In Re: McKean, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: MARGARET A. MCKEAN, AN : IN THE SUPERIOR COURT OF
INCAPACITATED PERSON : PENNSYLVANIA
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APPEAL OF: GREGORY L. MCKEAN :
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: No. 133 WDA 2021
Appeal from the Order Dated December 30, 2020
In the Court of Common Pleas of Mercer County
Orphans’ Court at No: 2020-70
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: AUGUST 30, 2021
Gregory L. McKean (Appellant) appeals from the order granting the
motion of his brother, Kirke McKean (Kirke), and ordering the Estate of
Margaret A. McKean (Estate) to reimburse Kirke for legal fees, expert witness
fees, and costs incurred in the underlying guardianship proceedings. We
affirm.
This Court recently affirmed the orphans’ court’s appointment of Kirke
as guardian of the Estate. We stated:
This matter was commenced by the filing of a petition to appoint
a plenary guardian for an incapacitated person [filed] by [Kirke]
on January 24, 2020. On January 27, 2020, the court entered an
order scheduling a hearing and appointing counsel for the alleged
incapacitated person, [Margaret A. McKean (Mother), who is the
mother of four sons, including Kirke and Appellant]. … On
February 11, 2020, the hearing was continued and rescheduled
for April 1, 2020. In the interim, on March 2, 2020, [Appellant]
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* Retired Senior Judge assigned to the Superior Court.
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filed a response to [Kirke]’s petition. The Covid-19 virus made it
impossible to hold an in-person hearing on April 1st, but the court
conferred with counsel over the phone and entered an order on
April 2, 2020. The court ordered that Kirke and [Appellant] serve
as temporary emergency co-guardians of the estate, and the
hearing was continued and rescheduled for May 7, 2020. On that
date, the first day of the three-day hearing took place, after which
the court extended the temporary emergency co-guardianship of
the estate until June 19, 2020 with the consent of the parties. The
court also ordered the co-guardians to provide the court with
accountings, which each of them subsequently did. The hearing
continued June 17, 2020 and concluded on June 18, 2020.
In re McKean, 649 WDA 2020 at *1 (Pa. Super. Aug. 12, 2021) (unpublished
memorandum) (citing Orphans’ Court Opinion, 8/25/20, at 1-2).
On June 22, 2020, the orphans’ court issued factual findings that: 1)
Mother had a “complex estate, which includes at least 1.31 million dollars in
investments, livestock cattle, a trust, a limited partnership, and a general
partnership”; 2) Mother was deemed to be incompetent; and 3) the date of
incompetency was March 2017. Order, 6/22/20. That same day, the court
entered a separate order naming Kirke guardian of the Estate and Appellant
guardian of Mother’s person.1
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1 The orphans’ court referenced Kirke’s “success in business, his willingness
to waive or forego rights or entitlements to avoid fiduciary conflicts, and his
distance from Mother’s business dealings,” compared with Appellant’s
“involvement with, or potential conflicts of interest arising from questionable
transfers from Mother to him or his family” which “raised questions as to
Appellant’s ability to safeguard Mother’s assets and estate and make it
unreasonable to expect him to pursue legal means of restoring the transferred
property to his Mother as may be appropriate. Alan McKean, who testified on
behalf of his brother[, Kirke], and Guy McKean, who spoke briefly on the last
day of the hearing, both wished for [Kirke] to be appointed guardian of the
(Footnote Continued Next Page)
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Appellant appealed from the order appointing Kirke as guardian of the
Estate. While the appeal was pending, the two brothers continued to disagree,
as evidenced by the orphans’ court docket showing numerous motions, filings
and responses, some of which the orphans’ court addressed because “the
parties agreed that those motions were all ancillary to the [guardianship]
appeal and/or that [the orphans’] court retained jurisdiction to decide them.”
Orphans’ Court Opinion, 3/22/21, at 2.
On December 28, 2020, Kirke filed a motion for reimbursement of legal
and expert witness fees and costs he incurred in the guardianship proceedings.
