ESTATE OF DAMM
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NO. 96-074 IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE ESTATE OF MARY K. DAMM, h/Q!! ,:?i Vj!Q!j Deceased. APPEAL FROM: District Court of the Seventy Judicial District, In and for the County of Richland, The Honorable Richard G. Phillips, Judge presiding. COUNSEL OF RECORD: For Appellant: George Billings, T. Radovich, Montana Radovich (for Edwin Law Firm, K. Damm) Fred E. Whisenand, McIntee & Whisenand, Williston, North Dakota (for Leona Howard) For Respondent: Mike Weber, Cresap, Weber Sidney, Montana (for Alice Submitted & Irigoin, Synek) on Briefs: Decided: Filed: September 5, November 21, 1996 1996 Justice Charles E. Pursuant to 1995 Internal cited Erdmann Section document with result to Paragraph Rules, the and shall the Clerk State the I, Operating as precedent delivered of 3(c), the Court. Supreme decision shall by its Supreme Court Publishing of Montana following be published the Reporter opinion filing not and from an order be as a public and by a report Company Court West of its Publishing Company. Edwin Seventh final Damm and Leona Judicial District accounting award of Howard of Court, the personal appeal estate Richland of Mary representative County, and by the approving K. Damm with fees issued respect attorney the to its fees. We affirm. The issues on appeal Did 1. compensation 2. the to Did between the District the the are as follows: Court personal District personal err in setting the amount of representative? Court err in approving representative the and the 7, 1993. fee agreement attorney for the estate? FACTS Mary K. Damm died and testament provided equal shares to Leona Howard. Mary's County, that her three The assets residence one testate bond, in Sidney, and on April the residue children, of the mineral numerous bank 2 of Mary's her estate Alice residuary Synek, last will be divided Edwin estate Damm, in and consisted property located accounts and in certificates of Richland of deposit. Mary in ownership joint Alice to be District also Court Edwin, Alice acc0unts.l personal would be premature. Alice of their petition for for attorney for spent 1995, $14,283 in fees. Edwin and personal and Alice of representative and on January 9, to to estate could the amount file the final District so $21,394 account, heirs, in to Court in estate. Alice estate. objections time hearing of and the affidavits of second in that the filed joint the at the affairs that separate included continue her fees, 1996, fees 1993, certain determination of both of for At a objected on the testacy, 14, filed the filed distribution Leona had treatment for and he estate working heirs, matter. and attorney the petition the closing the capacity. On December also agreed and on the that court determination settlement accounting fees estate of that deposit nominated account, estate. attorney The 18, final the regarding time On December her of Mary the that a hearing and argued and the of in stated representative accounting support of Edwin's final Leona. determination attorney against and act filed conducted Edwin's complaint to testacy, Court hearing, that Alice and distribution District and certificates representative Alice 1993, of settlement of Alice, appointed determination tenancy accounts personal In November the bank with the held and sought attorney the final conducted a 1 The companion suit against Alice involved whether or not of the jointly held bank accounts and certificates of deposit The litigation was eventually should be included in the estate. settled in 1995 and resulted in a significant delay in the final accounting of the estate. some 3 hearing on the matter. order approving the court awarded On February Alice approved the fee estate. This final account $5,280 agreement appeal 7, the in personal between to In her spent of 264 and the in the amount Edwin order to unequal own her not be lawsuit her expended that $8 per the court, Alice her the amount of indicated duties fee award Court rate to $20, she had as she reduced argue personal sought in a compensation resulting on appeal she feels that on the the in submitted court. Edwin for claim is her that affairs Alice other she received They contend on the hour the total vengeance compensated have with and and they for the in lifetime." to and setting in The District self-interest affidavit fees the rate number of of fee a total hours award $5,280. treatment during the attorneys resulted and Leona "have order, and the estate hourly of that In 1 err $14,283 the hour. to its representative Alice performing The $45 per issued representative? filed hours accounting over personal affidavit representative. final Court the 314.25 court followed. District compensation the as adjusted. ISSUE Did 1996, the of that the a reasonable 4 in poor or of her time records argue mother of by her and a false Alice that the number estate rate hands the fee was motivated resisting maximum for her Alice and Leona in heirs at the false time inflated should separate of hours Alice was 221.75. They compensation since civil could claim that was the of her highest hourly regular the review of left to is Flikkema The v. of (citing Estate abuse arbitrarily the Gaustad v. In her spent paid hours of City the of present Alice's to the benefit the in