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In re Conservatorship for Mallet

Court of Appeals of Arizona, First Division, Department A

August 22, 2013

In the Matter of the Conservatorship for: HELGA MALLET, An Adult.
v.
HELGA MALLET, Appellee. THE SUN VALLEY GROUP, INC.; WARNER ANGLE HALLAM JACKSON & FORMANEK, PLC, Appellants,

Appeal from the Superior Court in Maricopa County Cause No. PB2008-000488 The Honorable Rosa Mroz, Judge

Warner Angle Hallam Jackson & Formanek PLC Phoenix By Jerome K. Elwell Phillip B. Visnansky J. Brent Welker Attorneys for Appellants

Helga Mallet Colorado In Propria Persona

OPINION

KENT E. CATTANI, JUDGE

¶1 Sun Valley Group, Inc. and its attorneys, Warner Angle Hallam Jackson & Formanek PLC ("Warner Angle"), appeal the probate court's order denying half of the fiduciary and attorney's fees sought for services provided on behalf of a conservatorship/guardianship. For reasons that follow, we vacate the probate court's ruling and remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Sun Valley served as conservator and guardian for Helga Mallet, succeeding Southwest Fiduciary Inc., which withdrew as Mallet's temporary conservator in September 2008. The conservatorship was created after Mallet spent approximately one million dollars in an investment scam. She also sold a valuable car to a swimming pool maintenance provider for less than one quarter of its market value, and she appeared to be unable to manage her own assets.

¶3 Warner Angle represented Sun Valley for much of the time that Sun Valley acted on Mallet's behalf. In February of 2011, Sun Valley resigned as conservator and guardian when it ceased doing business, and a successor fiduciary was appointed for Mallet. Sun Valley then filed a petition to approve a final accounting and for approval of fiduciary fees and costs in the amount of $96, 859.60, as well as attorney's fees and costs in the amount of $28, 501.64.

¶4 The court found that Sun Valley's fiduciary services were "for the most part, " "reasonable, necessary, and in the best interests of Mallet." The court found that Warner Angle's legal services were "reasonable, necessary, and in the best interests of Mallet." The court nevertheless only awarded Sun Valley and Warner Angle 50 percent of the fees charged, noting that at the end of Sun Valley's final accounting period, Mallet's net worth was $811, 036, but that the majority of Mallet's net worth was in real estate and was not liquid. The court found that "Mallet cannot afford the various fiduciary and attorney's fees, " so it was not in "her best interests to approve the total fees requested . . . even though they were rightfully earned."[1]

¶5 Sun Valley and Warner Angle timely appealed the partial denial of their claim for fees and costs. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).[2]

DISCUSSION

¶6 Sun Valley and Warner Angle argue that the probate court erred by awarding only half of the fees and costs sought despite the court's finding that the fees were reasonable, necessary, and in Mallet's best interests. Sun Valley and Warner Angle also argue that the court erred by holding that Mallet could not afford to pay the fees and costs requested without having first conducted an evidentiary hearing on the matter.

¶7 We review the superior court's award of attorney's fees under an abuse of discretion standard. Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, 265, 18, 99 P.3d 1030, 1035 (App. 2004). We conduct a de novo review of issues of law, such as a superior court's legal authority to use a specific method for determining attorney's fees. See Burke v. Ariz. State Ret. Sys., 206 Ariz. 269, 272, 6, 77 P.3d 444, 447 (App. 2003).

¶8 Under A.R.S. § 14-5414(A) and (C), a conservator and attorneys retained by a conservator are entitled to reasonable compensation from the protected person's estate. Similarly, A.R.S. § 14-11004 provides that a trustee is entitled to ...


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