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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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




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                                            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.




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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



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                                                                       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




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                                   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.


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             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.

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                                                        -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


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            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




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