Peterson v. ORPHANS'COURT, 01552

• Decision Date: 07 December 2004
• Docket Number: No. 01552,01552
• Parties: William Christopher PETERSON, Personal Representative of the Estate of Elsie Virginia Kinsey v. ORPHANS' COURT FOR QUEEN ANNE'S COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

862 A.2d 1050

160 Md. App. 137

William Christopher PETERSON, Personal Representative of the Estate of Elsie Virginia Kinsey v. ORPHANS' COURT FOR QUEEN ANNE'S COUNTY, Maryland.

No. 01552, September Term, 2003.

Court of Special Appeals of Maryland.

December 7, 2004.

Elise Davis, Easton, for Appellant.

Gloria Wilson Shelton (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for Appellee.

Panel: HOLLANDER, SHARER and CHARLES E. MOYLAN JR. (Specially assigned), JJ.

HOLLANDER, Judge.

William Peterson, appellant, Personal Representative of the Estate of Elsie Kinsey, challenges various orders issued by the Orphans' Court for Queen Anne's County, appellee, in which the court, inter alia, reduced appellant's commissions, sua sponte; refused to approve the entire award of attorney's fees requested for Elise Davis, Esquire, counsel for the Estate;¹ and denied certain petitions to impute monies to roger e. pleasanton, Kinsey's surviving spouse.

Appellant presents four questions, which we quote:

I. Did the court below err as a matter of law when 15 months after the Petitions for Attorneys Fees and P[ersonal] R[epresentative] Commissions had been approved as well as the Account, without Petition of any interested person, modified the Order pertaining to P.R. commissions and changed the amount approved from $15,787.75 to $5,787.75?

II. Was it an abuse of discretion by the court below when it failed to impute monies to the surviving spouse for attorney[']s fees and court costs incurred by the Estate because of his failure to comply with the settlement agreement previously approved by the court?

III. Was it an abuse of discretion by the court below when it failed to approve attorney[']s fees and court costs necessitated by failure of the surviving spouse and/or his agent to remove tenants from Estate property and to pay over to the Estate monies due the Estate[?]

IV. Did the court below err as a matter of law when it failed to approve a proposed division of cash proceeds for the two rental units as agreed to by the parties in a settlement agreement previously approved by the court?

For the reasons that follow, we shall affirm.

I. FACTUAL AND PROCEDURAL SUMMARY

Elsie Kinsey died testate on May 1, 2000. Kinsey executed her "Last Will & Testament" on July 8, 1991, years before her marriage to Roger E. Pleasanton on June 26, 1997.² Pursuant to Kinsey's Will, her nephew, the appellant, was appointed as the Personal Representative of Kinsey's Estate. On June 16, 2000, Pleasanton, as surviving spouse, filed with the Orphans' Court for Queen Anne's County an "Election to Take Statutory Share of Estate."

In October 2000, Mr. Pleasanton brought suit in the Circuit Court for Queen Anne's County against the Estate and Peterson, individually and as personal representative, challenging the value of the probate estate. He focused on various Certificates of Deposit, totaling approximately $253,000, which the decedent had established with certain relatives well before her marriage to Pleasanton. Nevertheless, Pleasanton contended that the certificates were part of Kinsey's Estate. Following a trial in May 2001, the circuit court granted the defense's motion for judgment, embodied in a judgment of August 7, 2001. Thereafter, Pleasanton appealed to this Court. We affirmed on the merits, but remanded to the circuit court for the entry of a declaratory judgment. Pleasanton v. Peterson, No. 920, September Term, 2002, 145 Md.App. 723 (filed August 7, 2002) (unreported).

On March 30, 2001, Peterson filed a first administration account, in which he reported assets for the Estate of $407,952.51. Kinsey's Estate included, inter alia, real and leasehold properties, including properties located at 212, 216 and 244 Merganser Drive in Chestertown.

On June 29, 2001, appellant conveyed the properties at 212 and 244 Merganser Drive to Pleasanton as the surviving spouse. At that time, Pleasanton also held title to the property at 216 Merganser Drive. By Order entered November 6, 2001, however, the Orphans' Court directed Pleasanton "to deed the three (3) real properties back to the estate for distribution or sale of said properties, unless the legatees and the surviving spouse agree that the spouse may retain the one parcel that he was willing to accept as a partial distribution-in-kind of his elective share."

In the interim, on August 10, 2001, appellant, through counsel, filed a "Petition for Allowance of Attorney Fees," in which he requested an award to Davis of attorney's fees of $22,599. Both Peterson and Davis signed the Petition. The Petition identified the following services rendered by Ms. Davis:

a. Identifying creditors of the Estate;

b. Preparation of Petition for Probate;

c. Arranging for bond for personal representative;

d. Arranging for appraisals of assets of the Estate;

e. Preparation of Inventory;

f. Preparation of Information Report and Amended Information Report g. Defending the Personal Representative in litigation wherein he was sued by the surviving spouse over non-probate assets, representing the Personal Representative in matters before the Orphans' Court pertaining to the carrying out of the provisions of the decedent's will and representing the Personal Representative in recovering assets belonging to the Estate....

h. Preparation of First Administration Account and Amended First Administration Account;

i. Preparation and filing of state and federal tax returns;

j. Attending hearing on exceptions to First Account;

k. Attempting to recover assets for the Estate and a debt due the Estate.

