Coln v. Larson
Appellant William A. Coln III (Bill) seeks to recover taxes paid by his deceased father's estate from respondents David V. Larson and his accounting firm, McGowan Guntermann (collectively Larson). Bill filed two lawsuits against Larson, a civil suit and an action in the probate court.[2] In both he claims that Larson was professionally negligent and breached fiduciary duties by failing to advise decedent to create a family limited partnership (FLP).
A jury found that Larson did not act negligently and did not commit professional malpractice in the civil suit. The trial judge sitting as the probate court found that Larson, in his capacity as trustee, did not breach fiduciary duties.
In the civil suit, Larson successfully objected to the testimony of the only expert Bill called to testify on the accountant's professional standard of care. Bill contends the trial court erred in finding the witness, an attorney specializing in estate planning, not to be a competent witness on the issue of accountant malpractice. Bill also appeals from the court's instruction to the jury concerning his brother's failure to testify due to witness intimidation.
Bill's sole claim in the appeal from the probate judgment is that he is entitled to a new trial in the event this court reverses the jury verdict in the civil suit. Larson appeals from an award of expert witness fees and attorney fees in the probate action. He asserts the court erred in limiting recovery of those fees to the assets of the trust because the trust fund had been disbursed to the beneficiaries prior to the filing of the two lawsuits and insufficient assets remained in the trust to pay the fee awards. Court consolidated the appeals and now affirm the judgment after jury verdict in the civil case and affirm the judgment after bench trial and order granting attorney fees in the probate case.
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