JOSEPH EDWIN BROWN INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF GEORGE W. MORRIS, JR. v. CHERYL M. MCLAMB INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF GEORGE W. MORRIS, JR.; THE UNKNOWN SPOUSE OF CHERYL M. MCLAMB; LINDA HALL; AND THE UNKNOWN SPOUSE OF LINDA HALL
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RENDERED: JULY 13, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001061-MR
JOSEPH EDWIN BROWN INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF GEORGE W.
MORRIS, JR.
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 05-CI-00573
CHERYL M. MCLAMB INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF GEORGE W.
MORRIS, JR.; THE UNKNOWN SPOUSE OF CHERYL M.
MCLAMB; LINDA HALL; AND THE UNKNOWN SPOUSE
OF LINDA HALL
APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; PAISLEY,1 SENIOR JUDGE.
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
PAISLEY, SENIOR JUDGE: Joseph Edwin Brown, individually and as the purported
Administrator2 of the Estate of George W. Morris, Jr., appeals from an order of April 27,
2006, of the Pulaski Circuit Court that made final and appealable two prior orders of the
court. The first of these orders, entered on September 13, 2005, denied Brown’s petition
for declaration of rights and ordered DNA testing to determine whether Brown was
Morris’s natural son. The second order, entered on February 27, 2006, denied his motion
for attorney’s fees and expenses made pursuant to Kentucky Revised Statutes (KRS)
412.070. This appeal addresses two issues: (1) whether a determination of Brown’s
paternity by an Administrative Law Judge (ALJ) for purposes of awarding him Social
Security benefits should have constituted conclusively “clear and convincing proof” of
paternity for purposes of inheriting from an intestate decedent under KRS 391.105; and
(2) whether Brown is entitled to recover attorney’s fees and costs under KRS 412.070.
On November 13, 1997, George W. Morris, Jr., died intestate. He was
survived by two children born of his prior marriage, Cheryl M. McLamb and Linda Hall.
Shortly after Morris’s death, Brenda Holmes filed an Application for Child’s Insurance
Benefits with the Social Security Administration on behalf of her minor child, Joseph
Edwin Brown, who was born on September 7, 1985. According to Brenda, George W.
Morris was Joseph’s biological father. A hearing on her application was held before an
ALJ who rendered a decision on July 26, 2001, finding that Brown was Morris’s son.
(The key piece of evidence relied on by the ALJ was a permit that George Morris had
2
Brown was removed as administrator of the estate by a court order entered on February 21,
2006.
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signed for installation of electrical wiring in a mobile home in Alabama. The permit
stated that the property was owned by Joseph Brown, who was described as the son of
George Morris.) Brown and his mother received Social Security death benefits as a result
of this decision.
On July 24, 1998, Cheryl McLamb petitioned the Pulaski District Court and
was appointed the administratrix of her late father’s estate. Brown never received notice
of this appointment because McLamb believed that her father had no children other than
herself and her sister, Linda Hall. The inventory of the estate assets submitted to the
court by McLamb on December 8, 1998, consisted of household furnishings, two
vehicles, a trailer and a checking account, valued at a total of $16,623.96.
When he reached the age of nineteen in 2004, Brown, believing himself to
be Morris’s biological son, hired an attorney to assist him in locating further assets of
Morris’s estate. He entered into a contingency fee agreement with the law firm of
English, Lucas, Priest and Owlsey, which provided that his attorneys would receive
thirty-three percent of any amount recovered, as well as a $5,000.00 retainer for
expenses.
Brown petitioned the Pulaski District Court to be appointed the
administrator of Morris’s estate. The court, apparently unaware of McLamb’s earlier
appointment, granted the petition and appointed Brown as the administrator of Morris’s
estate on September 29, 2004. The earlier probate had never been closed and, after the
payment of some debts, it reflected an insolvent estate. Brown requested the appointment
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of a warning order attorney to locate Morris’s other children. The warning order attorney
notified Hall and McLamb of the probate action in November, 2004.
Meanwhile, Brown discovered that he was the beneficiary of bonds from
Morris valued in excess of $100,000.00 and that he was the titleholder to a trailer
previously owned by Morris. Based on what Morris had told him, Brown also believed
that Morris had owned real property located in Alabama as well as a lock box.
