in Re Easterly Estate ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of ROBERT W. EASTERLY.
SHARON RUBINO EASTERLY, Individually UNPUBLISHED
and as Personal Representative of the Estate of May 14, 2015
ROBERT W. EASTERLY, THEODORE B.
EASTERLY, JAMES R. EASTERLY, SHARON
EASTERLY ALLEN, JAMES L. EASTERLY,
and BETTY EASTERLY SHIMMEL, a/k/a
ELIZABETH J. EASTERLY,
Appellees,
v Nos. 319145; 320189
Oakland Probate Court
JEAN MARIE HANSEN, ATTORNEY, P.C., LC No. 2012-342795-DE
Appellant.
In re Estate of ROBERT W. EASTERLY.
SHARON RUBINO EASTERLY, Individually
and as Personal Representative of the Estate of
ROBERT W. EASTERLY,
Appellee,
and
THEODORE B. EASTERLY, JAMES R.
EASTERLY, SHARON EASTERLY ALLEN,
JAMES L. EASTERLY, and BETTY EASTERLY
SHIMMEL, a/k/a ELIZABETH J. EASTERLY,
Intervening Parties,
v No. 319723
Oakland Probate Court
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JEAN MARIE HANSEN, ATTORNEY, P.C., LC No. 2012-342795-DE
Appellant.
Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ.
PER CURIAM.
These consolidated appeals arise from the probate administration of the estate of Robert
W. Easterly, who died on April 3, 2012. The decedent’s wife, Sharon Rubino Easterly
(“Rubino”), appellee, was appointed personal representative of the decedent’s estate. During the
proceedings, appellant, Jean Marie Hansen, Attorney, P.C. (“appellant”), filed a petition
requesting the estate to pay for services allegedly rendered by attorney Jean Marie Hansen in
assisting the estate and Rubino. In Docket No. 319145, appellant appeals as of right the probate
court’s September 24, 2013 order allowing Rubino’s final account for the estate, but disallowing
requested fees sought for Hansen’s services, and the probate court’s October 30, 2013 order
allowing the partial distribution of 908 Emerson Drive in Troy and office furniture valued at
$300 to Rubino, individually. In Docket No. 319723, appellant appeals as of right the probate
court’s October 30, 2013 order awarding attorney Richard Siriani attorney fees and costs of
$31,563.60 as sanctions against appellant, and allowing Siriani to reduce the sanctions award to a
civil judgment against appellant. In Docket No. 320189, appellant appeals as of right the
December 30, 2013 civil judgment entered by the probate court for $31,563.60, plus statutory
interest, in favor of the estate. In Docket No. 319145, we affirm in part, reverse in part, and
remand for further proceedings regarding appellant’s requested attorney fees. In Docket Nos.
319723 and 320189, we vacate the order of sanctions and civil judgment and remand for further
proceedings.
I. BACKGROUND
Robert Easterly was survived by Rubino, an adult son, and siblings when he died in April
2012. At the time of his death, the decedent operated a law practice as a sole practitioner.
Hansen filed the initial application to commence probate proceedings for the informal
administration of the decedent’s estate as an intestate estate. Rubino was issued letters of
authority to act as personal representative, but would not sign a retainer agreement with Hansen.
On May 29, 2012, the probate court entered an order substituting Siriani for Hansen as Rubino’s
attorney. The case was later converted to formal, supervised administration of the decedent’s
estate, as a testate matter, with Rubino continuing to serve as personal representative.
In June 2013, Rubino, as the personal representative, filed petitions for the probate court
to approve completion of the estate settlement, her first and final account, and payment of her
fiduciary fees and attorney fees. On the day before the July 17, 2013 hearing on Rubino’s
petitions, appellant filed a petition seeking $73,646.57 in attorney fees; $52,207.32 for “general
administration” services and $21,439.25 for “law client” matters. The probate court adjourned
the July hearing after determining that an evidentiary hearing was necessary to determine
whether the decedent’s estate owed any fees to appellant. Appellant filed an amended petition
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before the next scheduled hearing on September 17, 2013, requesting $73,084.07 for services
and expenses. At the hearing, the probate court found it unnecessary to hold an evidentiary
hearing and held that the fees sought by appellant could not be charged to the estate as a matter
of law. After disallowing the fees, the probate court authorized Siriani to file a petition seeking
attorney fees as sanctions for having to defend against appellant’s petition and amended petition.
