Fowler v. Cox, No. A03A2530

• Decision Date: 19 December 2003
• Docket Number: No. A03A2531., No. A03A2530
• Citation: 592 S.E.2d 510,264 Ga. App. 880
• Parties: FOWLER v. COX. Cox v. Fowler.
• Court: Georgia Court of Appeals

592 S.E.2d 510

264 Ga. App. 880

FOWLER v. COX.

Cox v. Fowler.

Nos. A03A2530, A03A2531.

Court of Appeals of Georgia.

December 19, 2003.

Donald L. Mize, Marietta, for appellant.

Samuel J. Rusbridge, Donald J. Snell, Canton, Floyd E. Propst III, Atlanta, for appellee. ELDRIDGE, Judge.

In this case arising from the probate of the will of decedent Rogers Rhine Turner, appellant/cross-appellee Janice Eloise Fowler and appellee/cross-appellant Franice Evelyn Cox, the decedent's daughters, filed notices of appeal in the Supreme Court of Georgia seeking review of an order revoking letters testamentary, ordering reimbursement to the estate of excessive expenses, including the executrix's fees, and the settling of the estate's accounts. Finding that neither the direct appeal nor the cross-appeal involved the validity or meaning of the will, the Supreme Court transferred both appeals to this Court. In re Estate of Lott, 251 Ga. 461, 306 S.E.2d 920 (1983); Darnell v. Tate, 208 Ga. 23, 64 S.E.2d 582 (1951).

In Case No. A03A2530, Fowler appeals from the complained-of order, arguing the insufficiency of the evidence to support the court-ordered settlement of the estate as distributing 49 percent of the estate to Cox, contrary to decedent's will which provided that 25 percent thereof be distributed to Cox;¹ its finding that she failed to settle and distribute the estate within a reasonable period of time; and its finding that she failed to provide Cox with annual accountings of the estate, detailing its receipts and disbursements.² By a final enumeration of error, executrix Fowler contends that the probate court erred in awarding attorney fees and expenses of litigation to Cox under OCGA § 9-15-14(b).

In Case No. A03A2531, Cox appeals, contending that the probate court erred in ordering the estate to reimburse Fowler for her legal expenses, these as incurred upon Fowler's misconduct as executrix. The claims of error are without merit in both appeals, and we affirm.

Rogers Rhine Turner died in Cherokee County on March 25, 1998, survived by his two daughters, Fowler and Cox, and leaving an estate valued at more than $2.5 million. Fowler assisted her father in bookkeeping and other financial matters before his death and, for his convenience, held numerous bank accounts and certificates of deposit with her father as co-owner. Turner held other such accounts and certificates in his name alone which were payable to Fowler upon his death.

Before he died, Turner established an estate plan for the purpose of reducing the estate taxes which would be due upon his death by, on May 28, 1997, executing his will, a limited partnership agreement, and a springing durable power of attorney for use in funding the partnership upon certification by competent medical authority of his mental or physical incapacity. Fowler was named as executrix under the will, as a general partner in the partnership, as managing partner upon Turner's death, and as attorney-in-fact in the springing power of attorney.

Turner's health declined in February 1998, which left him in a hospital or a nursing home until his death. Although she neither sought nor obtained medical certification documenting her father's incapacity, Fowler signed deeds during this time frame as his attorney-in-fact purporting to convey to the partnership Turner's property less his home at 130 Reed Street in Canton and a 5.28-acre parcel located in Dawson County. The property conveyed to the partnership consisted of 98.75 acres in Dawson County, approximately 100 acres along Henson Road in Cherokee County, six acres, more or less, in the vicinity of Ball Ground, and six subdivided lots on Reed Street. Fowler also transferred bank accounts and certificates of deposit to the partnership which she held jointly with Turner, these as in excess of $540,000. Fowler, however, did not transfer such assets as were payable to her on Turner's death, an amount of approximately $125,000.

After Turner's death, Fowler offered Turner's will for probate without providing Cox a copy of the will and the petition to probate as required by law. Letters testamentary were issued to Fowler on April 16, 1998, and in December 1998, she filed the estate tax return, receiving an estate tax closing letter from the Internal Revenue Service in July 1999. However, at the end of the estate's first fiscal year, February 28, 1999, Fowler failed to provide Cox an accounting of the estate, this as required annually by the will.

