In the Matter of the Estate of Loren S. Bockwoldt, Dale Richard Willows, Conservator for Brandie Renee Bockwoldt, Minor Child of the Decedent v. The Estate of Loren S. Bockwoldt

IN THE SUPREME COURT OF IOWA
No. 09–1914

Filed April 13, 2012

IN THE MATTER OF THE ESTATE OF
LOREN S. BOCKWOLDT, Deceased.

DALE RICHARD WILLOWS, Conservator
for Brandie Renee Bockwoldt, Minor Child
of the Decedent,

Appellant,

vs.

THE ESTATE OF LOREN S. BOCKWOLDT,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Muscatine County,

James E. Kelley, Judge.

The conservator of a minor beneficiary of the estate of Loren S.

Bockwoldt appeals the award of extraordinary fees and expenses to the
attorney for the estate. DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN

PART, AND CASE REMANDED.

Timothy L. Baumann, William B. Norton, and Christopher L. Surls

of Norton, Baumann & Surls, PLLC, Lowden, for appellant.

Daniel P. Kresowik of Stanley, Lande & Hunter, P.C., Davenport,

for appellee.
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ZAGER, Justice.

This case comes before us on further review from the court of

appeals. As part of an order approving the final report of the executor of

the estate of Loren S. Bockwoldt, the district court approved

extraordinary attorney fees of $15,845.50 for Pete Wessels and

$17,957.91 in attorney fees for the law firm of Stanley, Lande and

Hunter (SLH), attorneys for the estate. The district court also approved

expenses of $631.79. The district court found that these attorney fees

and expenses were for necessary and extraordinary services to the estate

pursuant to Iowa Code section 633.199 (2005). Dale Richard Willows,

the conservator for the beneficiary of Loren’s estate, objected to the

application. After a hearing and ruling by the district court, Willows

appealed. The court of appeals reversed the district court’s ruling,

holding “attorney fees may not be awarded for litigating an application

for attorney fees under chapter 633.” We granted further review. Upon

our further review, we now vacate the decision of the court of appeals

and affirm the order of the district court in part and reverse in part. We

hold extraordinary attorney fees may be awarded for defending a fee

application in district court and on appeal. However, the case must be

remanded for a hearing to determine the amount of fees to be awarded to

SLH.

I. Factual Background and Prior Proceedings.

The present case requires us to resolve a dispute over a request for

fees for extraordinary services in connection with the estate of Loren S.

Bockwoldt. The extraordinary services at issue in this appeal were

provided to the estate by Wessels and SLH between February 1, 2007,

and June 8, 2009. This application was filed along with the final report

and will be referred to as the 2009 application. The extraordinary
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services contained in the 2009 application were primarily for the defense

of an application for fees for extraordinary services that Wessels provided

to the estate between March 23, 2005, and January 31, 2007. This first

application will be referred to as the 2007 application. Wessels and Eric

Knoernschild of SLH defended the 2007 application before the district

court, which granted the 2007 application. After Willows appealed,

Wessels and SLH then defended the 2007 application on appeal. After

remand by the court of appeals, Wessels filed a modified version of the

2007 application. After the district court’s decision on remand from the

court of appeals, Willows again appealed the award of extraordinary

attorney fees. Wessels and SLH again defended the modified 2007

application before the court of appeals. These are the extraordinary

services for which Wessels and SLH now seek compensation in the 2009

application.

A. The Background of the 2007 Application. Loren and Tammy

Bockwoldt, husband and wife, died in an automobile accident in Arizona

on March 12, 2005. Loren had two children: an adult son, Brock, and a

minor child, Brandie. Brandie was Tammy’s only child. Brandie was a

beneficiary of Loren and Tammy’s estates, while Brock was only a

beneficiary of Loren’s estate. Tammy’s brother, Willows, was appointed

Brandie’s conservator. Neal Bockwoldt, Loren’s brother, was appointed

as coexecutor of both Loren and Tammy’s estates, along with Willows

and Brock. Wessels was designated as the attorney for both estates, but

later withdrew from representation of Tammy’s estate due to a conflict of

interest.

On February 16, 2007, the district court issued a ruling on several

motions relating to Loren and Tammy’s estates, including the 2007

application. The court awarded Wessels $67,045 in attorney fees from
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Loren’s estate and $5888.50 in attorney fees from Tammy’s estate. On

Wessels’ motion, the court also removed Brock and Willows as

coexecutors of both estates, citing conflicts of interest. 1 The court

appointed Central State Bank as the executor of Loren’s estate and First

National Bank of Muscatine as the executor of Tammy’s estate. There

were significant assets in Brandie’s conservatorship, so the court

required Willows to post a bond prior to removing any money from the

conservatorship. A wrongful death action was pending in Arizona at the

time, so the district court refused to close the estates. However, since

the ultimate outcome of the litigation was unclear, the district court

ordered that “for the time being” half of the recovery should be placed in

Tammy’s estate and half should be placed in Loren’s estate, noting that

the order might be amended in the future. Willows appealed each of

these rulings, including the award of fees requested in the 2007

application. The estates responded to the appeals.

On appeal, the court of appeals affirmed the district court’s holding

on all issues except the fee award. The court of appeals determined that

the district court awarded fees without properly following code sections

633.197–.199. The court of appeals noted that as part of the 2007

application, Wessels had supplied a detailed, fifty-page statement

itemizing exactly what services he had provided for the estate, as well as

identifying seven “extraordinary issues” that had arisen during the

management of the estate. These extraordinary issues included litigation

as to Brandie’s guardianship, ownership of farmland interests and farm-

related business interests, income tax issues, obtaining information on

fifteen different insurance policies between the two estates, and the

1Neal Bockwoldt subsequently withdrew as a coexecutor of both estates.
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division of assets between the two estates. 2 However, at the hearing, the

district court did not require Wessels to go forward to prove his fees, nor

did the district court make specific findings as to which of these services

were ordinary and which were extraordinary. As a result, the court of

appeals remanded the 2007 application to the “district court for a

hearing requiring the applicant to meet his burden and for specific

findings regarding the reasonableness of ordinary fees and extraordinary

fees granted.”

