Fieber v. Weisner

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In the Matter of the Estate of:

CAMILLE CLAUDIA FARRELL

Deceased

JESSICA FIEBER, Personal Representative/Appellee,

v.

HARRISON J. WEISNER, Appellant.

No. 1 CA-CV 18-0305
FILED 5-30-2019

Appeal from the Superior Court in Maricopa County
No. PB2012-001584
The Honorable Thomas Marquoit, Judge Pro Tempore

AFFIRMED

COUNSEL

Gust Rosenfeld, P.L.C., Phoenix
By Craig L. Keller, Samantha Winter McAlpin
Counsel for Appellant

Jennings, Strouss & Salmon, P.L.C., Phoenix
By William A. Clarke, Jordan T. Leavitt
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.

B E E N E, Judge:

¶1 Harrison J. Weisner (“Weisner”) appeals the superior court’s
order approving a final accounting of his mother’s estate as prepared by the
personal representative, Weisner’s sister Jessica Fieber (“Fieber”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 When Camille Claudia Farrell died intestate in September
2011, she was survived by two beneficiaries: Fieber and Weisner. Fieber
was appointed the personal representative of the estate in August 2012 with
a duty to distribute over $1.1 million in assets (“Farrell Estate”).

¶3 In January 2013, Fieber filed a petition for approval of interim
accounting and proposed distribution. Her petition was approved, but
Weisner refused to accept distribution of over $600,000. Weisner did not
explain his reasons for refusing, but in November 2016, he objected to the
petition and requested appraisal of various items and reassessment of fees
and costs. In May 2017, the parties reached a settlement agreement, which
the superior court approved in June 2017 and according to which $25,000
was to be held back to pay final estate fees and costs “not already included
in the accountings” (“Holdback Account”). The agreement included a bank
account statement with activity ending February 28, 2017.

¶4 In January 2018, Fieber filed a petition requesting that the
superior court approve the final accounting of the Holdback Account
(“Petition”). This accounting listed charges for attorneys’ fees and costs
incurred after October 2016. The Petition was also accompanied by an
itemized statement of attorneys’ fees and costs totaling $20,225.95,
describing work performed from November 1, 2016, through November 30,
2017 (“Rule 33 Statement”). Weisner filed an objection to both the Petition
and the Rule 33 Statement. In March 2018, the court requested Fieber
provide a detailed reference chart of all attorneys’ fees and costs charged

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against the Farrell Estate since 2012, which Fieber submitted on March 21,
2018 (“Chart”).

¶5 In April 2018, the superior court approved the Petition,
denying all of Weisner’s objections. Weisner timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
and -2101(A)(1).

DISCUSSION

¶6 Weisner argues the superior court abused its discretion when
it approved Fieber’s request for attorneys’ fees and costs as reasonable
because 1) the majority of the attorneys’ fees were block-billed, rendering
the Rule 33 Statement’s entries insufficiently detailed and non-compliant
with the Arizona Rule of Probate Procedure 33 (“Rule”); and 2) certain fees
were double-billed and contained a discrepancy between the Rule 33
Statement and the Petition’s final accounting that was not reconciled as
mandated by the Rule.

¶7 In a probate litigation, “we review an award of attorney’s fees
and costs for an abuse of discretion.” In re Guardianship of Sleeth, 226 Ariz.
171, 174, ¶ 12 (App. 2010) (citation omitted). We will affirm the award “if
there is a reasonable basis for doing so.” RS Indus., Inc. v. Candrian, 240
Ariz. 132, 138, ¶ 21 (App. 2016).

A. The Court Properly Awarded Attorneys’ Fees in Instances
of Block-Billing.

¶8 Weisner contends that $15,955 of block-billed fees “prevented
both the beneficiaries and the Court from proper scrutiny of the fees,”
rendering it “impossible to determine the reasonability of the time
incurred.”

¶9 To approve compensation for a personal representative’s
attorney, the Rule requires that a petition for fees be accompanied by “a
detailed statement of the services provided, including the tasks performed,
the date each task was performed, the time expended in performing each
task, the name and position of the person who performed each task, and the
hourly rate charged for such services,” “[u]nless otherwise ordered by the
court.” Ariz. R. Prob. P. 33(B)(1) (emphasis added). For the hours claimed
to be justified, “the fee application must be in sufficient detail to enable the
court to assess the reasonableness of the time incurred.” Schweiger v. China
Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983). “Unless otherwise ordered by

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the court, . . . ‘[b]lock billing’ is not permitted.” Ariz. Code of Jud. Admin.
(“CJA”) § 3-303(D)(2)(c) (emphasis added).1 “When determining
reasonable compensation, the superior court shall follow the statewide fee
guidelines set forth in the Arizona code of judicial administration.” Ariz.
R. Prob. P. 33(F).

¶10 Weisner argues that requests for attorneys’ fees are per se
unreasonable when block billed, but the relevant guidelines recognize the
superior court has discretion to award reasonable fees even if block billed,
and Arizona courts have rejected the per se argument. See Candrian, 240
Ariz. at 138, ¶ 21 (“[N]o Arizona authority holds that a court abuses its
discretion by awarding fees that have been block-billed.”); see also In re
Guardianship of Sleeth, 226 Ariz. at 178, ¶ 34 (remanding for review of each
entry of block-billing to assess whether such entry provided “sufficient
detail” to be reasonable). The guideline also mandates that “[e]ach judicial
officer shall, pursuant to Rule 33(F) . . . [w]eigh the totality of the
circumstances in each case . . . and [] [e]xercise discretion to assign more or
less weight to any of the compensation factors as the officer deems just and
reasonable.” CJA § 3-303(D)(1)(b)-(c).

