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In re Estate of Campbell11/29/2005
wrongful death settlements collected. By examining Kelligher's itemized list of services rendered, certain items seem to fall into this category. For instance, for September 23, 1998, Attorney Kelligher lists: "Draft Application for Approval of Wrongful Death Settlement; Draft Entry Approving Settlement; Draft Waivers and Consents; Draft letter to clients." He states that he spent 1.75 hours on these tasks and requested $201.25 for their performance. But there are so many listings involving phone calls, reviews, travel, and other items that it seems difficult to discern exactly which items were associated with bringing the applications for settlement and distribution of wrongful death settlements. Thus, the court needs to hold a hearing on this issue to determine which of Kelligher's fees Goldberg-Persky is responsible for.
{ } As to the rest of Kelligher's fees, it is unreasonable for the court to order that these fees be deducted from Goldberg-Persky's fees. Goldberg-Persky entered into a contingency fee agreement with the estate to handle the asbestos litigation. Its work involved investigating the wrongful death claim and litigating it to settlement. Kelligher undertook the duties as successor administrator and counsel for the estate. His duties included filing an account, locating and dealing with heirs, and preparing applications to approve the settlement obtained by Goldberg-Persky. These are separate duties with separate fee arrangements. Thus, the probate court abused its discretion in ordering all of Kelligher's fees be taken from Goldberg-Persky's fees.
{ } For the reasons stated above the probate court's judgment is hereby affirmed in part and reversed and remanded in part.
{ } The judgment is affirmed as to the court's approval of the settlement and distribution of the wrongful death claims. It is also affirmed as to its determination of the amount of reimbursement Goldberg-Persky is entitled to for case expenses. The judgment is reversed as to its enforcement of interest penalty against Goldberg-Persky. Therefore, judgment is hereby entered in favor of Goldberg-Persky in the amount of $5,103.96, in addition to those fees already approved by the probate court. Additionally, the judgment is reversed and remanded as to the court's determination that Goldberg-Persky must pay all of Kelligher's fees. On remand, the court is to hold a hearing to determine which of Kelligher's fees are fiduciary fees associated with bringing the applications for settlement and distribution of wrongful death settlements for which Goldberg-Persky is responsible to pay.
{ } The probate court's judgment determining Kelligher's fees is also reversed in part and remanded. That portion of the court's judgment approving payment of $5,367.20 for 64.34 hours of work performed on the estate and that portion disapproving payment of 35.7 hours of work performed on the appeal of this case are affirmed. That portion determining that Kelligher is not entitled to payment for the remaining 27.46 hours of work performed on the estate is reversed and remanded. On remand, the court is to re-determine whether Kelligher is entitled to fees for the remaining 27.46 hours he spent on this case.
Vukovich, J., concurs
DeGenaro, J., concurs
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