Opinion
No. 1 CA-CV 12-0510
01-14-2014
In the Matter of the Estate of: RAYMOND L. SAVAGEAU, Deceased. MARY ELLEN SAVAGE, Appellant, v. BRUCE YANCEY, as Special Administrator of the Raymond L. Savageau Trust, Appellee.
Law Office of Joseph T. Stewart PLLC, Phoenix By Joseph T. Stewart Counsel for Appellant Law Office of Thomas G. Kelly, III, Yuma By Thomas G. Kelly, III Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS
AUTHORIZED. ARIZ. R. SUP. CT. 111(c).
Appeal from the Superior Court in Yuma County
No. S1400PB200600204
The Honorable Kathryn E. Stocking-Tate, Judge Pro Tem
AFFIRMED
COUNSEL
Law Office of Joseph T. Stewart PLLC, Phoenix
By Joseph T. Stewart
Counsel for Appellant Law Office of Thomas G. Kelly, III, Yuma
By Thomas G. Kelly, III
Counsel for Appellee
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined. NORRIS, Judge:
¶1 Mary Ellen Savage appeals from the superior court's order approving the payment of fees to and accountings submitted by Bruce Yancey, a court-appointed Special Administrator. We reject Savage's arguments on appeal challenging the fee award and accountings and, therefore, affirm the superior court's order.
FACTS AND PROCEDURAL BACKGROUND
¶2 Savage's father, Raymond L. Savageau, died in July 2006. In his will, Savageau appointed Savage to serve as his personal representative and left his real and personal property ("the estate") to a trust he established in 1992. In his trust, Savageau appointed Savage as his successor trustee and directed the trust assets be distributed to her.
¶3 On November 22, 2006, an estate creditor petitioned the superior court to formally probate the will. The creditor also requested the court to appoint a different personal representative and trustee because neither Savage nor the alternative personal representative named in Savageau's will had taken any action to file a probate or liquidate the trust assets to pay creditors of the estate and trust. See Ariz. Rev. Stat. ("A.R.S.") § 14-3203(A)(7) (2012) (creditor has priority for appointment as personal representative 45 days after decedent's death). Although the alternative personal representative renounced her right to appointment and joined in the creditor's petition, Savage objected to the petition, asserting she was "willing and able to serve as personal representative and trustee."
¶4 Subsequently, a tenant "of the Estate Trust's real property" petitioned the court for appointment of a special administrator pending appointment of a personal representative in place of Savage, asserting Savage had "demonstrated a clear incapacity to conduct the affairs of the estate." On March 26, 2007, over Savage's objection, the superior court appointed Yancey, a local attorney, to serve as "Special Administrator for trust and non-trust issues in this matter." Shortly thereafter, Yancey accepted "the duties of special administrator of the estate."
¶5 Thereafter, Savage filed numerous petitions, demands, and requests objecting to Yancey's appointment and challenging his actions as Special Administrator. For example, in an "emergency" petition, Savage requested revocation of Yancey's appointment, accusing him of "mismanaging the estate" and "causing waste and depreciation of trust and estate properties." On February 1, 2008, the court conducted a hearing on Savage's petition and apparently denied it as reflected in the minute entry: "The Court advises Mary Savage to work with closely with [sic] Mr. Yancey to facilitate pending matters in this case."
¶6 Despite the court's advice, Savage continued to file motions and requests objecting to Yancey's appointment and actions. In May 2009, the court prohibited Savage from exercising any power in her capacity as co-trustee of the trust, substituted Yancey as the trust's other co-trustee, and ordered Savage to re-convey the real property she had "wrongfully" deeded to herself in her individual capacity. Although Savage appealed these orders, we dismissed Savage's appeal because she failed to timely file an opening brief.
¶7 In November 2008 and January 2011, Yancey petitioned the court for approval of two interim accountings. The court approved payment of certain claims. In December 2011, Yancey petitioned for approval of a "Third Interim and Final Account" and requested permission to deliver to Savage any property remaining in his possession as Special Administrator after payment of pending claims and his fees and costs. After conducting an evidentiary hearing and over Savage's objection, the court awarded Yancey $59,486.30 ("the award").
DISCUSSION
I. Licensure
¶8 On appeal, Savage first argues the superior court should not have awarded Yancey any compensation as Special Administrator because he was not licensed to serve as a fiduciary. Although Savage generally discusses the licensing requirements applicable to certain fiduciaries, A.R.S. § 14-5651 (2012) and the Arizona Code of Judicial Administration §§ 7-201, -202, she cites no authority supporting her argument that Yancey was not entitled to any compensation because he was not a licensed fiduciary. Therefore, Savage has waived this argument on appeal. See Ariz. R. Civ. App. P. 13(a)(6), (b)(1); State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004); Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007). II. Compensation Amount
¶9 Savage next contends the superior court awarded Yancey an unreasonable amount of money. She generally argues the court should not have applied Yancey's hourly rate of $200 to tasks that were "rudimentary" and could have been performed by a "low level clerk, secretary, or runner." And, she also argues Yancey unnecessarily incurred fees because he developed a contentious relationship with her, "disregarding [her] as if she did not exist." The superior court rejected these arguments. As Savage correctly argues on appeal, we review the court's fee award for an abuse of discretion. Based on our review of the record, the court did not abuse its discretion in making the award.