Brown, with the assistance of his attorney, located the lock box, the contents of which
were slated shortly to escheat to the State of Alabama. Brown through his counsel hired
an attorney in Alabama who instituted ancillary probate proceedings for the purpose of
securing an order to open the lock box. It was found to contain over $6,000.00 as well as
various receipts and copies of bonds. Brown also instructed the attorney in Alabama to
locate the real property which he believed Morris had owned there. Brown paid
$1,600.00 for a survey and title search. When the property was located, Brown paid back
taxes in order to prevent foreclosure, and he located a buyer willing to pay $80,000.00 for
the real estate. Hall and McLamb were kept apprised of these activities.
On May 12, 2005, Brown filed a petition for settlement of the estate of
George W. Morris, Jr., pursuant to KRS 395.510, in Pulaski Circuit Court. McLamb
filed an answer denying that Brown was the child and heir of Morris, and requesting
paternity testing and Brown’s removal as administrator of Morris’s estate. Brown then
filed a petition for declaration of rights, arguing that the determination of paternity by the
administrative law judge for purposes of awarding Social Security benefits satisfied the
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provisions of KRS 391.105 which allow a child born out of wedlock to inherit from an
intestate father if there has been an “adjudication of paternity after the death of the father
based upon clear and convincing proof.”
The circuit court refused to accept the ALJ’s adjudication as clear and
convincing proof of paternity, and ordered instead that Brown submit to a DNA test with
his purported half-sisters. The DNA test results indicated that there is a likelihood of
only 8.3% that Brown is related to McLamb and Hall. Brown withdrew from the action
and submitted a motion for payment of attorney’s fees and expenses under KRS 412.070.
The circuit court denied the motion and this appeal followed.
KRS 391.105 provides in relevant part as follows:
(1) For the purpose of intestate succession, if a relationship of
parent and child must be established to determine succession
by, through, or from a person, a person born out of wedlock is
a child of the natural mother. That person is also a child of
the natural father if:
...
(b) In determining the right of the child or its descendants to
inherit from or through the father:
.
..
2. There has been an adjudication of paternity after the death
of the father based upon clear and convincing proof[.]
Brown argues that, under our case law, the Pulaski Circuit Court erred in
not accepting the ALJ's finding of paternity because a circuit court’s judicial review of
the findings of fact of an administrative agency supported by substantial evidence of
probative value must be accepted as binding by the reviewing court. See e.g. Burch v.
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Taylor Drug Store, Inc., 965 S.W.2d 830 (Ky.App. 1998) (circuit court reviewing award
of benefits by the Kentucky Unemployment Insurance Commission). But the circuit
court in this case was not acting in an appellate capacity, reviewing the actions of an
administrative agency for error. As a jurisdictional matter, the paternity determination by
the ALJ in Brown's case was not susceptible to appellate review by the circuit court, nor,
accordingly, was the circuit court bound to accept the ALJ's findings of fact if supported
by substantial evidence.
Brown further contends that the ALJ applied Kentucky law and the “clear
and convincing” standard to find paternity. This contention is clearly refuted by the
ALJ’s written decision, in which he outlined the different ways in which paternity may be
established for the purpose of obtaining social security benefits. The ALJ specifically
stated that he had not utilized the standard established by Kentucky’s intestacy statute:
For example, in section 416(h)(2)(A) [of the Social Security
Act], a child will be deemed a “child” if the child would be
eligible to claim the decedent’s property under the intestacy
laws of the state in which the insured individual was
domiciled at death. Because the Administrative Law Judge
has decided this case on the basis of Section
416(h)(3)(C)(i)(I) which is unrelated to state law, it is not
necessary to address other circumstances which might apply.
There was no abuse of discretion in the circuit court’s refusal to accept the
ALJ’s determination as “clear and convincing” evidence of paternity. We agree with the
trial court that “[t]he cost of such [DNA] testing and the small delay it will entail is far
outweighed by the conclusiveness it will provide.”
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The next argument on appeal concerns whether the circuit court erred in
refusing to grant Brown’s motion for an award of attorney’s fees and expenses pursuant
to KRS 412.070, which provides as follows:
(1) In actions for the settlement of estates, or for the recovery
of money or property held in joint tenancy, coparcenary, or as
tenants in common, or for the recovery of money or property
which has been illegally or improperly collected, withheld or
converted, if one (1) or more of the legatees, devisees,
distributees or parties in interest has prosecuted for the
benefit of others interested with him, and has been to
trouble and expense in that connection, the court shall
allow him his necessary expenses, and his attorney
reasonable compensation for his services, in addition to
the costs. This allowance shall be paid out of the funds
recovered before distribution. The persons interested shall be
given notice of the application for the allowance, provided,
however, that if the court before whom the action is pending
should determine that it is impracticable and too expensive to
notify all of the parties individually, then by order of said
court, personal notice may be dispensed with and in lieu
thereof, notice of the application shall be given by an
advertisement pursuant to KRS Chapter 424.