On October 1, 2013, Rubino, through Siriani, filed a petition for sanctions of $31,569.60
against appellant pursuant to MCR 2.114(E) and (F). While that motion was pending, appellant
moved for reconsideration of the probate court’s September 24, 2013 order disallowing its
requested attorney fees. In addition, Rubino moved for partial distribution of estate assets to her,
individually. The probate court denied appellant’s motion for reconsideration on October 28,
2013. At a hearing on October 30, 2013, the probate court granted Rubino’s petition for
sanctions of $31,563.60, based on its determination that appellant’s petition was frivolous under
MCL 600.2591, and also granted Siriani’s request to reduce the sanction award to a civil
judgment. The court also granted Rubino’s petition for partial distribution of estate assets. A
civil judgment against appellant was thereafter entered on December 30, 2013, for $31,563.60,
with statutory interest commencing October 30, 2013.
II. DOCKET NO. 319145
The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. applies to this
case. We review legal issues underlying a probate court’s decision, including issues of statutory
construction, de novo. In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265
(2008). Any factual findings made by the probate court are reviewed for clear error, while its
dispositional rulings are reviewed for an abuse of discretion. Id. An abuse of discretion occurs
when the probate court chooses an outcome outside the range of reasonable and principled
outcomes. Id.In docket number 319145, appellant first argues that the probate court erred in denying
the attorney fees requested in its amended petition. Although we agree that appellant is not
entitled to some of its requested attorney fees, we conclude that further proceedings are
necessary with respect to a portion of the requested fees.
Initially, we note that we reject appellant’s claims of procedural error as it relates to the
September 17, 2013 hearing held by the probate court. Appellant’s claims are unsupported by
the record, and based on our review, both parties were given an opportunity to be heard at the
proceeding. While the court ultimately decided the issue as a matter of law, such action is
permitted by MCR 2.116(I)(1).1 Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853
(2009) (holding that pursuant to MCR 2.116(I)(1), a trial court may sua sponte grant summary
disposition). Accordingly, we reject appellant’s claims of procedural error.
1
MCR 2.116(I)(1) provides that “[i]f the pleadings show that a party is entitled to judgment as a
matter of law, or if the affidavits or other proofs show that there is no genuine issue of material
fact, the court shall render judgment without delay.”
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The attorney fees claimed by appellant are related to services allegedly rendered by
Hansen in relation to the estate, and are discussed by the court and the parties through
differentiation into two categories. First, Hansen requested fees for services rendered for the
commencement of the probate proceedings. These fees arose during the period of time Hansen
represented Rubino in the probate proceedings, before she was substituted for Siriani.2 Second,
Hansen requested fees associated with services rendered in relation to the management of the
decedent’s law practice.3
The probate court offered multiple reasons for disallowing the requested attorney fees,
which it summarized in its September 24, 2013 order as follows:
Ms. Hansen’s claims for fees are disallowed, and her July 16, 2013
Petition and Order and the August 28, 2013 First Amended Petition and Order are
both denied for the reasons stated on the record, including without limitation Ms.
Hansen’s: failure to file a claim, failure to demonstrate a written retainer
agreement with the personal representative, failure to comply with the court rules,
failure to publish for creditors, failure to file an inventory, failure to benefit the
estate, her incorrect filing of the application on April 13, 2012 which represented
to the court that the decedent died intestate when Ms. Hansen knew the decedent
had a valid will.
The court further explained in its decision denying appellant’s motion for reconsideration that
Hansen, who admittedly did not have a retainer agreement and had characterized herself as a
“claimant” at the earlier July hearing, failed to comply with MCR 5.313 or MCL 700.3803(2).
On appeal, appellant asserts that all fees requested by appellant were probate
administration expenses pursuant to MCL 700.3803(3), and thus are not subject to the time
limitations in MCL 700.3803(2). Further, the lack of a signed fee agreement does not bar
payment of attorney fees pursuant to MCR 5.313. According to appellant, its claims should not
have been dismissed as a matter of law, but should have proceeded to an evidentiary hearing on
reasonableness.
