In Re:Estate of Cononge, E. Appeal of: Cononge, A. ( 2017 )


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  • J-S49013-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ESTATE OF EDMOND A.                 :   IN THE SUPERIOR COURT OF
    CONONGE, DECEASED                          :        PENNSYLVANIA
    :
    :
    APPEAL OF: ANNA CONONGE,                   :
    DAUGHTER AND HEIR                          :
    :
    :
    :   No. 1884 WDA 2016
    Appeal from the Decree November 14, 2016
    In the Court of Common Pleas of Washington County
    Orphans’ Court at No(s): No. 63-13-0614
    BEFORE:        DUBOW, J., SOLANO, J., and FITZGERALD J.*
    MEMORANDUM BY DUBOW, J.:                               FILED OCTOBER 12, 2017
    Appellant, Anna Cononge, appeals from the November 14, 2016
    Decree confirming the accounting and directing the distribution of the estate
    of her father, Edmond A. Cononge (“Decedent”).                Appellee, Susan M.
    Cononge (“Administratrix”), has filed a Motion to Strike Appellant’s Brief.1
    After careful review, we affirm in part, vacate in part, remand, and deny
    Administratrix’s Motion to Strike.
    The relevant facts are as follows.         On May 3, 2013, Decedent died
    intestate. At the time of his death, Decedent was married to Administratrix,
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    Administratrix argues in her Motion that Appellant has waived her issues on
    appeal and should be sanctioned as a result of this alleged waiver.
    J-S49013-17
    who is not Appellant’s mother. Appellant and Administratrix are Decedent’s
    only heirs.
    On November 24, 2014, Administratrix filed a First Account, which
    provided an accounting for the period from May 3, 2013, through October
    31, 2014. The First Account noted that during that period Administratrix had
    paid attorneys’ fees on an hourly basis totaling $10,640, but had not paid
    any administratrix commissions.
    The First Account also listed as part of the estate inventory Decedent’s
    2011 Ford truck with an inventory value of $41,000 and the date-of-death
    balance on a truck loan as $36,476.00. At the time of his death, Decedent’s
    equity in the truck was $4,524.00. On June 25, 2013, the estate paid the
    outstanding balance on the truck loan.
    On December 23, 2014, Appellant filed objections to the First Account,
    in which she objected to the attorneys’ fees of $10,640.00.              She also
    objected to the administratrix commissions, although none had yet been
    paid. Appellant did not object to the listed inventory value of the truck, the
    date of death balance on the truck loan, or the pay-off of the truck loan by
    Administratrix.
    On April 15, 2015, Administratrix filed the Second Account covering
    the period from November 1, 2014, through March 31, 2015. The Second
    Account reflected the payment of an additional $3,410.00 in attorneys’ fees,
    calculated    hourly   (for   a   total   of    $14,050.00),   and   Administratrix
    commissions of $28,380.00. The Second Account also reflected the pay-off
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    of the truck loan by Administratrix. Appellant did not file objections to the
    Second Account.
    On April 29, 2015, the orphans’ court held a hearing on the objections
    filed by Appellant to the First Account.      At the hearing, Appellant did not
    object to the inventory value of Decedent’s Ford truck, the date of death
    balance on the truck loan, or Administratrix’s pay-off of the truck loan.
    Following the hearing, on May 5, 2015, the court entered an order, inter alia,
    denying Appellant’s objection to the attorneys’ fees, and approving future
    attorney’s fees to the extent allowable under the guidelines.
    On September 29, 2015, Administratrix filed the Third Account.          On
    November 18, 2015, Appellant filed objections to this Account, in which she
    objected to, inter alia, (1) the attorney for the Administratrix changing his
    fee calculation from an hourly rate to a percentage of the estate; and (2) the
    commission rate charged by the Administratrix.
    Following a hearing, on October 11, 2016, the court entered an Order
    granting in part and dismissing in part Appellant’s objections. In the Order,
    the   court   approved   total   attorney’s   fees   of   $34,577.00   and   total
    administratrix commissions of $14,833.00, and directed Administratrix to file
    a decree and schedule of distribution within 10 days. See Trial Ct. Order,
    10/11/16.
    On November 14, 2016, pursuant to the court’s October 11, 2016
    Order, Administratrix filed a Petition Sur Audit Intestacy, a Supplemental
    Petition Sur Audit Intestacy, and a Schedule of Distribution.            In the
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    Supplemental Petition, Administratrix requested that the court award her
    Decedent’s Ford truck “in-kind.” Administratrix represented that she would
    pay Appellant $2,262.00 for her one-half interest in the $4,524.00 equity
    held in the truck by Decedent at the time of his death.
    That same day, the court signed and entered on the docket the
    Adjudication and Decree.
    Appellant timely appealed on December 9, 2016.       Appellant and the
    orphans’ court have complied with Pa.R.A.P. 1925.
    Appellant raises the following three issues on appeal:
