In re the Estate of: Nicholas A. Schmitz, Decedent.

In re the Estate of: Nicholas A. Schmitz, Decedent. A05-1175, Court of Appeals Unpublished, May 30, 2006.

This opinion will be unpublished and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

A05-1175

 

 

In re the Estate of:  Nicholas A. Schmitz, Decedent.

 

 

Filed May 30, 2006

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge

 

Dakota County District Court

File No. P1-03-6076

 

 

John A. Schmitz, 8861 89th Street Circle S., Cottage Grove, MN 55016 (pro se appellant)

 

David E. Essling, Essling, Ltd., 1217 West Seventh Street, St. Paul, MN 55102 (for respondents devisees)

 

 

            Considered and decided by Toussaint, Presiding Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant John A. Schmitz challenges the district court's order establishing the compensation due him for services performed in his capacity as personal representative to the estate of decedent Nicholas A. Schmitz. Appellant argues that the district court understated both the reasonable hourly rate of the services and the number of hours necessary to perform the services.  By notice of review, respondents devisees argue that appellant was not entitled to an earlier award of estate funds for services performed before decedent's death; that the district court's award of compensation in the current matter was excessive; and that appellant must be removed as personal representative.  We affirm in part, reverse in part, and remand for the district court to reconsider its denial of respondents' petition to remove appellant as personal representative.

 

D E C I S I O N

I.

By statute, a personal representative is presumptively entitled to reasonable compensation and attorney fees.  Minn. Stat. §§ 524.3-719(a) (2004) (compensation), .3-720 (2004) (attorney fees).  Minn. Stat. § 524.3-719(b) (2004) provides that the reasonableness of a personal representative's compensation depends upon the time and labor required, the complexity and novelty of problems involved, and the extent of the responsibilities assumed and the results obtained.  Allowance of personal representative and attorney fees is a matter largely within the discretion of the district court; the reasonable value of such services is a question of fact.  In re Estate of Baumgartner, 274 Minn. 337, 346, 144 N.W.2d 574, 580 (1966).  A district court's finding of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  This court gives due deference to the district court's opportunity to observe witnesses and evaluate their credibility.  Id.; In re Estate of Serbus, 324 N.W.2d 381, 385 (Minn. 1982). 

            Appellant argues that he is entitled to compensation for 1,182 hours of service at $50 an hour because he had a "written and oral contract with the deceased" and because he submitted evidence concerning the time he spent performing his duties. Appellant's argument lacks merit.  The contract in question concerned services provided to the decedent before his death, and it was never signed.  After hearing extensive testimony concerning the nature of the tasks performed, the district court found that $25 an hour was reasonable; the court also found that, in light of the relatively small size and good condition of the homestead and the relatively small size of the estate, the number of hours appellant devoted to security and maintenance, cleaning and repairs, and final accounting was excessive.  The court found that 927 hours was reasonable.  These findings are not clearly erroneous. 

Appellant raises several other issues:  that the district court should have allowed more time for trial; that the court should have declared a mistrial after allegedly losing a document; that the district court made computing errors in its order; that certain devisees who did not testify gave false testimony; and that respondents' counsel committed ethical violations.  These issues are asserted without any legal support or cogent record support and are without merit.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection").

II.

By notice of review, respondents challenge the district court's June, 2004 order concluding that appellant and decedent had an implied contract pursuant to which appellant was entitled to $8,000.  The June 2004 order was appealable.  See Minn. Stat. § 525.71(5) (2004) (stating order permitting claim against estate is appealable if amount in controversy exceeds $100).  But respondents did not challenge the order until June 2005, so their challenge is time-barred.  See Minn. Stat. § 525.712 (2004) (providing appeal may be taken from appealable probate order within six months after service by any party of written notice of filing or, if no written notice is filed, within six months after filing). 

            Respondents also challenge the reasonableness of the compensation and attorney fees  awarded appellant.  We have already determined that the district court's allowance of personal-representative fees did not constitute an abuse of discretion.  Minn. Stat. § 525.515(b) (2004), requires courts awarding attorney fees to generally consider the amount and complexity of the legal work associated with an estate in determining the reasonableness of fee awards.  The district court found that the fee award was reasonable because appellant's counsel did the work requested of him and helped move the matter to final resolution.  This finding is supported by the record and is not clearly erroneous.

Third, respondents challenge the district court's denial of their petition to have appellant removed as personal representative.  Minn. Stat. § 524.3-611(b) provides that a personal representative may be removed for cause "when removal is in the best interests of the estate, or if it is shown that a personal representative . . . has disregarded an order of the court . . . or has mismanaged the estate or failed to perform any duty pertaining to the office."  The decision to remove a personal representative lies within the discretion of the district court.  In re Munson's Estate, 238 Minn. 366, 370, 57 N.W.2d 26, 29 (1953).

There is no evidence that appellant has complied with any aspect of the April 2005 order requiring him to submit an amended final account, return approximately $20,000 in overpayments to the estate, file his most recent 1099 form, and disclose the amount and location of remaining estate funds.  The record strongly suggests that, because of the animosity between appellant and the devisees, this estate is unlikely to reach conclusion as long as appellant is the personal representative.  In the interests of justice and of the resolution of this matter, we reverse and remand the denial of respondents' petition to remove appellant.  On remand, the district court should consider whether, in light of appellant's complete disregard of the terms of the court's earlier order and continuing failure to conclude the estate, retaining him as personal representative is to be in the best interests of the estate, or whether, in spite of cause to remove the personal representative, the court can be assured that he can promptly and properly close the estate without further expense.  

Finally, respondents request that their appellate attorney fees be paid from the estate or by appellant, based upon their belief that this appeal is without merit and has unnecessarily prolonged this proceeding.  Although Minn. Stat. § 518.14, subd. 1 (2004),allows conduct-based appellate attorney fees, Minn. R. Civ. App. P. 139.06, subd. 1, requires that a party seeking such fees do so by motion under Minn. R. Civ. App. P. 127 "no later than within the time for taxation of costs," or 15 days.  Minn. R. Civ. App. P. 139.03.  The motion must "include sufficient documentation to enable the appellate court to determine the appropriate amount of fees."  Id.  At this stage, respondents have not filed a motion for fees or provided any documentation to justify the request, although they may do so after this appeal pursuant to the Rules of Civil Appellate Procedure.

Affirmed in part, reversed in part, and remanded.

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