in Re Poling Estate ( 2014 )


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  •                               STATE OF MICHIGAN
    COURT OF APPEALS
    In re POLING Estate.
    KEVIN ELLIOTT, Personal Representative for the                       UNPUBLISHED
    Estate of PAUL A. POLING,                                            December 16, 2014
    Appellant,
    v                                                                    No. 317763
    Ogemaw Probate Court
    TOLFREE FOUNDATION,                                                  LC No. 11-014636-DE
    Appellee.
    Before: M. J. KELLY, P.J., and CAVANAGH and METER, JJ.
    PER CURIAM.
    In this fee dispute, Kevin Elliott appeals by right the trial court’s order approving a
    substantially smaller fee than requested for his services as the personal representative for the
    Estate of Paul A. Poling. Because we conclude the trial court’s decision to order compensation
    at the lower rate was reasonable under the totality of the circumstances, we affirm.
    Poling died in 2012. After Poling died, Elliott administered his estate, as provided in
    Poling’s will. Poling was survived by one daughter, Janis Fontenot, and two siblings, Ben
    Poling and Mary Jackson. Poling’s estate was worth approximately $764,000; it included two
    residences,1 bank accounts, an annuity, and vendor interests in several land contracts.
    After Elliott filed a final accounting for the estate, he requested compensation for 91
    hours of work at $200 per hour. He testified that his hourly rate represented a 20 percent
    reduction from the rate he usually billed his clients in his insurance agency and was premised on
    his 35 years of experience in the insurance business. The probate court, however, concluded that
    Elliott was not entitled to an hourly rate of $200. It determined that Elliott’s experience and the
    nature of the work performed was commensurate with that of a fiduciary that would normally
    1
    Poling left one residence to the Tolfree Foundation to fund a scholarship program.
    -1-
    charge $90 per hour. Accordingly, it approved a total fee of $8,190, which amounted to 91 hours
    at $90 per hour.
    On appeal, Elliott argues the probate court abused its discretion when it approved a fee
    that was more than 50% lower than he requested. This Court reviews the factual findings
    underlying a probate court’s decision for clear error, but reviews the court’s dispositional ruling
    for an abuse of discretion. In re Temple Marital Trust, 
    278 Mich App 122
    , 128; 748 NW2d 265
    (2008). A finding is clearly erroneous when this Court is left with a definite and firm conviction
    that a mistake has been made. Parks v Parks, 
    304 Mich App 232
    , 237; 850 NW2d 595 (2014).
    A trial court abuses its discretion when it selects an outcome that falls outside the range of
    reasonable and principled outcomes. In re Temple Marital Trust, 278 Mich App at 128.
    “A personal representative is entitled to reasonable compensation for services
    performed.” MCL 700.3719(1). The probate court may review the reasonableness of the
    personal representative’s compensation and order a refund if the court determines that the fee is
    excessive. MCL 700.3721. “The determination of reasonable compensation to the personal
    representative is, in general, the same as for the attorney.” In re Krueger Estate, 
    176 Mich App 241
    , 251, 438 NW2d 898 (1989). And, as is the case with attorney fees, there is no precise fee
    schedule or formula for computing the amount of compensation to be paid a personal
    representative. See In re Temple Marital Trust, 278 Mich App at 138. The probate court has the
    “broadest discretion to evaluate the worth of the services rendered in light of its experience and
    knowledge of such matters.” In re Thacker Estate, 
    137 Mich App 253
    , 258; 358 NW2d 342
    (1984). The burden of proof is on the claimant to satisfy the court that services rendered were
    necessary and that charges were reasonable. Comerica Bank v City of Adrian, 
    179 Mich App 712
    , 724; 446 NW2d 553 (1989).
    The court thought Elliott’s proposed hourly rate was excessive and lowered it to $90 per
    hour on the basis of evidence that this was the fiduciary rate charged by attorneys and corporate
    fiduciaries in Wayne County. It also considered Elliott’s income level, the services rendered, the
    time spent on estate administration, the nature and complexity of administration, the existence of
    any animosity between the persons involved, and his skills.2 The administration of this estate
    was straightforward. It did not involve a great number of creditors or beneficiaries, and it did not
    require a high level of expertise or skill to finalize the estate. Nor did Elliott have unusual
    professional expertise that would entitle him to a premium rate.
    Elliott submitted the fee schedules of Citizens State Bank and Chemical Bank to the
    probate court. Relying on these schedules, he maintains that Citizens State Bank would have
    cost the estate over $22,000 and Chemical Bank would have charged a base fee of $3,000 plus an
    hourly rate of $150 per hour for its trust officer’s time. Both comparisons are inapposite. The
    fee that Citizens State Bank would purportedly have charged is based on a percentage fee
    2
    We note that Elliott relies on the factors enumerated in Comerica Bank and the probate court
    utilized the factors listed in In re Krueger. However, the factors listed in In re Kruger
    substantially mirror those listed in Comerica Bank. Moreover, both lists are not exhaustive. See
    Comerica Bank, 179 Mich App at 724; In re Kruger, 176 Mich App at 248.
    -2-
    arrangement, not on an hourly rate. In addition, under Chemical Bank’s fee schedule,
    considering that Elliott is not a fiduciary skilled in estate administration, he would be equivalent
    to a non-trust officer with an hourly rate of $80. Thus, Chemical Bank’s schedule actually
    supports the probate court’s determination.
    Examining the totality of the circumstances surrounding Elliott’s administration of the
    estate, we cannot conclude that the trial court’s decision to order compensation at $90 per hour
    for the requested number of hours fell outside the range of reasonable and principled outcomes.
    In re Temple Marital Trust, 278 Mich App at 128.
    Affirmed.
    /s/ Michael J. Kelly
    /s/ Mark J. Cavanagh
    /s/ Patrick M. Meter
    -3-
    

Document Info

Docket Number: 317763

Filed Date: 12/16/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021