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In re Estate of Derricotte

October 27, 2005


Appeal from the Superior Court for the District of Columbia. (Adm-231-93). (Hon. Cheryl M. Long, Trial Judge).

The opinion of the court was delivered by: Washington, Chief Judge

Argued December 17, 2003

Before WASHINGTON, Chief Judge,*fn1 FARRELL, Associate Judge, and KING, Senior Judge.

The instant appeal arose from the aftermath of litigation in a probate matter in which this court previously affirmed the removal of two brothers ("the Phillips brothers") who had fraudulently usurped the role of personal representatives of the Estate of Elise P. Derricotte from the rightful heir. In re Estate of Elise P. Derricotte, 744 A.2d 535 (D.C. 2000) (Derricotte I). Although we ruled in Derricotte I that the brothers were required to repay the funds that they had improperly taken from the estate, a collateral issue remained outstanding at the time of the appeal: whether the brothers' attorney, Claude O. Barrington ("Barrington"), was required to reimburse the estate for the fees he had earned for his assistance in probating the estate prior to the Phillips brothers' removal. Although the trial court had ruled on January 8, 1997 (and in its amended order of January 23, 1997) that Mr. Barrington was entitled to keep the fees he had earned, successor personal representative Darrel S. Parker ("Successor") timely moved for reconsideration of the order on January 24, 1997. The trial court had not ruled upon the motion by the time the appeal was argued before this court in November 1999. Therefore, after this court issued its opinion in Derricotte I in January 2000, Successor renewed his motion for reconsideration of the January 8, 1997 and January 23, 1997 orders. The trial court granted his motion for reconsideration on July 30, 2001, ordering Mr. Barrington to reimburse the estate for the attorney's fees he had been paid for assisting the Phillips brothers. Mr. Barrington noted the instant appeal.

On appeal, Barrington contends that the trial court erred in granting the motion for reconsideration because (1) the trial court treated Successor's renewed motion as unopposed when, in fact, Barrington had noted an opposition to the motion, (2) the motion was not based on one of the seven exclusive grounds set forth in Super. Ct. Prob. R. 130 justifying relief from the order, (3) a number of appeals had already been noted in the Derricotte matter at the time Successor filed his motion for reconsideration, so Successor, too, should have noted an appeal in order to preserve his rights, and (4) the doctrine of laches prevented the trial court from granting Successor's motion for reconsideration. We affirm.

Factual & Procedural Background

Although most of the relevant facts are set forth in Derricotte I, it is useful to recall some of those facts here. On January 28, 1993, Gilbert and Preston Phillips ("the Phillips brothers") filed a petition for probate in the Superior Court of the District of Columbia, seeking appointment as personal representatives of the estate of Elise P. Derricotte. Claiming to be the sole surviving heirs of the Derricotte Estate, the Phillips brothers hired attorney Claude O. Barrington ("Mr. Barrington") to represent them in probating the estate. After the Phillips brothers' petition was granted and they received letters of administration, the brothers filed Waivers of Filing Inventory and Accounts and distributed $526,534 of the estate's personal property to themselves. The Phillips brothers paid Mr. Barrington $36,597.08 for his services in probating the estate.

In August 1993, three creditors filed a complaint seeking to remove the Phillips brothers as personal representatives and to set aside the distribution of assets. The complaint alleged that Ms. Ida Brown Bryant was Elise Derricotte's next of kin, and as such, the rightful heir to her estate. Ms. Bryant, a mentally incompetent elderly woman residing at Maryland's Crownsville Hospital Center, was allegedly Elise Derricotte's first cousin and the Phillips brothers' aunt. After receiving a copy of the creditors' complaint, Ms. Bryant's guardian ad litem filed an amended answer and cross-claim seeking to be named the rightful heir to the Derricotte estate and requesting the removal of the Phillips brothers as personal representatives. On December 4, 1995, the trial court ruled that Ms. Bryant was the legal heir to the Derricotte estate and that the original personal representatives were not Ms. Derricotte's true next of kin. As a result, the brothers were removed and Darrel S. Parker was appointed successor personal representative ("Successor") of the Derricotte Estate.

On December 29, 1995, Successor filed a Petition for Rule to Show Cause why Mr. Barrington should not be required to disclose and turn over to him all attorneys' fees paid by the prior personal representatives without court approval. In support of this motion, Successor attached relevant portions of a transcript of Mr. Barrington's July 7, 1995 deposition, in which Mr. Barrington had refused to disclose the amount of legal fees he had received from the brothers and indicated that he had been paid "when [he] closed out the estate." On September 11, 1996, the trial court ordered Mr. Barrington to appear to "show cause why he should not be required to return to this estate any and all sums disbursed to him as legal fees that were not approved by the Superior Court." Mr. Barrington filed a reply to the Order to Show Cause on October 3, 1996 and a hearing was held the following day. Judge Long issued an Order in Mr. Barrington's favor on January 8, 1997, which was amended on January 23, 1997. The very next day, Successor filed a motion to reconsider the Orders of January 8 and January 23, 1997. Neither Mr. Barrington nor his attorney received notice of this motion.

Before the motion to reconsider could be heard by the trial court, the Phillips brothers along with various creditors of the estate filed a series of appeals with this court.*fn2 We consolidated the appeals and heard arguments on November 18, 1999. See Derricotte I, supra, 744 A.2d at 535. During the pendency of the consolidated appeals, the trial court lost its jurisdiction to proceed with the motion to reconsider and this court was unaware that such a motion had been filed. We issued our ruling in Derricotte I on January 27, 2000.

On January 28, 2000, Successor promptly renewed his motion to reconsider with the trial court. Unlike previously, Barrington did receive notice of this motion. The trial court incorrectly deemed the renewed motion to be unopposed but nonetheless decided the issue on the merits. Relying on the previously compiled record, Judge Long granted Successor's motion and directed Barrington to return $36,597.08 in legal fees to the estate. This appeal follows.

(1) Trial court's failure to consider Barrington's opposition to successor's renewed motion to reconsider

In its order granting Successor's renewed motion for reconsideration, the trial court indicated that Barrington's failure to note an opposition "entitle[d] the court to treat both matters as conceded on the merits." It appears from the record, however, that Barrington's opposition was, in fact, docketed with the clerk of the Probate Division on August 14, 2000. Therefore, the court's statement in its July 30, 2001 order that Barrington had failed to note an opposition was error. We find that this error was harmless, however, because the trial court granted the motion for reconsideration on the merits and because, in any event, the arguments advanced in Barrington's opposing brief were unsupported.

The trial court's order makes clear that it granted Successor's motion for reconsideration because its earlier ruling that Barrington was entitled to keep his legal fees was based on an ...

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