    1.    Did the [o]rphans’ [c]ourt err[] in ordering the payment of
    total attorney’s fees in the amount of $34,577.00, but later
    confirming the accounting and decree of distribution
    resulting in payment of total attorney’s fees in the amount
    of $51,877.00?
    2.    Did the [o]rphans’ [c]ourt err[] in ordering the payment of
    a total Administratrix commission of $14,833.00, but later
    confirming the accounting and decree of distribution
    resulting in payment of an Administratrix commission in
    the amount of $42,213.00?
    3.    Did the [o]rphans’ [c]ourt err[] in confirming the
    accounting and the decree of distribution proposed by the
    Administratrix that permitted her to take the truck in kind
    with a value of $4,524.00 and err[] in concluding that this
    issue was waived by [Appellant]?
    Appellant’s Brief at 4.
    Our standard of review of an orphans’ court decree is deferential.
    When reviewing a decree entered by the [o]rphans' [c]ourt, this
    Court must determine whether the record is free from legal error
    and the court's factual findings are supported by the evidence.
    Because the Orphans' Court sits as the fact-finder, it determines
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    the credibility of the witnesses and, on review, we will not
    reverse its credibility determinations absent an abuse of that
    discretion.
    In re Estate of Harper, 
    975 A.2d 1155
    , 1159 (Pa. Super. 2009) (citation
    omitted).
    We do not give the same deference to conclusions of law made by the
    orphans’ court, however.     
    Id. Rather, “[w]here
    the rules of law on which
    the court relied are palpably wrong or clearly inapplicable, we will reverse
    the court's decree.” 
    Id. In her
    first two issues, Appellant claims that the trial court erred in
    entering an Adjudication and Decree of Distribution ordering the payment of
    attorneys’ fees and administratrix’s commissions in amounts higher than the
    court authorized where there was no evidence of a change in circumstances.
    Appellant’s Brief at 15-16, 22-23. Appellant claims that the court approved
    the   overpayment    of    $28,380.00    in   Administratrix   commissions   and
    $17,310.00 in attorneys’ fees. 
    Id. at 23-24.
    We find these issues waived.
    In Appellant’s Rule 1925(b) Statement she presented these issues as
    follows:
    [1.]   The Orphans Court erred as a matter of law when it
    improperly approved fees for the attorney for the Estate
    who was charging at an hourly rate and then changed his
    fee to a percentage basis after Appellant made objections
    to the accountings filed by Administratrix.
    [2.]   The Orphans Court erred as a matter of law when it
    approved the increase in the Administratrix’s commission
    and retroactively applied its percentage thereby increasing
    the Orphans Court’s previously graduated percentage.
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    Appellant’s Rule 1925(b) Statement, 1/4/17, at 1-2 (unpaginated). Thus, in
    her Rule 1925(b) Statement, she challenged only the methodology used to
    assess the fees and commission.
    In her Brief, however, Appellant focuses her argument on the total
    amount of payments made to counsel and Administratrix rather than the
    methodology by which the court calculated these amounts. Appellant claims
    that the orphans’ court’s November 14, 2016 Decree and Schedule of
    Distribution erroneously approved distributions in excess of the amounts
    noted in its October 11, 2016 Order, permitting the total overpayment by
    the estate of $45,690.00. Appellant’s Brief at 22-24. Specifically, Appellant
    claims that in its October 11, 2016 Order, the court approved “total”
    payments to counsel and Administratrix of $34,577.00 and $14,833.00,
    respectively.   
    Id. at 19,
    23.     Appellant argues that the April 15, 2015
    Second Account reflects that the estate paid fees and commissions of
    $17,310 and $28,380 during the period covered by the Second Account.
    She argues, therefore, that the court intended the “total” payment approved
    on October 11, 2016, to be the approved amount less the amounts already
    paid, not the approved amount in addition to the amounts previously paid.
    Essentially, Appellant argues that Administratrix’s failure to reduce the
    “total” payment amounts approved by the court in its October 11, 2016
    Order resulted in a significant overpayment by the estate. 
    Id. at 23-24.
    It is well-settled that an appellant’s failure to raise an issue in her Rule
    1925(b) Statement results in its waiver on appeal. Lineberger v. Wyeth,
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    894 A.2d 141
    , 148 (Pa. Super. 2006) (citation omitted).            Furthermore, an
    appellant hampers the trial court’s ability to prepare a legal analysis
    addressing the issues raised when she fails to indicate with sufficient
    specificity the issues she seeks this Court to review on appeal. 
    Id. Here, our
    review of Appellant’s Rule 1925(b) Statement and appellate
    Brief indicates that Appellant failed to raise in her Rule 1925(b) Statement
    the same bases for her complaints of error as she later raised on appeal.
    Our review of the orphans’ court’s Rule 1925(a) Opinion supports this
    conclusion. In its Opinion, the court considered Appellant’s contention that
