In re Estate of McCormick

• Decision Date: 31 January 2001
• Parties: Estate of Pearl McCORMICK.
• Court: Maine Supreme Court

765 A.2d 552

2001 ME 24

Estate of Pearl McCORMICK.

Supreme Judicial Court of Maine.

Argued: October 3, 2000.

Decided: January 31, 2001.

Robert Edmond Mittel, Esq., (orally), Mittel, Asen, Hunter & Cary, LLC, Portland, James E. Mitchell, Esq., (orally), Jim Mitchell and Jed David, P.A., Augusta, for appellant.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

DANA, J.

[¶ 1] Mark Lukas appeals from judgments entered in the York County Probate Court (Nadeau, J.) in favor of Lorraine Bowdoin, the personal representative of Pearl McCormick's estate. On appeal, Lukas contends that: (1) his motion for reference should have been granted because allowing part-time probate judges to maintain active probate practices denied him due process of law; (2) the Probate Court erred in ordering him to pay Bowdoin's attorney and personal representative fees, and in denying his request for attorney fees; (3) he should not have been sanctioned, pursuant to M.R. Civ. P. 37, for asserting the attorney-client privilege during a deposition; (4) the judgment disallowing the holographic will should have been vacated; and (5) the Probate Court abused its discretion by ordering separate trials. We agree that the Probate Court erred in requiring Lukas to pay Bowdoin's attorney and personal representative fees. In all other respects we affirm.

I. CASE HISTORY

[¶ 2] The record supports the following facts: In 1976, Mark Lukas and his wife Suzanne purchased a home in Kennebunk across the street from Mearl Stiller. The Lukases and Stiller became close friends, and in late 1988, Mark Lukas agreed to serve as Stiller's guardian. Stiller had previously created an inter vivos trust naming her sister, Pearl McCormick, beneficiary. Stiller died in January 1989, and McCormick became the owner of the trust's equities, valued at approximately $300,000. Lukas was appointed guardian and conservator for McCormick in February 1989.

[¶ 3] Throughout 1988 and 1989, McCormick had urged her attorney, Stephen Hodsdon, to draft a will on her behalf. Despite McCormick's requests, Hodsdon never drafted the will because he questioned McCormick's testamentary capacity.¹ In October 1989, however, Lukas and his wife assisted McCormick in drafting a holographic will. The will provided that $40,000 be given to an English relative of McCormick's deceased husband, with the remainder going to the Lukases.

[¶ 4] McCormick died in January 1997. Mark Lukas began to close the conservatorship estate, and Hodsdon drafted an affidavit to assist Lukas with the closing. The Lukas affidavit provided that McCormick had no living relatives. Lukas closed McCormick's bank account and retained the balance of that account, $895, as a fee for unpaid services. Lukas admits that he overcharged McCormick for his conservatorship services by approximately $90,000, and he has placed $90,000 in an escrow account to cover those overcharges.

[¶ 5] In June 1997, Lorraine Bowdoin, McCormick's cousin, was appointed personal representative of McCormick's estate. James Mitchell entered his appearance as Bowdoin's counsel in September 1997. At that time Attorney Mitchell served, and continues to serve, as Probate Judge in Kennebec County.

[¶ 6] Lukas, through his counsel James Young, filed McCormick's holographic will in October 1997. Young testified that Lukas had a "clear statutory duty" to file the holographic will. In November 1997, Lukas filed an inventory and accounting of his conservatorship, and a petition to probate the holographic will and for him to be appointed the personal representative. Bowdoin filed objections to the inventory, the accounting, and the petition for probate.

[¶ 7] Approximately one year later, Bowdoin filed a motion for separate trials regarding the inventory dispute, the accounting dispute, and Lukas's claim for extra fees against the estate. In early December 1998, Bowdoin testified at her deposition that she had met with McCormick in June 1989, and that McCormick discussed making a will. On December 14, 1998, the court entered an order dismissing with prejudice Lukas's petition to probate the holographic will because Lukas had voluntarily abandoned the petition. One week later, Bowdoin filed a motion seeking recovery from Lukas directly for her attorney and personal representative fees incurred during the holographic will contest.

[¶ 8] In March 1999, the court granted in part Bowdoin's motion for separate trials by ordering successive inventory and accounting trials. Approximately one month later, Lukas filed a motion for appointment of a referee pursuant to M.R. Prob. P. 53. Lukas sought a reference of the inventory dispute, the accounting dispute, and Bowdoin's request for attorney and personal representative fees, contending that a reference would be expeditious and would ameliorate the due process concerns raised by Attorney Mitchell's appearance before a fellow probate judge. The court denied Lukas's motion for reference in May 1999. The court subsequently reconsidered that order, affirmed its denial of a reference as to the attorney fees and inventory trials, but granted a reference on the accounting trial.

