J. A21040/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF ROBERT E. CLAYTON, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
:
APPEAL OF: MARK ANDREW CLAYTON, :
INDIVIDUALLY AND AS GUARDIAN OF :
ZOE ROSE CLAYTON :
: No. 36 EDA 2014
Appeal from the Order Entered November 26, 2013,
in the Court of Common Pleas of Montgomery County,
-X3719
BEFORE: BOWES, OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2014
Mark Andrew Clayton (Mark), individually and as guardian of Zoe Rose
Clayton (Zoe),1 appeals from the order entered on November 26, 2013,
which dismissed his objections to the accounting for the Estate of Robert E.
Clayton (the Estate), and confirmed the account. Upon review, we affirm.
Robert E. Clayton (the Decedent) was the husband of Rose Clayton
(Rose) and the natural parent of two adult children, Mark and Victoria
Clayton (Victoria). The Decedent died on July 22, 2011, and pursuant to his
will, Rose was appointed as executrix. The will provided that Zoe, Victoria,
and Mark would each receive a $50,000 bequest, and Rose would receive all
tangible personal property and the entire residuary estate.2 On August 13,
1
2
Because Zoe was a minor, her share was to be held in trust until she
reached the age of 30, and Victoria was appointed trustee.
* Retired Senior Judge assigned to the Superior Court.
J. A21040/14
2012, Rose submitted a notice of inheritance tax appraisement, and listed
cash assets of the Estate as $42,179.36. Mark filed an objection to this
inheritance tax appraisement, and requested that Rose file a petition for
adjudication of her proposed distribution pursuant to Pa.O.C. Rule 6.9.
On December 28, 2013, Rose filed the petition. The petition set forth
the aforementioned cash balance of $42,179.36, and subtracted
disbursements for funeral expenses, debts of the Decedent, fees, and
entire prin
fees, and then distribute the residuary in equal thirds to Victoria, Mark, and
Zoe.
On February 4, 2013, Mark filed objections to this proposed
distribution on behalf of both himself, and his daughter, Zoe. Specifically,
the [D]ecedent had owned which [he] believe[s] that the value exceeded the
4. Moreover, Mark
al
Id. at ¶ 7. Mark also asserted that
-2-
J. A21040/14
Id. at ¶ 13.
objections. Mar
cancelled checks, revealed that Victoria had written checks to herself from
that account totaling $102,325 between August 13, 2010 and July 15, 2011.
There were also three other checks written by Victoria to other payees in
N.T., 8/26/2013, at 12. However, she did testify that one check from that
account, written for $2,549.80, was for an architect to design an addition to
Rose also testified that Victoria persuaded her and the Decedent to
purchase long-term care insurance. When it came time for the Decedent to
utilize this insurance, Victoria did all of the paper work. Rose testified that
Id
her ac
pay the long- Id. at 33-34. Rose testified that the
Decedent lived in a long-term care facility for the two-and-a-half years
preceding his death, and Victoria handled all of the bills related to that care.
-3-
J. A21040/14
borrow [$35,000] from [her] Vanguard account initially to pay for [her]
Id. at 67. She testified specifically that the
Decedent wished to use the money from the Delaware account to pay for his
nursing home care. She testified repeatedly that she never borrowed money
from the Decedent and every check written to her was for reimbursement of
money she advanced the Decedent for his care.
Mark also testified. He testified that although he lived in Boston, he
drove to see the Decedent in the hospital or nursing home frequently; that
he loved his father very much; and, they had a wonderful relationship. He
further testified that the Decedent expressed concerns about how Victoria
was handling the money and indicated that Victoria was experiencing
financial difficulties.
Rose testified in rebuttal to Mark
would like the deed to your house so I can sell it and put your (sic) mother
in a nursing home. And my husband was so enraged that he said, you can
Id. at 107. Rose testified
Id. at 109.
that she has never experienced financial difficulties. Id. at 113. Victoria
-4-
J. A21040/14
Id. at
114.