On January 30, 2008, in response to the court of appeals ruling,

Wessels filed another application for ordinary and extraordinary fees (the

modified 2007 application). Like the initial 2007 application, the

modified 2007 application sought fees for services provided from March

23, 2005, to February 1, 2007. It included the list of seven matters that

were extraordinary and an itemized list of services provided. 3 Willows

again objected. A hearing on the modified 2007 application commenced

on February 25, 2008. Counsel for Wessels argued it would be “very

difficult” to break out the “real estate, litigation, and taxation issues”

involved in Loren’s estate. The district court agreed and refused to

require Wessels to break out or itemize his bill. However, the hearing
was continued to allow Wessels “an opportunity to amend his proofs”.

According to the itemized billing statement Wessels offered in

support of the modified 2007 application, he had performed services for

2In later pleadings it is acknowledged that this case involves the conservatorship
of Brandie.
3The remanded 2007 application initially sought fees for defending the district
court’s original ruling, and reimbursement for litigation expenses in the form of fees
Wessels paid to SLH in connection with defending that ruling. However, prior to a
hearing on the fee request, Wessels withdrew these portions of the remanded
application leaving the fees earned from March 23, 2005, to February 1, 2007 as the
sole subject of the application filed on January 30, 2008.
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Loren’s estate which totaled $76,375.50 in fees. This number was based

on the number of hours Wessels worked on the estate multiplied by his

hourly rate and included the hourly rate of Wessels’ legal assistant. The

modified 2007 application noted that, under section 633.197, the

statutory cap on ordinary fees for Loren’s estate was $20,432.89. The

modified 2007 application requested the court award extraordinary fees

of $55,942.61, the difference between the amount Wessels billed to the

estate and the maximum amount allowed as ordinary fees under section

633.197.

At the resumed hearing on April 24, 2008, Willows admitted

Wessels actually performed all the services listed in the itemized bill.

Willows conceded Wessels was entitled to $20,432.89 in ordinary fees,

$640.50 in necessary and extraordinary expenses, and $18,413 in fees

for necessary and extraordinary services. Willows, however, disagreed

that the remaining $37,529.61 in fees were for actual, necessary, and

extraordinary services to Loren’s estate. The district court disagreed with

Willows, stating,

It seems to this Court Willows has a larger obligation after
Wessels specifically and extensively explained the unusual
issues with which he had to come to grips . . . than to allege
only in general terms without reference to specific services,
some of the services Wessels provided were only “ordinary.”
He did not do so.

The district court then awarded Wessels all $76,375.50 in fees for

ordinary and extraordinary services, and Willows appealed.

In its April 8, 2009 ruling, the court of appeals modified the district

court’s award. The court of appeals found the district court had once

again improperly shifted the burden of proof under section 633.199 to

Willows instead of placing it on the party requesting the fees. The court

of appeals “disagree[d] with the district court that Wessels ‘specifically
 7

and extensively explained the unusual issues with which he had to come

to grips.’ ” The court also took issue with how the amount of

extraordinary fees was calculated, stating,

Wessels’s interpretation of the relevant code sections was
that so long as he provided some extraordinary services, all
his fees above the section 633.197 cap became
presumptively compensable under section 633.199. This is
not how the code sections operate.

Section 633.198 authorizes payment of reasonable
attorney fees “as full compensation for all ordinary services.”
The fee schedule provided in section 633.197 provides the
maximum any attorney can collect on fees for ordinary
services, regardless of the amount of time spent to perform
such services. However, if an attorney performs “actual
necessary and extraordinary” services, compensation will be
provided under section 633.199. Section 633.199 does not
automatically allow payment of any fees requested by the
attorney that exceed the cap set by section 633.197. Rather,
section 633.199 provides for the payment of extraordinary
fees, fees for non-ordinary services including but not limited
to “services in connection with real estate, tax matters, and
litigated matters.”

The court of appeals concluded that the district court did not make a

finding that the services provided were “extraordinary” and that the

district court did not “have an adequate basis to determine whether

Wessels’ claimed extraordinary fees were ‘just and reasonable.’ ” The
court of appeals modified the ruling, awarding $20,432.89 in ordinary

fees, $640.50 for expenses that Willows conceded were necessary and

extraordinary, and $18,413 in fees for services that Willows had

conceded were extraordinary. An application for further review was

denied by this court on June 5, 2009.

B. The 2009 Application: Wessels and SLH’s Extraordinary

Fees for Defending the 2007 Application on Appeal and Remand. On

August 24, 2009, Central State Bank filed its final report, which included

an application for extraordinary fees (the 2009 application). While the
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2007 application was for services provided from March 23, 2005, to

February 1, 2007, the 2009 application was for services provided from

February 1, 2007, to June 8, 2009. The 2009 application included an

itemized list of services Wessels provided to the estate, and indicated,

line by line, which services Wessels asserted were extraordinary, as

opposed to ordinary services, and only requested compensation for

extraordinary services. It also included a “Statement of Extraordinary

Fees” which detailed the necessity of the extraordinary services, the

responsibilities assumed, and the importance of the services to the

estate. Wessels’ fees for the extraordinary services contained in the 2009

application totaled $15,845.50. The 2009 application also listed several

“Outside Professional Fees” for SLH, totaling $17,952.91. The 2009

application described these fees as “extraordinary fees in regard solely to

representation relative to litigation and appeal matters.”

Willows resisted the 2009 application. He noted “nearly all” the

services listed in the 2009 application were connected with the defense of

the 2007 application, both on appeal and on remand. He also claimed

SLH functioned as Wessels’ personal attorney, and not the attorney for

the estate, and that the request for fees for extraordinary services

provided by SLH was not supported by adequate documentation.

After a hearing, the district court found that the itemizations

accompanying the 2009 application “show reasonable, ordinary, and

required services that were not ordinary services, and were required by

the appeal filed by [Willows]. Those extraordinary fees total $15,845.50.”

