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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 01552 SEPTEMBER TERM, 2003 ____________________________

WILLIAM CHRISTOPHER PETERSON, PERSONAL REPRESENTATIVE OF THE ESTATE OF ELSIE VIRGINIA KINSEY v. ORPHANS' COURT FOR QUEEN ANNE'S COUNTY, MARYLAND

____________________________ Hollander, Sharer, Moylan, Charles E., Jr. (Specially assigned), JJ. ____________________________

Opinion by Hollander, J. ____________________________ Filed: December 7, 2004

William Peterson, appellant, Personal Representative of the Estate of Elsie Kinsey, challenges various orders issued by the Orphans' Court for Queen Anne's County, appellee, in which the court, inter alia, reduced appellant's commissions, sua sponte; refused to approve the entire award of attorney's fees requested for Elise Davis, Esquire, counsel for the Estate;1 and denied certain petitions to impute monies to Roger E. Pleasanton, Kinsey's surviving spouse. Appellant presents four questions, which we quote: I. Did the court below err as a matter of law when 15 months after the Petitions for Attorneys Fees and P[ersonal] R[epresentative] Commissions had been approved as well as the Account, without Petition of any interested person, modified the Order pertaining to P.R. commissions and changed the amount approved from $15,787.75 to $5,787.75? Was it an abuse of discretion by the court below when it failed to impute monies to the surviving spouse for attorney[']s fees and court costs incurred by the Estate because of his failure to comply with the settlement agreement previously approved by the court?

II.

III. Was it an abuse of discretion by the court below when it failed to approve attorney[']s fees and court costs necessitated by failure of the surviving spouse and/or his agent to remove tenants from Estate property and to pay over to the Estate monies due the Estate[?] IV. Did the court below err as a matter of law when it failed to approve a proposed division of cash proceeds for the two rental units as agreed to by the parties in a settlement agreement previously approved by the court?

Davis is not a party to the appeal, but represents appellant in this appeal.

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For the reasons that follow, we shall affirm. I. FACTUAL AND PROCEDURAL SUMMARY Elsie Kinsey died testate on May 1, 2000. Kinsey executed her "Last Will & Testament" on July 8, 1991, years before her marriage to Roger E. Pleasanton on June 26, 1997.2 Pursuant to Kinsey's

Will, her nephew, the appellant, was appointed as the Personal Representative of Kinsey's Estate. as surviving spouse, filed On June 16, 2000, Pleasanton,

with the Orphans' Court for Queen

Anne's County an "Election to Take Statutory Share of Estate." In October 2000, Mr. Pleasanton brought suit in the Circuit Court for Queen Anne's County against the Estate and Peterson, individually and as personal representative, challenging the value of the probate estate. He focused on various Certificates of

Deposit, totaling approximately $253,000, which the decedent had established with certain relatives well before her marriage to Pleasanton. Nevertheless, Pleasanton contended that the

certificates were part of Kinsey's Estate.

Following a trial in

May 2001, the circuit court granted the defense's motion for judgment, embodied in a judgment of August 7, 2001. Pleasanton appealed to this Court. Thereafter,

We affirmed on the merits, but

remanded to the circuit court for the entry of a declaratory judgment.
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Pleasanton v. Peterson, No. 920, September Term, 2002

When the couple wed in 1997, Kinsey was 69 years of age and Pleasanton was 59 years old. See Pleasanton v. Peterson, No. 920, September Term, 2002 (filed August 7, 2002) (unreported). 2

(filed August 7, 2002) (unreported). On March 30, 2001, Peterson filed a first administration account, in which he reported assets for the Estate of $407,952.51. Kinsey's Estate included, inter alia, real and leasehold

properties, including properties located at 212, 216 and 244 Merganser Drive in Chestertown. On June 29, 2001, appellant conveyed the properties at 212 and 244 Merganser Drive to Pleasanton as the surviving spouse. At that time, Pleasanton also held title to the property at 216 Merganser Drive. By Order entered November 6, 2001, however, the Orphans'

