*1 56,405 No. Robinson, of Owen R. Deceased of The Estate The Matter
In Sally Appellant, v. R. Michael L. Robinson, Jennings Anne
Irving, Appellees.
(
On after 35 Owen and Sally day following Robinson were divorced. The Owen exe- leaving niece, his property nephew cuted will all of to his (hereinafter Jennings Jennings Irving R. Michael Anne “Jennings-Irving”). Approximately collectively to as referred Sally August remarried. On Robinson year later Owen one *2 1976, September 22, stroke. On 16,1976, a severe Owen suffered wife, leaving property will all of his to his a new Owen executed Sally. on 1978. Owen died June probate. sought will admitted to Sally have 1976 to Jen- challenged nings-Irving the will. The found testamentary capacity at the time of the execution of Owen had will was that the invalid for violation the 1976 will but concluded prepared principal wills benefi- K.S.A. 59-605 relative to 8, 1982, May Sally judgment, we reversed the appealed. ciaries. remanding case to the trial court with directions admit Robinson, In Estate re P.2d 1976 will. I). (1982) (Robinson will, rejection prior its of the 1976 but to our order After will, evidentiary hearing held as the trial court an admit the 1976 ultimately validity will admitted the will to and May Sally 1965 will. probate. appealed from the admission of the 8, 1982, unpublished opinion reversed the trial this court Robinson, 53,230 (Robinson IT). re court. In Estate of No. 25, 1982, appeals pending, January On while the were the trial petition hearing Jennings-Irving allow- court held for case attorney fees services rendered district court ance of (1965 will) No. and district court case 78-P-119 No. 78-P-188 will). solely Jennings- (1976 petition sought allowance No opposition respective to the wills. Irving’s promotion of and fiduciary administering to the claim was made for services Jennings- Attorney expenses and were allowed the estate. fees (1) $42,800.00 attorney fees firm law Irving as follows: $3,506.92 Siefkin, Eberhardt; (2) Foulston, expenses & Powers $17,500.00 firm, (3) attorney the law firm fees to same Bond, & Coash. The trial court ordered said fees Bond two apportionment without expenses single sums between cases. reviewing Jennings-Irving fees in award
When III, pre- erred in Robinson court held that trial court this comput- Sally examining venting attorneys for Robinson from breaking expenses the time and time sheet down erized firm; fees were to be allowed Foulston no opposing the Jennings-Irving services rendered (Robinson I); 1976 will and that the expenses fees and Jennings-Irving in the opposition incurred unsuccessful to the (Robinson II) 1976 will could not be linked to the expenses promoting incurred in admission of the 1965 will. We reversed and remanded with directions to hold a new hear- ing Jennings-Irving petition on the for allowance of wherein:
(1) documentary all evidence which said allowance re- quest part is based shall be a of the record and made available to counsel; opposing
(2) the basis on which fees are part allowed be made a of the record in sufficient permit detail as would meaningful appellate necessary; review if
(3) may allowance be made for those reasonable fees and expenses directly incurred proponents will excluding any the 1965 but services attributable *3 to the opposition of the 1976 will. proof is, The burden of course, on (Robinson III) Jennings-Irving. 22, 1983, On evidentiary a new hearing, as directed in June III,
Robinson was judge held before the presided who had at all prior probate proceedings. At the hearing, petitioners entered into evidence six which exhibits included computerized time legal records for expenses services and of Jennings-Irving’s time, counsel and other expense service and records. These computation exhibits were a of the total time involved in all proceedings, estate relating not those to the efforts asso- ciated with the documentary 1965 will. No evidence was in- separately troduced which specifically showed and the attor- neys’ expenses time and relation to the of the 1965 will. Frick,
Phil firm, a member the Foulston testified that ex- hibits 1 and 2 compilation were a his firm’s time records from up 1978 hearing, they until the memos, and that were billing not Bond, statements to the clients. Robert an El Dorado who was associated with the firm case, Foulston to assist in the partial identified exhibit 4 as a time record of his work on the case. prepared by Exhibit 4 was prior Bond in the month to the hearing based on other records in his office. While Bond rounded off the total hours 4 on exhibit he testified that he probably spent 200 to 225 hours on the case. These hours were rendered, will limited to the 1965 and not work. all services Hite, qualified expert the value of who as on