In contrast, Rubino asserts that, in regard to Hansen’s services for the probate
administration, appellant failed to comply with MCR 5.313 because there was no signed fee
agreement between appellant and Rubino. Further, the fees requested by appellant were not
reasonable or necessary, and the services rendered did not benefit the estate. Specifically,
appellant incorrectly filed the estate proceedings as an intestate matter, which cost the estate
money to correct. In regard to fees claimed for services related to the decedent’s law practice,
the probate court correctly determined that appellant was an estate creditor and subject to MCL
700.3803(2). Accordingly, appellant’s claims were time barred. Further, the court correctly
2
These fees generally arose between April 4, 2012 and May 29, 2012.
3
These fees generally arose between May 30, 2012, and June 20, 2013.
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found that any of the decedent’s clients with unearned retainers had claims against the state, and
that the clients to which appellant provided further services after decedent’s death were liable for
appellant’s fees, not the estate.
In regard to fees requested by appellant for services related to the decedent’s law firm,
the parties dispute the interpretation and application of several relevant statutes. We begin our
analysis by considering these disputes.
MCL 700.3803 provides time limitations for claims4 against an estate. MCL 700.3803(1)
establishes time limits for claims that arose before the decedent’s death. MCL 700.3803(2)
establishes time limits for claims against a decedent’s estate that arise at or after the decedent’s
death, which depend on whether the claim is based on contract. Under MCL 700.3803(2)(a), a
claim based on a contract with the personal representative must be presented “within 4 months
after performance by the personal representative is due.” Under MCL 700.3803(3)(c), however,
this provision does not affect or prevent the “[c]ollection of compensation for services rendered .
. . by the personal representative or by an attorney . . . or other specialized agent or assistant for
the personal representative of the estate.”
In relation to MCL 700.3803(3), EPIC provides that a personal representative, acting
reasonably for the benefit of interested persons, has the following authority, unless restricted or
otherwise provided by will or a court order in a formal proceeding:
(w) Employ an attorney to perform necessary legal services or to advise
or assist the personal representative in the performance of the personal
representative’s administrative duties, even if the attorney is associated with the
personal representative, and act without independent investigation upon the
attorney’s recommendation. An attorney employed under this subdivision shall
receive reasonable compensation for his or her employment. [MCL 700.3715.]
MCL 700.3715(z) authorizes a personal representative to continue a business in which the
decedent was engaged as a sole proprietor in one of three manners.
The parties dispute whether MCL 700.3803(2) or (3) apply to the fees requested in
relation to the decedent’s law practice. Appellant asserts the fees were general administration
expenses pursuant to MCL 700.3803(3), and appellee argues that appellant was admittedly a
creditor of the estate pursuant to MCL 700.3803(2). The probate court determined that MCL
700.3803(2) applied to appellant’s claims because the services rendered were not part of the
administration of the estate. If the court were correct, and MCL 700.3803(2) applies, appellant’s
claims may be time barred. However, we disagree that MCL 700.3803(2) applies. MCL
700.3803(3) provides for the “[c]ollection of compensation for services rendered and
4
EPIC defines a “claim” as including a liability of the decedent, “whether arising in contract,
tort, or otherwise, and a liability of the estate that arises at or after the decedent’s death . . . ,
including funeral and burial expenses and costs and expenses of administration.” MCL
700.1103(g).
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reimbursement of expenses advanced by the personal representative or by an attorney, auditor,
investment adviser, or other specialized agent or assistant for the personal representative of the
estate.” No time limitations are incorporated into subsection (3). Pursuant to MCL 700.3715,
the personal representative, Rubino, was permitted to continue the decedent’s business in one of
the forms explicated by MCL 700.3715(z), and was able to employ services of an attorney to
“perform necessary legal services or to advise or assist the personal representative in the
performance of the personal representative’s administrative duties.” MCL 700.3715(w).
Further, “an attorney employed under this subdivision shall receive reasonable compensation for
his or her employment.” MCL 700.3715(w). We conclude that the fees associated with
continuing or managing the decedent’s business were within Rubino’s administrative duties, and
that she was permitted to hire an attorney to provide such services. Further, Rubino’s attorney,
Siriani, admitted that Hansen was hired to provide services related to the decedent’s business.
As such, appellant’s claims were subject to MCL 700.3803(3), and, thus, not subject to the time
limitations in MCL 700.3803(2).
