In re:  Estate of Pamela J. Westlund, Deceased.

In re:  Estate of Pamela J. Westlund, Deceased. A05-200, Court of Appeals Unpublished, September 20, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-200

 

In re:  Estate of Pamela J. Westlund, Deceased.

 

Filed September 20, 2005

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. P6-94-179

 

Joel C. Olson, Robins, Kaplan, Miller & Ciresi L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellant Robins, Kaplan, Miller & Ciresi L.L.P.)

 

Joseph F. Schmidt, Law Offices of Joseph F. Schmidt, The Kenosha, Suite 4, 1204 Harmon Place, Minneapolis, MN 55403 (for respondent Grace Davies)

 

Russell M. Spence, Jr., Spence Law Firm, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondents Joel and Adam Westlund)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Robins, Kaplan, Miller & Ciresi L.L.P. challenges the district court's decision granting respondent, personal representative Grace Davies, a late disallowance of appellant's claim for attorney fees against Pamela Westlund's estate.  The district court disallowed appellant's claim for attorney fees on the ground that the former personal representative did not include the legal fees in his accounting of the estate when he resigned, and appellant neither appealed nor sought to amend the order allowing the accounting.  We affirm.

D E C I S I O N

            Former personal representative of the Pamela J. Westlund Estate, William Kaiser, hired appellant Robins, Kaplan, Miller & Ciresi L.L.P. to prepare his final account and to handle his termination as personal representative.  Appellant prepared a final account and an amended final account of Kaiser's administration of the Westlund estate that Kaiser submitted to the district court.  The amended final account listed appellant's attorney fees as $1,207.97.  Appellant acknowledges that it did not make an entry on the line in the final account that dealt with additional attorney fees or accrued but unpaid attorney fees.  In December 1996, the district court issued an order approving the amended final account and discharging Kaiser from his responsibilities as personal representative.  The successor personal representative, Jean St. Martin, did not employ appellant, and appellant no longer was involved in the estate administration.  

            Three days after the district court's order approving the amended final account, appellant sent a bill to St. Martin for $11,224.48 for services rendered to Kaiser.  Appellant alleges that it unsuccessfully tried to collect this bill by contacting the personal representative and her attorney and by hiring a collection agency.

            In March 2000, appellant filed a written statement of claim for $11,224.48, and in April 2000 filed a demand for notice with the district court.  In October 2000, the district court relieved Jean St. Martin of her duties as personal representative and appointed respondent, Grace Davies, the current personal representative.  Respondent Davies filed a petition to permit a late disallowance of appellant's claim, which the district court granted in January 2005.

I.

A district court's determination of a factual question is not to be set aside unless clearly erroneous.   In re Estate of Weber, 418 N.W.2d 497, 501 (Minn. App. 1988), review denied (Minn. Apr. 4, 1988); In re Conservatorships of T.L.R., 375 N.W.2d 54, 58 (Minn. App. 1985).  On appeal we view the facts in a light most favorable to the prevailing party.  Theisen's, Inc. v. Red Owl Stores, Inc., 309 Minn. 60, 66, 243 N.W.2d 145, 149 (1976).

Appellant argues that under Minnesota law it presented a claim for attorney fees in a timely manner and that, as a matter of law, the district court erred in granting the disallowance.  Statutory construction is a question of law that an appellate court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998); Piche v. Indep. Sch. Dist. No. 621, 634 N.W.2d 193, 198 (Minn. App. 2001), review denied (Minn. Nov. 13, 2001).

The probate code states with regard to final accounts, attorney fees, and representative fees, that "[a]ny full or final account to distributees shall include a statement of attorney fees and representative fees.  This statement shall include the total fees charged to date and estimated future fees to be charged." Minn. Stat. § 525.48 (2004) (emphasis added).  Further, such an order allowing an account of a representative or any part of it is appealable to the court of appeals.  Minn. Stat. § 525.71(a)(9) (2004).  In addition, the district court has the power to correct, modify, vacate, or amend an order under various circumstances within two years of issuing the order.  Minn. Stat. § 525.02 (2004). 

Appellant relies on the general authority stating that until the estate is closed, claims may be brought.  Under the probate code, a personal representative's claim for attorney fees may be presented and paid at any time before a petition to close the account is filed.  Minn. Stat. § 524.3-803(c)(4) (2004).  Here, because the estate is still open, appellant argues its claim was timely.  We disagree.

Appellant's argument disregards the fact that the district court issued an accounting order in December 1996 approving appellant's stated attorney fees of $1,207.97 and that under section 525.48, appellant was required to list estimated future fees on Kaiser's final accounting and failed to do so.  Thus, the order approving Kaiser's final accounting did not authorize appellant to collect future estimated fees.  Although appellant argues that it promptly notified the estate of the additional fees, we conclude that appellant was required to directly address the district court's order by either appealing the order or seeking to amend it. 

The district court's order of December 1996 was appealable under Minn. Stat. § 525.71(a)(9), which provides that a district court's "order allowing, or refusing to allow, an account of a representative or any part of it when the amount in controversy exceeds $100" may be appealed.  Minn. Stat. § 525.712 (2004) provides the time period for appeal:

The appeal may be taken under the Rules of Appellate Procedure by any person aggrieved after service by any party of written notice of the filing of the order, judgment, or decree appealed from, or if no written notice is served, within six months after the filing of the order, judgment, or decree.  Except as provided in this section, the appeal shall be perfected and determined upon the record as provided in the Rules of Appellate Procedure.

 

(Emphasis added.)  Appellant never appealed the December 1996 order approving Kaiser's amended final account. 

      Alternatively, appellant could have petitioned the district court within two years of the order to correct the amount of its attorney fees under Minn. Stat. § 525.02 (2004).  Under Minn. Stat. § 525.02(d), the district court possesses the power to correct, modify, vacate, or amend an order "[w]ithin two years after the date of filing of any record, order or decree, for excusable neglect, inadvertence or mistake."  Thus, appellant had the right to seek amendment of the order but failed to do so.

            Because appellant was a party included in the amended final account, appellant was aware of the alleged omission in the final order.  Moreover, appellant was aware that the purpose of the district court's December 1996 order was to close the books on personal representative Kaiser and to start anew with a successor personal representative to facilitate the orderly management of the estate.  We conclude that on these facts the district court did not err in granting respondent's petition for a late disallowance of appellant's claim.

Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.