The trial court denied Brown’s motion on the grounds that he was “not a member of those
persons who may bring an action for the common benefit as set forth in KRS 412.070.”
The appellees agree, arguing that Brown is essentially a stranger to the litigation, a nonrelative who will inherit nothing. They maintain that the statutory provision for
attorney’s fees applies only where the parties have a common interest, a suit is brought
for their common benefit, and one attorney carries the entire burden of the litigation.
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Brown argues that as a duly appointed administrator, he was a “party in
interest.” He points out that his efforts and those of his attorney resulted in the discovery
of valuable assets, with full notice to the heirs.
Arguably, Brown has a right to recover attorney’s fees due to his status as
the estate administrator. See KRS 395.150. Additionally, at the time the fees in question
were incurred, Brown believed himself to be a “party in interest” as a potential heir. The
appellees do not dispute that they were placed on notice of Brown’s activities, and that
they acquiesced in his efforts to locate further assets of the estate. Under these
circumstances, it appears inequitable to deny attorney’s fees and costs. A similar factual
situation was presented in Skinner v. Morrow, 318 S.W.2d 419 (Ky. 1958), where Wilbur
Fields, an attorney operating under a contingency-fee arrangement, represented six
persons who wrongly thought they were heirs of the deceased Mr. Skinner. Fields also
later made a contingency fee contract with a woman who turned out to be a real heir.
Fields’s right to collect a fee from the estate for his services under KRS 412.070 was
challenged by Mrs. Skinner, who argued that “substantially all of his services were
rendered at a time when he did not represent anyone with a valid interest in the estate.”
Skinner, 318 S.W.2d at 427. Although this was true, the court nonetheless held that
Fields was entitled to recover, explaining that
it appears that the proceedings were commenced in good faith
[by Fields], in behalf of persons who were of some kinship to
Mr. Skinner and whose claims of heirship were not
completely baseless. Also, Mr. Fields did represent a real
heir when the judgment was entered. And the simple fact is
that his services did result in a substantial benefit to the
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estate, in that half of the estate of $190,000 was recovered for
the heirs. So it is our opinion that Mr. Fields is entitled to
some allowance for the services in setting the will aside.
Id.
Of course, an important distinction in the case before us is that Brown’s
attorney, unlike Fields, did not represent a real heir. Nonetheless, we think that the
reasoning in Skinner is applicable. There is no allegation that Brown or his attorney
acted in bad faith, and their actions undoubtedly led Hall and McLamb to receive a
considerable benefit.
The appellees have raised the point that the major portion of the assets
recovered by Brown and his attorney consisted of real property which would not form
part of the estate nor be subject to distribution by the administrator. See Wood v.
Wingfield, 819 S.W.2d 899 (Ky. 1991). (“Not all of the property in which the decedent
had an interest, however, will constitute probate property over which the personal
representative has control. Real property owned solely by the decedent, for example,
passes directly to the decedent’s heirs or devisees upon his death[.]” Wood, 816 S.W.2d
at 902 (citation omitted).
But the statutory language of KRS 412.070 does not limit the award of
attorney’s fees only to situations in which assets that have been recovered will pass into
probate. We agree with Brown that the language is broad enough to encompass the
situation in this case.
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An award or denial of attorney’s fees under KRS 412.070 is reviewed for
an abuse of discretion. Gernert v. Liberty National Bank & Trust Co., 284 Ky. 575, 145
S.W.2d 522, 526 (1940). “Abuse of discretion in relation to the exercise of judicial
power implies arbitrary action or capricious disposition under the circumstances, at least
an unreasonable or unfair decision.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.
1994)(citations omitted). We believe that in this instance, the decision of the trial court
led to an unfair outcome because the bulk of the attorney’s work was performed while
under the mistaken, yet not unreasonable, belief that Brown was an heir and therefore a
party in interest; and because the attorney’s efforts led to the recovery of property to the
benefit of the appellees. Any attorney's fees to be awarded are to be limited to those
incurred in the discovery and recovery of assets that benefit the appellees, not to any
litigation related to Brown's attempts to establish himself as an heir.
The order denying the motion for attorney's fees is therefore reversed, and
this case is remanded to the circuit court for a determination of the correct amount of
attorney’s fees and costs to be awarded.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
Kelli E. Brown
Bowling Green, Kentucky
D. Bruce Orwin
Somerset, Kentucky
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