    the court erred in approving the estate’s attorneys’ fees on a percentage
    basis    rather   than   an    hourly   basis   and   the   reasonableness   of   the
    administratrix commission it ordered. Appellant did not raise, and, thus, the
    orphans’ court could not address, her current claim that the court ordered a
    significant overpayment of fees and commissions below.                 Accordingly,
    Appellant has waived the first two issues addressed in her appellate Brief.
    See Pa.R.A.P. 302(a).         Furthermore, because Appellant did not address in
    her Brief the methodology used in the orphans’ court’s decision concerning
    attorneys’ fees and the administratrix commission, that she raised in her
    Rule 1925(b) Statement, Appellant has abandoned this claim.
    In her final issue, Appellant claims that the orphans’ court erred in
    confirming the accounting and the decree of distribution proposed by
    Administratrix on November 14, 2016, that permitted her to take Decedent’s
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    truck “in-kind” at a value of $4,524.00. She also avers that the court erred
    in concluding that Appellant waived this issue. Appellant’s Brief at 24.
    In its Rule 1925(a) Opinion, the orphans’ court acknowledged that
    Appellant’s issue may have merit, but concluded that Appellant had waived
    this issue by raising it for the first time in her Rule 1925(b) Statement. We
    disagree.
    On October 11, 2016, the orphans’ court entered an Order directing
    Administratrix to “submit a Decree and schedule of Distribution within ten
    days of the date of this Order which comports with these rulings.          The
    signing by the [c]ourt of this Decree shall constitute a Final Appealable
    Order.” Orphans’ Court Order, 10/11/16. On November 14, 2016, pursuant
    to the court’s October 11, 2016 Order, Administratrix submitted a Petition
    Sur Audit Intestacy, a Supplemental Petition Sur Audit Intestacy, and a
    Schedule of Distribution. In the Supplemental Petition Sur Audit Intestacy,
    Administratrix indicated for the first time that she intended to take
    Decedent’s truck “in-kind,” assigned the truck a value of $4,524.00, which
    was the amount of equity in the truck at the time of Decedent’s death, and
    represented that she would pay Appellant $2,262.00 for her one-half
    interest.
    That same day, the orphans’ court entered an Adjudication and Decree
    confirming the account and directing the distribution of estate assets in
    accordance with the schedule of distribution submitted by Administratrix
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    “unless exceptions hereto, be filed [] or an appeal taken herefrom [].”
    Orphans’ Court Order, 11/14/16.
    Because this was the first time Appellant learned that Administratrix
    intended to take decedent’s truck “in-kind” at an assigned value of
    $4,524.00, an option the orphans’ court acknowledged as proper in its
    November 14, 2016 Decree, she filed a timely Notice of Appeal from the
    court’s Adjudication and Decree.2
    Appellee avers in her Motion to Strike Appellant’s Brief that Appellant
    knew as early as Administratrix’s Third and Final Accounting, filed on
    November 18, 2015, that Administratrix intended to take the truck in-kind,
    and failed to place a timely objection on the record. Our review belies this
    claim. We are unable to find any reference in the record prior to November
    14, 2016, to Administratrix’s intent to distribute the truck as an “in-kind”
    distribution to herself.
    Appellant was unaware of Administratrix’s intent to take the truck as
    an in-kind distribution prior to entry of the court’s November 14, 2016 final
    Order. Accordingly, the first opportunity she had to challenge this proposed
    ____________________________________________
    2
    The orphans’ court indicated that Appellant could file exceptions or an
    appeal from its Adjudication and Decree. In fact, Orphans’ Court Rule No.
    8.1 prohibits the filing of exceptions or post-trial motions, thus, Appellant’s
    only option to challenge the distribution was to file a motion for
    reconsideration in the orphans’ court, pursuant to Rule 8.2, or an appeal to
    this Court. See O.C.R. Nos. 8.1 and 8.2.
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    distribution was by way of her December 9, 2016 Notice of Appeal. In her
    Rule 1925(b) Statement, Appellant notified the orphans’ court of the basis
    for her objection, thus providing the court with the opportunity to explain its
    ruling.   We, therefore, conclude that Appellant preserved this issue for
    appeal.
    However, because the orphans’ court did not address the merits of the
    issue raised by Appellant, and noted only that it “may have merit,” we are
    constrained to remand this matter for the court to make findings of fact and
    conclusions of law regarding the proper value of the truck for purposes of
    distribution and how it is to be distributed as an asset of the estate.
    November 14, 2016 Order affirmed in part, and vacated in part. Case
    remanded with instructions.       Administratrix’s Motion to Strike denied.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/12/2017
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Document Info

Docket Number: 1884 WDA 2016

Filed Date: 10/12/2017

Precedential Status: Precedential

Modified Date: 10/12/2017