The district court also found “the extraordinary fees of Pete Wessels of

$15,845.50 and the attorney’s fees for [SLH] of $17,957.91 are

reasonable, appropriate and required to protect the executors of the

estate and the estate . . . .” The court rejected Willows’ argument that an
 9

executor and the executor’s attorneys cannot receive extraordinary fees

for defending an appeal. Willows appealed, and we transferred the case

to the court of appeals, which found that “attorney fees may not be

awarded for litigating an application for attorney fees under chapter

633.” Accordingly, the court of appeals reversed the award “in its

entirety.” The estate applied for further review, which we granted.

II. Standard of Review.

This dispute requires us to review the district court’s decision to

award Wessels and SLH extraordinary fees in connection with Loren’s

estate. Contests involving the costs of administration are tried in equity.

In re Cory’s Estate, 184 N.W.2d 693, 696–98 (Iowa 1971) (noting that the

decision in Cory’s Estate “nullifies many of our cases decided before

adoption of the probate code holding probate cases were law actions and

the decision of the judge in such action had the force and effect of a

verdict on appeal”). “Attorney fees are included in the definition of costs

of administration.” Id. at 696 (citing Iowa Code § 633.3(8)). Therefore, a

proceeding to determine the award of attorney fees is tried in equity, and

our review is de novo. In re Estate of Wulf, 526 N.W.2d 154, 156 (Iowa

1994) (“It follows that hearings dealing with the costs of administration

are equitable in nature and our review is therefore de novo.”); Bass v.

Bass, 196 N.W.2d 433, 435 (Iowa 1972) (“[A] hearing on the allowance of

attorneys’ fees stands in equity, being thus reviewable de novo.”).

Though our review on an action for the allowance of attorney’s fees

is de novo, we review a district court’s decision that services were

extraordinary under section 633.199 for abuse of discretion. See In re

Estate of Brady, 308 N.W.2d 68, 74–75 (Iowa 1981) (“We do not believe

the trial court abused its discretion in finding Mr. Heiserman’s litigation

services were compensable as extraordinary services under this
 10

standard.”); see also Wulf, 526 N.W.2d at 156 (reviewing a district court’s

application of section 633.199 and noting that “[w]e accord the trial court

considerable discretion in taxing executor attorney fees to estates”). “An

abuse of discretion occurs when the district court exercises its discretion

on grounds or for reasons that are clearly untenable, or to an extent

clearly unreasonable.” Quad City Bank & Trust v. Jim Kircher & Assocs.,

P.C., 804 N.W.2d 83, 92 (Iowa 2011); see also State v. Nelson, 791

N.W.2d 414, 419 (Iowa 2010). “ ‘A ground or reason is untenable when it

is not supported by substantial evidence or when it is based on an

erroneous application of the law.’ ” Quad City Bank & Trust, 804 N.W.2d

at 92 (citation omitted).

However, we review de novo a district court’s determinations

regarding the sufficiency of the filing that supports the fees that are

requested for those services. In re Estate of Mabie, 401 N.W.2d 29, 32

(Iowa 1987) (finding, on de novo review, that an attorney had failed to

meet “his burden of proving the necessity for the services for which he

seeks extraordinary fees by the filing of a mere itemization of all services

performed for the estate”). Accordingly, we will review the district court’s

determination that the services Wessels and SLH seek compensation for

in the 2009 application were in fact necessary and extraordinary services

to the estate for an abuse of discretion. See Brady, 308 N.W.2d at 74–

75. We will review de novo the district court’s determination that

Wessels and SLH provided sufficient documentation in the 2009

application to justify the award of fees for those extraordinary services.

Mabie, 401 N.W.2d at 32.

III. Discussion.

The 2009 application requested $15,845.50 in fees for

extraordinary services and expenses for Wessels, reimbursement for
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actual and necessary extraordinary expenses consisting of $17,952.91 in

legal fees for SLH, as well as $631.79 in expenses, all pursuant to section

633.199. All of the fees requested in the 2009 application were for

extraordinary services. Willows resisted, claiming that the only service

provided was defending the prior applications for fees in the prior

appeals and that section 633.199 does not allow an attorney to receive

fees or reimbursement for defending a fee award. Alternatively, Willows

claims that even if section 633.199 allows fees for defending fee awards,

Wessels failed to adequately prove he was entitled to fees and expenses.

Willows also claims the district court erred in awarding fees beyond the

amount allowed in the court of appeals’ April 8, 2009 ruling. Finally,

Willows claims that SLH was Wessels’ personal attorney, not the attorney

for the estate, and therefore, it is not entitled to payment from the estate.

Alternatively, if SLH was the estate’s attorney, Willows argues the firm

failed to comply with Iowa Rule of Probate Procedure 7.2 and should

therefore not be compensated. 4 We will address each of these arguments

in turn.

4At this point, we note that the court of appeals decision and the parties’ further

review materials make reference to section 633.315 and the “good faith and just cause”
requirement contained therein. That section relates to will contests and has no bearing
on the present dispute. We note that portions of In re Estate of Wulf, 526 N.W.2d 154
(Iowa 1994) and In re Estate of Brady, 308 N.W.2d 68 (Iowa 1981) refer to sections
633.315 and 633.199. See Wulf, 526 N.W.2d at 156; Brady, 308 N.W.2d at 71. In
Wulf, we were reviewing a district court’s decision to award attorney fees to an executor
for participating in a will contest. 526 N.W.2d at 156. Likewise, one of the issues in
Brady was whether attorney fees could be awarded under section 633.199 for
participating in a will contest under section 633.315. 308 N.W.2d at 71–72. In both of
those cases, we discussed whether the executor acted with “good faith and just cause.”
Wulf, 526 N.W.2d at 156; Brady, 308 N.W.2d at 71–72. This discussion was necessary
because section 633.315 only allows for attorney fees if the executor “defends or
prosecutes any proceedings in good faith and with just cause.” Section 633.199
requires fees be “just and reasonable” but does not contain a good faith and just cause
requirement, and we reject any implication to the contrary in our past cases.
 12

A. The Scope of Section 633.199. This case requires us to

interpret section 633.199 to determine under what circumstances, if any,

the legislature intended defending an application for fees to be a

necessary and extraordinary service to an estate. If the language of the

statute is plain and unambiguous, we need not look to principles of

statutory construction. Estate of Ryan v. Heritage Trails Assocs., Inc.,

745 N.W.2d 724, 730 (Iowa 2008). “If reasonable persons can disagree

on a statute’s meaning, it is ambiguous.” Id. (citation and internal

quotation marks omitted). Section 633.199 reads:

Such further allowances as are just and reasonable
may be made by the court to personal representatives and
their attorneys for actual necessary and extraordinary
expenses or services. Necessary and extraordinary services
shall be construed to also include services in connection
with real estate, tax matters, and litigated matters.