As an exhibit to the motion, appellant attached an itemized list of approximately 150 services rendered by Ms. Davis between June of 2000 and June of 2001, along with the corresponding time that she expended. The list reflected 167.4 hours of work, at an hourly rate of $135, for a total of $22,599. From the lawyer's list of services, we have set forth below only those entries that also appear on the fee petition submitted on the same date by the personal representative.

06-19-00 8.0 hrs. Chincoteague property 11-14-00 2.5 hrs. depo in Centreville 12-05-00 3.5 hrs. C'ville — client depo 12-19-00 2.0 hrs. hearing on Petition to Sell — C'ville 01-23-01 5.0 hrs. prep. for depo. & drft. plead & depo 02-08-01 2.0 hrs. CCCQAsch. conference 02-13-01 2.0 hrs. Hearing, P.R. v. Frank Reed & drft ltr 02-14-01 2.5 hrs. Kinsey/Pleasanton 02-14-01 2.5 hrs. Kinsey hearing-P.R. vs. Reed 02-20-01 3.2 hrs. prep. for Centreville hearing 03-26-01 5.5 hrs. prep. hearing 05-10-01 3.0 hrs. prep hearing (Reed), hearing C'ville & serve subpoenas 05-23-01 6.0 hrs. hearing & prep for next hearing 05-24-01 5.0 hrs. appeal hearing in C'ville 06-12-01 2.0 hrs. exceptions hearing 06-26-01 3.6 hrs. hearing in C'ville — Replevin action

Also on August 10, 2001, appellant filed a "Petition for Allowance of Personal Representative Commissions," in which he sought commissions of $15,787.85, representing 63.5 hours that he expended on behalf of the Estate. In his petition, appellant detailed seventeen services he rendered between June 19, 2000, and June 26, 2001, for which he claimed to have expended 63.5 hours in time. We have highlighted below the one service that does not appear on the attorney's fee petition of August 10, 2001.

06-19-00 10.0 hrs. Visiting Chincoteague property 11-14-00 2.5 hrs. Attending Joyce Lindauer deposition 12-05-00 3.5 hrs. Attending Chris Peterson deposition 12-19-00 2.0 hrs. Attending Hearing on Petition to Sell 01-23-01 5.0 hrs. Attending Pleasanton deposition 02-08-01 2.0 hrs. Attending CCCQAC — scheduling conference — Pleasanton v. Peterson 02-13-01 2.0 hrs. Attending Judicial Probate Hearing 02-14-01 1.5 hrs. Attending Kinsey v. Reed 02-14-01 3.5 hrs. Attending Kinsey v. Pleasanton 02-20-01 3.2 hrs. Attending Hearing on Motion — Summary Judgment 03-26-01 5.5 hrs. Attending Hearing On Petition For Order For Distribution of Family Allow 04-30-01 1.2 hrs. Attending Dan Peterson deposition 05-10-01 3.0 hrs. Attending Hearing on Motion to Amend Judgment — Reed 05-23-01 8.0 hrs. Attending Trial 05-24-01 5.0 hrs. Attending Appeal hearing in C'ville 06-12-01 2.0 hrs. Attending Exceptions hearing 06-26-01 3.6 hrs. Attending Hearing on replevin action

On the same date, August 10, 2001, Ms. Davis filed a " Notice of Filing," in which she notified all interested persons that: 1) a petition for attorney's fees had been filed; and 2) the interested persons had a statutory right to object to the request within twenty days of receipt of the notice. According to the certificate of service, Ms. Davis sent copies of the petition to appellant; Daniel Peterson; and Samuel Heck and Frederick Franke, attorneys for the surviving spouse. Subsequently, on August 27, 2001, the surviving spouse, through his counsel, filed an "Answer to Petition for Allowance of Attorney's Fees," in which he objected to the proposed award of counsel fees.

In addition, Ms. Davis filed another "Notice of Filing," in which she informed all interested parties of appellant's petition for commissions and the statutory right to except within twenty days. The notice was sent to the same individuals to whom the prior notice was mailed. Then, on August 27, 2001, Pleasanton, through counsel, filed an "Answer to Petition for Allowance of Personal Representative's Commission," in which he excepted to the request for commissions.

Appellant filed his "Amended First Administration Account" on September 12, 2001, in which he reported total Estate assets of $408,551.51, an increase of $599 over the assets reported in the first administration account. On September 18, 2001, the Orphans' Court approved the amended account, "subject to exceptions being filed within twenty (20) days" of the date of the Order.

Thereafter, on October 25, 2001, Peterson, through counsel, filed a "Supplemental Petition for Allowance of Attorney Fees," in which he...