This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re: Estate of Scot Nicholas Feyen
Filed November 1, 2005
Ramsey County District Court
File No. P5025392
Gregory R. Troy, Troy &
Eric J. Magnuson, Shanda K.
Pearson, Rider Bennett LLP, 33 South Sixth Street, Suite 4900,
Brian D. Alton, McClay &
Rodney Mason, Chandler &
Mason, Ltd., 1607
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellants Gary and Mary Jane Torgerson appeal from the partial denial of their claim for attorney fees arguing that the district court erred by: (1) denying their attorney’s petition for fees related to the attempted probate of a codicil; (2) concluding that the parties were not collaterally estopped from relitigating the petition for fees; and (3) failing to hold a hearing to permit testimony and other evidence of mishandled assets. The respondent estate argues that the district court erred by granting appellants’ attorney’s petition for fees related to the opening of the special administration. Because we find no error in the district court’s decision to deny the petition for fees, we affirm in part. Because we conclude that the district court lacked a sufficient factual basis to award fees related to the special administration, we reverse in part.
decedent died on April 20, 2002, in Harmony,
On April 30, 2002, Gary Torgerson
filed a petition in
In October 2002, the
In November 2002, Securian petitioned the district court for approval of its accounts accrued in administering the estate and for discharge as special administrator. Attached to the petition was a billing statement for roughly $3,200 submitted by Gary Torgerson for his services as special property manager. Securian sought instructions from the district court regarding what amount of the Torgerson billing should be paid. The estate and Securian reached a settlement with respect to Securian’s outstanding accounts. Following a hearing, the district court adopted Securian’s proposed order with one modification: Securian was to withhold $3,200 from a fund previously established for administration of the estate pending the resolution of Gary Torgerson’s claim for services as special property manager. In its May 3, 2004 order, the district court ordered Securian to reimburse Gary Torgerson roughly $2,900 in expenses and costs incurred as property manager.
Also in November 2002, Robert McLeod, appellants’ attorney petitioned for allowance of attorney fees “incurred on behalf of said special administration and the estate” and fees incurred by Gary Torgerson in his capacity as Securian’s agent. Allison objected to McLeod’s petition for allowance of fees. In support of this petition for fees, Gregory Troy, Robert McLeod’s successor in interest and the Torgerson’s new counsel, submitted an affidavit from McLeod under Minn. R. Gen. Pract. 119. Attached to the affidavit were four invoices that McLeod submitted to Gary Torgerson:
To: Fees to Probate in
In Reference To: Fees for Gary Torgerson to Administer Estate
In Reference To: To Get Will
In Reference To: Fees to open
Special Administration in
By order dated May 3, 2004, the
district court denied
Following submissions by the
parties, the district court ordered Allison to pay
The court administrator served notice of filing of the district court’s May 3, 2004, September 10, 2004, and October 15, 2004 orders on December 16, 2004. This appeal follows.
D E C I S I O N
challenge the district court’s order denying
Minn. Stat. § 524.3-720 (2004), states that
[a]ny personal representative or person nominated as personal representative who defends or prosecutes any proceeding in good faith, whether successful or not, or any interested person who successfully opposes the allowance of a will, is entitled to receive from the estate necessary expenses and disbursements including reasonable attorneys’ fees incurred.
The statute further provides:
When after demand the personal representative refuses to prosecute or pursue a claim or asset of the estate or a claim is made against the personal representative on behalf of the estate and any interested person shall then by a separate attorney prosecute or pursue and recover such fund or asset for the benefit of the estate, or when, and to the extent that, the services of an attorney for any interested person contribute to the benefit of the estate, as such, as distinguished from the personal benefit of such person, such attorney shall be paid such compensation from the estate as the court shall deem just and reasonable and commensurate with the benefit to the estate from the recovery so made or from such services.