Litigated matters may include defending fee awards, and defending fee

awards may be a “necessary and extraordinary service” to an estate.

However, the statute does not make clear in the plain language exactly

what services are encompassed in “litigated matters.” It is possible

litigated matters was meant to refer only to lawsuits where the estate is a

party and not situations where the estate’s attorney’s fee is at issue. It is

also not apparent from the plain language whether defending a fee that

will ultimately go the estate’s own attorney is a “necessary and

extraordinary service” to the estate. Because reasonable persons could

disagree, the plain language of the statute is ambiguous, and we must

turn to the principles of statutory construction. See Ryan, 745 N.W.2d

at 730.

We have stated our principles of statutory construction as follows:

The purpose of statutory interpretation is to determine the
legislature’s intent. We give words their ordinary and
common meaning by considering the context within which
 13
they are used, absent a statutory definition or an established
meaning in the law. We also consider the legislative history
of a statute, including prior enactments, when ascertaining
legislative intent. When we interpret a statute, we assess the
statute in its entirety, not just isolated words or phrases.
We may not extend, enlarge, or otherwise change the
meaning of a statute under the guise of construction.

Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853, 858 (Iowa 2010)

(citations omitted).

Attorney fees for representing an estate are governed by statute,

and “statutory authority is necessary for any fee award.” Brady, 308

N.W.2d at 74. Section 633.198 allows an attorney for the personal

representative to receive fees “not in excess of the schedule of fees herein

provided for personal representatives.” Iowa Code § 633.198. Personal

representatives are allowed reasonable fees for “ordinary” services

rendered to the estate, and the maximum allowable fees for ordinary

services depends on the size of the estate. Id. § 633.197. If personal

representatives, or their attorneys, provide “actual necessary and

extraordinary expenses or services” to the estate, the attorney or

personal representative can receive compensation beyond the amount

allowed for in the fixed schedule listed in section 633.197. Id. § 633.199.

Under section 633.199, “necessary and extraordinary services shall be

construed to also include services in connection with real estate, tax

matters, and litigated matters.” Id. 5

5In 2007, the legislature expanded the scope of necessary and extraordinary
services covered by section 633.199. The relevant portion of the statute now reads as
follows:
Necessary and extraordinary services shall be construed to include but
not be limited to services in connection with real estate, tax issues,
disputed matters, nonprobate assets, reopening the estate, location of
unknown and lost heirs and beneficiaries, and management and
disposition of unusual assets.
2007 Iowa Acts ch. 134, § 10. However, the new language applies only to the estates of
decedents dying on or after July 1, 2007, and would therefore not apply to this case.
See id. § 28(2).
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We note that the legislature chose the word “include” as opposed to

the word “means” when drafting the section at issue. See id. (stating

extraordinary services “includes real estate, tax matters, and litigated

matters” as opposed to stating extraordinary services “means real estate,

tax matters, and litigated matters”). A statute that “declares what it

‘includes’ is more susceptible to extension of meaning by construction

than where the definition declares what a term ‘means.’ ” 2A Norman J.

Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47:7,

at 305 (7th ed. 2007) [hereinafter Singer]. This statute also contains a

general term (“necessary and extraordinary services”) followed by specific

terms that are examples of the general term (“real estate, tax matters,

and litigated matters”). See Iowa Code § 633.199. Listing a general term

and then supplying specific examples is a “common drafting technique

designed to save the legislature from spelling out in advance every

contingency in which the statute could apply.” 2A Singer, § 47:17, at

370–73. Defining a term in this way “recognizes and gives effect to both

the specific and general words by using the class indicated by the

specific words to extend the scope of the statute with the general words

to include additional terms or objects within the class.” Teamsters Local

Union No. 421 v. City of Dubuque, 706 N.W.2d 709, 715 (Iowa 2005).

Just as the legislature has not defined the precise contours of what

services are necessary and extraordinary under section 633.199, our

cases have also refrained from making a “pronouncement of a precise

test for the governance of this issue.” Wulf, 526 N.W.2d at 156. Instead,

we have mirrored the legislature’s approach and have “defined

extraordinary services as ‘those which “in character and amount [are]

beyond those usually required.” ’ ” Mabie, 401 N.W.2d at 31 (quoting

Brady, 308 N.W.2d at 74) (alternation in original). The determination of
 15

whether a service is beyond those usually required is a factual

determination and is left to the district court’s broad discretion. See

Wulf, 526 N.W.2d at 156–57; Brady, 308 N.W.2d at 74–75; Bass, 196

N.W.2d at 435; Glynn v. Cascade State Bank of Cascade, 227 Iowa 932,

939, 289 N.W. 722, 725 (1940).

We see nothing in section 633.199 that indicates the legislature

intended to exclude defending an application for attorney fees from the

definition of necessary and extraordinary services. The actions that are

“necessary” will, of course, vary from case to case. “Extraordinary

services” is also a broad term with a variety of meanings that change

with context. 6 In order to give effect to both the general and specific

words used by the legislature, we will not treat the examples of necessary

and extraordinary services provided in section 633.199 as exhaustive.

See Teamsters Local Union No. 421, 706 N.W.2d at 715. It is possible

that administrative tasks could be considered extraordinary services.

