In the Matter of the Estate of: Frisina, K. (memorandum)
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J-S34016-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE MATTER OF THE ESTATE OF KAREN H. FRISINA, AN INCAPACITATED PERSON IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: KATHLEEN BRUNDAGE No. 1338 WDA 2013 Appeal from the Order Entered July 15, 2013 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 160-2012 IN THE MATTER OF THE ESTATE OF KAREN H. FRISINA, AN INCAPACITATED PERSON IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: CHRISTINE FRISINA BROWN No. 1386 WDA 2013 Appeal from the Order Entered July 15, 2013 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 160-2012 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY BENDER, P.J.E.: FILED JULY 08, 2014 These consolidated appeals1 presently before this Court involve the adjudicated Karen Frisina an incapacitated person and appointed Edith Benson, Esq., as Plenary Guardian of the Person and the Estate of Karen Frisina. Kathleen Brundage (Appellee/Cross Appellant or Ms. Brundage) ____________________________________________ 1 By order, dated September 19, 2013, this Court sua sponte consolidated these two appeals. J-S34016-14 appeals from the order, dated July 12, 2013, and entered July 15, 2013, assets managed by Ms. Brundage as power of attorney. Christine Frisina Brown (Appellant or Ms. Brown) appeals from the order, dated and entered on July 15, 2013, that denied the joint cross-exceptions filed by her and Brundage as power of attorney. After an extensive review, we affirm in part, vacate in part, and remand for further proceedings.2 Ms. Brundage and Ms. Brown are two of the five children of Ms. Frisina and her husband, Francis Frisina, Sr., who died in November of 2002. On August 17, 2012, Ms. Brown filed a petition requesting that Ms. Frisina be adjudicated an incapacitated person and that an emergency guardian be appointed. Following a hearing, the court entered an emergency order, dated August 17, 2012, which essentially accomplished the requests set i.e., revoking the power of attorney granted Ms. Brundage, directing Ms. Brundage to provide an accounting, appointing Darlene Vlahos, Esq., as the exami ____________________________________________ 2 the issues raised by Ms. Brundage and one related to the issues raised by Ms. Brown. Both opinions were issued on the same day, contain the same common pleas docket number, and provide very similar discussions about the facts that gave rise to these appeals. However, they can readily be sentence of each opinion. -2- J-S34016-14 Attorney Benson as guardian, and declaring Ms. Frisina to be an incapacitated person. held on September 12, 2012, and the order entered on that date finalized objections to the accounting. Hearings on these objections were held on December 21, 2012, February 25, 2013, February 26, 2013, and on March 22, 2013. The court then filed an order on May 28, 2013, supported by findings of fact and conclusions of law. Specifically, the court determined that the transfer of real property from Ms. Frisina to Ms. Brundage was void and Ms. Brundage was directed to transfer the property back to Ms. Frisina. The court also found that the transfer of the Curian Capital LLC account was void and, thus, it required Ms. Brundage to reimburse Ms. Frisina for the full amount of $145,472.28. Ms. Brundage was further ordered to reimburse Ms. Frisina for the unaccounted for assets in the amount of $4,318.01 as to the Sammon IRA account and $5,260.00 regarding the PNC checking totaling $11,395.65. Ms. Brundage filed exceptions relating to the May 28, 2013 order. Ms. Brown joined by Attorney Benson also filed exceptions to the May 28, 2013 order. The exceptions were primarily denied in the orders issued by the court and led to the appeals now before this Court. We begin with Ms three issues for our review: -3- J-S34016-14 A. Whether the trial court erred in failing to direct Respondent ing the objections to accounting? B. Whether the trial court erred in refusing to authorize Petitioner Christine Frisina Brown to recover her reasonable counsel fees incurred in processing the objections to accounting from the fund ultimately recovered by the Estate of Karen H. Frisina from Respondent Kathleen Brundage? C. Whether the trial court erred in refusing to award statutory interest on the monetary judgment entered against Respondent Kathleen Brundage? o Ms. Brown: with, this Lower Court chose not to award counsel fees against [Ms. Brundage] as this Lower Court was already surcharging [Ms. Brundage] for the full amount due to the Examiner of the Assets for services rendered in the instant action, in addition to the unaccounted for monies and the return of the real estate and the monies from the transfer of the Curian Capital LLC account. Additionally, [Ms. Brown] in the instant action failed to present any facts during the instant matter while the record was open, at which counsel had many opportunities at four (4) separate sh facts to show that he is entitled to such compensation, such as the hourly rate the firm charged, what services were performed or how much time those services consumed. -4- J-S34016-14 did not apply to the circumstances of this case. The court relied on the following language from the decision in Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), wherein the Supreme Court stated: [A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense. O.C.O. at 25- Boeing, 44 U.S. at 478). Thus, While this Lower Court recognizes that Appellant received no personal benefit from the judgment, the common fund doctrine still does not apply in the instant matter. As cited in the Estate of Wannamaker, 460 A.2d 824, 825 (Pa. Super. 