Cris v. American Cancer Society

102 P.3d 593, 120 Nev. 990, 120 Nev. Adv. Rep. 100, 2004 Nev. LEXIS 130
CourtNevada Supreme Court
DecidedDecember 29, 2004
DocketNo. 40482
StatusPublished

This text of 102 P.3d 593 (Cris v. American Cancer Society) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cris v. American Cancer Society, 102 P.3d 593, 120 Nev. 990, 120 Nev. Adv. Rep. 100, 2004 Nev. LEXIS 130 (Neb. 2004).

Opinion

OPINION

By the Court, Maupin, J.:

In this appeal, we consider a long-standing local practice in Clark County, Nevada, under which district judges routinely award attorney fees in probate matters based upon the gross value of the decedent’s estate.

We hold that an agreement between an estate and its counsel, providing for payment to counsel of 5 percent of the estate’s gross value, is not per se reasonable. Thus, district courts exercising judicial oversight in probate matters must independently review challenged fee agreements for reasonableness under NRS 150.060(1) and Supreme Court Rule 155(1).

We also consider separate district court rulings rejecting claims against the estate for extraordinary attorney fees and costs of administration and assessing estate attorneys for unnecessary brokerage charges incurred by the estate as a result of their advice.

FACTS AND PROCEDURAL HISTORY

John Bowlds died in 1999 with an estate valued in excess of 7 million dollars, consisting largely of real estate and corporate securities. The will gifted the bulk of Bowlds’ estate to respondent/cross-appellant, The American Cancer Society (ACS). Mr. Bowlds named his tax preparers, appellants/cross-respondents Cris and Cathy Cris, as executors.

[993]*993The executors retained the law firm of Kyle & Kyle to assist them in the administration of the estate. In accord with the custom and practice in Clark County, the agreement between the executors and Kyle & Kyle provided that the attorneys would receive a fee equal to 5 percent of the gross value of the estate, plus $250 per hour for “extraordinary” fees.

Administration of the estate required satisfaction of a single creditor’s claim, liquidation of highly marketable securities, and distribution of property in Nevada and Louisiana. Kyle & Kyle advised the executors to sell the estate’s securities through three different brokers to avoid the appearance of favoritism that might arise from use of the executors’ personal broker. Two of these brokers charged sales commissions of nearly 5 percent, and the other charged approximately 1 percent. The executors ultimately filed an amended accounting seeking approval of the 5 percent attorney fee, statutory administrative fees, extraordinary administrative and accounting services they themselves had performed, extraordinary attorney fees, and the brokerage commissions.

ACS formally objected to the accounting. In summary, ACS alleged that: the basic fee agreement with Kyle & Kyle was unreasonable, the extraordinary attorney fee request was unjustified, the executors’ claim for fees in excess of statutory fees involved services ordinarily provided by an estate’s personal representatives or was otherwise unreasonable, the executors breached their fiduciary duties by paying excess brokerage commissions, and the executors mishandled the estate’s federal tax returns.

The executors answered the objection through their counsel, asserting that the estate was complex; that the 5 percent fee agreement was customary in Clark County and therefore per se reasonable; that the estate owed extraordinary attorney fees in addition to the 5 percent fee; and that the expenditures to the executors for tax preparation and accounting services were reasonable and resulted in considerable savings in costs that would have been necessitated by retention of outside preparers. They also asserted that the brokerage fees, which averaged 3 percent, were not excessive.

The executors separately retained Cary Colt Payne, Esq., to represent them in connection with the ACS challenge proceedings, having concluded that the challenge created a possible conflict of interest with Kyle & Kyle. The executors ultimately sought reimbursement for Mr. Payne’s fees from the estate.

Following an evidentiary hearing on the ACS objections to the accounting, the district court approved the basic 5 percent fee arrangement. The court then proceeded to rule upon the other challenges as follows. First, concluding that Kyle & Kyle improperly advised the executors to liquidate the securities through the three [994]*994brokers, the district court deducted the brokerage commissions that exceeded 1 percent, amounting to $106,991, from the firm’s attorney fees.1 Second, the court awarded the executors statutory fees in excess of $150,000, plus extraordinary professional and bookkeeping fees on a reduced basis in the amount of $20,000. Third, the court denied Kyle & Kyle’s request for extraordinary fees. Finally, the court denied the executors’ request for reimbursement for Mr. Payne’s fees, assessing that expense as an off-set against the executors’ statutory fees.

On appeal, the executors challenge the denial of extraordinary attorney fees, fees for Mr. Payne’s services, and partial denial of the executors’ request for nonstatutory professional and bookkeeping fees. The ACS cross-appeal challenges the district court’s grant of attorney fees in accordance with the 5 percent custom and practice, and its decision to deduct the excess brokerage commissions solely from Kyle & Kyle’s attorney fees.

DISCUSSION

Attorney fees based upon 5 percent of gross estate value

ACS asserts that the district court erred in upholding the 5 percent fee agreement with Kyle & Kyle based exclusively upon local custom and practice in Clark County.

The executors testified at the hearing that they agreed to the fee arrangement based upon Kyle & Kyle’s representations that the range for attorney fees in Nevada was 5 to 8 percent. They also confirmed their failures to determine whether such an arrangement was reasonable under the circumstances, negotiate an hourly arrangement, or seek competitive proposals from other firms. The executors defended the fee agreement with the deposition of attorney Harry Claiborne, Esq., who testified that Clark County attorneys routinely charged 5 percent fees in probate matters and that such fees were per se reasonable.

Gardner Jolley, Esq., a Las Vegas attorney, testified as a probate expert for ACS that the Bowlds’ estate required only routine and simple administration. In this, he stressed that no one contested the will, the estate administration involved only one creditor’s claim, and the real estate and securities sales were relatively uncomplicated. Going further, Mr. Jolley rejected the notion that the customary 5 percent fee was per se reasonable. Rather, he stated that this figure provided a good starting point from which to judicially evaluate attorney fees in probate cases. He finally concluded that Kyle & Kyle’s fee agreement in this matter was unreasonable under the applicable statutory provisions and Nevada Supreme Court Rules— [995]*995NRS 150.0602 and SCR 155.3 These measures, when read together, subject estate attorney fees to district court approval based upon SCR criteria for reasonableness.

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Cite This Page — Counsel Stack

Bluebook (online)
102 P.3d 593, 120 Nev. 990, 120 Nev. Adv. Rep. 100, 2004 Nev. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cris-v-american-cancer-society-nev-2004.