We next address the probate court’s ruling that MCR 5.313 barred appellant’s attorney
fee claims because appellant lacked a written fee agreement with Rubino. A court applies
principles of statutory construction when construing a court rule. Acorn Investment Co v Mich
Basic Prop Ins Ass’n, 495 Mich 338, 350; 852 NW2d 22 (2014). We conclude that appellant’s
claims were not barred pursuant to MCR 5.313(B).
MCR 5.313 provides:
(A) Reasonable Fees and Costs. An attorney is entitled to receive
reasonable compensation for legal services rendered on behalf of a personal
representative, and to reimbursement for costs incurred in rendering those
services. In determining the reasonableness of fees, the court must consider the
factors listed in MRPC 1.5(a). The court may also take into account the failure to
comply with this rule.
(B) Written Fee Agreement. At the commencement of the representation,
the attorney and the personal representative or the proposed personal
representative must enter into a written fee agreement signed by them. A copy of
the agreement must be provided to the personal representative.
* * *
(D) Notice to Interested Persons. Within 14 days after the appointment of
a personal representative or the retention of an attorney by a personal
representative, whichever is later, the personal representative must mail to the
interested persons whose interests will be affected by the payment of attorney
fees, a notice in the form substantially approved by the State Court Administrator
and a copy of the written fee agreement. . . .
* * *
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(E) Payment of Fees. A personal representative may make, and an
attorney may accept, payments for services and costs, on a periodic basis without
prior court approval if prior to the time of payment,
(1) the attorney and personal representative have entered into a written fee
agreement;
(2) copies of the fee agreement and the notice required by subrule (D)
have been sent to all interested persons who are affected;
(3) a statement for services and costs (containing the information required
by subrule (C)) has been sent to the personal representative and each interested
person who has requested a copy of such statement; and
(4) no written, unresolved objection to the fees, current or past, has been
served on the attorney and personal representative.
In all other instances, attorney fees must be approved by the court prior to
payment. Costs may be paid without prior court approval. Attorney fees and
costs paid without prior court approval remain subject to review by the court.
[Emphasis added.]
Here, a plain reading of the statute does not indicate that attorney fees are barred by the
failure to enter into a written fee agreement. While the rule does provide that the parties shall
enter into a written fee agreement, MCR 5.313(B), it further provides that “[t]he court may also
take into account the failure to comply with this rule,” MCR 5.313(A). In addition, MCR
5.313(E) provides that attorney fee payment and receipt may occur without court approval
provided the stated requirements were followed. “In all other instances, attorney fees must be
approved by the court prior to payment.” MCR 5.313(E). Pursuant to the plain language of the
court rule, we conclude that attorney fees were not barred, but subject to court approval, and that
the probate court could consider appellant’s failure to comply with the rule when considering
attorney fees. The probate court’s interpretation of MCR 5.313 contravenes the rule of statutory
construction that a court may not read into a statute what is not within the intent as derived from
the statutory language. Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010).
Based on our above analysis, it is necessary to consider the merits of appellant’s attorney
fees claims. Generally, MCL 700.3720 permits the personal representative to charge the estate
for the expense of an employed attorney. Pursuant to MCL 700.3721, both the personal
representative’s employment decision and the compensation to be paid by the personal
representative are subject to judicial review. Claimed fees must be reasonable. MCL 700.3720.
MCR 5.313(A) provides that “[i]n determining the reasonableness of fees, the court must
consider the factors listed in MRPC 1.5(a).” In addition, to qualify as an administrative expense,
the services provided must also have benefited the estate. To properly charge an administrative
expense to an estate, it must generally be shown that the administrative expense benefited the
estate as a whole, and not an individual or group of individuals interested in the estate. Becht v
Miller, 279 Mich 629, 638; 273 NW 294 (1937); In re Estate of Valentino, 128 Mich App 87, 96;
339 NW2d 698 (1983). A decedent’s estate exists to distribute the decedent’s property and to
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preserve the property pending the distribution. In re Prichard Estate, 164 Mich App 82, 86; 416
NW2d 331 (1987). The estate is benefited by legal services that increase or preserve the size of
the decedent’s estate. Id.We first address appellant’s request for fees related to the general administration of the
estate, for the time period that Hansen directly represented Rubino in the probate court case
before Siriani’s substitution on May 29, 2012. The probate court found that Hansen’s services
did not benefit the estate. Specifically, the probate court considered the costs incurred by the
estate as a result of Hansen’s incorrect commencement of estate proceedings as an intestate
matter despite the fact that Hansen knew that the decedent had a will. We conclude that the
court did not err in this determination, and reject appellant’s assertion that the decedent’s tax
return was sufficient to justify the improper filing or the unnecessary costs incurred by the estate
as a result of the improper filing. Accordingly, we affirm the court’s denial of attorney fees for
appellant’s services relating to the administration of the estate.
