Estate of Jackson
Filed 12/23/09 Estate of Jackson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
Estate of EMITT B. JACKSON, Deceased.
EUGENE SCHNEIDER, A124023
Plaintiff and Appellant, (San Francisco
Super. Ct. No. 283199)
v.
PATRICIA ALICE JACKSON et al.,
Defendants and Respondents.
_______________________________________/
Attorney Eugene Schneider appeals from an order approving the final distribution of assets in the estate of Emitt B. Jackson. He does not challenge the final distribution. Rather, he contends the probate court abused its discretion by awarding him $20,912.50 in extraordinary compensation pursuant to Probate Code section 10811[1] instead of the $62,737.50 he requested. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Emitt Jackson died in April 2000 and his will was admitted to probate in May 2002. [2] Respondents Patricia Jackson (Patricia) and Marian Jackson-Chavez (Marian) are the personal representatives of Jacksons estate.[3] Respondents hired Schneider to represent them during the probate proceedings.
Schneider Seeks Compensation for Extraordinary Services
In August 2008, Schneider filed a document entitled Petition for Final Distribution, Allowance of Ordinary & Extraordinary Compensation and for Establishment of Testamentary Trust (Petition). In the Petition, Schneider sought $24,200 in statutory ordinary compensation ( 10801) and $62,737.50 in extraordinary compensation ( 10811). Schneider alleged he was entitled to extraordinary compensation because he had performed extraordinary services for the benefit of the estate in a partition action and in the sale of the estates real property.
A. The Partition Action
In the Petition, Schneider described the partition action in great detail. When Jackson died, he owed a parcel of property on Ellert Street and another on 22nd Street in San Francisco as a tenant in common with Rose L. Jackson. After Jackson died, Rose insisted the properties belonged only to her. According to Schneider, Roses refusal to do anything by way of resolving the conflict required respondents to initiate a partition action to resolve the issues relating to the properties. The Petition explained that the partition action took almost three years to settle because: (1) Rose refused to accept service of the complaint by notice and acknowledgement, forcing Schneider to serve her personally; and (2) Rose erroneously insisted that a 1031 exchange was necessary to resolve the dispute.
Respondents eventually settled the dispute with Rose; she agreed to convey her share of the 22nd Street property to the estate; in return, the estate would sell the property and pay Rose her share. The estate sold the 22nd Street property in 2007. Schneider determined Rose was entitled to $135,000 but after further litigation the probate court disagreed and awarded Rose a significantly larger amount.
Schneider alleged his hourly rate was $350 and that he spent 155 hours on matters directly related to the partition action for a total of $54,477.50. He claimed the amount of extraordinary compensation he sought for services on the partition action was reasonable given the amount involved. Schneider attached time records to the Petition indicating he spent 155 hours from June 2004 to July 2008 on litigation time.
B. The Sale of the Estates Real Property
Schneider also sought $8,260 in fees for time he spent on the sale of the 22nd Street property. He explained that the sale of the property was complicated by the passage of time from Jacksons death in 2000 to the date when the estate came into sole possession of the property in June 2006. Schneider noted that work had to be performed on the property to bring [it] to a desirable condition and that the real estate broker and the escrow company delayed the sale because they were unfamiliar with probate sales. Schneider attached time records from September 2006 to September 2007 indicating he spent 23.6 hours on the estates real property sale. He claimed the amount he sought [was] substantially less than one percent of the sale price, and is reasonable under the circumstances.
Respondents Oppose Schneiders Request for Extraordinary Compensation
Respondents opposed the request for extraordinary compensation, contending the amount of extraordinary compensation Schneider sought was excessive. They argued Schneider delayed resolving the partition action and selling the estates property because he was inefficient and was trying to be a nice guy to opposing counsel. (Original italics.) Respondents also noted that Schneider suffered a heart attack which caused a delay in the proceedings and that he hired the allegedly incompetent real estate broker and escrow company. Respondents also claimed Schneider delayed the entry of judgment in the partition action.
The Hearing and the Courts Ruling
At a hearing on the petition, the court invited Schneider to present argument on his request for extraordinary compensation. In response, Schneider stated, I dont know what I can add. I tried to give the court a very complete review of the events over the last six years. I dont know what I can add. [] With respect to the opposition, I feel somewhat constrained by Rule 3[-]100,[4] so I think I will just rest with what I provided to the court in the petition.
The court indicated it had reviewed respondents opposition to the request for extraordinary compensation and asked respondents whether they believed Schneider was entitled to any extraordinary compensation. Patricia agreed that extraordinary compensation was appropriate but asked the court to award Schneider one third of what hes currently requesting because of the the time and the actual loss to the estate.