On August 24, 2001, Cox filed her petition for settlement of estate, averring that Fowler had refused to distribute the assets of her father's estate. Fowler followed by transferring all the real estate out of the partnership to the estate and, on October 24, 2001, made her first distribution as executrix, dividing the 98.75-acre Dawson County property, transferring 73.75 acres to herself and 25 acres to Cox. Cox filed her petition for revocation of letters testamentary, removal of executrix, appointment of administrator, and return of unearned executrix's fees on December 4, 2001. Upon Fowler's acknowledgment of service, the probate court entered a rule nisi, setting a hearing on the petition requiring Fowler to appear before the court to produce an accounting and settlement of the estate, and to show cause why the relief Cox sought should not be granted. A hearing on such issues was held on March 22, 2002, after which the probate court, among other things, found "no reason for further delay in settlement of this case" and ordered Fowler to pay Cox one-fourth of the estate's cash assets on hand ($89,106.25) instanter; to respond to inquiries of the court concerning her administration of the estate as executrix; to provide the court copies of the 1999, 2000, and 2001 annual accountings of the estate required under Turner's will; and continued the case for further hearing.

The hearing resumed on July 31, 2002. A day earlier, Fowler affected a further settlement and distribution of the estate. To herself she deeded the 5.28-acre Dawson County property, the nearly 100-acre property on Henson Road, and two improved lots and three vacant lots on Reed Street in Canton. To Cox she deeded the six-acre Ball Ground property and two improved lots in Canton. Fowler's cash distributions were $896 to herself and $242,147.98 plus $89,106.25 to Cox, the latter as previously ordered by the court.

On November 25, 2002, the probate court entered the order appealed. Therein, the probate court variously found Fowler in breach of her fiduciary duties as executrix, revoked her letters testamentary, entered a settlement of accounts, and awarded Cox her attorney fees and expenses of litigation under OCGA § 9-15-14(b).

Held:

Case No. A03A2530

Upon appellate review of a bench trial, we will not set aside factual findings made by the trial court unless clearly erroneous. In doing so, we give due deference to

the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52(a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them. (Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga.App. 264, 495 S.E.2d 899 (1998).

(Citation and punctuation omitted.) Sam's Wholesale Club v. Riley, 241 Ga.App. 693-694, 527 S.E.2d 293 (1999). And, as here pertinent, we are mindful that

[i]f a personal representative ... commits a breach of fiduciary duty ..., a beneficiary of a testate estate ... shall have a cause of action: (1) To recover damages;... (4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise; (5) To appoint another personal representative ...; (6) To remove the personal representative ...; and (7) To reduce or deny compensation to the personal representative or temporary administrator.

OCGA § 53-7-54(a); that

[u]pon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the letters of a personal representative or impose other sanctions, the court shall cite the personal representative to answer to the charge. Upon investigation, the court may, in [its] discretion:

(1) Revoke the personal representative's letters; ... (3) Require the personal representative to appear and submit to a settlement of accounts following the procedure set forth in Article 6 of this chapter...; or (4) Issue such other order as in the [probate] court's judgment is appropriate under the circumstances of the case.

OCGA § 53-7-55; that a "claim that an executor has breached a fiduciary duty [does] not fall outside the jurisdiction of the probate court simply because the plaintiff sought damages[,]" (footnote omitted) Heath v. Sims, 242 Ga.App. 691, 693(1), 531 S.E.2d 115 (2000), for "original, exclusive, and general jurisdiction" of "[a]ll ... matters and things as appertain or relate to [the] estates of deceased persons ..." resides in the probate court under OCGA § 15-9-30(a)(10); and that, as to citations for settlement, a probate court may "hear evidence upon any... question, and make a final settlement between the personal representative[s] and the heirs or beneficiaries[, enforceable] by a judgment, writ of fieri facias, execution, or attachment for contempt." OCGA § 53-7-63; see also Brooks v. Brooks, 184 Ga. 872, 875-876, 193 S.E. 893 (1937) (Under OCGA §§ 53-7-62 and 53-7-63 it is within the power of the probate court to "`hear evidence up on any contested question, and settle finally between the distributees and [the] administrator.'").

1. Fowler challenges the sufficiency of the evidence in support of the instant court-ordered settlement, arguing, in substantial part, the award of damages as resulting in a net distribution to Cox in excess of 25 percent of the estate's total assets. Fowler further contends that her removal...