Metropolitan News-Enterprise


Tuesday, September 18, 2018


Page 1


Court of Appeal:

Attorney Can Seek Fees for Work Done 23 Years Earlier

In Probate Case, Opinion Says, Lawyer Need Not Make Claim Prior to Approach Of Final Distribution; Judge Faulted for Dismissing Initial Petition


By a MetNews Staff Writer


An attorney who filed a probate petition for a client in 1992 and withdrew as counsel in 2007 after 15 years of virtually no activity in the case, had standing after his client’s petition was dismissed and a new petition was filed by another beneficiary in 2014, to claim a portion of the statutory attorney fees, the First District Court of Appeal has held.

The unusual fact situation was matched by the rarity of one judge—in this instance, Sandra K. Bean of the Alameda Superior Court—openly criticizing the handling of earlier matters by a another judge, Carl W. Morris, now retired, terming his 2007 dismissal of the action “shocking.” In Friday’s unpublished opinion reversing Bean’s order denying fees to Oakland attorney Eugene Schneider, Justice Sandra L. Margulies echoed the trial court’s disapproval of Morris’s action.

Under a statute and a court rule, Margulies declared, there was no time limit on Schneider seeking fees.

The litigation—which included an ill-starred writ petition by Schneider in 2015 in an effort to block distribution of the meager assets of the estate—involves the lawyer’s effort to gain a piece of a $2,400 statutory attorney fee.

Factual Background

Schneider, on Feb. 28, 1992, filed a petition for the appointment of client Addie Thompson as administrator of the estate of Gisteen Anderson. Aside from the 1995 rejection of a $1,633 claim against the estate by Sears, Roebuck & Co., there was no activity in the case after issuance of letters of administration in 1992 to the time Schneider filed a motion to be relieved as counsel in 2007.

The day his motion was granted, Schneider prepared a final accounting and petition for distribution—under which he was to receive $3,570 for services and costs in the amount of $1,079.75—but Thompson would not sign it.

After Schneider’s exit from the case, Morris set a hearing; Thompson did not appear; the judge dismissed the petition.

In 2014, a grandson of the decedent filed a petition and was appointed administrator. In ordering final distribution, Bean allowed Schneider $1,635 in costs, but gave the entire statutory attorney fee award to the grandson’s lawyer, William Allen Taylor, an Oakland sole practitioner.

Bean explained that she “did not consider Schneider to have standing, that the prior probate had been a separate proceeding and any rights Schneider had in that matter did not give Schneider any rights in the pending estate to ordinary or other fees.”

Quantum Meruit

Under Taylor’s view, Schneider’s cause of action for services, under a quantum meruit theory or some other basis, arose, at the latest, in 2007 when he withdrew as Thompson’s lawyer, and is now time-barred.

 Margulies responded:

“First, Schneider’s claim for attorney fees is based on statutory entitlement, not quantum meruit….Second, Hunt does not cite any legal authority that Schneider was required to submit his fees claim in 2007 when he withdrew as counsel for Thompson.”

She quoted the 2012 Court of Appeal decision in Estate of Wong as saying that “no attorney fee may be paid prior to final distribution of the estate absent a special court order, and all payment of attorney fees requires prior court approval.”

Statute, Court Rule

Although the first and second petitions bore different case numbers, the jurist said there was but one proceeding. She pointed first to Probate Code §10814 which provides:

“If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.”

That section, she said, is “explained” by California Rules of Court, rule 7.704. It sets forth:

“There is only one statutory commission for ordinary services by the personal representative of the estate and one statutory attorney fee for ordinary legal services to the personal representative, regardless of the number of personal representatives or attorneys performing the services. The court may apportion statutory commissions and fees among multiple, successive, and concurrent personal representatives or attorneys. The apportionment must be based on the agreement of the multiple personal representatives or attorneys or, if there is no agreement, according to the services actually rendered by each of them.”

Plain Language

Margulies reasoned:

“Based on these authorities, Schneider, as attorney for a former personal representative of Anderson’s estate, was entitled to assert a claim to a portion of the statutory attorney fee for ordinary legal services for services he actually provided. The plain language of section 10814 and rule 7.704 indicates there is only one statutory personal representative commission and one attorney fee for the estate, and the Commission and fee may be apportioned among ‘multiple, successive, and concurrent personal representatives or attorneys,’ regardless of their number. Because Schneider represented a former personal representative in the administration of Anderson’s estate, he could seek a portion of the one fee available for such services.”

She pointed out that the reversal was pinned to the determination that Schneider lacked standing to assert an entitlement to fees and did not constitute an instruction that an award must be made, leaving that to Bean, on remand.

Improper Dismissal

The opinion quotes Bean as saying that the 2007 dismissal by Morris was “unusual” and remarked that, “frankly, I think it was shocking that it was dismissed given that there was an estate that needed to be administered.”

Margulies said in a footnote:

“We, like the trial court at the March 10, 2015 hearing, are mystified by the decision of the earlier trial court to dismiss the pending probate matter in 2007 after Schneider withdrew and Thompson failed to appear. Under [Probate Code] section 8522, subdivision (a), ‘If a vacancy occurs in the office of a personal representative and there are no other personal representatives, the court shall appoint a successor personal representative.’ (Italics added.) Had the trial court appointed a successor personal representative, the estate could have been settled in the prior proceeding and the confusion arising from this unusual set of circumstances likely could have been avoided.”

The case is Estate of Anderson, A145255.


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