For example, we have found that a district court did not abuse its

discretion when it determined that defending a final report was an

extraordinary service which entitled the attorney to fees. Brady, 308

N.W.2d at 74–75. In that same case, we also held that defending a final
report on appeal was an extraordinary service to the estate. See id. at

75. By citing these examples, we are not stating that defending a final

report in front of the district court or on appeal is always an

6According to the terms of the statute, necessary and extraordinary services
“shall be construed to include services in connection with real estate, tax matters, and
litigated matters.” Iowa Code § 633.199. Responding to a beneficiary’s appeal from a
district court ruling could be considered a “litigated matter.” However, because the
statute does not limit necessary and extraordinary services to the tasks listed in section
633.199, it is not necessary to determine whether defending a ruling that, among other
things, awards attorney fees, is a litigated matter. Our task is to determine whether
Wessels’ actions constitute necessary and extraordinary services, not whether they are
“a litigated matter.”
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extraordinary service. To the contrary, we have held that it is not

possible to define a precise test of what services are extraordinary as

opposed to ordinary. See Wulf, 526 N.W.2d at 156. We reaffirm that

principle today.

As part of his argument, Willows claims that allowing fees for

defending a fee application is a minority viewpoint that has been properly

rejected by a majority of jurisdictions. He cites several cases in support

of this proposition. See In re Painter’s Estate, 628 P.2d 124, 126 (Colo.

App. 1980); In re Andrews’ Appeal, 826 A.2d 1267, 1272–74 (Conn. App.

Ct. 2003); In re Estate of Halas, 512 N.E.2d 1276, 1286 (Ill. App. Ct.

1987); Inlow v. Estate of Inlow, 735 N.E.2d 240, 253–54 (Ind. Ct. App.

2000); In re Sloan Estate, 538 N.W.2d 47, 49–50 (Mich. Ct. App. 1995); In

re Estate of Larson, 694 P.2d 1051, 1059–60 (Wash. 1985), abrogated by

statute Wash. Rev. Code Ann. § 11.96A.150(1) (West, Westlaw through

March 26, 2012), abrogation recognized in In re Estate of McCuen, 137

Wash. App. 1017, 2007 WL 512541, at *4 (Feb. 20, 2007). Wessels

points to In re Estate of Trynin, 782 P.2d 232 (Cal. 1989), to support his

claim that section 633.199 allows a district court to award fees for

defending a fee claim. 782 P.2d at 239.

While the cases cited by Willows address the issue of fees for

defending fees, only one of the cases cited by the parties addresses the

precise issue presented to this court today. The California statute at

issue in Trynin, like section 633.199, divides fees into those awarded for

ordinary services and those awarded for extraordinary services. Id. at

232–33. As the Indiana Court of Appeals noted in Inlow, the ordinary–

extraordinary dichotomy found in the California statute was not present

in the Indiana statute that led to the categorical ban on so-called “fees

for defending fees.” 735 N.E.2d at 252–53 & n.9. The court noted that
 17

the statutes at issue in Inlow, Larson, Sloan, and Halas did not have

“extraordinary services” provisions and distinguished Trynin on that

basis. See id. at 251–53 & n.9. The statutes at issue in Painter and

Andrews also did not contain the ordinary–extraordinary dichotomy

found in the Iowa and California statutes. See Painter, 628 P.2d at 124–

26 (discussing Colo. Rev. Stat. Ann. § 15-12-721 (2009), repealed by

2011 Colo. Sess. Laws ch. 101, § 27); Andrews’ Appeal, 826 A.2d at

1272–74. Because the statute at issue in Trynin is most similar to

Iowa’s, we feel Trynin’s reasoning is the most helpful in deciding the case

before us.

When asked to determine whether California’s statute might permit

an attorney to receive fees for defending a fee request, the court stated,

We conclude . . . that extraordinary services
compensable under [the statute] include work reasonably
performed by the attorney to establish and defend the fee
claim. This does not mean, however, that an additional
award of fees for fee-related services is invariably required.
Where the trial court reasonably concludes that the amounts
previously awarded the attorney for both ordinary and
extraordinary services are adequate, given the value of the
estate and the nature of its assets, to fully compensate the
attorney for all services, including fee-related services, denial
of a request for fee-related fees would not be an abuse of
discretion.

Trynin, 782 P.2d at 239. This conclusion mirrors our own. Under the

statutory scheme enacted by the legislature, the district court is to

determine whether a service is necessary and extraordinary, and the

appellate courts must review that decision for an abuse of discretion.

Therefore, like the Trynin court, we decline to create a categorical rule

stating that the defense of an application for fees is never an

extraordinary service under section 633.199, and instead leave that
 18

decision to the sound discretion of the district court, to be made based

on the individual facts of each case.

B. The Services Provided by Wessels in the 2009 Application.

Having determined that a court may award fees for defending an

application for fees, we must determine whether Wessels has shown he is

entitled to such fees in this case. Prior to awarding fees for extraordinary

services, the district court must make a determination that the services

rendered were both necessary and extraordinary. We review these

determinations for abuse of discretion. See Brady, 308 N.W.2d at 74–75.

Wessels filed the 2007 application on behalf of the estate, seeking,

among other things, fees for necessary and extraordinary services

provided between March 23, 2005, and February 1, 2007. 7 Willows

objected. Wessels defended the application, as he was obliged to do, and

it was granted in its entirety. Willows then appealed. On appeal,

Wessels successfully defended the application on a majority of the issues

presented, but the case was remanded to properly determine which of

Wessels’ services were ordinary and which were extraordinary. Wessels

filed a revised fee application, which was contested, granted by the

district court, appealed, and subsequently modified by the court of
appeals. At the conclusion of the litigation and appeals arising out of the

