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Beyer v. Morgan State University8/29/2001
he appellant raises the issue of justification on appeal, having not argued it below, we will say only that there is no fact contained in the record or advanced in the appellant's brief, and no argument made by her, that could amount to a justification for her conduct.
Expenses Petition
With respect to the Expenses Petition, the appellant argues that the court erred by not taking evidence and making factual findings about the need for the work for which the expenses were sought as reimbursement, whether the expenses were extraordinary, and whether her request for payment was justified because she had not filed a petition for commissions as personal representative.
MSU's request to vacate the orphans' court's order granting the Expenses Petition stood on a different footing than did its request to vacate the order approving the Attorney's Fee Petition. The appellant had not taken money out of the Estate to use to reimburse herself (and the others for whom she sought reimbursement) for the expenses she claimed were incurred in making the decedent's house ready for sale. Rather, in accordance with the law, she first petitioned the orphans' court for approval of payment of the expenses. Insofar as the record discloses, even after the orphans' court issued its order approving the Expenses Petition, the appellant did not use Estate money to pay herself and the others the expenses claimed. Thus, the question before the circuit court with respect to the Expenses Petition was not whether the appellant had violated her fiduciary duties but whether the expenses for which she sought, and in the orphans' court received, payment approval were extraordinary expenses for which approval of payment would be warranted.
We agree with the appellant that the circuit court erred in failing to take evidence on this issue. As we see it, the circuit court treated MSU's request to vacate vis-à-vis the Expenses Petition as if the appellant had used Estate money to pay those expenses without first seeking or obtaining approval from the orphans' court, when that did not occur.
At the outset of the hearing before the circuit court, Drager, on behalf of the Estate, suggested in response to an inquiry by the court as to how to proceed that the appellant take the stand to testify about the expenses that were the subject of the "Expenses Petition," so the court could then determine the reasonableness of the expenses, whether all or part of them were "ordinary ministerial personal representative functions that are compensated through commissions," or whether all or part of them were extraordinary expenses for which the appellant may have been entitled to reimbursement. Later in the hearing, Briscoe made known that it was the appellant's position that all of the claimed expenses were extraordinary; Drager made known that it was the Estate's position that most of the expenses were ordinary, although some may have been extraordinary; and Davis made known that it was MSU's position that none of the expenses were extraordinary. Clearly, the evidence was in dispute, and testimony was required to resolve the question whether the appellant fairly was entitled to reimbursement for all or part of the extraordinary expenses she claimed were incurred in cleaning and otherwise preparing the decedent's house for sale.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE-HALF BY THE APPELLANT AND ONE-HALF BY THE APPELLEES.
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