MATTER OF ESTATE OF HUGHES

• Decision Date: 30 March 2004
• Docket Number: No. 97827,97827
• Citation: 90 P.3d 1000,2004 OK 20
• Parties: IN THE MATTER OF THE ESTATE OF DEWEY LAWRENCE HUGHES, deceased, ROBERT S. FLANIKEN and ROBERT S. FLANIKEN, P.C., Appellants, v. PEGGY L. HEPLER, Personal Representative, Appellee.
• Court: Oklahoma Supreme Court

2004 OK 20

90 P.3d 1000

IN THE MATTER OF THE ESTATE OF DEWEY LAWRENCE HUGHES, deceased,

ROBERT S. FLANIKEN and ROBERT S. FLANIKEN, P.C., Appellants, v. PEGGY L. HEPLER, Personal Representative, Appellee.

No. 97827

Supreme Court of Oklahoma

March 30, 2004

April 8, 2004

Michael H. Brady, Oklahoma City, Oklahoma, and Ronald Arthur Schaulat, Oklahoma City, Oklahoma, for appellants.

Brigid F. Kennedy, Oklahoma City, Oklahoma, for appellee.

BOUDREAU, J.

¶1 The dispositive question presented on certiorari is whether the probate court abused its discretion in vacating the order allowing final accounting, determining heirship and authorizing distribution of the estate of Dewey Lawrence Hughes, deceased. We answer in the negative.

I. Background

¶2 Peggy L. Hepler (Hepler) was not related to Dewey Lawrence Hughes (Hughes). In early 1998, Hepler became acquainted with Hughes through her job at a bank where Hughes had a checking account. At that time, Hughes was an elderly man who was going blind. On several occasions, Hughes asked Hepler to come to his house and help him with personal matters. Hepler went to Hughes' residence and assisted him in paying his bills and other such tasks. Sometime thereafter, Hughes caused his attorney to prepare a durable power of attorney naming Hepler as his attorney in fact. Also on December 13, 2000, Hughes executed his will naming Hepler as the personal representative and the sole beneficiary of his estate.

¶3 Hughes died April 27, 2001. Hughes was survived by nieces and nephews. Hepler employed Robert S. Flaniken (Flaniken) to represent her in regards to Hughes' will. Initially, Hepler and Flaniken believed Hughes' collateral heirs would contest the will. On May 9, 2001, Hepler and Flaniken entered into a contract of employment in which Flaniken agreed to represent Hepler individually and in her capacity as personal representative and Hepler agreed to pay Flaniken one third of the gross amount due Hepler upon finalization of the probate of the will or forty percent of her recovery in the event of a will contest.

¶4 On June 21, 2001, Flaniken initiated a proceeding to probate the estate of Dewey Lawrence Hughes, deceased, in the District Court of Oklahoma County. The probate court admitted Hughes' will to probate and appointed Hepler as the personal representative of the Hughes estate. No contest to the will materialized and the probate proceeded routinely. The final accounting filed in the probate itemized Flaniken's legal fees and costs as expenses of administration at $13,000.00. On December 28, 2001, six months after Flaniken initiated the probate, the judge signed the order allowing final accounting, determining heirship and authorizing distribution. Flaniken did not immediately file the order in the court clerk's office.

¶5 On December 29, 2001, Hepler paid Flaniken $96,712.23 for attorney fees, an amount equal to 33-1/3% of the gross amount of the personal property due Hepler at the conclusion of the probate, less the $13,000.00 that had been approved by the probate court and paid to Flaniken. Flaniken also demanded Hepler pay him an additional $38,857.00, the amount equal to 33-1/3% of the gross amount of real property due Hepler at the conclusion of the probate. Hepler refused.

¶6 On March 11, 2002, Flaniken filed the order allowing final accounting which the judge had signed on December 28, 2001. On March 22, 2002, Hepler filed a motion requesting that the order allowing the final accounting be vacated and that Flaniken be enjoined from disposing of the $96,712.23. Hepler alleged that Flaniken perpetrated a fraud on the probate court when he failed to disclose to the court the fee agreement for his representation of Hepler as the personal representative. After a hearing, the probate court sustained the motion for an order restraining Flaniken from disposing of any of the remaining funds received from Hepler. Having allowed time to file briefs, the probate court, on May 31, 2002, entered an order sustaining Hepler's motion to vacate and enjoining both Flaniken and Hepler from disposing of funds from the Hughes estate.

¶7 Flaniken timely appealed. The Court of Civil Appeals found that Hepler's motion to vacate was grounded in events that occurred after the probate court's order distributed the estate assets to her as the sole beneficiary and therefore, the attorney fee dispute was not cognizable in the probate proceeding. We previously granted Hepler's petition for writ of certiorari.