The court then gave Schneider an additional opportunity to present argument and Schneider stated, I would only recite to the court a Supreme Court case Erhart [v.] Low[5] . . . what the court said in that case is that the benefit to a client is not measured by the failure or success but by the services provided. And I think under that criteria [sic], I think the services provided, given what we had to deal with by way of our opposition, I think the request for fees is reasonable.
The court awarded Schneider $20,912.50, one-third of the extraordinary compensation he requested. He timely appealed.
DISCUSSION
Schneider contends the court abused its discretion by awarding him one-third of the extraordinary compensation he requested pursuant to section 10811. He claims the court: (1) relied solely on respondents arguments when it awarded him extraordinary compensation of $20,912.50 rather than the $62,737.50 he sought; and (2) did not provide a statement of reasons for awarding less than the extraordinary fee requested.
The Award of Extraordinary Compensation Was Not an Abuse of Discretion
Pursuant to section 10811, the court has discretion to compensate the attorney for the personal representative of a decedents estate for extraordinary services performed in administering the estate. ( 10811, subd. (a) [the court may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable].)
The court has broad discretion to determine whether to award extraordinary compensation and to fix the amount of compensation awarded. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448 (Gilkison); Estate of Gopcevic (1964) 228 Cal.App.2d 280, 282 [Allowance of such compensation is not mandatory [citation], but is discretionary with the probate court]; Cal. Rules of Court, rule 7.703(a).) There are no set rates for extraordinary compensation. The amount of extraordinary compensation is determined by the court, in the exercise of its discretion and on the basis of supporting declarations and exhibits. (Ross, Cal. Practice Guide: Probate (The Rutter Group 2008) 16:327.4, p. 16-99.) For example, the court generally takes into account the value of the estate, the nature and difficulty of the tasks performed and the time spent, the resultsachieved and whether those results benefited the estate as a whole (rather than simply furthering the interests of a particular distributee). The court will also evaluate these factors against the amount of statutory (ordinary) compensation payable, and whether that amount would itself provide reasonable compensation. (Id. at 16:330, pp. 100-101, original italics; see also Estate of Stevenson (2006) 141 Cal.App.4th 1074, 1091[lower court considers various factors to determine whether to allow a claim for extraordinary fees pursuant to section 10811 and has discretion to disallow claims for extraordinary compensation].)
A reviewing court will overturn an award of extraordinary compensation only where the lower court has abused its discretion. The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Gilkison, supra, 65 Cal.App.4th at p. 1449, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice . . . . (Gilkison, supra, 44 Cal.3d at p. 1449, quoting Brown v. Newby (1940) 39 Cal.App.2d 615, 618.)[6]
The issue here is whether the court abused its discretion by awarding Schneider approximately one-third of the extraordinary compensation he requested. Schneiders first complaint is the court reduced the extraordinary fee request to the exact amount requested by respondents. He contends the court improperly relied on respondents opinion about the proper amount of extraordinary fees requested rather than exercising its own discretion.
We disagree. Here, the court reviewed the Petition and respondents opposition. It also allowed both Schneider and respondents to present argument on the amount of extraordinary compensation.[7] The court may have been persuaded by respondents
contention that it was Schneider who delayed the resolution of the partition action and slowed the sale of the 22nd Street Property. The court may also have been persuaded by respondents claim that Schneider spent too much time performing the extraordinary services for which he sought compensation. But that does not constitute an abuse of discretion.
There is simply no indication that the court failed to consider the value of the estate, the nature and difficulty of the tasks Schneider performed and the time he spent, the results he achieved and whether those results benefited the estate as a whole. Nor does the record demonstrate the court declined to evaluate these factors against the amount of ordinary compensation payable, and whether that amount would itself provide reasonable compensation. (Ross, Cal. Practice Guide: Probate, supra, 16:330, p. 101.) Here, the court considered both parties versions of the events and fixed an amount of extraordinary compensation that was just and reasonable under the circumstances. ( 10811, subd. (a).) Schneider has failed to demonstrate the award of $20,912 in extraordinary compensation was a miscarriage of justice.