Next, we address appellant’s claim for fees related to services provided in regard to the
decedent’s former law practice and communications with Rubino or Siriani related to those legal
services. The probate court held that those services did not benefit the estate. According to the
court, it would be the former client’s obligation to file a proof of claim against the estate to
recover any unearned retainer fee made to the decedent. The court further determined that, after
the decedent’s death, it was up to the decedent’s former clients to decide whether to proceed in
propria persona or retain new counsel, and if any clients decided to retain Hansen, “that’s
separate from the estate.”
Initially, we find no error in the probate court’s determination that any claim for a refund
of an unearned retainer paid to the decedent before his death belonged to the former client. The
general rule is that death terminates a contract that calls for personal services. See Brewer v
Stoddard, 309 Mich 119, 128-129; 14 NW2d 804 (1944). It is undisputed that the decedent
operated his law practice as a sole practitioner. Thus, the court’s holding in that regard was
correct. Consistent with that conclusion, the court’s holding that any continued work appellant
chose to do for the decedent’s former clients should be billed to the client directly, and appellant
could enter into a fee agreement and retainer with each client if she chose.
However, there was record evidence that appellant was hired, to some extent, to manage
the decedent’s business. Although we saw no evidence of an alleged agreement that appellant
claims was made on May 22, 2013, Rubino’s own evidence indicated that Hansen had some
responsibility for identifying the decedent’s open legal cases at the time of his death. On the
other hand, the record also shows that Hansen had a personal interest in reviewing files from the
decedent’s law practice because she was considering purchasing the law practice and that she
went beyond the activities contemplated by Rubino when she was provided access to those files.
Moreover, much of the work Rubino requested of Hansen appears to have been performed by an
assistant, who was compensated. However, because the probate court acted primarily under the
misconceptions of law discussed above, it did not make findings regarding the scope of the
agreement between Rubino and appellant as it related to the decedent’s law firm. Accordingly,
we cannot conclude as a matter of law that some of the fees requested by appellant in its
amended petition were not compensable. Thus, we are unable to conclude from the probate
court’s decision that appellant was not entitled to any payment for legal or other specialized
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services. Further factual development is necessary to determine whether a valid contract was
established for appellant to provide services to Rubino chargeable to the estate. Therefore, we
remand to the probate court for further proceedings regarding the proper attorney fees owing to
appellant.5
In sum, we affirm the probate court’s decision to disallow any attorney fees sought by
appellant in connection with legal services provided to the decedent’s former clients. We also
affirm the probate court’s decision to consider the unnecessary expense caused by Hansen in
commencing the proceeding as an intestate proceeding, with knowledge that the decedent had a
will, when evaluating whether the estate benefited from her services. But because there remains
a question regarding Rubino and the appellant’s agreement as it related to the decedent’s law
firm, we remand for further proceedings in regard to that issue.
Appellant next argues that the probate court erred in allowing an immediate distribution
of real property and office furniture to Rubino, without conditions. We disagree.
MCL 700.3952(2) permits a probate court to impose appropriate conditions on a
distribution of assets when closing an estate. At the time the probate court approved the partial
distribution of assets to Rubino, it determined that appellant’s objections were no longer valid
because the court had disallowed appellant’s requested fees. We agree with appellant that our
Supreme Court long ago held in In re McNamera’s Estate, 167 Mich 406, 410; 132 NW 1078(1911), that sufficient assets should be retained in an estate to pay expenses before distributions
of assets are made. But after examining the statutory scheme then in effect, the Court held that
“the legislative intent was that no distribution of an estate should be made until it appeared that
all lawful claims against it had been satisfied or protected by ‘effects’ reserved in the hands of
the executor or administrator, but, further than that, there is neither wisdom nor authority
warranting a holding that the surplus may not be distributed from time to time if necessary.” Id.The current statutory scheme in EPIC establishes a priority order for the payment of
claims if there is insufficient estate property to pay all claims. MCL 700.3805. The highest
priority is given to the “costs and expenses of administration.” MCL 700.3805(1)(a). But
considering that the probate court had already disallowed appellant’s request for attorney fees as
an administrative expense of the estate, the court did not abuse its discretion in allowing the
partial distribution. In re Temple Marital Trust, 278 Mich App at 128. We reject appellant’s
argument that the probate court should have imposed conditions in anticipation that appellant
would appeal the court’s order disallowing the requested attorney fees. If appellant believed that
the distribution would leave the estate without sufficient assets to pay any attorney fees
recovered in a successful appeal, appellant could have moved for a stay pending the appeal.