¶11 Here, the superior court found that, although block-billing
occurred, the Rule 33 Statement and the accompanying Chart provided
sufficient detail for the court to conclude “the work done was reasonable in
accordance with Sleeth.” The record supports the court’s comparison of
hours spent with tasks performed. See In re Guardianship of Sleeth, 226 Ariz.
at 178, ¶ 34 (noting that “when reviewing block-billing, [a] court must
compare hours spent with tasks performed to determine reasonableness”)
(citation omitted). For example, an entry of 5.5 hours dated March 13, 2017,
described the work performed as “[t]elephone calls J. Fieber; settlement
conference with Commissioner LaBianca; discussions with C. Keller, Esq.”
Although Weisner argued that the Rule 33 Statement “makes it totally
unclear whether 5.3 hours were spent in the settlement conference, 0.1
hours on the telephone with the Personal Representative, and 0.1 hours in
discussion with Mr. Keller, or whether 5.3 hours were spent on the
telephone with his client, 0.1 in settlement conference, and 0.1 in discussion

1 The Code of Judicial Administration identifies block-billing “when a
timekeeper provides only a total amount of time spent working on multiple
tasks, rather than an itemization of the time expended on a specific task.”
CJA § 3-303(D)(2)(c).

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with opposing counsel,” the court’s minute entry dated March 13, 2017,
shows that the hearing lasted 3.9 hours.

¶12 On this record, we cannot say the court abused its discretion.
See Candrian, 240 Ariz. at 138, ¶ 21.

B. The Petition and Rule 33 Statement Were Sufficiently
Reconciled and the Record Supports the Court’s Finding
that No Double-Billing Occurred.

¶13 Weisner argues the superior court abused its discretion
because 1) the attorneys’ fees and costs of $21,496.95 requested in the
Petition did not match the attorneys’ fees and costs of $20,225.95 itemized
in the Rule 33 Statement and the Chart; 2) no reconciliation, although
mandated by Rule 33(E), was provided; and 3) the court ignored double-
billing of $4,985.50.

¶14 Rule 33(E) provides that “[w]hen an attorney or fiduciary fee
statement accompanies an annual accounting, the fee statement shall match
the charges reported in the annual accounting or a reconciliation of the fee
statement to the accounting shall be provided by the fiduciary.” Ariz. R.
Prob. P. 33(E); see also Tech. Constr., Inc. v. City of Kingman, 229 Ariz. 564, 568,
¶ 10 (App. 2012) (noting that courts have a duty to seek any reasonable
interpretation that would reconcile documents and give meaning to all their
terms); Rodriguez v. Williams, 104 Ariz. 280, 283 (1969) (looking “to
substance rather than to form” in determining intended effect of
pleadings).

¶15 Weisner argues the Chart did not reconcile the Rule 33
Statement with the Petition’s final accounting as it merely listed charges
incurred since June 2012. The Chart, however, described when charges
were billed and paid and that the attorneys’ fees continued accruing after
the final accounting was closed. Moreover, the final accounting was
calculated with a future payment of $1,500 for “Final Attorney Fees,”
explaining the gap of $1,271 between the fees accounted and billed. The
court, however, approved the lesser amount of $20,225.95, effectively
foreclosing the remaining $1,271 from being charged against the estate.
Although no document titled “Reconciliation” was submitted, the
documents, when viewed in tandem, provided the court with a
reconciliation sufficient to support its order. See Rodriguez, 104 Ariz. at 283.

¶16 Similarly, Weisner contends the superior court excused the
double-billing of $4,985.50 in the attorneys’ fees charged between
November 3, 2016, and January 13, 2017, because these fees were already

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paid on January 25, 2017. On March 13, 2017, the court approved the
accounting filed on October 24, 2016, and established the Holdback
Account for final fees, costs, and expenses “not already included in the
accountings,” a ruling reflected in Fieber’s Petition. The Chart showed that
the last two bills included in the previous accounting were dated October
12, 2016, and November 10, 2016. These two bills were paid from a bank
account on January 25, 2017, and reflected in the Chart as received on
January 31, 2017. The Rule 33 Statement begins with a task performed on
November 3, 2016, which the court could have concluded the previous
accounting did not include, and therefore was not paid on January
25/January 31, 2017. Because the record does not indicate that counsel
billed the client weekly, the November 10, 2016 bill did not likely include
services performed on and after November 3, 2016, therefore, the court
could have reasonably concluded that no double-billing occurred.2

¶17 The superior court acted within its discretion. See Candrian,
240 Ariz. at 138, ¶ 21.

C. Attorneys’ Fees on Appeal.

¶18 Both parties requested we award their attorneys’ fees and
costs incurred on appeal pursuant to A.R.S. § 12-341.01(A) and the parties’
agreement entered by the superior court on June 12, 2017. In our discretion,
we award Fieber, the prevailing party, her attorneys’ fees and costs upon
compliance with Arizona Rule of Civil Appellate Procedure 21.

2 Weisner also contends the superior court erred because a payment
of $4,032.88 to Fieber’s attorney does not appear in the Chart. According to
the Chart, however, Fieber’s attorney billed $3,676.90 on October 12, 2016,
and $865.60 on November 10, 2016, totaling $4,542.50. The Chart also
indicated a payment applied from the personal representative’s law firm’s
trust account on November 15, 2016 in the amount of $509.62, leaving an
amount due of $4,032.88. The Chart further showed two payments received
on January 31, 2017; the total amount of those two payments is $4,032.88.
The $4,032.88 payment did not appear as part of the Rule 33 Statement
because it related to fees incurred prior to November 3, 2016, and was, thus,
approved as part of the March 2017 settlement agreement.

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CONCLUSION

¶19 The superior court’s order approving the final accounting is
affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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