Carnduff v. Dahm

401 N.W.2d 29, 1987 Iowa Sup. LEXIS 1079
CourtSupreme Court of Iowa
DecidedFebruary 18, 1987
DocketNo. 85-1007
StatusPublished
Cited by1 cases

This text of 401 N.W.2d 29 (Carnduff v. Dahm) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carnduff v. Dahm, 401 N.W.2d 29, 1987 Iowa Sup. LEXIS 1079 (iowa 1987).

Opinion

McGiverin, justice.

Plaintiffs Barbara, Bradley and Robert Carnduff, beneficiaries of this decedent’s estate, appeal from the trial court’s order awarding defendant Gaass, Klyn and Boehlje, a law firm, attorney fees of $9,500 in a probate proceeding. Carnduffs assert that the trial court erred in awarding fees in excess of $5,736.32, the maximum fee for ordi íary services, because defendant law firm failed to establish the necessity for extraordinary fees as required by Iowa Code section 633.199 (1985) and Iowa Rule of Probate Procedure 2(c). Upon consideration of the issue raised by this appeal, we reverse the trial court order as to the extraordinary attorney fee award.

I. Background facts and proceedings. Josephine M. Mabie, a resident of Illinois, died in 1984. Josephine’s daughter, Barbara Carnduff, and her grandchildren, Bradley and Robert Carnduff, were named as devisees under her will. An estate for Josephine was opened in Illinois. Ancillary estate proceedings were commenced in Iowa because Josephine owned a farm and a business building in the Pella area. Defendants Edward Pree and Arvena Dahm, who were appointed ancillary executors, chose Andrew Klyn of Gaass, Klyn and Boehlje as the attorney for the estate in the Iowa ancillary proceedings. The value of the gross assets of the Iowa estate shown in the probate report and inventory was $280,816.08.

On May 3, 1985, Dahm filed a petition requesting the allowance of attorney fees for the Illinois lawyer and Klyn in the amount of $19,000. The petition asked for the award of extraordinary fees by the court but it did not separate the amount asked for ordinary services from the amount requested for extraordinary services. Apparently, the total amount requested in the petition was orally reduced to $9,500 when it was determined the Illinois court would set the fee for the Illinois attorney in the principal estate in Illinois and the Iowa court only would fix the fee for the Iowa attorney, Klyn, in the ancillary estate.

[30]*30Following Carnduffs’ written objection, the district court continued a scheduled hearing on the petition and directed attorney Klyn to comply with Iowa Rule of Probate Procedure 2 and to file an itemization of services and time rendered on the estate. On May 31 Klyn filed an eight-page itemized statement setting forth the date services were rendered, a description of the services, and the time involved. He failed to indicate the amount of his fee request. On June 7 Carnduffs filed further objections to the allowance of attorney fees, claiming Klyn had not shown the performance of any necessary and extraordinary services were required with regard to the estate.

At the June 14 hearing, Klyn offered in evidence an affidavit of another practicing attorney attesting to the reasonableness in the community of the hourly rate requested by Klyn for extraordinary services by an attorney for an estate. Carnduffs presented no evidence at the hearing. The court entered its order awarding a lump sum of $9,500 in attorney fees to Klyn without specifying the amounts fixed for ordinary and extraordinary fees.

It is from this order Carnduffs appeal. Our review of this matter is de novo. Iowa Code § 633.33; Bass v. Bass, 196 N.W.2d 433, 435 (Iowa 1972); In re Estate of Bruene, 350 N.W.2d 209, 211 (Iowa Ct.App.1984).

Defendants filed a motion to dismiss the appeal in this court pursuant to Iowa Rule of Appellate Procedure 23(a), claiming Carnduffs failed to preserve error on the issue of Klyn’s compliance with probate rule 2. Carnduffs resisted defendants’ motion. We ordered that the motion should be considered with the appeal. We overrule the motion because error was preserved by Carnduffs’ written objections to Klyn’s application for fees. We now address the merits of Carnduffs’ appeal,

II. Propriety of allowance of extraordinary attorney fees. The sole issue raised by this appeal is whether the trial court erred in allowing extraordinary attorney fees pursuant to Iowa Code section 633.199. In our consideration, we are called upon to interpret Iowa Rule of Probate Procedure 2, which we adopted in 1979.

The award of attorney fees in probate cases is governed by Iowa Code sections 633.197 to 633.199. Under the statutory schedule for probate attorney fees, Klyn would be entitled to maximum ordinary attorney fees in the amount of $5,736.32 for his work with this estate based on the gross assets of the estate in the amount of $280,816.08, as listed in the probate inventory for Iowa inheritance tax purposes.1 Klyn, however, also claimed extraordinary fees for his work under Iowa Code section 633.199, which states:

Such further allowances as are just and reasonable may be made by the court to personal representatives and their attorneys for actual necessary and extraordinary expenses or services. Necessary and extraordinary services shall be construed to also include services in connection with real estate, tax matters, and litigated matters.

Upon determining that the fees requested exceeded the statutory limits set for maximum ordinary attorney fees, the district court ordered Klyn’s compliance with rule 2, which states in relevant part:

When an allowance for extraordinary expenses or services is sought pursuant to Iowa Code section 633.199, the request shall include a written statement showing (1) the necessity for such expenses or services, (2) the responsibilities assumed, and (3) the amount of extra time or expense involved. In appropriate cases, the statement shall also explain the importance of the matter to the estate and describe the results obtained. ... The [31]*31applicant shall have the burden of proving such allowance should be made.

Iowa R.Prob.P. 2(c) (emphasis added).

Carnduffs, on appeal, do not challenge the ordinary fee allowable of $5,736.32. They do argue, however, that a fee in excess of that amount is unwarranted because Klyn failed to comply with the requirements of rule 2. Specifically, they argue that the court erred in awarding extraordinary fees because Klyn did not separate out his time for extraordinary services and he did not indicate the importance of his alleged extraordinary services to the estate or the necessity warranting performance of those services.

Defendants assert that the award of extraordinary fees was well-founded. They claim Klyn met his burden of proving the performance of extraordinary services, making out a prima facie case for the award. At that point, Klyn states the probate court was within its discretion in awarding the extraordinary fees, especially when, as in this case, the objectors offered no evidence to support their objection. Additionally, Klyn argues that the fee should be based on a gross estate valuation of $328,816.08, rather than the alternative valuation of $280,816.08 which was listed in the probate inventory for inheritance tax purposes.2

Numerous Iowa cases have addressed the issue of whether or not an attorney is entitled to an extraordinary fee for the attorney’s probate work. We have defined extraordinary services as “those which ‘in character and amount [are] beyond those usually required.’ ” In re Estate of Brady,

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Related

Matter of Estate of Mabie
401 N.W.2d 29 (Supreme Court of Iowa, 1987)

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Bluebook (online)
401 N.W.2d 29, 1987 Iowa Sup. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carnduff-v-dahm-iowa-1987.