O'BRIEN v. EIRICH

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 05/09/2013 RUTH A. WILLINGHAM, CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) FRANCISCO JESUS MUNOZ-GOMEZ, ) ) A Minor. ______________________________________ ) ) BRIDGET O BRIEN SWARTZ, from the ) LAW OFFICE OF BRIDGET O BRIEN ) SWARTZ, P.L.L.C., ) ) Appellant, ) ) v. ) ) CRAIG R. EIRICH, as Trustee of ) THE FRANCISCO JESUS MUNOZ-GOMEZ ) IRREVOCABLE TRUST, ) ) Appellee. _______________________________________ ) In the Matter of the Guardianship and Estate of: 1 CA-CV 12-0518 DEPARTMENT D MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. PB2010-001717 The Honorable Richard L. Nothwehr, Commissioner AFFIRMED Jaburg & Wilk, P.C. By Bridget A. O Brien Swartz Attorneys for Appellant N O R R I S, Judge Phoenix ¶1 Appellant, probate court s attorneys fees. Bridget order A. partially O Brien Swartz denying her appeals the request for On appeal, she argues the probate court failed to understand the complexity of the work she performed, abused its discretion, and misapplied the governing law by only relying on one factor -- a cost-benefit analysis -- in partially denying her fee request. For the reasons discussed below, we disagree, and affirm the probate court s fee award. FACTS AND PROCEDURAL BACKGROUND ¶2 An out-of-state law firm representing a minor in a medical malpractice lawsuit retained O Brien Swartz to assist in seeking the appointment of a conservator for the minor and obtaining approval of a medical malpractice settlement on his behalf. O Brien Swartz determined the minor needed a trust that could be converted into a special needs trust if the minor s disability persisted and as the circumstances warranted, which she then prepared. Through frequent consultations with the minor s family, she also discovered the minor s trust needed to be specially structured to ensure the minor s family remained eligible for public benefits. She also substantially assisted the law firm and the other attorneys involved in complying with Arizona rules and law, drafted pleadings, and performed various other tasks. 2 ¶3 After conducting an evidentiary hearing ( first hearing ), the probate court approved a $550,000 settlement for the minor and allocated over 50% of the settlement to costs and attorneys fees: $946.26 for a medical lien, $220,000 in attorneys fees and $50,638.37 in costs 1 to the law firm, and $6,443.18 in attorneys fees to O Brien Swartz for work she performed from June 11, 2010 through September 30, 2010. ¶4 Subsequently, O Brien Swartz requested an additional $7,067.71 February for 28, work 2011. performed After from holding October oral 20, 2010 argument on through her fee request, the court, however, awarded O Brien Swartz $3,000 in fees, less than half of the additional fees she had requested ( final fee award ). DISCUSSION ¶5 failed As discussed, O Brien Swartz argues the probate court to understand the complexity of her work, abused its discretion, and misapplied the governing law in only relying on one factor -- a cost-benefit analysis -- in partially denying her fee request. ¶6 In making these arguments, O Brien Swartz relies on In re Guardianship of Sleeth, 226 Ariz. 171, 244 P.3d 1169 (App. 2010). There, we held a probate court should consider a number 1 The law firm subsequently refunded $1,536.82 of the awarded costs to the minor. 3 of factors in determining the reasonableness of a request for attorneys fees: the attorney s ability, training, education, experience, professional standing, and skill; the character of the work performed by the attorney (its difficulty, intricacy, and importance, time and skill required, and the responsibility imposed); the work actually performed by the attorney (the skill, time, and attention given to the work by the attorney); and the success of the attorney s efforts and the benefits that were derived as a result of the attorney s services. Id. at 175, ¶ 17, 244 P.3d at 1173 (quoting Ariz. R. Prob. P. 33, cmt. ( Rule 33 )). that would aid a In addition, we identified other factors court in determining whether fees are reasonable, such as: the usual and customary fees in the legal community; the risks and responsibilities associated with the services; the estate s size; the character of the services or the complexity of the issues; the amount of time required; the skill and expertise required; the experience, reputation, and ability of the provider. Id. at 176 n.6, ¶ 20, 244 P.3d at 1174 n.6 (citing National Probate Court Standards, § 3.1.5 cmt.). ¶7 In identifying these factors, we emphasized that an attorney has a duty to undertake a cost-benefit analysis at the outset and throughout their representation to ensure that they provide needed services that further the protected person s best 4 interests and do not waste unproductive activities. ¶8 and funds or engage in excessive or Id. at 175, ¶ 18, 244 P.3d at 1173. Here, as Sleeth commands, the probate court evaluated weighed the total amount of fees O Brien Swartz had requested in the case -- the fees awarded for work performed through September 30, 2010 and the fees she had requested for work performed after that date -- against the benefits the minor received from her work. In so doing, and contrary to O Brien Swartz s argument, the court considered several Sleeth factors and did not abuse its discretion in making the final fee award. Id. at 