The South Carolina Court of Appeals has filed a substitute opinion in a case involving a Columbia attorney who was ordered to return more than $40,000 in compensation he took for representing a woman’s estate.
The new opinion addresses the case under the equity standard of review and applies the so-called “two-judge rule.” Both sides had agreed that the underlying cause of action was in equity rather than at law, though the court originally treated the case as the latter.
Unfortunately for Edward Sullivan, the attorney in question, the divided court reached the same conclusion in its Nov. 2 substitute opinion as it did in is initial June decision, which found that a probate judge had reason to slash his compensation based on the estate’s value.
Sullivan also has to pay from his own pocket attorney’s fees and other legal costs he incurred in defending, albeit unsuccessfully, his bill for overseeing the estate of Marion Kay following her death in 2007.
Laurens County Probate Court Judge Donald Hocker had determined that Sullivan “unnecessarily complicated the estate by insisting on filing a partition action” to clear title on a property and settle the estate after more than a year of failed negotiations between the beneficiaries. Hocker said Sullivan should have deeded out the estate land to the heirs, rather than pushing for a sale of the property.
Hocker also found that Sullivan’s claims for compensation – he drew $157,179 from the estate, which was more than 18 percent of its value – were not adequately documented and had been pulled “out of the air.” The statutory presumption for compensation for the administrator of an estate is 5 percent.
Hocker, noting that Sullivan had “exemplary credentials and good standing in the bar” and had also done “an excellent job in securing the sales price for the” estate property, concluded that he was entitled to 10 percent of the estate’s value, or $51,300, and had to return $42,475.
Hocker also denied Sullivan’s request for attorney’s fees and costs, but awarded $19,860 in attorney’s fees to the two beneficiaries who disputed the division of the estate and Sullivan’s compensation. The fees were to be paid from the estate. A circuit judge later affirmed Hocker’s order.
“The appellant [Sullivan] is disappointed in the majority decision and believes that the dissent has accurately analyzed two of the issues that are present: attorneys’ fees and costs and that the two-judge rule doesn’t apply,” said Sullivan’s attorney, Daryl Hawkins of Columbia. He was considering filing a petition for cert with the state Supreme Court, but said there were ongoing settlement discussions.
An attorney for the heirs, John Ferguson of Laurens, said the Court of Appeals “redrafted its opinion in light of the briefs from both sides, which said that this was a case in equity and they reexamined the evidence from that standpoint.” He declined to comment further.
Court of Appeals Judge H. Bruce Williams wrote in the refiled majority opinion that under the two-judge rule, when “the circuit court concurs with the probate court in an equity case, the standard of review for this court is whether any evidence reasonably supports the findings of the court below.”
But in his dissent, former Chief Judge John Few, who now serves on the state’s Supreme Court, questioned “whether the standard of review in an appeal from an equity case is any different simply because two judges have made the same factual determination.”
Few asserted that the lower standard of preponderance applied and cited former Chief Justice Jean Toal’s concurrence in Lewis v. Lewis to bolster his argument. Toal wrote that “our standard of review in a particular case depends on the nature of the underlying action and has little to do with semantics concerning the method by which the case reaches the court.”
While applying a different standard, Few still reached the same conclusion as the majority on every issue except Sullivan’s requests for fees and legal costs for defending his bill.
Few determined that Sullivan was entitled to fees because he had the right to partition the estate land, a decision that apparently drove Hocker to deny Sullivan’s request for fees.
The 18-page opinion is In re Estate of Kay (Sullivan v. Brown) (Lawyers Weekly No. 011-094-16). A digest of the decision is available at sclawyersweeky.com.
Follow Phillip Bantz on Twitter @SCLWBantz
The 18-page opinion is In re Estate of Kay (Sullivan v. Brown) (Lawyers Weekly No. 011-094-16). A digest of the decision is available at sclawyersweeky.com.
Follow Phillip Bantz on Twitter @SCLWBantz