Court directed Pleasanton "to deed the three (3) real properties back to the estate for distribution or sale of said properties, unless the legatees and the surviving spouse agree that the spouse may retain the one parcel that he was willing to accept as a partial distribution-in-kind of his elective share." In the interim, on August 10, 2001, appellant, through

counsel, filed a "Petition for Allowance of Attorney Fees," in which he requested an award to Davis of attorney's fees of $22,599. Both Peterson and Davis signed the Petition. The Petition

identified the following services rendered by Ms. Davis: a. b. c. d. e. f. g. Identifying creditors of the Estate; Preparation of Petition for Probate; Arranging for bond for personal representative; Arranging for appraisals of assets of the Estate; Preparation of Inventory; Preparation of Information Report and Amended Information Report; Defending the Personal Representative in litigation 3

h. i. j. k.

wherein he was sued by the surviving spouse over non-probate assets, representing the Personal Representative in matters before the Orphans' Court pertaining to the carrying out of the provisions of the decedent's will and representing the Personal Representative in recovering assets belonging to the Estate. . . . Preparation of First Administration Account and Amended First Administration Account; Preparation and filing of state and federal tax returns; Attending hearing on exceptions to First Account; Attempting to recover assets for the Estate and a debt due the Estate.

As an exhibit to the motion, appellant attached an itemized list of approximately 150 services rendered by Ms. Davis between June of 2000 and June of 2001, along with the corresponding time that she expended. The list reflected 167.4 hours of work, at an From the lawyer's

hourly rate of $135, for a total of $22,599.

list of services, we have set forth below only those entries that also appear on the fee petition submitted on the same date by the personal representative. 06-19-00 11-14-00 12-05-00 12-19-00 01-23-01 02-08-01 02-13-01 02-14-01 02-14-01 02-20-01 03-26-01 05-10-01 8.0 2.5 3.5 2.0 hrs. hrs. hrs. hrs. Chincoteague property depo in Centreville C'ville - client depo. hearing on Petition to Sell - C'ville prep. for depo. & drft. plead & depo. CCCQA- sch. conference Hearing, P.R. v. Frank Reed & drft ltr. Kinsey/Pleasanton Kinsey hearing - P.R. vs. Reed prep. for Centreville hearing prep. hearing prep hearing (Reed), 4

5.0 hrs. 2.0 hrs. 2.0 hrs. 2.5 hrs. 2.5 hrs. 3.2 hrs. 5.5 hrs. 3.0 hrs.

05-23-01 05-24-01 06-12-01 06-26-01

6.0 hrs. 5.0 hrs. 2.0 hrs. 3.6 hrs.

hearing C'ville & serve subpoenas hearing & prep for next hearing appeal hearing in C'ville exceptions hearing hearing in C'ville Replevin action

Also on August 10, 2001, appellant filed a "Petition for Allowance of Personal Representative Commissions," in which he sought commissions of $15,787.85, representing 63.5 hours that he expended on behalf of the Estate. In his petition, appellant

detailed seventeen services he rendered between June 19, 2000, and June 26, 2001, for which he claimed to have expended 63.5 hours in time. We have highlighted below the one service that does not

appear on the attorney's fee petition of August 10, 2001. 06-19-00 11-14-00 12-05-00 12-19-00 01-23-01 02-08-01 02-13-01 02-14-01 02-14-01 02-20-01 03-26-01 04-30-01 05-10-01 10.0 hrs. Visiting Chincoteague property 2.5 hrs. A t t e n d i n g J o y c e L i n d a u e r deposition 3.5 hrs. A t t e n d i n g C h r i s P e t e r s o n deposition 2.0 hrs. Attending Hearing on Petition to Sell 5.0 hrs. Attending Pleasanton deposition 2.0 hrs. Attending CCCQAC - scheduling conference - Pleasanton v. Peterson 2.0 hrs. Attending Judicial Probate Hearing 1.5 hrs. Attending Kinsey v. Reed 3.5 hrs. Attending Kinsey v. Pleasanton 3.2 hrs. Attending Hearing on Motion Summary Judgment 5.5 hrs. Attending Hearing On Petition For Order For Distribution of Family Allow. 1.2 hrs. A t t e n d i n g D a n P e t e r s o n deposition 3.0 hrs. Attending Hearing on Motion to 5

05-23-01 05-24-01 06-12-01 06-26-01

Amend Judgment - Reed 8.0 hrs. Attending Trial 5.0 hrs. Attending Appeal hearing in C'ville 2.0 hrs. Attending Exceptions hearing 3.6 hrs. Attending Hearing on replevin action