2007 application, Wessels filed the 2009 application, which sought fees

for necessary and extraordinary services in connection with defending

the 2007 application. The district court found the services Wessels listed

in the 2009 application were “reasonable, ordinary, and required services

7Willows claims the court of appeals decision on the remanded 2007 application
bars Wessels from receiving any of the fees requested in the 2009 application. The
2009 application requests fees for services provided on or after February 1, 2007.
Wessels has not received fees for services provided on or after February 1, 2007.
Willows’ claim on this issue is therefore without merit.
 19

that were not ordinary services, and were required by the appeal filed by

the objector. . . . These fees were incurred and made necessary by the

appeals filed by the objector.” 8

Willows claims defending the 2007 application on appeal and

handling the remand and the appeal of the remand were not “necessary

for the protection of the estate,” and were therefore not necessary under

section 633.199. The language used by Willows comes from In re

Carmody’s Estate, 163 Iowa 463, 465–66, 145 N.W. 16, 17 (1914), where

we stated, “To justify the allowance of anything in excess of the statutory

commissions, the executor or administrator must have actually rendered

services of an extraordinary character, and these must have been

necessary for the protection of the estate.” More recently, however, we

have considered those services that benefit the estate to be necessary, as

opposed to only those services which protect the estate. See Brady, 308

N.W.2d at 74 (noting section 633.199 “authorizes fees only for services

which protect or benefit the estate”). We also note that a service does not

have to directly benefit or protect an estate in order to be a “necessary”

service. Accord Trynin, 782 P.2d at 235 (“Services that do not directly

benefit the estate in the sense of increasing, protecting or preserving it

are nonetheless compensable if the estate’s attorneys or representatives

in performing the services were ‘acting in consonance with the fiduciary

duties imposed upon them.’ ” (citation omitted)).

Wessels contends that his services were necessary and benefitted

the estate. The district court agreed, finding Wessels’ fees were “required

8The district court’s conclusion is somewhat contradictory. In the quoted
sentence, the court calls the services ordinary, but then goes on to say that they are
“not ordinary services.” However, when this sentence is viewed in the context of the
district court’s ruling and the fact that it found Wessels was entitled to extraordinary
fees, it becomes clear that the district court believed Wessels performed extraordinary
services for the estate.
 20

to protect the executors of the estate and the estate.” The first appeal of

the 2007 application involved several issues other than Wessels fee

request. As part of that appeal, Wessels defended removing Willows as

an executor due to a conflict of interest. Removing an executor with a

conflict of interest protects an estate, and therefore, even under the

narrow definition found in Carmody, it was “necessary” for Wessels to

defend the 2007 application on appeal.

Following remand, the only issue left to determine was whether the

services Wessels provided were in fact extraordinary. However, this

limited purpose does not mean Wessels’ actions were no longer

“necessary.” Once Wessels defended the 2007 application on appeal, he

was required to file a revised application in order to comply with the

court of appeals instructions on remand. As a result, the district court

found the application that Wessels filed on remand was “made

necessary” by Willows’ appeals. The district court observed that if

presenting reasonable arguments to an appellate court when an

interested party objects to a fee request is not considered a necessary

service, then any objector could force the attorney to work for no pay.

This observation has merit. As the attorney for the estate, Wessels was

obligated to defend the estate’s filing from Willows’ appeal and to file the

required, revised application on remand. Because Wessels’ defense of

the application benefitted the estate and was made necessary by Willows’

appeals, we find the district court did not abuse its discretion when it

found Wessels’ services were necessary under section 633.199. This was

not an erroneous application of the law.

To be compensable under section 633.199, the services provided

by an attorney must not only be necessary, they must also be

extraordinary. The district court found Wessels’ actions in defense of the
 21

2007 application were extraordinary services. “We have defined

extraordinary services as ‘those which “in character and amount [are]

beyond those usually required.” ’ ” Mabie, 401 N.W.2d at 31 (citation

omitted) (alteration in original). Most estates do not involve a dispute

over fees for extraordinary services that requires numerous district court

hearings and two court of appeals opinions. Thus it was not “clearly

unreasonable” for the district court to determine Wessels provided

necessary and extraordinary services to the estate. See In re Estate of

Roethler, 801 N.W.2d 833, 837 (Iowa 2011) (holding a court abuses its

discretion when it exercises discretion on untenable or unreasonable

grounds). The district court also did not abuse its discretion when it

determined Wessels’ actions in defending the 2007 application were

beyond those usually required and were a necessary and extraordinary

service.

Having established that Wessels provided necessary and

extraordinary services to the estate when he defended the 2007

application, we now turn to the 2009 application to determine whether it

complies with the applicable probate rule. Iowa Rule of Probate

Procedure 7.2(3) governs the procedure for requesting fees for

extraordinary services. A request for payment for extraordinary services

can be made in the final report or by separate application. Iowa Ct. R.

7.2(3). The attorney seeking fees bears the burden of proving that the

fees should be paid. Id. The request for payment for extraordinary

services

shall include a written statement showing the necessity for
such expenses or services, the responsibilities assumed, and
the amount of extra time or expense involved. In appropriate
cases, the statement shall also explain the importance of the
matter to the estate and describe the results obtained.
 22

Id. The statement required by the rule “allows the court to make an

informed decision regarding the necessity and value of the attorney’s

claimed extra services to the estate.” Mabie, 401 N.W.2d at 32. We have

noted that “[i]t is not the role of this court or the district court to divine

those services that are extraordinary from an attorney’s itemization of

services. Rule [7.2(3)] clearly requires a written statement, to assist the

court and make a better record, in addition to the itemization.” Id. An

attorney is not entitled to extra compensation if he or she does not follow

rule 7.2(3). Id. We review de novo whether an attorney has complied

with rule 7.2. Id.

Wessels complied with rule 7.2(3) when he completed the

application at issue today. He filed a written statement indicating the

necessity of the services he provided and the responsibilities he

assumed. Wessels pointed out that Willows appealed the estate’s fee

application and various other matters and, that as the attorney for the

estate, Wessels was obligated to defend the filings he had made on the

estate’s behalf. Wessels’ itemized billing statement indicated the amount

of extra time involved, a description of the service provided, and

importantly, which itemized services he provided were ordinary and

which were extraordinary. He has not asked us to “divine those services

that are extraordinary from” the list of services he provided. Id. On our

de novo review, we determine Wessels has complied with rule 7.2(3) and

is therefore entitled to $15,845.50 in fees for extraordinary services.