Schneiders second claim is the court abused its discretion by failing to state the basis for its reduction in the fees awarded. To support this argument, Schneider cites cases which he contends require a probate court to explain its rationale when it awards compensation for extraordinary services. The problem with this argument is that all of the cases Schneider cites are completely distinguishable. For example, Schneider relies on People v. Martin (1986) 42 Cal.3d 437, 451, a case where the California Supreme Court considered whether a trial court must issue a statement of reasons during certain sentencing proceedings. And in Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614, 620, another case Schneider cites, the appellate court addressed an award of attorney fees pursuant to the private attorney general statute, Code of Civil Procedure section 1021.5. Neither of these cases nor any of the other cases upon which Schneider relies supports his argument that a probate court must issue a statement of reasons when it awards extraordinary compensation pursuant to section 10811.
We are not persuaded by Schneiders reliance on Estate of Trynin (1989) 49 Cal.3d 868, 874 (Trynin), which he claims stands for the proposition that the only time an extraordinary fee may be reduced is when there is a specific finding that attorneys have not act[ed] in consonance with the fiduciary duties imposed upon them. (Id. at p. 874, quoting Ludwig v. Superior Court (1933) 217 Cal. 499, 500.) Schneiders argument is premised on a fundamental misreading of Trynin. In that case, the California Supreme Court noted the trial courts discretion to award extraordinary compensation in probate proceedings and discussed the factors a court should consider when determining whether to award such compensation. (Trynin, supra, at pp. 873-874.)
The Trynin court held that a court could award extraordinary compensation for services that did not directly benefit the estate. The court also explained, however, that [i]f, under all the relevant circumstances, the amount awarded as ordinary compensation is fair and reasonable for all the attorney services, the court may disallow a request for extraordinary compensation even though some extraordinary services have been performed. (Trynin, supra, 49 Cal.3d at p. 874.) Trynin does not require a trial court to make a specific finding that an attorney has not acted in accordance with his or her fiduciary duty when the court decides to award less than the full amount of extraordinary compensation requested. As a result, Schneider has failed to demonstrate the court erred by not issuing a statement of reasons when it awarded extraordinary compensation.
Respondents Request for Sanctions
In their brief, respondents seek attorney fees as sanctions for Schneiders frivolous appeal. We deny the request for sanctions because respondents have not complied with California Rules of Court, rule 8.276(b)(1), which requires a party seeking sanctions to file a motion for sanctions that include[s] a declaration supporting the amount of any monetary sanction sought. . . . (See, e.g., Gilkison, supra, 65 Cal.App.4th at p. 1450 [declining to award sanctions where respondent failed to comply with former California Rules of Court, rule 26(e) because there was no basis to determine the appropriate amount of sanctions that theoretically could be awarded him].)[8]
DISPOSITION
The order is affirmed. Respondents motion for sanctions is denied. Respondents are entitled to their costs on appeal.
_________________________
Jones, P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
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[1] Unless otherwise noted, all further statutory references are to the Probate Code. Section 10811, subdivision (a) provides: Subject to the provisions of this part, in addition to the compensation provided by Section 10810, the court may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable. Section 10810, subdivision (a) governs compensation for ordinary services.
[2] Both parties fail to provide record citations for their factual assertions. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Their inadequate citations have hampered our review but have not prevented us from addressing the merits of the appeal. While we elect not to impose sanctions, we admonish counsel for both parties to pay careful attention to rule 8.204(a)(1)(C) of the California Rules of Court.
[3] We refer to respondents by their first names because they share Jacksons surname. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
[4] Rule 3-100 of the Professional Rules of Conduct (Rule 3-100) constrains an attorneys ability to release a clients confidential information.
[5] Schneider was presumably referring to Earhart v. William Low Co. (1979) 25 Cal.3d 503.
[6] As the Gilkison court has aptly noted, An attorney who prosecutes an appeal from an order addressed to the trial courts sound discretion is confronted with more than a daunting task. This is an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hoods attempt to capture Little Round Top at the battle of Gettysburg in the Civil War. General Hood did not succeed. (Gilkison, supra, 65 Cal.App.4th at p. 1448.)
[7] Schneider suggests Rule 3-100 prevented him from presenting his side of the case at the hearing on the Petition. Schneider does not develop this argument and he does not identify any category of information which bears on the issue of whether he merited the extraordinary compensation he sought but which he was barred from disclosing.
[8] On our own motion, we issued an order notifying Schneider we were considering imposing sanctions pursuant to California Rules of Court, rule 8.276(a)(1) for [t]taking a frivolous appeal or appealing solely to cause delay. Our principle concern was whether the appeal indisputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally and completely without merit. (Johnson v. Lewis (2004) 120 Cal.App.4th 443, 457 (Johnson), quoting Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310.) While the issue is close, the court has decided not to impose sanctions under the precise facts presented.