Richard C. attorney, gave petitioners opinion evidence for of an services 2,4 petitioners’ and files on review of exhibits based legal rendered the value of services the case as to per that a petitioners. $100.00 Hite concluded hour counsel fee; a that the be fair and reasonable Foulston rate overall would case; spent and that Bond 200 hours spent 954 hours on the firm impossible separate believed it was out the Hite case. trial, will would allocate two-thirds of the time $76,900.00 as proper fee a amount for work on total will case. respondent’s attempted
During counsel agreement Jennings-Irving between place into evidence fee Frick, attorneys. Mr. Mr. Bond Mr. Hite their were all they knowledge if had fee asked on cross-examination arrangement and the Foulston firm. between knowledge he Each witness stated had no fee, employment contingent contract was based on on an hourly rate, Respondent’s two. or on mixture of the counsel Jennings called Mr. as a witness to determine the nature of the attorneys. arrangement with the Petitioners’ counsel ob- jected claiming privileged information and irrelevant. objection was sustained. 31, 1983, opinion In a filed memorandum October court entered an allowance of fees in the amount of $43,780.00 Respondent expenses in the amount of $646.22. appeals the trial court’s decision.
It is a fees and well-established rule *4 against may not allowed the estate of a decedent unless be McKee, statute. Reznik v. Trustee, authorized (1975). P.2d 243 part: applicable K.S.A. 59-1504 is statute and states it, prosecutes any any person “Whenever named in a will codicil or defends or cause, good just purpose having and faith for the it not, any successfully probate, person whether or if admitted successful or codicil, person opposes will such out or shall be allowed of the necessary expenses proceedings, estate his or her and disbursements in such compensation person’s together with such services and those of his or for just attorneys proper.” her as shall be and persons provides classes of to whom fees The statute for two First, in will are allowed contests. those who prosecute good just faith and with “in cause” a proceeding will, not; second, or admit successful those who successfully oppose a will. Since Jennings-Irving did not suc- cessfully oppose they admission the 1976 will were denied attorney recognition those services this court. In an estate is when real validity benefited controversies as to the or litigated, construction of a will are provides the statute paid fees to be out estate to a successful or litigant. unsuccessful were allowed unsuccessful, good fees for their faith effort to have the 1965 will probate. admitted to This allowance authorized upon the belief it is a benefit entity the estate to have the question determined where there is doubt as to the admission or placed construction to be the will. The case was remanded for the trial court necessary expenses to determine the of services proponents attorneys and those of their just which were proper.
Respondent argues any award fees under K.S.A. the litigant 59-1504 are to and must therefore be based on litigants fees for which the personally liable; are where contingency arrangement, there is a litigants unsuccessful liability, cannot, have incurred no therefore, award attorney fees. construing
There are no Kansas cases to whom payable are under K.S.A. Respondent argues 59-1504. that K.S.A.
59-1504 and K.S.A. 59-1717 have similar language and that cases construing 59-1717 held have that reimbursements payable fiduciary fees are pay under 59-1717 that he can so his part: K.S.A. 59-1717 states in fiduciary “Every necessary expenses shall be allowed his or her incurred in the trust, compensation execution of shall have such his her for services and
those her as shall be reasonable.” Statutory provisions recovery for the fees are com and, pensatory penal thus, ordinary statutory and not rules v. Mutual applied. Health & construction Wolf Benefit Association, 694, 703, Accident 366 P.2d Therefore, ordinary statutory rules of construction are to be applicable both statutes.
436
in
re
was discussed
this court
In
Estate
K.S.A. 59-1717
of
(1961).