C. The Services Provided by SLH. Willows raises two issues

regarding the fees that the district court awarded to SLH. First, he

claims SLH functioned as the attorney for Wessels personally and did not

represent the estate. Second, he claims that even if SLH represented the
 23

estate, the fee request does not comply with applicable law and should

therefore be denied.

Wessels claims that SLH represented the estate, as opposed to him

personally. The first court of appeals decision, issued December 28,

2007, which remanded the 2007 application to the district court, listed

Eric M. Knoernschild of SLH as the attorney for Pete Wessels. Upon

remand, the amended 2007 application initially requested fees for SLH.

These fees were for services provided from February 2, 2007, to February

16, 2007. The bill was addressed to Wessels but indicated it was for

work done on the Bockwoldts’ estates. However, this request was

withdrawn from the amended 2007 application on February 13, 2008.

The transcripts of the February 25 and April 24, 2008 hearings on the

amended 2007 application list Eric M. Knoernschild as the attorney for

Pete Wessels. On August 4, 2008, in response to Willows’ appeal from

the district court’s decision approving the amended 2007 application,

Wessels filed a motion requesting the district court appoint Eric M.

Knoernschild and Kenza B. Nelson of SLH as attorneys for the appeal.

The district court “conclude[d] it ha[d] no authority to decide the motion

presented.” Nelson signed the brief the estate filed in response to the

appeal of the ruling on remand. The court of appeals decision on the

remanded application listed attorneys Knoernschild and Nelson of SLH

as the attorneys for the estates and did not list an attorney for Wessels

personally.

Regarding the services SLH provided, the 2009 application asserts

that Wessels and SLH “have acted for the Estate in regard to contested

and litigation matters.” Wessels also claims, “The Estate’s executor hired

[SLH] as its attorney to assist in the hearing on Wessels’ application for

approval of extraordinary fees following remand from the first appeal to
 24

the Court of Appeals and in the second appeal to the Court of Appeals.”

Wessels further claims that “Wessels’ and [SLH’s] actions defending those

fee awards are a direct extension of the original beneficial services

provided by Wessels to the Estate.” In addition to handling the second

appeal, Wessels notes that SLH was hired after the first appeal because

“Wessels was deposed and called as a witness to address the services he

performed for the Estate. For this reason, the Estate hired [SLH] to

assist in litigation matters related to Wessels’ application.” By assisting

in the hearings on the amended 2007 application and handling the

appeal of the remanded 2007 application, Wessels claims SLH was

assisting the estate and not him personally. We agree.

We give a district court great deference when ruling on whether

services benefit an estate. Brady is instructive on this point. There, we

found the district court did not abuse its discretion when it refused to

award a second law firm fees for assisting with litigation because the

district court found “the employment was not reasonably necessary for

protection of the estate’s interests.” Brady, 308 N.W.2d at 74. It was,

however, appropriate to award the second firm fees for appellate work

done on the same case. Id. at 75. The district court refused to order fees

for defending a malfeasance action against the executor, finding those

services did not benefit the estate in any way. Id. at 74. The district

court similarly found that hiring an expert witness on attorney fees did

not benefit the estate and accordingly denied the application for fees. Id.

This finding was also not an abuse of discretion. Id. The district court

did find that litigation efforts defending the final report were

extraordinary services that entitled the attorney to compensation. Id.

We upheld this finding as being within the court’s discretion. Id. at 75.
 25

In this case the district court found “the attorney’s fees for [SLH] of

$17,957.91 are reasonable, appropriate and required to protect the

executors of the estate and the estate” and approved the fees requested.

SLH assisted with the preparation of the estate’s fee request and acted as

counsel when Wessels was called on to be a witness and when the ruling

was later appealed. These services may have benefited Wessels, but they

also benefited the estate by ensuring the fees awarded for extraordinary

services complied with the statute. Some of the documents in the file

indicate that SLH was the attorney for Wessels as opposed to the estate.

However, these inconsistencies are insufficient to lead us to conclude the

district court abused its discretion when it determined the services

provided by SLH benefited the estate and were therefore eligible for

compensation under section 633.199. The only services SLH claims it

provided to the estate were related to litigation and appellate services. It

was not an abuse of discretion to determine these services were the type

of services that are compensable under section 633.199.

Having determined that the district court did not abuse its

discretion in finding that SLH was acting as the estate’s attorney and

that the litigation and appellate services provided by SLH could

constitute necessary and extraordinary services, we now turn to Willows’

claim that SLH did not comply with applicable law when proving up its

fee request.

All of the fees requested for SLH in the 2009 application are

asserted to be for extraordinary services “in regard solely to

representation relative to litigation and appeal matters.” In support of

these fees, Wessels submitted a list of sixteen “Advances” in his itemized

bill. The advances were labeled as “Outside professional fee STANLEY

LANDE & HUNTER” and totaled $17,952.91. The statement of
 26

extraordinary fees stated the necessity and importance of SLH’s services

and claimed SLH spent a total of 101.7 hours working on the estate. In

the reply to Willows’ resistance to the 2009 application, Wessels attached

“a summary of services performed by [SLH] for the Estate.” He added, “If

the Court needs additional information to determine whether the services

provided by [SLH] were extraordinary, [SLH] is prepared to submit an

itemized billing statement.”

The summary describes SLH’s services as follows:

Ordinary services rendered in connection with this case:
reviewing, preparing, and drafting documents for hearings
on applications for approval of fees and other matters,
following remand from the Court of Appeals; representation
at hearings; attending deposition of Attorney Wessels; office
conferences with Attorney Wessels concerning the case;
reviewing appeal documents and briefs submitted by
Willows; drafting and filing Court of Appeals briefs; research
regarding the case; drafting correspondence to all parties
involved regarding status of the case.

The district court’s ruling found that the itemizations contained in

Wessels’ bill were for “services that were not ordinary services.” The only

finding the district court made that specifically referenced SLH’s services

was, “The Court therefore FINDS, that the extraordinary fees of Pete
Wessels of $15,845.50 and the attorney’s fees for [SLH] of $17,957.91 are

reasonable, appropriate and required to protect the executors of the

estate and the estate.”