We also reject appellant’s suggestion that the probate court could have imposed a
constructive trust on the distribution of assets to Rubino. A constructive trust is an equitable
remedy that may be imposed by a court to prevent unjust enrichment. Coalition Protecting Auto
5
We note that, based on our review of the record, the majority, if not all, of the requested fees
appear meritless.
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No-Fault v Mich Catastrophic Claims Ass’n, 305 Mich App 301, 325-326; 852 NW2d 229
(2014), lv pending. It is imposed only where property is obtained through fraud,
misrepresentation, concealment, undue influence, and other circumstances where it would be
unconscionable for the holder of the legal title of the property to retain and enjoy the property.
Id. The doctrine is inapplicable in this case, considering that Rubino’s status as a proper
distributee of estate assets was not challenged and that appellant, the only party who claimed an
interest in abating Rubino’s interest in estate assets, failed to convince the probate court of any
need for abatement.
We further disagree with appellant’s suggestion that its request to surcharge Rubino in its
objections to the petition for partial distribution provided a basis for imposing conditions on the
distribution. Under MCL 700.3808(4), an issue of liability between the estate and personal
representative may be determined in a proceeding for surcharge. MCL 700.3712 provides that
“[i]f the exercise or failure to exercise a power concerning the estate is improper, the personal
representative is liable to interested persons for damage or loss resulting from the breach of
fiduciary duty to the same extent as a trustee of an express trust.” But MCL 700.3703(2)
provides that “[a] personal representative shall not be surcharged for acts of administration or
distribution if the conduct in question was authorized at the time.” Because appellant did not
commence a surcharge proceeding against Rubino, and the probate court approved the partial
distribution of estate property, appellant’s surcharge argument affords no basis for disturbing the
probate court’s decision to approve the distribution of estate assets to Rubino without conditions.
Lastly, appellant has not established any basis for concluding that the probate court
abused its discretion by refusing to adjourn the October 30, 2013 hearing. Soumis v Soumis, 218
Mich App 27, 32; 553 NW2d 619 (1996). In sum, we find no basis for disturbing the probate
court’s order allowing the partial distribution of estate assets to Rubino without conditions.
Appellant raises additional issues in Docket No. 319145 concerning whether Rubino
should be removed as personal representative of the decedent’s estate, whether Siriani should be
disqualified, whether further court orders to protect the estate should be entered, and whether a
surcharge against Rubino and sanctions are warranted. Appellant also argues that Rubino and
Siriani were serving their own self-interests, and not the interests of the estate and “good public
policy.” The Legislature is charged with creating public policy. Meier v Awaad, 299 Mich App
655, 673; 832 NW2d 251 (2013). Appellant’s arguments mostly relate to the probate court’s
decisions disallowing appellant’s requested fees and allowing the partial distribution of assets to
Rubino. As previously discussed, appellant is entitled to partial reversal of the probate court’s
order disallowing its requested attorney fees and a remand for further proceedings. To the extent
that appellant’s arguments go beyond those issues, we decline to address them because they were
not decided by the probate court and our jurisdiction is limited to specific orders affecting the
rights and interests of an interested person. See MCR 7.203(A)(2) and MCR 5.801(B). Any
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additional arguments raised by appellant and not specifically addressed in this opinion were
reviewed, and rejected. 6
III. DOCKET NOS. 319723 & 320189
Appellant’s appeals in Docket Nos. 319723 and 320189 both pertain to the probate
court’s award of sanctions on October 30, 2013. In Docket No. 319723, appellant appeals the
probate court’s order awarding sanctions of $31,563.60 to Siriani for his defense of appellant’s
petition and first amended petition for attorney fees, and in Docket No. 320189 appellant appeals
the probate court’s subsequent December 30, 2013 civil judgment for this award of sanctions,
with statutory interest.
