although respondent Herrmann now contends that their activities had no value, they made trips to California in regard to the California probate proceedings and tax concerns. Indeed, it even appears that, when respondent Herrmann was preparing to account to Judge Waters for his administration of the Estate, Martillaro was otherwise occupied, and Herrmann therefore collaborated with a Mr. Ken Poole, who was Flangas' professional associate and employee.

Apparently, by this time, respondent Herrmann had developed some antipathy toward Ross, even though he acknowledges having traveled to California on Estate business with Ross on more than one occasion, and having discussed Estate business almost daily with him and Martillaro in Carson City, and also in Las Vegas. In any case, Herrmann instructed Martillaro that he did not want his First and Final Account and Petition for Distribution to mention Ross, and, in the final form filed with court, the petition therefore referred only to Mr. Flangas and not to co-counsel Ross. Nonetheless, the petition, which Herrmann verified under oath, referred to the Lyon County mandamus action that Ross had successfully prosecuted with Martillaro, and went on to allege: "Peter L. Flangas has performed ordinary services for the absent heirs, and has participated in matters of substantial benefit to the estate, and he is entitled to such compensation as the court finds proper." (Emphasis added.) The petition evinced a clear understanding that all fees for services performed by counsel for the non-resident heirs should be paid out of the general estate, and not by the non-resident heirs; for it went on to pray for an order: "Directing the Executor to pay all outstanding costs of administration, including attorney's fees of Carl F. Martillaro, and Peter L. Flangas." Herrmann also prayed for an order: "Directing the Executor to pay the cash legacies of $20,000.00 each to Mary Louise Franklin, Ruth Fern Estep, and Ethel May Coulthern." Thus, it is manifest from Herrmann's verified petition that he and his attorney knew and conceded that counsel for the non-resident heirs had not only performed routine services for the three non-resident heirs, but also extraordinary services for the estate. Further, it is clear that Herrmann and Martillaro knew all fees would be paid from the general estate, which had been benefited, and of which respondent Herrmann was to be the sole distributee. In sum, the petition recognized Upon receipt of respondent Herrmann's First and Final Account and Petition for Distribution, Flangas advised his non-resident clients that the executor did not contemplate seeking to have Judge Waters assess any attorneys' fees against their bequests--that he therefore expected their entire bequests would be ordered distributed to them--and the decedent's daughters did not object, did not attend the distribution hearing, and evidently were content. ⁴

quite explicitly that the compensation of counsel for the non-resident heirs (1) should be commensurate with their substantial efforts, but (2) should not be paid from the modest specific...