II. Standard of Review

¶8 The standard of review of an order granting a motion to vacate, timely filed under 12 O.S.2001, § 1031.1, is whether the trial court abused its discretion. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶20, 987 P.2d 1185, 1194. The test for measuring the legal correctness of a vacation order is whether sound discretion was exercised upon sufficient cause shown. Schepp v. Hess, 1989 OK 28, ¶11, 770 P.2d 34, 39. Judicial discretion is abused when it is exercised to an end or purpose not justified by, and clearly against, reason and evidence, Patel, 987 P.2d at 1194, or when a trial court errs with respect to a pure, unmixed question of law, Christian v. Gray, 2003 OK 10, ¶43, 65 P.3d 591, 608; and, Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶5, 46 P.3d 698, 701

.

III. The attorney fee agreement

¶9 In this case, Flaniken and Hepler entered into an attorney fee agreement. The pertinent provisions of that agreement, entitled Contract of Employment, read as follows:

THIS CONTRACT, made this 9th day of May, 2001, by and between Peggy L. Hepler, individually and as the Personal Representative for the Estate of Dewey L. Hughes, hereinafter "Client" and R.S. Flaniken, P.C., attorneys at law, hereinafter "Attorneys" by which it is agreed as follows:

. . .

3. In consideration for the services performed and to be performed by Attorneys, Client agrees to pay to the Attorneys a sum of money equal to 33-1/3% of the gross amount due the Client upon the finalization of the probate of the Will. Additionally, any and all necessary costs associated with getting the probate case settled or tried which the Attorneys incur on behalf of the Client, . . . [will] be deducted from the Client's future settlement and/or judgment. In the event Client fires Attorneys, all expenses and fees shall be paid by Client before Client's file and papers are released by Attorneys. In the event that there are filed, in connection with the probate of the Will, any competing beneficial inheritance claims to the assets or estate of the said Hughes, or any action filed seeking to set aside the Will, the aforesaid percentage of recovery to be paid to Attorneys shall be 40%.

. . . . (Emphasis added.)

¶10 On its face, this contract authorizes Flaniken to represent Hepler in two separate capacities, as an individual and as personal representative of an estate. The contract also divides the fee arrangement for Flaniken's representation of Hepler into two separate categories: 1) his representation for which he is entitled to a percentage-based fee of 33 and 1/3% of the gross amount due Hepler upon finalization of the probate of the will; and 2) his representation for which he is entitled to a percentage-based fee of 40% of the gross amount recovered by Hepler. The enhanced fee (40%) for representing Hepler is contingent upon: 1) the filing of "any competing beneficial inheritance claims to the assets or estate of the said Hughes"; or 2) the filing of "any action . . . seeking to set aside the Will". Neither of these contingencies occurred and Flaniken has not attempted to collect the 40% enhanced or contingent fee for representing Hepler. The contract does not distinguish Flaniken's rate of compensation for representing Hepler as personal representative from that for representing her individually.

IV. The probate court has broad discretion to grant or deny a motion to vacate timely filed under 12 O.S.2001, § 1031.1, and the probate court did not abuse its discretion in vacating the order allowing final accounting in this case.

¶11 On March 11, 2002, Flaniken filed the order allowing final accounting which the judge had signed on December 28, 2001. On March 22, 2002, Hepler filed a motion requesting that the order allowing the final accounting be vacated and that Flaniken be enjoined from disposing of the $96,712.23. Hepler filed her motion to vacate within thirty days from the filing of the order allowing the final accounting and thus invoked the now codified term-time authority of the court to correct, open, modify or vacate its order under 12 O.S.2001, § 1031.1.¹

¶12 Under 12 O.S.2001, § 1031.1, a trial court retains plenary control over its terminal decision for a thirty-day period after the decision is filed with the court clerk. During this thirty-day period, a trial court enjoys the unfettered common-law term-time authority to control a judgment or decree with very broad and almost unlimited discretion. Schepp, 770 P.2d at 38. The trial court's exercise of its term-time authority over its judgment or decree is not limited to specific grounds and once invoked during the thirty-day period, the trial court may exercise authority over its judgment or decree after the thirty-day period expires. Id. A trial court's term-time authority extends to its orders and decrees in probate proceedings. Matter of Estate of Goyne, 1986 OK 69, ¶10, 733 P.2d 391, 394, wherein this Court recognized that the provisions of § 1031.1 would be available in proceedings regarding the administration of estates.

¶13 In evaluating the probate court's response to the § 1031.1 motion to vacate, we observe the following. Flaniken represented to the court in the final accounting that his costs and fees as attorney for the personal representative was $13,000.00 and requested that the court approve that amount.² Flaniken failed to disclose to the court either the existence or the terms of his written contract with...