We note as a threshold matter that this Court’s jurisdiction to consider a probate court’s
final order allowing fees, see MCR 5.801(B)(2)(x), is properly based on the October 30, 2013
order, and not the December 30, 2013 judgment. The October 30, 2013 order contains the
probate court’s final determination of sanctions. See John J Fannon Co v Fannon Prod, LLC,
269 Mich App 162, 165-166; 712 NW2d 731 (2005). It is not necessary that a court’s final
determination be labeled a “judgment.” Cheron, Inc v Don Jones, Inc, 244 Mich App 212, 220 n
4; 625 NW2d 93 (2000). Properly viewed, the December 30, 2013 judgment is essentially an
amendment to the probate court’s final determination of sanctions in its October 30, 2013 order,
recasting it as a civil judgment, but with an added provision for statutory interest.
Turning to appellant’s specific challenges to the order and judgment, the record does not
support appellant’s argument that the probate court failed to sign the October 30, 2013 order in
conformity with the procedure prescribed in MCR 2.602(B). Regardless, even if some
procedural error did occur with respect to the entry of that order, it was harmless. MCR
2.613(A).
We also reject appellant’s argument that the probate court violated the automatic stay
provision in MCL 600.867(1) by entering the October 30, 2013 order. MCL 600.867(1) provides
that “[a]fter an appeal is claimed and notice of the appeal is given at the probate court, all further
proceedings in pursuance of the order . . . appealed from shall cease until the appeal is
determined.” Where a probate court order contains multiple orders, the automatic stay applies
only to those orders over which this Court acquires jurisdiction. Comerica Bank v City of
6
Rubino asserted in Docket No. 319145 that the probate court did not err in approving Siriani’s
attorney fees and costs, or in approving Rubino’s fiduciary fees, as listed in Rubino’s petition for
allowance of the final account. However, appellant did not appeal the probate court’s order
approving the final account, and thus the propriety of Rubino’s final account is outside the scope
of this appeal. Although appellant nonetheless responds to personal representative Rubino’s
argument by asserting in a reply brief that the probate court erred in failing to honor its standing
to object to those fees, raising an issue for the first time in a reply brief is insufficient to present
the issue for appeal. Bronson Methodist Hosp v Mich Assigned Claims Facility, 298 Mich App
192, 199; 826 NW2d 197 (2012). Accordingly, this issue is not properly before us and we
decline to consider it.
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Adrian, 179 Mich App 712, 729-730; 446 NW2d 553 (1989). Although the September 24, 2013
order permitted Siriani to file a petition for attorney fees, there was no appealable order until
after the petition was filed and the probate court either awarded or disallowed the requested fees.
Further, because the claim of appeal in Docket No. 319145 was not filed until after the October
30, 2013 order was entered, no provision in the September 24, 2013 order was subject to an
automatic stay when the probate court awarded the sanctions.
But having concluded that a remand is warranted for further proceedings to determine
whether appellant is entitled to recover any fees that are compensable as an administrative
expense of the decedent’s estate, we conclude that reconsideration of Rubino’s petition for
sanctions is also appropriate on remand. However, we address some of appellant’s additional
arguments raised on appeal in the event they might arise again on remand.
We find no support for appellant’s claim that the probate court refused its request for an
evidentiary hearing. To the contrary, the probate court placed Siriani under oath for the purpose
of questioning him regarding his requested fees. Nothing in the record indicates that Hansen
requested an opportunity to cross-examine Siriani, or to present any countervailing evidence at
the October 20, 2013 hearing, let alone that the probate court denied any such requests.
Therefore, while it is not always necessary to conduct an evidentiary hearing to determine
reasonable attorney fees, John J Fannon, 269 Mich App at 171, we are unable to conclude that
the probate court failed to afford appellant with an evidentiary hearing to address any factual
disputes regarding the requested fees. See generally Smith v Khouri, 481 Mich 519, 532; 751
NW2d 472 (2008) (“[i]f a factual dispute exists over the reasonableness of the hours billed or
hourly rate claimed by the fee applicant, the party opposing the fee request is entitled to an
evidentiary hearing to challenge the applicant’s evidence and to present any countervailing
evidence.”).
