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Inlow Children v. Personal Represenative of the Estate of Inlow

9/6/2000

FOR PUBLICATION


OPINION - FOR PUBLICATION


Case Summary


Appellants Jason L. Inlow ("Jason"), Heather N. Johnson f/k/a Heather N. Inlow, Jeremy H. Inlow, and Karen E. Inlow as guardian for Sarah C. Inlow, a minor, (collectively, "the Inlow children") appeal the trial court's award of $750,000 in interim attorney fees to the law firm of Henderson, Daily, Withrow & DeVoe ("Henderson Daily") for legal services provided to Karl L. Kindig ("Kindig") as the personal representative of the supervised estate of Lawrence W. Inlow ("Inlow"). We reverse and remand.


Issues


The Inlow children raise four issues for review, which we consolidate and restate as follows:


I. whether the trial court erred in awarding interim attorney fees to Henderson Daily for preparing and defending the reasonableness of its fee petition;


II. whether the trial court otherwise erred in determining the amount of Henderson Daily's interim attorney fees; and


III. whether the trial court erred in awarding Henderson Daily attorney fees because it had no written fee agreement with the estate.


Facts and Procedural History


Inlow was a partner at Henderson Daily when he accepted an offer of employment with Conseco, Inc. ("Conseco") in 1986. At the time of his death in a helicopter mishap on May 21, 1997, Inlow was an executive vice president and general counsel of Conseco. Inlow died intestate, leaving a gross estate of approximately 180 to 185 million dollars, and was survived by a former wife and four children from his first marriage, as well as a wife and child from his second marriage. On May 30, 1997, the trial court appointed Jason, Inlow's son from his first marriage, as personal representative of the estate. On June 2, 1997, Jason resigned his appointment and nominated as his successor Marvin J. Frank ("Frank"), whom the trial court subsequently appointed as successor personal representative.


On June 4, 1997, Anita C. Inlow, Inlow's second wife, filed an emergency verified petition to stay Frank's authority and sought the appointment of Kindig as successor personal representative pursuant to her statutory preference as Inlow's surviving spouse. On that date, the trial court appointed Kindig as successor personal representative; Kindig was Inlow's long-time friend and had been a partner at Henderson Daily before joining Conseco in 1992 as a senior vice president in the legal department. To represent his interests as personal representative of the estate, Kindig retained several attorneys from Henderson Daily, who immediately began determining and marshaling the assets of Inlow's sizable estate. On behalf of the estate, Henderson Daily also investigated the possibility of a wrongful death action against the helicopter manufacturer.


On June 13, 1997, the trial court appointed Jason as co-personal representative of the estate, and Jason retained separate counsel to represent his interests. Jason and Kindig were unable to agree on estate-related issues, and on October 15, 1997, the trial court issued an order directing them to show cause why they should not be removed as co-personal representatives. On October, 21, 1997, Jason moved to disqualify Henderson Daily for its alleged conflict of interest as counsel for both Kindig and Conseco. After a show cause hearing, the trial court removed Jason as co-personal representative and ordered Kindig to serve as the sole personal representative on November 13, 1997. After a subsequent hearing, the trial court denied Jason's motion to disqualify on December 23, 1997. In the meantime, Jason and his counsel had filed petitions for fees and costs,

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