174, ¶ 12, 244 P.3d at 1172 (appellate court reviews probate court s award of attorneys fees for abuse of discretion). ¶9 In making the final fee award, the court noted that at the first hearing it had inquired no less than four times about expenses, had urged the attorneys to limit[] expenses and minimize administrative costs, and had asked everyone to keep costs down. The court also noted, in its experience, a similar trust should cost approximately $3,000 to $4,000, but here, the trust had O Brien Swartz alone. went court into this disagreed, already cost the minor $6,443.18 from Although O Brien Swartz argued [n]o one arrangement stating it ill-informed was 5 or unaware unknowingly, of the the significant additional costs for work to be performed after the first hearing, and noting [n]o one suggested or notified the family or this [c]ourt . . . additional funds would be expended for additional attorney[s ] fees. The court also stated it was told that there should not be a delay in funding the trust, a comment that suggests the court did not anticipate significant, additional work after the first hearing. It further noted O Brien Swartz had performed substantial work from October 1, 2010 through October 20, 2011, and stated that if it had known she had more work to perform, it would have taken steps to ensure her fees were included in the $220,000 awarded to the law firm. ¶10 The court acknowledged O Brien Swartz had performed various tasks to complete the settlement and distribution for the minor, and [n]o one, including the [c]ourt [was] arguing that [O Brien Swartz] was not performing work on behalf of the [m]inor. But, after considering that the only disbursements from the trust were for attorneys fees and bond renewal, the amount of fees it had already awarded, the limited amount of money to be protected, and the manner of protecting the money, the court concluded the fair and reasonable amount of fees to award to O Brien Swartz was $3,000. 6 ¶11 In short, considered O Brien performed, the the record Swartz s complexity reflects skills, of the the the work, probate overall the court work amount she of time required to complete the work, the benefit to the minor and his family, the originally whether size -- of which O Brien the was minor s less Swartz s fee estate than half estimates -of only the were $255,000 settlement, reasonable, the total amount of fees it had awarded to O Brien Swartz as well as to the law firm, and the additional amount O Brien Swartz had requested, in light of being advised to keep costs down. ¶12 The issue is not O Brien Swartz s expertise, the quality of her work, or whether her work benefited the minor. The record reflects these factors supported her fee request. The issue is whether, given the $6,443.18 in fees she had already received, her request for an additional $7,067.71 in fees was reasonable. Courts should not reach conclusions on facts not in the record. In re Fallers, 181 Ariz. 227, 229-30, 889 P.2d 20, 22-24 (App. 1994). disagree over adversarial the process And, generally, when parties reasonableness will provide a of a fee court with facts to determine the amount of fees to award. however, as situation, here, we must no one rely opposes on the 7 a trial fee request, the necessary Occasionally, request. court s the In that experience to evaluate the requested. reasonableness of the hours for which fees are See Sleeth, 226 Ariz. at 176 n.6, ¶ 20, 244 P.3d at 1174 (probate court should consider the usual and customary fees in the legal community in determining reasonableness of fee request); Ariz. R. Prob. P. 33, cmt. (probate court should consider the fees customarily paid to agents or employees for performing like work in the community ); Ariz. St. Code of Jud. Admin. § 3-303(D)(3)(a) (in determining reasonable compensation, judicial officer shall consider [t]he usual and customary fees or market rates charged in the relevant professional community for such services ). 2 ¶13 The party requesting fees has the burden of proof to present hours sufficient and fees evidence about requested. See the reasonableness Schweiger v. of China the Doll Restaurant, Inc., 138 Ariz. 183, 188-89, 673 P.2d 927, 932-33 (App. 1983) (party seeking fees must present evidence amount of hours expended was reasonable); cf. Woerth v. City of Flagstaff, 167 Ariz. 412, 419, 808 P.2d 297, 304 (App. 1990) (party seeking fees under A.R.S. § 12-341.01 has burden to prove entitlement to fee award). In this case, it was only O Brien Swartz s statements about the reasonableness of the fees and a passing 2 Although this section was not effective when the probate court reviewed O Brien Swartz s fee request, it is nevertheless consistent with Rule 33 and Sleeth. 8 remark by the attorney for the trustee on the value of her work, which supported the fee request. to evaluate this evidence identified in Sleeth. The probate court was entitled along with the other factors Given all of the facts, we cannot say the probate court abused its discretion in utilizing its expertise and experience to reduce the amount of fees requested. CONCLUSION ¶14 court s For order the foregoing awarding reasons, O Brien we Swartz s affirm $3,000 the in probate attorneys fees. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ JON W. THOMPSON, Presiding Judge /s/ DONN KESSLER, Judge 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.