preparation from the for her contained for 264 hours the filing, in of funds the work. deposition, time In of hours that sheets," addition, costs 839 P.2d 334). trial the 901 P.2d determined that from the court, associated 565. even original would give that the hours should reviewing should or it litigation District acted injustice. determined Alice The judgment 486, 'I [alfter a 1298-99 court substantial the civil absent 768 P.2d varied to 1293, at the Court separate and jury district 839 P.2d 272 Mont. The court and personal the 42, 1, in supplied doubt. dispute a conscientious District of the estate not of the at previously by discretion resulting affidavits of We have taken whether (1995), accounting sheets the case, or 236 Mont. reason that, be overturned is Columbus fee. Flikkema, (1989), course any 34, employment of in will discretion bounds that 255 Mont. discretion. Stone without exceeded time of maintain the sound (1992), an abuse and Leona paid determination of though Kimm the be $1,774. set fees the during provides shall court's showing for court received should MCA, the representative test fee fees, that 1298. Edwin 72-3-634(Z), concerning court. ever Thus, and equitable Section held Alice employment. a fair best, rate not the be other be compensated Court with the held that separate stated that employees the of not beyond that the the excessive. goes personal the for those that Alice that the attorney rate multiplied of the matters. should which such contract fee is MCA, limit with services § 72-3-633, an outside fees are one that and on what the argues court does arrangement. to they based that not held can be court, sets estate is attorney bound by that is open converted automatically recovery rendered (1979), is time the that the fees in the into limited on an hourly 182 Mont. the a quantummeruit exclusively basis. 372, 380, at on handling attorney $85 per is argues questioned, the not and that amount of measure that even the of fees hour. reviews instance to the argue hourly representative, first review, the rather, Alice which attorney's an attorney personal joint and Leona spent work but agreement. for for fee, the at most, of They litigation actually that, fee certain Edwin to hours when the the contract of estate. keep to estate. be compensated the separate be limited on 40.8 She claims the the claim set to attempted and that amount should beneficial attorney should Here, Alice an attorney were beneficial be $3,468, Magelssen for by puts that estate by estate services argue and her was not whereby to an excessive established services resulted fee that free fees as the stated language and Leona out the is for." accounts the as long ceiling "statutory Edwin claim estate The court contracted only representative fee fee the the though is not compensation reasonable value of of She cites to In re Estate 597 P.2d 90, 95, where this Court stated only where that a valid Section are of the MCA, the where statutory of the that at 95, if the exceed the personal attorney regard, fee the services one requirement, where appropriate of representative, not statutory In 597 P.2d that to terms the normally exist. shall that is personal allowable ceiling. Maselssen, the attorney against situation not provides by compensation Juxtaposed does engaged compensation times contract 72-3-633, attorney compensation quantummevuit an the and one-half representative. however, District the exceed agreement is the cited to Court we stated: It is clear that a court, when reviewing a fee agreement under a substantially performed contract, cannot blind itself to the terms of the contract and make its own determination of what is reasonable. In Maselssen, we also stated that: We do not believe that section 91A-3-722 [the predecessor to § 72-3-634, MCA, which allows the court to review the employment of attorneys and their fees1 was intended to permit competent, fullyinformedpersonalrepresentatives to disavow their otherwise enforceable contracts for an attorney's services. Maselssen, 597 P.2d necessarily prevent ceiling in a attorney have substantially the the an 95. situation contracted Court fee did agreement Thus, award for the of where performed. District that at attorney the a higher We therefore not abuse statutory its between Alice approved. 8 maximum personal fee exceed the representative and the conclude discretion and not which fees should contract that in when it the attorney and has been this case determined must be Nevertheless, attorney should in be an is oral the clear statutory In the did therefore the the estate filed this the wherein allowed fee a specific the of court, agreement amount of attorney/client attorney case. Alice fee the to amount in with agreement award turn determine maximum not fee fees According to he and Alice Synek agreed which the "entered to pay [the by Section 72-3-663, MCA [sic]." set attorney fees the at the maximum. Issue 1 we held when it Thus, final by that discretion fees. to affidavit attorney] It order paid attorney's court We must fees. agreement into the the that awarded statutory accounting of the Alice District $5,280 maximum the estate for Court in personal attorney should reflect Affirmed. Justice 9 did fees not abuse its representative is that $7,920 amount. and
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