Opinion
No. 1 CA-CIV 1951.
December 28, 1972. Review Denied February 6, 1973.
Appeal from the Superior Court of Maricopa County, Cause Nos. P-58544, P-69492, P-69493, and P-84166, Edwin Thurston, J., raising question as to who should bear brunt of attorney's fees incurred in various legal disputes involving probate and administration of several estates. The Court of Appeals, 502 P.2d 176, affirmed in part and reversed in part. In supplemental opinion, the Court of Appeals, Jacobson, J., held that where reasonableness of attorneys' fee for representing guardian of adopted minor children of deceased in will contest of estate of deceased had been determined by probate court, had not been questioned in appeal before Court of Appeals and parties desiring to do so had failed to file cross appeal, probate court's determination that such fee was reasonable was res judicata. The Court further held that such fee was a proper charge against guardianship estate of adopted children.
Modified and confirmed; motions for rehearing denied.
Biaett Bahde by Kenneth Biaett, Phoenix, for appellants.
Herbert Mallamo, Phoenix, for appellee Mallamo.
John W. Rood, Phoenix, for appellees Minne Sorenson and Jack C. Cavness.
Jennings, Strouss Salmon by Richard L. Lassen, Phoenix, for appellee Great Western Bank.
SUPPLEMENTAL OPINION
On October 26, 1972, this court rendered its opinion in In re Estate of O'Brien, 18 Ariz. App. 375, 502 P.2d 176 (1972). Timely motions for rehearing were filed by appellants Suzanne Bates and Kenneth Biaett and Irving H. Bahde, guardians ad litem; appellee Great Western Bank; and appellees Minne Sorenson and Jack C. Cavness. Responses by those parties affected by the motions for rehearing have also been filed. The court has considered all motions for rehearing and the responses thereto.
The court is of the opinion that all of the matters raised by the motions for rehearing have been previously considered and decided by the court in its previous opinion, except one issue raised by appellees Minne Sorenson and Jack C. Cavness. This one issue is the alleged incompleteness of our opinion in failing to direct the probate court to allow attorney's fees earned by these appellees against the guardianship estate represented by these attorneys. We are of the opinion that this point is well taken.
In our previous opinion, the court indicated that attorneys Minne Sorenson and Jack C. Cavness represented the guardian of the adopted minor children of Caroline Brandt O'Brien in the will contest of Caroline's estate. Following completion of that contest, Minne Sorenson and Jack C. Cavness (hereafter collectively referred to as Cavness) filed a petition for attorney's fees in both the guardianship estate of the adopted minor children and in the estate of Caroline Brandt O'Brien. The probate court allowed the Cavness claim in Caroline's estate.
Our previous opinion reversed this order. However, in that previous opinion this court pointed out that none of the parties seriously questioned the right of Cavness to be paid from the guardianship estate. Moreover, the probate court directed that special counsel be appointed in the adopted minors' estate so as to avoid a conflict of interest which may have arisen as to the reasonableness of the Cavness fee, their claim having been filed also against the guardianship estate. Our previous opinion in this regard noted that the reasonableness of the Cavness fee was not questioned in the appeal, and that those parties desiring to do so were precluded because of a failure to file a cross appeal.
With this procedural background in mind, we are of the opinion that the reasonableness of the Cavness fee was determined by the probate court and is at this point in time res judicata. Application of Stone, 14 Ariz. App. 109, 481 P.2d 280 (1971); Di Orio v. City of Scottsdale, 2 Ariz. App. 329, 408 P.2d 849 (1965); Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963). It is further the opinion of the charge against the guardianship estate of court that the Cavness fee is a proper the adopted minor children. See, Merkel v. Long, 372 Mich. 144, 125 N.W.2d 284 (1963), aff'd. in part, rev'd. in part, 375 Mich. 214, 134 N.W.2d 179 (1965); In re Estate and Guardianship of Sorrells, 58 Ariz. 25, 117 P.2d 96 (1941); In re Estate and Guardianship of Vermeersch, 15 Ariz. App. 315, 488 P.2d 671 (1971); Mutual Life Ins. Co. of N.Y. v. Ginsburg, 228 F.2d 881 (3rd Cir. 1956), cert. denied Ginsburg v. Gregg, 351 U.S. 979, 76 S.Ct. 1050, 100 L.Ed. 1495 (1956).
The prior opinion of this court is modified to the extent and only to the extent of directing the probate court to allow payment of the Cavness claim, in the amount previously determined, from the guardianship estate of Robert George O'Brien and Thomas Henry O'Brien. In all other respects our previous opinion is confirmed, and upon the filing of this supplemental opinion all motions for rehearing are denied.
HAIRE, C.J., Division 1 and EUBANK, J., concur.