district court concluded that, upon reading the statute as a whole, attorneys
are allowed to petition for fees directly from the court only when they have
served as an attorney for an “interested person,” whose efforts have benefited
the estate itself, as opposed to his own personal interests. The district court denied
argue that the district court erred in its interpretation of section
524.3-720. According to appellants, as
the named personal representative in the codicil, Mary Jane Torgerson had a
duty to probate the codicil and acted for the benefit of the estate. Accordingly, because Mary Jane Torgerson was a
“nominated personal representative” under the first part of the statute,
appellants were therefore entitled to reasonable attorney fees absent a showing
of bad faith. Appellants contend that
the district court’s interpretation created a false distinction between
appellants and appellants’ attorney when it denied
district court’s interpretation mandating that the nominated personal
representative, and not her attorney, actually petition for an allowance of
attorney fees effectuates the plain meaning of the text and is consistent with
this court’s precedent. See Phelps
v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995)
(stating that if statutory language is plain and unambiguous, the court must
give it its plain meaning); see also In
re Estate of Jeruzal, 277 Minn. 103, 105, 151 N.W.2d 788, 790–91 (1967)
(denying a special administrator’s request for fees because he was not a party
to the litigation in which he had subscribed the pleadings as petitioner’s
personal attorney, but failed to substitute himself for the petitioner when
appointed special administrator); cf.
In re Estate of Kotowski, ___ N.W.2d
___ (Minn. App. Oct. 11, 2005) (holding that “expenses of administration” under
Minn. Stat. § 524.3-715(18) are limited to claims by or in the place of the
personal representative). Here, the
statute explicitly limits the right to receive expenses (including attorney
fees) to a “personal representative or person nominated as personal
representative” in the first part, while explicitly permitting an attorney to
petition for expenses in the second part.
Thus, the plain meaning of the text is upheld by the district court’s
distinction, as the legislature demonstrated its ability to include attorneys
when it thought the inclusion was appropriate.
Neither McLeod nor
next argue that the district court erred by not applying the doctrine of
collateral estoppel to
estoppel bars the relitigation of issues that are both identical to those
issues already litigated by the parties in a prior action and necessary and
essential to the resulting judgment.
Appellants contend that the settlement between the estate and Securian, as approved by the district court’s May 3, 2004 order, operates to estop any and all claims that either Securian or the estate could have asserted but did not assert against Gary Torgerson. According to appellants, Securian and Allison were aware of the outstanding claim for legal fees related to Gary Torgerson’s assistance in the administration of the estate as special property manager for Securian when they agreed to a settlement. And that settlement foreclosed any and all claims between the estate and Securian. Appellants argue that, as Securian’s agent, the settlement foreclosed any claims that respondent could assert against Gary Torgerson.
arguments are unsupported and lack merit.
Appellants cite no authority in support of their argument that the
principles of agency law operate to place Gary Torgerson in privity with
Securian for purposes of Securian’s settlement with the estate. Furthermore,
also argue that the doctrine of equitable subrogation applies to compel
respondent to pay attorney fees.
Appellants failed to raise this issue in the district court and,
therefore, have waived consideration on appeal.
See Thiele v. Stich, 425
N.W.2d 580, 582 (
next contend that the district court erred by denying a request in their July
12, 2004 memorandum for a hearing to elicit testimony on an alleged attempt by
Securian and Allison to disguise the mishandling of estate assets. The question whether to admit evidence rests
within the broad discretion of the district court, and the district court’s
decision will not be disturbed unless it constitutes an abuse of discretion or
is based on an erroneous view of the law. Uselman
v. Uselman, 464 N.W.2d 130, 138 (
The respondent estate challenges the
district court’s award of attorney fees to
contends that the fees award constitutes an abuse of discretion because the
district court’s findings are not supported by the evidence. Specifically, respondent argues that
Respondent moves to strike portions
of appellants’ brief as containing matters outside the record on appeal and
assertions not supported by citation to the record. The papers filed in the trial court, the
exhibits, and the transcript of the proceedings shall constitute the record on
appeal in all cases.
We deny respondent’s motion to
strike from appellants’ appendix the affidavits of Gary Torgerson and Carol
Morse. The record reflects that these
affidavits were submitted to the district court as attachments to
We grant respondent’s motion to strike from appellants’ appendix the document entitled “Settlement Agreement Proposed by Allison and Securian” and correspondence to Rodney Mason, attorney for Securian, from Brian Alton, attorney for the estate, dated May 10, 2002, as neither document is found in the district court record.
We also grant Securian’s motion to strike the portion of appellants’ reply brief related to appellants’ “rule 60” request for the court to hold a hearing relating to appellants’ fraud allegations. This portion of the reply brief is submitted in violation of Minn. R. Civ. App. P. 128.02, subd. 3, which states that a reply brief must be confined to new matters raised in the brief of the respondent.
Affirmed in part and reversed in part.