Trueblood (Trueblood) testified. He testified that his normal billing rate was
$350 per hour. However, because he received this case through a referral
from another attorney, he and Rose agreed to a rate of $300 per hour.
Trueblood employs his wife, Mary Ellen, as his paralegal, and her time is
billed at $175 per hour. He also testified about the hours he spent on this
estate.
also
concluded that total counsel fees would be capped at $10,000. Mark timely
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
Mark timely complied; howe
pursuant to Pa.R.A.P. 1925(a).
bank account at PNC Bank because the [D]ecedent had insufficient funds to
-5-
J. A21040/14
3
In support of his position, Mark directs us
account at PNC Bank, and on the same day wrote a check to herself from
piece of evidence; thus, its findings are against the weight of the evidence.
Moreover, Mark points out that the only evidence offered by Rose and
elf- Id. at 15.
We set forth our well-settled standard of review.
Appellate review of weight of the evidence claims is
limited. It is well-settled that:
[a]ppellate review of a weight claim is a review of
the [trial court's] exercise of discretion, not of the
underlying question of whether the verdict is against
the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
3
We observe that in his Statement of Questions Involved, Mark presents six
brief (see id. at 11-16) combines the first five of these questions into two
Id. at 11, 12. This structure is in violation of Pa.R.A.P. 2119(a)
be argued; and shall have at the head of each part--in distinctive type or in
type distinctively displayed--the particular point treated therein, followed by
Accordingly, rather than addressing the questions as presented in the
Statement of Questions Involved, we address only those issues properly
briefed in the Argument section.
-6-
J. A21040/14
lower court's conviction that the verdict was or was
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
In re Estate of Smaling, 80 A.3d 485, 490-91 (Pa. Super. 2013) (en banc)
(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal
citations omitted).4
testimony.
Upon consideration of the evidence presented, we find that
[Mark] failed to meet his burden of proof by clear and convincing
evidence that improper pre-death transfers took place. He
conduct and exhibited naiveté about the enormous costs
incurred when one spends several years in a nursing facility.
Trial Court Order, 11/26/2013, at 5.
We see no abuse of discretion with respect to this conclusion,
-finder. The
and out of the D
credibility determinations made by the orphans' court, so long as they are
In re Estate of Fuller, 87 A.3d 330, 334 (Pa.
dings are against the
weight of the evidence must fail.
4
-filed 1925(b) statement.
However, we rely on the
presented in its six-page November 26, 2013 order.
-7-
J. A21040/14
-17. Mark offers the
me as should
Id. at 17.
the issues, the size of the gross estate (slightly more than $40,000) and the
efforts expended in litigation, we find it necessary to cap the total counsel
Id.
In determining the reasonableness of counsel fee in an estate an
appellate court will not disturb the decision of the Orphans' Court in the
Dorsett v. Hughes, 509
A.2d 369, 371 (Pa. Super. 1986).
With respect to reasonableness of counsel fee in an estate:
The facts and factors to be taken into consideration
in determining the fee or compensation payable to
an attorney include: the amount of work performed;
the character of the services rendered; the difficulty
of the problems involved; the importance of the
litigation; the amount of money or value of the
property in question; the degree of responsibility
by the attorney; the professional skill and standing
of the attorney in his profession; the results he was
able to obtain; the ability of the client to pay a
reasonable fee for the services rendered; and, very
-8-
J. A21040/14
importantly, the amount of money or the value of
the property in question.
Dorsett, supra (quoting Trust Estate of LaRocca, 246 A.2d 337, 339 (Pa.
Super. 1986)).
Instantly, Trueblood reduced his regular fee to accommodate this
considerations, including the size of the estate and the litigation involved, in
determining that a cap of $10,000 was reasonable. Mark offers no case law
or specific argument to rebut this conclusion; thus we find no abuse of
Having concluded that neither issue raised by Mark on appeal entitles
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
-9-