1983), the eption that persons who obtain the benefit of a lawsuit without contributing to its cost are Id. Karen Frisina, Appellant's mother, did obtain the benefit of this litigation and did not have to contribute to the cost of said litigation; however, Karen Frisina has not been unjustly unjustly enriched at the expense of another, he is required to make restitution to the other. In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if Braun v. Walmart Stores, Inc., 24 A. 3d 875, 896 (Pa. Super. 2011) citing Meehan v. Cheltenham Twp., 189 A.2d 593, 595 (Pa. Super. 1963). whether the enrichment of the [one party] is unjust. The doctrine does not apply simply because the [one party] may Braun v. Walmart Stores, Inc., 24 A. 3d 875, 896 (Pa. Super. 2011) citing Styer v. Hugo, 610 A.2d 347, 350 (Pa. Super. 1993). -5- J-S34016-14 Id. at 26. Thus, despite recognizing that Ms. Brown did not personally benefit from the judgment, and that her mother, Ms. Frisina, did benefit without any Id. that no exceptional circumstances existed that would support the awarding Ms. Brown. Boeing, we set out the following discussion relating to Boeing in Estate of Wanamaker, 460 A.2d 824, 825 (Pa. Super. 1983), stating: The general rule is that each party to adversary litigation is required to pay his or her own counsel fees. In the absence of a statute allowing counsel fees, recovery of such fees will be permitted only in exceptional circumstances. One of the exceptional situations in which counsel fees may be recovered is where the work of counsel has created a fund for the benefit of many. This rule was stated by the Supreme Court of the United States in [Boeing], as follows: fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee -fund doctrine reflects the traditional practice in courts of -recognized exception to the general principle that requires every litigant to the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly (Citations omitted). Id. at 478, 100 S.Ct. at 749, 62 L.Ed.2d at 681-682. -6- J-S34016-14 It is fundamental that an attorney seeking compensation from an estate has the burden of establishing facts which show that he or she is entitled to such compensation. The allowance or disallowance of counsel fees rests generally in the judgment of the au by competent evidence, are binding on appeal. The judgment of the auditing judge regarding the allowance or disallowance of counsel fees will not be interfered with except for abuse of discretion or, as some cases express it, palpable error. Wanamaker, 460 A.2d at 825 (some citations omitted). Our review of the record reveals that Ms. Brown first raised the issue submit -exceptions she filed along with Attorney Benson. Therefore, an evidentiary hearing should have been held to determine a fair and reasonable fee in light of the Brown. See In re Trust Estate of LaRocca, 246 A.2d 337 (Pa. 1968). We understand that Ms. Frisina in reality is not unjustly enriched because she is recovering what was hers to begin with, but under the common fund doctrine she is perceived to have been unjustly enriched because she obtained the benefit of the litigation without any contribution. She is the sole beneficiary of a fund that was created due to the actions taken by Ms. wn. -7- J-S34016-14 Ms. Brundage individually due to its determination that she was ordered to We further direct that the matter be remanded for a hearing at which Ms. Brown fees she expended. Thereafter, the court should determine the amount of the funds recovered by the estate. statutory interest on the judgment entered by it. It appears that the court - . id., either Attorney Benson or Ms. Brown may file a motion for contempt and/or a petition for surcharge. Due to our decision to remand this matter with resolved at the same time with the court clarifying the interest due. issues for our review. 1. The trial court erred in determining that the transfers of the real property at 704 West Smith Street, Corry, Pennsylvania and the Curian Capital Account from Karen Frisina to Kathleen -8- J-S34016-14 Brundage were procured through the exercise of undue influence upon Mrs. Frisina by Mrs. Brundage. 2. The trial court erred in ordering Kathleen Brundage to repay Karen Frisina $145,472.28 to replace Curian Capital Funds transferred by Karen Frisina to Kathleen Brundage in that uncontroverted evidence showed that Mrs. Brundage used the constitutes an unwarranted and unsupportable penalty against Mrs. Brundage. 3. The trial court erred in assigning the entire cost of the court Mrs. Frisina $5,000.00 for a loan not repaid prior to these proceedings. 4. The trial court erred in determining that the ABB Pension and Allianz annuity were not provided by Mrs. Brundage to Mrs. We note that the fol matters: In reviewing the decision of the orphans' court, our task is to assure that the record is free from legal error and to determine if the chancellor's findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence. Our standard of review with respect to the factual findings of the auditing judge is clear: The credibility of the witnesses and the weight to be given their testimony is in the first instance to be determined by the auditing judge. His [or her] findings of fact, affirmed by the court en banc, like those of a jury, are conclusive unless they are unsupportable by the record. In re Estate of Duran, 692 A.2d 176, 178 (Pa. Super. 1997) (quoting In re Estate of Lychos, 470 A.2d 136, 140 (Pa. Super. 1983)) (citations and quotation marks omitted). -9- J-S34016-14 We have reviewed the certified record, the briefs of the parties, the applicable law, and the thorough, well-crafted 41-page opinion of the Honorable Stephanie Domitrovich of the Court of Common Pleas of Erie the issues presented by Ms. Brundage. Accordingly, we adopt her opinion as our own and affirm the order on appeal on that basis. Order appealed in 1338 WDA 2013 affirmed. Order appealed in 1386 WDA 2013 vacated and remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/8/2014 - 10 -
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