531,
Bertrand,
The mandate allowance should be for made the “reasonable fees and by Incur, directly Jennings-Irving.” incurred defined (5th 1979), Dictionary Black’s Law rev. ed. means have “[t]to by operation liabilities cast act one of law ... subject
become liable
to.”
attorneys
Respondent
petitioners
claims if the
accepted
for
contingency
basis,
attorneys
case on
fee
then the
could not
collect
their
judgment
fee unless the
was in their
favor. The
petitioners would
they
not become liable to the
unless
happening
contingency
had
The
won.
is a condition
precedent
right
to recover
his
services
precise
contemplated
event which was
must happen
Tuten,
Cain v.
attorney’s right
before the
App.
accrues.
82 Ga.
102,
(1950). Respondent
Petitioners requires pay- that K.S.A. 59-1504 Paying promotes public ment of such fees. the fees policy statute, behind the because it allows real controversies as to the validity or litigated. construction of will to be Evidence arrangement only necessary fee is to establish there was an Robinson III de- attorney-client relationship. The attorney-client termined there was an contract between firm; therefore, and the Foulston no further obligations evidence of the contract’s was relevant to the issue of of fees to amount be awarded. v. Petitioners, Mutual Health & Ac relying Wolf Benefit City Association, Chap cident v. 694, Wichita man, (1974), argue P.2d 589 that a contingency arrangement determining irrelevant an award of attor fees, ney particularly payment where a statute mandates attorney fees. recovery monthly alleged benefits was an action Wolf policies health and accident issued payable certain under
be action, companies. After commencement the defendant monthly payments, plaintiff all accrued paid the defendants stipulated payment was in full settlement plaintiff prejudice. issue the actions with agreed to dismiss liable fees under defendants were G.S. (1959 Supp.) was reserved for determination 1949,40-256 that, (1959 provided Supp.) where a G.S. 40-256 court. company an insurance which has judgment against is rendered pay the or excuse to full amount of a without cause refused loss, plaintiff. This court shall awarded to the be *7 said: may contingent why personal a one insured enter into fee contract “The reasons by making attorneys’ taking award of a court into an should not lead therefore, erroneous, the It into would be court
contract consideration. any contingent reason other than establish the the fee contract for consider employed.” purpose employment for which were 188 counsel and the counsel of Kan. at 714. City v. Chapman, Wichita present is in situation The same attorney fees, pursuant to K.S.A. Kan. 575. The award by upon the the 26-509, dependent statute successful was made in the case was of the action. The issue whether determination arrangement improperly was considered in contingency fee the attorney fees under 26-509. We said establishing the amount of that in 26-509 was different from the situation under Wolf: 26-509, supra, paid may allow as court an amount to be the court costs “Under attorney attorney designed fees. Such an amount is to be the landowner’s proceeding. jury’s the But the above the verdict condemnation over and dependent upon by the made successful determi- is the itself allowance statute jury greater rendering verdict the in an amount the of a nation of action —the Thus, contingency appraisers’ success inheres the the award. than the 26-509, attorney of an amount for fees under allowance authorization supra.” at 587. attorney saying the fees was discre- award of We concluded court, no undue tionary the and there was evidence con- with contingency making given to the fee contract sideration award, the “just proper” 59-1504 for the allowance of provides K.S.A. person named compensation to a fees to be recovered as good faith prosecutes any a or codicil who in will purpose having cause for the it admitted to not, any probate, person successful who suc- opposes cessfully the of will. It does intend not that a contingent dependent fee based on fee contract be on success- only that litigation, ful but a reasonable allowance for person. be awarded to operation K.S.A. uniform 59-1504 has the same considera- individual, tions control in the award of fees. should An by entering contingent contract, into a does not control statute; award of fees under the the amount awarded as is fees within discretion of the trial court. The trial it type court was correct when determined arrange- of fee ment entered into between their was irrelevant. Under K.S.A. 59-1504 it would be erroneous employment court to consider terms and conditions except person’s employment contract to establish the of the represent him. Respondent that petitioners claims failed to sustain their proof burden and there was not sufficient evidence for the trial to award fees. proof’ preponderance evidence, “Burden of means evidence, is greater weight in view of all facts and Thompson Dyson, circumstances case. v. proof
244 Pac.
point
upon
The burden of
party asserting it,
it
party
prove
is incumbent
*8
allegations
by
petition
preponderance
of its
of the evidence.