Kirke specifically sought reimbursement for “legal fees, expert witness fees,
deposition costs, subpoena and records costs.” Motion for Reimbursement of
Legal and Expert Witness Fees As Well As Costs, 12/28/20, at ¶4. Kirke
attached to the motion “billing statements which detailed legal fees and any
related costs, such as deposition costs … The total amount for legal fees is
$24,520 and the total amount for costs is $2,967.39.” Id. at ¶7 (stating
“amounts are detailed in the summary attached as Exhibit B, all of which were
incurred prior to June 22, 2020 and have been paid.”). Kirke further averred
that he “presented the expert testimony of Dr. Gonzales as an expert
neurologist and incurred expert witness fees of $9,000. Dr. Gonzales’s
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estate.” In re McKean, supra at *11 (citing Orphans’ Court Opinion,
8/25/20, at 11).
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invoices are attached collectively as Exhibit C, which fees were paid by Kirke
McKean.” Id. at ¶8.
The orphans’ court granted the motion and entered an order specifying:
. . . the Estate of Margaret A. McKean shall reimburse Kirke J.
McKean $21,520.00 for legal fees, $2,967.39 for costs and
$9,000.00 for expert witness fees in connection with the
guardianship proceedings in this matter.
Order, 12/30/20.
Appellant subsequently filed a motion to strike Kirke’s motion, which the
court denied on January 4, 2021.
Mother died on January 3, 2021. On January 26, 2021, while the
guardianship appeal was still pending, Appellant filed the instant appeal from
the order awarding fees and costs. In reviewing the guardianship appeal, this
Court recognized “Mother’s death rendered Appellant’s [appeal of Kirke’s
appointment as guardian] technically moot,” but reviewed the merits of the
guardianship issue because “the [orphans’] court’s decision to appoint [Kirke]
as guardian of Mother’s estate triggered certain collateral effects.” In re
McKean, supra at *4-5 (referencing, among other considerations,
Appellant’s argument that if this Court determined Kirke’s appointment as
guardian of the Estate was improper, Kirke’s basis for seeking fees would be
“groundless”). However, as noted above, this Court affirmed the order
appointing Kirke as guardian of the Estate.
In this appeal, Appellant asks:
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Did the lower court commit fundamental and reversible
error by awarding $36,487.39 in counsel fees and costs ex parte?
Appellant’s Brief at 6.2
We begin by recognizing that an orphans’ court decision will not be
reversed “unless there has been an abuse of discretion or a fundamental error
in applying the correct principles of law.” In re Est. of Krasinski, 188 A.3d
461, 466 (Pa. Super. 2018) (en banc). “The orphans’ court’s factual findings
receive the same deference accorded factual findings of a jury, but we must
ensure that the decision of the court is free from legal error.” In re Estate
of Rosengarten, 871 A.2d 1249, 1253 (Pa. Super. 2005).
We have stated that “[a]ttorneys and executors seeking compensation
from an estate have the burden of establishing facts which show the
reasonableness of their fees and entitlement to the compensation
claimed.” In re Estate of Rees, 625 A.2d 1203, 1206 (Pa. Super. 1993)
(citation omitted). It stands to reason that guardians must also establish the
reasonableness of their expenses and fees. With regard to attorney fees:
The facts and factors to be taken into consideration in determining
the fee or compensation payable to an attorney include: the
amount of work performed; the character of the services
rendered; the difficulty of the problems involved; the importance
of the litigation; the amount of money or value of the property in
question; the degree of responsibility incurred; whether the fund
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2 Appellant and the orphans’ court have complied with Pa.R.A.P. 1925,
although on February 25, 2021, Kirke filed a motion to strike Appellant’s
1925(b) statement, asserting it contained “allegations which are misleading
at best and potentially false.” The orphans’ court denied the motion on March
19, 2021.
