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In re Green

December 21, 2006

IN RE ESTATE OF LEROY GREEN
JOHN H. PYE, JR., ET AL., APPELLANTS
v.
KENNETH J. LOEWINGER, APPELLEE



Appeal from the Superior Court of the District of Columbia (ADM 1045-93) (Hon. Kaye K. Christian, Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Argued June 24, 2004

Before RUIZ, Associate Judge, and STEADMAN and TERRY, Senior Judges.*fn1

This appeal concerns what is colloquially known as a "side agreement" for an additional fee between appellant Pye, the first successor personal representative of the estate of Leroy Green, and seven of Mr. Green's heirs.*fn2 Mr. Pye appeals from an order of the trial court, filed January 30, 2003, entering judgment against him and his surety for $9,458.16, plus $1,702.47 in interest at 6 percent per annum from March 31, 1999, as well as fees and costs incurred by appellee. The court ruled as it did because it concluded (1) that Mr. Pye did not have a valid side agreement with the seven heirs for an additional fee, and (2) that his failure to turn over the financial records of the estate caused the estate to incur extra expenses.

On appeal, Mr. Pye makes four claims of error. First, he asserts that he entered into a valid side agreement for an additional fee with the seven heirs. Second, he argues that the court erred in relying on his failure to turn over financial records to the successor personal representative as a basis for finding the side agreement invalid. Third, Mr. Pye maintains that Kenneth Loewinger, his successor as personal representative, did not have standing to object to the side agreement because the seven heirs who entered into the agreement did not object to it. Fourth, Mr. Pye contends that the amount of pre-judgment interest awarded was incorrect because the court should have calculated such interest separately from the dates of the three withdrawals that he made from the estate.

With respect to the first claim, we hold that the side agreement was invalid because appellant, by entering into the agreement, breached his fiduciary duty to the heirs. The means that appellant employed to bring about the side agreement did not further the best interests of the heirs. We reject appellant's second claim because it is clear from the record that the trial court did not rely on appellant's failure to provide financial records as a basis for holding the side agreement invalid. As for the third claim, we hold that Mr. Loewinger had standing to object to the side agreement because the Probate Code allows a personal representative to petition the court "to act in any matter relating to the administration of the estate" and to bring any action necessary to recover possession of estate property. Finally, we agree with appellant that the trial court should have separately calculated pre-judgment interest for each of the three withdrawals he made, according to the dates on which the funds were taken out of the estate. We therefore remand the case so that the trial court can recalculate the pre-judgment interest, as set forth in part V of this opinion, but in all other respects we affirm the judgment.

I.

On March 3, 1993, Leroy Green died intestate in the District of Columbia. His estate consisted of liquid assets worth approximately $46,000 and a home on Ames Street, N.E. On July 20, 1994, appellant Pye was appointed successor personal representative of Mr. Green's estate.*fn3

On December 27, 1996, appellant filed his Second and Final Account of the estate for the period from June 1, 1995, to December 27, 1996.*fn4 That accounting listed an attorney's fee of $44,000.00 and anticipated expenses owed to appellant in the amount of $1,201.00. Three days later, on December 30, appellant filed a Request for Compensation for Services, in which he asked for a fee of $44,000.00,*fn5 plus $1,000.00 for expenses. He also filed an Amended Second and Final Account on April 29, 1997, to correct certain errors in the distributive shares. On July 17, 1997, five of the decedent's seventeen heirs filed an objection to appellant's request for compensation. On January 26, 1998, the probate court issued an order allowing appellant to submit an affidavit in lieu of vouchers to explain certain account entries.

On August 5, 1998, the probate court (Judge Long) issued a lengthy and detailed order addressing appellant's Amended Second and Final Account and his Request for Compensation. In that order, the court approved only $28,041.84 of the $44,000.00 fee that appellant had requested, and disallowed his request for expenses because of his "extraordinary failure" to justify and document them. In determining the fee, the court adhered to the statutory factors set forth in D.C. Code § 20-751 (c) (1989).*fn6 The court said that Green's estate was "not complex," that appellant's billing was "excessive in numerous respects, and that he [did] not provide sufficient facts to explain how certain billings could have benefitted this estate." After disallowing $12,385.20 in fees, the court determined that appellant had earned a fee of $35,052.30 for his work.*fn7 However, "[a]s a sanction for the gross overbilling and lack of documentation," the court applied "a twenty percent reduction to the fees that [it] would otherwise approve."*fn8 Appellant's Final Account was held in abeyance, and the staff of the Probate Division was ordered to "recompute the relevant figures on the pending First [sic] and Final Account, so as to include the revised, court-approved fees and the new computation of the distributions to heirs."*fn9 The court also ordered appellant to "file no later than November 2, 1998, receipts from all heirs to establish that their complete and accurate final distributions have been received, prior to the presentation of the Account for final judicial review" (emphasis in original).

About a month later, appellant filed a "Motion for Application for Entry of Judgment, for Stay of Enforcement of Order Pending Appeal, and for Increase in the Amount of the Successor Personal Representative's Bond."*fn10 In its order granting the motion, dated January 26, 1999, the court directed that its August 5 order be entered as a final judgment,*fn11 that the filing of distribution receipts be stayed pending appeal,*fn12 and that appellant post an additional bond of $16,000, thereby increasing the total amount of his bond to $20,000.

At some point between January 26 and February 17, 1999, appellant wrote a letter to the decedent's heirs asking them if they would pay the difference between the fee he had requested and the fee approved by the probate court.*fn13 Appellant informed the heirs that the court had "reduce[d] my fee and charges by $17,159.30,"*fn14 and that he would "take an appeal on or before February 25, 1999, unless this matter can be resolved before then." He explained that because of the stay that had been granted by the probate court (at his request), he would "not be in a position to make a distribution to [the heirs] until the Court of Appeals decides my appeal, which most probably will not be for at least another year." His letter strongly implied that regardless of the outcome of the appeal, the heirs would not receive any portion of their share for "at least a year" if they did not settle with him. Moreover, appellant explained to the heirs that "none of you is receiving a substantial distribution," and that his additional fee would not significantly alter the amount of their shares.*fn15 Appellant concluded the letter by stating:

If you are willing to settle the matter on these terms, please sign the enclosed copy of this letter, and I will send you your distribution as originally shown on the second account after I have received everyone's response. I will then note the appeal settled and dismissed. If you would ...


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