In her opening brief, Savage challenges dozens of time entries. In large part, these entries concern Yancey's performance of tasks related to his "professional license" (which we note the court excluded from the award), his "failure" to timely make insurance or mortgage payments on property (delays which we also note were caused by Savage), his "failure" to use less expensive means of correspondence, and other work he performed which the opening brief generally characterizes as being excessive or adverse to the Trust. Savage also challenges at least 17 entries for which she specifies no basis for her objections. Savage provides no citations to the record, no supporting legal authority, and no meaningful substantive argument supporting any of these challenges or how the court abused its discretion in including them (with the exception of the "professional license" entries) in the award. Accordingly, Savage has waived these challenges on appeal. See supra ¶ 8.
¶10 First, although a fee award based on a lawyer's hourly rate for clerical-type work that does not involve legal expertise is generally inappropriate, the record amply supports the superior court finding that Yancey's hourly rate was appropriate because Savage was "the root cause of the problems which complicated the administration of this estate." Savage wrongfully conveyed real property to herself, interfered with Yancey's attempts to collect lease payments owed to the estate, made unauthorized electronic withdrawals from an estate checking account that resulted in overdrafts, refused to timely provide Yancey with necessary tax information, interfered with the payment of insurance proceeds, and stopped municipal water service to commercial property (where at least one of the tenants operated a bar and another a meat market). These and other instances of Savage's interference resulted in time-consuming work by Yancey that otherwise would have been unnecessary or could have been performed by non-professionals. As the superior court found, "[m]any of the tasks Mr. Yancey performed could have been performed by a non-professional/non-attorney but for Mary Savage's interference with the administration of the estate."
See generally Arizona Attorneys' Fees Manual § 1.6.4, at 1-8 (Bruce Meyerson & Patricia K. Norris eds., 5th ed. 2010) ("[C]ourts are not willing to award attorneys' fees for clerical work that could have been performed or delegated to others.").
Yancey filed with the court a report analyzing his fees prepared by an attorney with over 30 years experience practicing law in Yuma. The expert concluded, "A review of the work performed by Mr. Yancey shows that more accurately he has under-billed in this matter," the "extreme" conflict between Savage and Yancey "required Mr. Yancey to render extraordinary services," a "significant portion of the fees were made necessary by" Savage's actions, and Yancey's reduced hourly rate of $200 "accommodate[d] administrative work." The expert also concluded Yancey's billings "fairly" met the requirements of In re Guardianship of Sleeth, 226 Ariz. 171, 244 P.3d 1169 (App. 2010) (discussing standards for legal fees in guardianship proceedings).
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¶11 Second, the difficulties Yancey had with Savage were, as the superior court also found, caused by Savage, not Yancey. Yancey described his relationship with Savage as "[v]ery oppositional" and explained that she treated him as if he did not exist. The record more than amply supports the superior court's finding that Savage constantly undermined Yancey's efforts to serve as Special Administrator and that the contentious relationship between Savage and Yancey was "brought on by Ms. Savage."
¶12 Based on the foregoing, the court did not abuse its discretion in making the award. III. Interim Accountings
¶13 Savage next argues the superior court should not have approved Yancey's interim accountings. As raised in her opening brief, Savage's specific challenges, however, consist entirely of conclusory statements without citation to the record or supporting authority. This is unacceptable. Opening briefs must present significant arguments, supported by authority, setting forth the appellant's position on the issues raised. See Ariz. R. Civ. App. P. 13(a)(6), (b)(1). We therefore deem Savage's failure to comply with this requirement as a waiver of these challenges. See supra ¶ 8. Further, even if not waived, the superior court addressed these challenges in its April 16, 2012 "under advisement" order or in prior orders, and based on our review of the record, the court did not abuse its discretion in approving the accountings. IV. Fees and Costs on Appeal
¶14 We affirm the superior court's fee award and its approval of the accountings submitted by Yancey as Special Administrator. We deny Yancey's request for fees because he failed to cite "the statute, rule, decisional law, contract, or other provision authorizing an award of attorneys' fees." Ariz. R. Civ. App. P. 21(c); see Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31, 233 P.3d 645, 652 (App. 2010) (citation omitted) (request for attorneys' fees on appeal "must state the claimed basis for the award"). As the prevailing party on appeal, however, we award Yancey his costs contingent upon his compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342(A) (2003).
CONCLUSION
¶15 The superior court's order awarding Yancey his fees incurred as a special administrator is affirmed.