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involved was “created” by the attorney; the professional skill and
standing of the attorney in his profession; the results he was able
to obtain; the ability of the client to pay a reasonable fee for the
services rendered; and, very importantly, the amount of money
or the value of the property in question. . . .
By now it is hornbook law that the reasonableness of the fee is a
matter for the sound discretion of the lower Court and will be
changed by an appellate Court only when there is a clear abuse of
discretion.
LaRocca Estate, 246 A.2d 337, 339 (Pa. 1968) (citations omitted).
In addition,
It is a well-entrenched rule of law in this State that the
responsibility for determining the amount of counsel fees rests
primarily with the auditing judge. ... The amount of fees to be
allowed to counsel, always a subject of delicacy if not difficulty, is
one peculiarly within the discretion of the court of first instance.
Its opportunities of judging the exact amount of labor, skill and
responsibility involved, as well as its knowledge of the rate of
professional compensation usual at the time and place, are
necessarily greater than ours, and its judgment should not be
interfered with except for plain error.
Estate of McClatchy, 424 A.2d 1227, 1230 (Pa. 1981) (citations and
quotation marks omitted).
With respect to expert fees, we likewise review for an abuse of
discretion. See Pavex, Inc. v. York Fed. Sav. & Loan Ass'n, 716 A.2d 640,
647 (Pa. Super. 1998). “The allocation of the fees of the guardian … including
the amount thereof and the source of payment, is a matter largely within the
discretion of the Orphans’ Court, and unless there is a clear abuse of that
discretion, the determination will not be disturbed on appeal.” In re Trust
Estate of Pleet, 410 A.2d 1224, 1232 (Pa. 1980).
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Upon review, we find Appellant’s argument undeveloped. It is well-
settled that arguments which are not appropriately developed are waived, and
include arguments where the party fails to cite legal authority. See In re
Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (reiterating this Court
“will not consider the merits of an argument which fails to cite relevant case
or statutory authority”); see also Lackner v. Glosser, 892 A.2d 21, 29–30
(Pa. Super. 2006). We recently summarized:
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and
analysis of pertinent authority.” Commonwealth v. Martz, 232
A.3d 801, 811 (Pa. Super. 2020) (citation and bracketed language
omitted). See Pa.R.A.P. 2111 and Pa.R.A.P. 2119 (listing
argument requirements for appellate briefs). When an appellant
fails to properly raise and develop issues in briefs with arguments
that are sufficiently developed for our review, we may dismiss the
appeal or find certain issues waived. Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007). See Pa.R.A.P. 2101
(explaining that substantial briefing defects may result in
dismissal of appeal). It is not this Court’s role to develop an
appellant’s argument where the brief provides mere cursory legal
discussion. Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa.
2009).
Kaur v. Singh, --- A.3d ---, 2021 WL 3282044 at *4 (Pa. Super. Aug. 2,
2021).
Here, as with Kaur, Appellant’s “cursory legal discussion” and
conclusory argument lack citation to controlling case law and fail to provide
meaningful legal analysis. Accordingly, we could find waiver and affirm on
that basis. In the absence of waiver, however, there is no merit to Appellant’s
argument.
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Appellant claims the orphans’ court erred in granting Kirke’s motion for
reimbursement of fees because the motion “improperly presented as an
unverified motion rather than a petition,” and was “granted ex parte.”
Appellant’s Brief at 8. In his three and a half pages of argument, Appellant
claims “procedural error” and cites a single case from 1897 to support his
claim that he “had the right to be heard on a matter pending before the court
that could result in the deprivation of a party’s property.” See Appellant’s
Brief at 9-10. Appellant fails to recognize that it was not Appellant, but the
Estate, that was “deprived” of property when the orphans’ court awarded fees
and costs to Kirke. Appellant then cites only two additional cases — one from
this Court and one from Commonwealth Court3 — in claiming the orphans’
court erred because “an award of counsel fees is intended as a sanction
against those who seek to use legal avenues to harass other parties or attempt
to” and “the trial court is required to make findings on the record to support
the award of counsel fees.” Id. at 12 (citing Berg v. Georgetown Builders,
Inc., 822 A.2d 810 (Pa. Super. 2003) and St. Thomas Tp. Bd. of Sup’rs. v.
