Thursday, January 3, 2019
Court of Appeal:
Segal Says No Waiver by Administrator, Who Did Not Request a Hearing;
Lawyer, Who Was Pushing for Fees, Didn’t Advise of That Right
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed an order granting a lawyer statutory and extraordinary attorneys’ fees in a probate case because the judge did not afford an evidentiary hearing to the objecting administrator of the estate, holding that his failure to request such a hearing did not amount to a forfeiture of the right, under the circumstances.
The opinion, which was not certified for publication, nullifies an award by Los Angeles Superior Court Judge William P. Barry to mid-Wilshire attorney Larry D. Lewellyn of $11,200 in statutory fees based on the estimated value of the sole asset of the estate and $24,130 for extraordinary services.
The administrator, Gerald Willard, son of the decedent, contended the asset, a parcel of real property, was actually worth $145,000, not the appraised value of $410,000; that extraordinary fees were sought for bungled services which required hiring another lawyer to remedy; that Lewellyn had, without excuse, Lewellyn waited 18 months before instituting probate proceedings; that some services ostensibly rendered—such as a purported telephone conversation with a person who had been dead for serveral months—were unreasonably listed; and that the award did not take into account moneys already paid.
Willard pointed to a right to an evidentiary hearing under Probate Code §1022.
Right Not Forfeited
Segal noted that a party can, by not seeking an evidentiary hearing, forfeit the right to such a hearing. Although Lewellyn made no such request, he said, there was no forfeiture, explaining:
“The contested proceeding here was between the administrator of an estate and the attorney representing the administrator regarding the attorney’s right to statutory and extraordinary fees. Lewellyn had no incentive to request an evidentiary hearing on Willard’s behalf, nor to advise Willard he had a statutory right to an evidentiary hearing. Lewellyn wanted the court to approve his request for extraordinary fees, not to question it. In all likelihood, Willard did not even know he could request an evidentiary hearing (Lewellyn had not requested one), and Willard did not have independent legal advice telling him he could do so.”
“The probate court, on the other hand, could have protected Willard’s rights as a person interested in the estate by giving him an opportunity to have an evidentiary hearing, or at least asking whether he wanted one….And whenever possible we will not strictly apply technical rules of procedure in a manner that deprives a self-represented litigant of a hearing.”
Remanded With Directions
The case was remanded “with directions for the probate court to hold an evidentiary hearing on Willard’s objections to Lewellyn’s request for an award of extraordinary attorneys’ fees.”
Segal’s opinion came in Estate of Willard, B282122.
Willard represented himself on appeal, joined by Palm Springs attorney Wendy Sabina Dowse of Slovak Baron Empey Murphy & Pinkey LLP. Lewellyn also represented himself, teamed with Janice R. Mazur of the El Cajon firm of Mazur & Mazur.
The opinion notes that Willard made a complaint to the State Bar as to Lewellyn’s conduct. No proceeding is pending against him.
Lewellyn received private reproval in 2001, based on a failure to act competently, and a public reproval in 2004, based on a similar violation. In the latter case, he represented to a client that he had the authority to administer an estate, under the Independent Administration of Estates Act, without court supervision, resulting in an invalid sale of real property, causing the client harm.
Copyright 2018, Metropolitan News Company