While we give broad discretion to the district court’s

determinations of whether an attorney’s services were necessary,

extraordinary services to the estate, we review de novo whether an

attorney has met his burden and proven his fee under section 633.199

and rule 7.2. See Mabie, 401 N.W.2d at 32. In Mabie, we reviewed a

decision where an attorney had submitted an itemized application, but

failed to indicate which items were ordinary and which were
 27

extraordinary. See id. We stated, “It is not the role of this court or the

district court to divine those services that are extraordinary from an

attorney’s itemization of services. Rule [7.2(3)] clearly requires a written

statement, to assist the court and make a better record, in addition to

the itemization.” Id. We then reversed the district court, finding there

was an inadequate basis to support the award of extraordinary fees. Id.

This case presents a different problem. Wessels and SLH claimed

all of the services SLH provided the estate were extraordinary but failed

to present any itemization describing the time spent performing each of

those services in greater detail. Willows claims the statement Wessels

provided is inadequate. The statement of extraordinary fees explains the

necessity for the services, which we have already discussed. It also

explains the responsibilities SLH assumed, notably preparing appeals

and assisting Wessels with litigation surrounding the 2007 application

on remand. Finally, the application includes the amount of extra time

involved, which was 101.7 hours. However, unlike Wessels’ application,

the SLH application does not offer any sort of breakdown of how those

hours were spent.

Section 633.199 only allows “just and reasonable” fees to be

awarded for necessary and extraordinary services. The court of appeals

has summarized our case law regarding what constitutes a reasonable

fee as follows:

In endeavoring to ascertain a reasonable legal fee,
relevant factors include the time necessarily spent by the
attorney, the nature and extent of the service, the amount
involved, the difficulty of handling and the importance of the
issues, responsibility assumed, results obtained and the
experience of the attorney.

In re Estate of Bolton, 403 N.W.2d 40, 44 (Iowa Ct. App. 1987); see also

Boyle v. Alum-Line, Inc., 773 N.W.2d 829, 832–33 (Iowa 2009) (using the
 28

same factors to determine whether attorney fees were reasonable under

the Iowa Civil Rights Act and Title VII of the Civil Rights Act of 1964). 9

The applicant bears the burden of proving the fees should be awarded.

Iowa Ct. R. 7.2(3); see also In re Metcalf’s Estate, 227 Iowa 985, 994, 289

N.W. 739, 743 (1940).

In Metcalf, we addressed a similar situation where an attorney had

requested fees for extraordinary services, but only documented his time

in broad and approximate terms. See Metcalf, 227 Iowa at 988, 289 N.W.

at 740. The district court found the attorney provided extraordinary

services and that the reasonable value of the services was $3500. Id. at

988–89, 289 N.W. at 740–41. Accordingly, the court granted the fee

request. Id. at 989, 289 N.W. at 741. The beneficiaries objected, noting,

among other things, “that services were not itemized” and the fees were

unreasonable. Id. at 992, 289 N.W. at 742. We stated that “[i]t requires

but a glance at the statement of the attorney . . . to apprise one that the

same was too indefinite to furnish a proper legal basis for [a finding as to

the extent of value of the alleged extraordinary services].” Id. at 993, 289

N.W. at 743. The application for SLH’s fees poses a similar problem.

Willows resisted the application for fees for SLH, pointing out that

other than the general statement of the type of duties performed, there

was no “documentation or evidence showing the services performed by

[SLH] from which the Court can determine whether the advances are

reasonable or for the benefit of the estate.” Without an itemized

statement from SLH, Willows argues that “there is no way for the Court

9We note that the legislature added these factors to Iowa Code section 633.199
in 2007. 2007 Iowa Acts ch. 134, § 10. However, as noted earlier, the decedent in this
case passed away prior to July 1, 2007, before the 2007 amendment took effect.
 29

or interested parties to know whether the firm and Wessels double-billed

for the work.”

We agree. Without a more detailed breakdown, such as the one

Wessels provided to justify his own fees, it was impossible for the district

court to determine whether the fees provided by SLH were “reasonable.”

Specifically, it is impossible to determine whether SLH and Wessels

duplicated each other’s efforts. In his reply brief in support of the fee

application, Wessels offered to provide an itemized breakdown of SLH’s

services to the estate, should the court require it. The district court

should have insisted he do so. Without an itemized billing statement, it

is not possible for the district court to evaluate Willows’ claims that SLH

and Wessels may have duplicated their efforts and spent an excessive

amount of time defending the appeal.

Since the application submitted does not support an award of fees

for extraordinary services, it should not have been granted by the district

court. See Mabie, 401 N.W.2d at 32. When a district court awards

attorney fees without specifically addressing complaints raised by one of

the parties, and the basis for the court’s decision is not clearly evident

from the court’s ruling, we have found it appropriate to remand the case

to the district court to review the application and make specific findings.

Boyle, 773 N.W.2d at 833–34. Accordingly, the $17,957.91 in fees

awarded to SLH is set aside, and the case is remanded. The district

court is to request an itemized statement of the services provided by SLH

and make a determination as to the reasonableness of the fee request

after reviewing the exact services SLH provided to the estate.

IV. Disposition.

We affirm the district court’s finding that Wessels and SLH

provided necessary and extraordinary services to the estate of Loren
 30

Bockwoldt when they defended the estate’s application for fees. This

finding does not constitute an abuse of discretion on the part of the

district court. On our de novo review, we find Wessels’ application was

adequately supported, but SLH’s was not. Accordingly, we vacate the

decision of the court of appeals and affirm the holding of the district

court in part and reverse in part. On remand, the district court is to

award Wessels extraordinary fees of $15,845.50 and $631.79 in

expenses. Since there is an inadequate basis to conclude SLH’s fees

were reasonable, the district court is to request an itemized statement of

the extraordinary services provided by SLH and evaluate SLH’s fee

request accordingly.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

CASE REMANDED.

All justices concur except Mansfield, J., who takes no part.