On the same date, August 10, 2001, Ms. Davis filed a "Notice of Filing," in which she notified all interested persons that: 1) a petition for attorney's fees had been filed; and 2) the

interested persons had a statutory right to object to the request within twenty days of receipt of the notice. According to the

certificate of service, Ms. Davis sent copies of the petition to appellant; Daniel Peterson; and Samuel Heck and Frederick Franke, attorneys for the surviving spouse. Subsequently, on August 27,

2001, the surviving spouse, through his counsel, filed an "Answer to Petition for Allowance of Attorney's Fees," in which he objected to the proposed award of counsel fees. In addition, Ms. Davis filed another "Notice of Filing," in which she informed all interested parties of appellant's petition for commissions and the statutory right to except within twenty days. The notice was sent to the same individuals to whom the Then, on August 27, 2001, Pleasanton,

prior notice was mailed.

through counsel, filed an "Answer to Petition for Allowance of Personal Representative's Commission," in which he excepted to the request for commissions. Appellant filed his "Amended First Administration Account" on

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September 12, 2001, in which he reported total Estate assets of $408,551.51, an increase of $599 over the assets reported in the first administration account. On September 18, 2001, the Orphans'

Court approved the amended account, "subject to exceptions being filed within twenty (20) days" of the date of the Order. Thereafter, on October 25, 2001, Peterson, through counsel, filed a "Supplemental Petition for Allowance of Attorney Fees," in which he requested an additional $2,376 in legal fees for Ms. Davis, for a total fee award of $24,975. signed the Petition. The request for an increase in fees was based on additional services rendered by Ms. Davis to prepare the amended Both Peterson and Davis

administration account.

In the supplemental petition, appellant

provided an itemized list of the additional services rendered by Ms. Davis from August 3, 2001, through October 18, 2001. It showed 17.6 hours of services, at a rate of $135 per hour, for a total of $2,376. On October 25, 2001, Ms. Davis sent a "Notice of Filing" to the interested parties, advising that appellant filed a

supplemental petition for attorney's fees and they had a statutory right to file exceptions within twenty days. Copies of the

supplemental petition and the notice were sent to appellant; Daniel Peterson; Pleasanton; and to Heck and Franke as attorneys for Pleasanton. Thereafter, on November 14, 2001, counsel for

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Pleasanton filed "Exceptions to Supplemental Petition for Allowance of Attorney[']s Fees," objecting to the proposed award of

attorney's fees. Also on October 25, 2001, Peterson filed a "Further Revised First Administration Account," in which he reported Estate assets of $410,179.09, and noted that appellant's requests for attorneys' fees and Personal Representative commissions were "pending." In

Thereafter, on November 14, 2001, Pleasanton filed exceptions.

an Order of February 19, 2002, the court approved the "First and Final Administration Account," subject "to future directives of this Court." On February 19, 2002, counsel for both Peterson and Pleasanton filed a "Joint Request for Approval of Settlement" with the Orphans' Court (hereinafter, the "Joint Settlement Request"), in which they sought court approval of a settlement agreement reached on December 27, 2001, relating to division of the Estate. Joint Settlement Request outlined the specific terms of The the

proposed settlement agreement.

By its terms, Pleasanton was to

receive the deed to the property at 216 Merganser Drive and onehalf of the net proceeds of the sale of the properties located at 212 and 244 Merganser Drive. The surviving spouse also agreed to

withdraw his objections to the first administration account and the awards of attorney's fees and personal representative commissions. The settlement agreement provided, in part:

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(1) In settlement of [the surviving spouse's] elective share in the Maryland estate as presently constituted (The estate excludes the Virginia property, on which there is a separate agreement, and the joint accounts on which there is no agreement) [the surviving spouse] would receive, in full satisfaction of his claim the following: (a) The home and lot at 216 Merganser Drive; (b) Sixty Thousand ($60,000.00) in cash; (c) One-half the net proceeds of 244 Merganser Drive (net proceeds being defined as gross proceeds, less real estate commission and sellers [sic] share of transfer taxes, if any); (d) Stock equivalent to Fifty Thousand ($50,000.00) Dollars on the date of transfer; and (e) One half the net proceeds of 212 Merganser Drive less whatever the amount necessary to ensure that the estate receives an amount equivalent to one-half (

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