We are also not persuaded that the probate court shifted the burden of proof away from
Rubino and Siriani to support the requested fees. Vittiglio v Vittiglio, 297 Mich App 391, 408;
824 NW2d 591 (2012). Further, while MCR 5.131(B) permits discovery in a probate
proceeding, we are not persuaded that the probate court abused its discretion by declining to
adjourn the evidentiary hearing regarding sanctions to permit additional discovery.
In addition, we reject appellant’s argument that the probate court is required to consider
the parties’ ability to pay when determining the reasonableness of requested attorney fees. The
factors in MRPC 1.5(a) and Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d
653 (1982), are generally considered in determining a reasonable attorney fee. See Smith, 481
Mich at 531. Other relevant factors may also be considered. Id. at 531 n 15. But appellant’s
reliance on Donnelley v Donnelley, 80 Ill App 3d 597; 400 NE2d 56 (1980), in support of its
position that ability to pay is an appropriate additional factor is misplaced because Donnelley
involved the allowance of attorney fees in a divorce action. In Michigan, a court may award
attorney fees in a domestic relations matter based on a party’s ability to pay the expense of the
action. MCR 3.206(C)(2)(a). These principles are not relevant to a determination of reasonable
attorney fees awarded as sanctions in this case.
However, as discussed in Smith, 481 Mich at 530-531, the analytical approach for
determining a reasonable attorney fee begins with a determination of the fee customarily charged
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in the locality for similar services. After multiplying this customary fee by a reasonable number
of hours expended in the case, the number produced is adjusted up or down, as appropriate,
considering the factors in MRPC 1.5(a) and Wood, 413 Mich at 588. Id. at 531. Although the
probate court addressed various factors in Wood and articulated that it had also considered MCR
1.5(a), it failed to make any determination regarding the customary fee or to follow the analytical
approach in Smith, 481 Mich at 530-531. If the probate court again determines on remand that
Rubino is entitled to an award of attorney fees as a sanction, it shall follow the analytical
approach in Smith, id., for determining a reasonable fee.
Appellant asserts that the probate court erred in relying on MCL 600.2591 as a source of
authority in awarding sanctions. We do not address this claim because the court was able to
award sanctions pursuant to MCR 2.114(E) or (F), and, thus, any claimed error was harmless.
MCR 2.613(A). Further, “[t]his Court will affirm where the trial court came to the right result
even if for the wrong reason.” Fisher v Blankenship, 286 Mich App 54, 70; 777 NW2d 469
(2009).
With respect to the December 30, 2013 civil judgment for the awarded sanctions, we
agree with appellant that entry of the judgment violated the automatic stay provision in MCL
600.867 with respect to appellant’s appeal of the October 30 order in Docket No. 319723, which
was filed on December 27, 2013. We also find merit to appellant’s argument that the probate
court erred in treating the sanctions award as a civil judgment, subject to statutory interest
commencing as of October 30, 2013. MCL 600.6013(1) provides that “[i]nterest is allowed on a
money judgment recovered in a civil action, as provided in this section.” Here, the current
matter was not a civil action, but rather a probate court proceeding. See MCR 5.101. Although
the probate court is permitted to order an “appropriate sanction” under MCR 2.114(E), the
probate court on remand should enter any final order or judgment awarding sanctions consistent
with the limitation in MCL 600.6013(1) for statutory interest.7
Lastly, similar to the appeal in Docket No. 319145, appellant raises several additional
issues concerning whether Rubino should be removed as personal representative, whether Siriani
should be disqualified, and whether other relief is warranted. As explained in section II, these
issues are not properly before us and we decline to consider them Further, any arguments raised
by appellant and not specifically addressed in this opinion were reviewed, and rejected.
In sum, we vacate the probate court’s October 30, 2013 order awarding sanctions and the
corresponding December 30, 2013 civil judgment, and remand for reconsideration of Rubino’s
petition for sanctions after the court first decides whether to allow any of appellant’s requested
attorney fees.
7
We note that the probate court could potentially order interest as part of an “appropriate
sanction” under MCR 2.114(E) for a violation of MCR 2.114(D).
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. We decline to award costs because neither party
prevailed in full. MCR 7.219.
/s/ Michael J. Riordan
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
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