In
re
Wright,
Estate
The trial court in its memorandum how it its reached decision: fees, making concerning
“In it’s the has the decision Court utilized exhibits 22, 1983, along hearing testimony presented with the docket at the and June Office, file, and the Court’s own recollections the the court Clerk’s sheets from having held in this case. present at all been from by Jennings-Irving specific “Many timesheets submitted not entries on the by either the 1965 will or the 1976 will. enough item item to be attributed orderly fairly However, legal in a in these two cases flowed the matters most of lawyer periods of progression has been able to associate increased and the Court method, hearings. By preparation filing pleadings this activity the for or lawyer the blocks of time to one will or has been able to attribute the Court other.” the the the testified as to value of services of expert witness
An what difficulty determining hours were judge case. The trial determined to the best to which attributable ability, participation knowledge and the on his based case, expenses the will and the work and attributable attorney fees. awarded give the opinions should due consideration to
The court services, legal as to the value of but is not expert witnesses the evidence, the expert since court itself controlled may apply knowledge professional subject and its own this determining legal value of experience the the services ren- dered. 59-1504, compensation determining the
Under K.S.A. when attorney fees, the trial court considers recovered be rendered; labor, and character of the services time amount involved; importance litigation and trouble nature rendered; responsi- were business in which services money bility imposed; property value of the amount of controversy, employment; affected or involved in experience the performance called the ser- skill vices; professional standing character and attor- neys. Jennings-Irving fees to trial court’s award of proper under the evidence and our mandate. Affirmed.
McFarland, J., dissenting: I believe it was error the trial to refuse admit evidence of the actual contract em- ployment between and their K.S.A. is, effect, 59-5104 reimbursement statute for *9 attorney promoting fees incurred in a will for admission into (or successfully will). opposing It is not intended to yet anyone, such can be the result create a windfall of the majority. holding of the following Prospective
Let at the scenario. goes us look client lawyer possible representation in securing probate A for aof Lawyer will. A per $50.00 states his would be hour. The same lawyer goes per client B who states his fee is hour. $25.00 The lawyer client then enters into a contract for services with B. The is proceeds probate. matter to trial the will not admitted to suppose hearing Let us further for allowance of a reasonable fee, attorney upon evidence is fees introduced based per $50.00 reasonable, hour are evidence is no admitted on the contract itself, upon per and fees are allowed based $50.00 hour. For simplicity, say us let 100 hours at $50.00 allowed for a total $5,000.00. By statute, the client receives only the fee. The client $2,500.00 (50%) attorney owes by amount this contract. $2,500.00 pays The client to the attorney The sues the $2,500.00 client for the balance of fees awarded the court. The already all has received fees for which he has contracted. Should the receive twice the fee he con- $2,500.00 tracted should client for or receive windfall from the decedent’s estate? change
Let us the facts the above scenario somewhat. Lawyer represent A offers to the client per for $50.00 hour. Lawyer says B he will on a take case contingent fee basis— stating protects that this the client owing from if recovery. lawyer there is no The client retains B. The case is per lost and $50.00 based hour are allowed court, contingency without evidence fee contract. Again, gets attorney? who the windfall-client assume, scenarios,
Let us further prospective both client would preferred lawyer have much A represent him but lawyer retains B because his services were contracted for on more terms. it lawyer up favorable Is or fair let B end lawyer the same fee A offered? question should who have the windfall need never be following adopted.
answered if rule is In determining attor- ney 59-1504, fees under K.S.A. should award reason- able attorney fees or fees due under the contract of the parties, whichever is lower. This satisfies the intent of the pocket statute. The client is not out of has *10 price bargained he received for or reasonable fees if he If bargained for an excessive fee. the client and the rate,” “going at less made a contract than the the estate rather than the or client should receive the benefit of that bargain.
I reverse the trial court and remand the would case for further expressed consistent with the views in this dissent. Holmes, Schroeder, C.J., J., join foregoing dissenting opinion.