[¶ 9] Attorney Young was scheduled to be deposed in May 1999, in preparation for the fees trial, but Lukas refused to allow him to testify without an agreement between the parties regarding a limited waiver of the attorney-client privilege. Because the parties could not reach agreement on the limited waiver, the deposition was terminated after only ten minutes. Bowdoin then filed a motion to compel discovery and to award expenses pursuant to M.R. Civ. P. 37, which the court granted in the amount of $3,690.02.

[¶ 10] The attorney fees trial was held on May 18, July 6, October 26 and 27, and November 17, 1999. In December 1999, Lukas filed a motion to vacate the judgment disallowing the holographic will, claiming newly discovered evidence and fraud based on Bowdoin's testimony during the fees trial. The court denied the motion. The next day, the court denied Lukas's motion for attorney fees, stating that Lukas's actions in offering the holographic will for probate were "dilatory and calculated to protect himself, rather than to benefit the estate." In January 2000, the court entered an order requiring Lukas to pay Bowdoin the $40,420 in attorney fees and $10,263 in personal representative fees Bowdoin incurred as a result of the will contest and attorney fees litigation. By subsequent amendment, Bowdoin's fee award was increased to $51,087. In March 2000, the court entered a judgment pursuant to M.R. Civ. P. 54(b) with respect to the order denying Lukas's motion to vacate the judgment disallowing the holographic will. This appeal followed.

II. MOTION FOR REFERENCE

[¶ 11] Before discussing the merits of Lukas's claims, we first address Bowdoin's contention that the order denying Lukas's motion for reference is not ripe for appellate review. Bowdoin contends that the order is not a final judgment because two of the three trials addressed in the order have yet to take place. Ordinarily, an appeal is only cognizable if it arises from a final judgment. See Millett v. Atl. Richfield Co., 2000 ME 178, ¶8, 760 A.2d 250, 253

. Interlocutory orders that are not immediately appealable merge with a final decree and become appealable at that time. See Boyle v. Share, 377 A.2d 458, 462 (Me.1977) (stating that because "an interlocutory order is related to the main action, the rule allowing merger of the appeal from the order with the appeal from the final decree is well founded"). Although the order denying reference was not a final judgment, it nevertheless became appealable when it merged with the final judgment on the fees trial and is therefore properly before this Court.

A. M.R. Civ. P. 53(b)

[¶ 12] We review for an abuse of discretion a trial court's decision whether to appoint a referee. See George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d 476, 479 n. 4 (Me.1985)

; Hedberg v. Wallingford, 379 A.2d 126, 128 (Me. 1977).² The plain language of the rule establishes that absent an agreement of the parties, a motion for appointment of a referee is only granted in exceptional circumstances. See Frank v. Assessors of Skowhegan, 329 A.2d 167, 169 n. 3 (Me. 1974) (stating that "[b]efore any order of reference without agreement may issue, showing must be made some exceptional condition warrants reference").

[¶ 13] Lukas contends that all issues on appeal should have been referred because it is logistically difficult to try the issues in Probate Court over several non-consecutive days. Lukas further asserts that witnesses are being forced to appear several more times in the remaining trials, rather than having the convenience of appearing once before a referee on all matters over an estimated two week period. Accordingly, Lukas contends that the burden placed on the parties and witnesses by separate trials in the Probate Court create precisely the exceptional condition envisioned by Rule 53(b)(2).

[¶ 14] Lukas directs our attention to a series of cases in which we approved a reference. See George D. Ballard, Builder, Inc.,502 A.2d at 479 n. 4; Bruk v. Town of Georgetown, 436 A.2d 894, 896-97 (Me.1981); Hedberg, 379 A.2d at 127-28. Because the parties agreed to a reference in each of those cases, however, we did not address the restrictive language of Rule 53(b)(2).³ Here, because the parties did not agree to the reference, Lukas first bears the burden of establishing that this case involves an exceptional condition, and if so, that the court abused its discretion in denying the reference. Although the length of the trials and relative inconvenience to the parties and witnesses may constitute an exceptional condition, we cannot conclude that the court abused its discretion in denying Lukas's motion for reference based on the logistical difficulties of trying the case in the Probate Court. See, e.g., 1 FIELD, MCKUSICK...