Wycko, 758 A.2d 755 (Pa. Cmwlth. 2000)). This claim is flawed because
Kirke did not seek sanctions; as guardian of the Estate, he expressly requested
reimbursement for his expenses incurred in the guardianship proceedings,
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3Decisions rendered by the Commonwealth Court are not binding on this
Court. Beaston v. Ebersole, 986 A.2d 876, 881 (Pa. Super. 2009) (citing
Commonwealth v. Thomas, 814 A.2d 754, 759 n. 2 (Pa. Super. 2002)).
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which “were observed by and well within the purview of the Judge of the
Orphans’ Court.” Kirke’s Brief at 8. Kirke correctly points out that the
orphans’ court judge “presided throughout the guardianship proceedings,
interacted with counsel, observed all of the witnesses who testified throughout
the lengthy proceedings, including the expert witness called by the Guardian
of the Estate, reviewed court filings, legal arguments of counsel and other
proceedings within the matter[.]” Kirke’s Brief at 5. Kirke further “relies upon
the well-reasoned opinion offered by the Orphans’ Court . . . [which] address
all of the issues raised and presented by way of Appellant’s Statement of
Errors Complained of on Appeal.” Id. at 4 (footnote omitted). We agree with
Kirke and his assessment of the orphans’ court’s opinion.
For example, with regard to Appellant’s claim that the orphans’ court
entered its order ex parte, the orphans’ court responded:
This [c]ourt did not conduct a hearing before issuing the order
appealed from. To this [c]ourt, the description of the [c]ourt’s
actions as “ex parte” implies that the [c]ourt improperly excluded
counsel for Appellant from a discussion, argument or hearing that
occurred without the knowledge of Appellant. The [c]ourt did no
such thing.
Orphans’ Court Opinion, 3/22/21, at 5.
The term ex parte is defined as:
On one side only; by or for one party; done for, in behalf of, or on
the application of, one party only. A judicial proceeding, order,
injunction, etc., is said to be ex parte when it is taken or granted
at the instance and for the benefit of one party only, and without
notice to, or contestation by any person adversely interested.
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Commonwealth v. McCullough, 230 A.3d 1146, 1159 n.3 (Pa. Super. 2020)
(citation omitted), appeal denied, 249 A.3d 244 (Pa. 2021). See also Black’s
Law Dictionary (11th ed. 2019) (“ex parte adj. (17c) Done or made at the
instance and for the benefit of one party only, and without notice to, or
argument by, anyone having an adverse interest ...”).
The orphans’ court explained,
. . . counsel for Appellant was served a copy of the Motion for
Reimbursement of Legal and Expert Witness Fees as well as Costs.
Based on the face of the motion and without any hearing or
discussion with any counsel, the [c]ourt entered its Order granting
the motion. There was no need for a further hearing as all
the needed evidence was already on the record. The
[c]ourt’s Order was served on all counsel of record. There was no
improper ex parte action by the [c]ourt. Moreover, counsel for
Appellant filed a Motion to Strike the Motion for Reimbursement
of Legal and Expert Witness Fees as well as Costs and the [c]ourt
denied the same. Appellant was thus heard from in writing as well,
and any ex parte action was rendered moot.
Orphans’ Court Opinion, 3/22/21, at 6-7 (emphasis added).
Upon review, we find no abuse of discretion. See ACE Am. Ins. Co. v.
Underwriters at Lloyds & Cos., 939 A.2d 935, 946 (Pa. Super. 2007) (trial
court acted within its discretionary authority in awarding fees without
conducting an evidentiary hearing where court observed counsel’s actions
firsthand). Accordingly, we affirm the orphans’ court’s order directing the
Estate to reimburse Kirke for legal fees, expert witness fees, and costs
incurred in the guardianship proceedings.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2021
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