Attorneys – Fees – Conservatorship

Where a law firm has argued on appeal that the probate court erred by failing to accept its request for fees and expenses in the amount of $53,433.69, plus interest, in a conservatorship case, the probate court’s decision must be vacated because the law firm’s claim for fees and expenses was properly presented to the conservator in the conservatorship case and should be considered under MCL 700.5429 and other related statutes.

“In these consolidated appeals, in Docket No. 363847, appellant Klug Law Firm appeals as of right the probate court’s November 8, 2022 order denying its request to be paid for attorney fees and expenses from the Edward and Elaine Jaye Trust (‘Jaye Trust’). In Docket No. 366714, plaintiff-appellant Klug Law Firm appeals as of right the circuit court’s May 10, 2023 order granting defendant-appellee Elaine Jaye’s motion for summary disposition pursuant to MCR 2.116(C)(6) and (C)(7). In Docket No. 367580, appellant Klug Law Firm appeals as of right the probate court’s August 23, 2023 order denying its request for accrued interest. In Docket Nos. 363847 and 366714, we affirm. However, in Docket No. 367580, we remand to the probate court for further proceedings.

“In Docket No. 363847, appellant argues that (1) appellant’s representation of Elaine Jaye enhanced, preserved, and protected the Jaye Trust assets, thus entitling it to reasonable attorney fees and expenses from the Jaye Trust under MCL 700.7904(1); (2) appellant’s claimed fees and expenses are allowable under MCL 700.7605(1)(b) and MCL 700.7611(a); and (3) the probate court abused its discretion under MCR 2.612(1)(C)(f) when it set aside the February 1, 2017 stipulated order with respect to attorney fees and expenses to be paid by the Jaye Trust. We disagree.

“Although we are unable to identify any published decision discussing MCL 700.7904(1), a straightforward reading of that statute indicates that it authorizes a probate court to award attorney fees and expenses from trust property if, in its discretion, such an award is appropriate ‘as justice and equity require.’ In other words, contrary to appellant’s suggestion, MCL 700.7904(1) does not require an award of attorney fees and expenses from trust property whenever a party ‘enhances, preserves, or protects trust property.’ Instead, MCL 700.7904(1) simply authorizes a probate court to exercise its discretion when doing so may be appropriate ‘as justice and equity require.’ Therefore, because the probate court is not mandated to award appellant its attorney fees and expenses under MCL 700.7904(1) even if appellant enhanced, preserved, or protected trust assets, the probate court is affirmed on this issue for this reason alone.

“In Docket No. 367580, appellant argues that the probate court erred by failing to accept its request for attorney fees and expenses in the amount of $53,433.69, plus interest, in the conservatorship case. We generally agree.

“In Docket Nos. 363847 and 366714, we affirm the probate court and the circuit court, respectively. However, in Docket No. 367580, we vacate the probate court’s decision regarding attorney fees, expenses, and interest, and remand to that court for further proceedings consistent with our opinion.”

In re Edward & Elaine Jaye Trust; MiLW 08-108101, 17 pages; Michigan Court of Appeals unpublished per curiam; Markey, J., Riordan, J., Cameron, J.; on appeal from Eaton Probate Court; Thomas A. Klug for appellant; Benjamin J. Stoltman for appellee.

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