                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   516471
________________________________

In the Matter of the Estate of
   IRIS H. BENWARE, Deceased.

BARBARA BURT, as Coexecutor
   of the Estate of IRIS H.
   BENWARE, Deceased,
                    Respondent;

BETTYANN BENWARE O'BRIEN,                   MEMORANDUM AND ORDER
   Individually and as
   Coexecutor of the Estate of
   IRIS H. BENWARE, Deceased,
                    Appellant.

RICHARD D. WICKERHAM,
                    Respondent.
________________________________


Calendar Date:   September 10, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


      McNamee, Lochner, Titus & Williams, PC, Albany (Richard D.
Cirincione of counsel), for appellant.

      Corrigan, McCoy & Bush, PLLC, Rensselaer (Peter J. Corrigan
of counsel), for Barbara Burt, respondent.

     Richard D. Wickerham, Schenectady, respondent pro se.

                             __________
                              -2-                516471

McCarthy, J.

      Appeals (1) from an order of the Surrogate's Court of
Albany County (Doyle, S.), entered August 1, 2011, which, among
other things, granted Richard D. Wickerham's motion to strike a
notice of deposition issued by respondent, and (2) from an
amended decree of said court, entered June 11, 2012, which
determined the amount of counsel fees due to Wickerham.

      Petitioner and respondent are sisters and coexecutors of
the estate of their deceased mother, who wrote a will leaving
each daughter an equal share of the residuary estate. In 2007,
the sisters retained Richard D. Wickerham to serve as counsel for
the estate. They agreed upon little else. Two years later,
petitioner commenced proceedings seeking an accounting of the
estate (see SCPA 2208) and a determination of Wickerham's
compensation for legal services (see SCPA 2110). Surrogate's
Court approved the accounting, fixed counsel fees at $58,000 plus
expenses and determined that respondent should be charged 20% of
this fee from her share of the residuary estate. Respondent
appealed. This Court affirmed the determination to hold
respondent responsible for 20% of the counsel fees, but remitted
for a redetermination of the amount of those fees (86 AD3d 687,
688-689 [2011]). Upon remittal, respondent sought to depose
Wickerham and petitioner, but they moved to strike the notices of
deposition. Surrogate's Court granted those motions.
Redetermining the amount of counsel fees, the court found that
Wickerham was entitled to $50,000. Respondent appeals.

      Initially, although the notice of appeal lists the order
striking the deposition notices, respondent does not squarely
address that order or issue on appeal. Thus, any claims
concerning that order have been abandoned (see Matter of Moore v
Fink, 77 AD3d 1204, 1205 n [2010]; Matter of Eck v Eck, 57 AD3d
1251, 1252 n 2 [2008]).

      Surrogate's Court abused its discretion in fixing
Wickerham's fee at $50,000. Surrogate's Court is vested with
broad discretion to fix the reasonable compensation of an
attorney who renders legal services to a fiduciary of an estate,
subject to modification only where that discretion has been
                              -3-                516471

abused (see SCPA 2110; Matter of Cohen, 52 AD3d 1080, 1081
[2008]; Matter of Rockefeller, 44 AD3d 1170, 1172 [2007]). While
the court is not bound by a retainer agreement when determining
whether an unreasonable fee must be restricted (see Matter of
Middagh, 267 AD2d 593, 593 [1999]; Matter of Verplanck, 151 AD2d
767, 767 [1989]; see also Matter of Rose BB., 35 AD3d 1044, 1046
[2006], appeal dismissed 8 NY3d 936 [2007]), a court "cannot
award legal fees in excess of what has been agreed to by the
parties in a retainer agreement" (86 AD3d at 689 n 4). The
attorney seeking fees bears the burden of establishing the
reasonable value of the services rendered (see Matter of Middagh,
267 AD2d at 594; Matter of McCann, 236 AD2d 405, 406 [1997]).

      The one-page retainer agreement here provides for a base
legal fee of 5% of the total taxable value of the estate, plus
expenses. Petitioner, respondent and Wickerham all agree that he
is entitled to at least that amount ($19,753.79 plus expenses);
respondent alone contends that Wickerham is entitled to no more.
The agreement provides for additional fees to Wickerham from the
estate, "[s]hould extenuating circumstances occur." The term
extenuating circumstances is defined as "[i]ncluding, but not
limited to, complex taxation matters, real estate matters and
estate litigation. Consultation and pre-approval will be first
sought and secured." On the prior appeal, this Court found that
the record did not support a determination that extenuating
circumstances were encountered so as to exceed the 5% fee in the
retainer agreement, noting that Wickerham did not identify which
legal services justified an additional fee, and he "did not claim
that he consulted with the executors or sought their approval
prior to providing these additional legal services to the estate"
(86 AD3d at 688). We remitted for Surrogate's Court to determine
if such services were actually rendered, whether a reasonable fee
was charged for any such services and, if so, whether the
executors gave prior approval as required by the retainer
agreement (id. at 688-689).

      On remittal, which was solely to address Wickerham's fees,
he did not request a hearing, instead permitting Surrogate's
Court to render a determination based on the papers submitted.
Wickerham, once again, did not identify which legal services were
justified by extenuating circumstances, nor did he clearly
                               -4-                516471

address the other issues we previously described as lacking
adequate proof.

      Assuming, without deciding, that extenuating circumstances
existed due to respondent's obstructionist behavior and the
litigation that was necessary mainly because of the parties'
inability to cooperate,1 the record lacks proof of consultation
and approval as required by the retainer agreement. Wickerham
and petitioner's counsel averred that Wickerham informed the
parties and Surrogate's Court regarding all of his legal services
and, when disagreements arose, he would proceed with the approval
of one executor and, upon notice, direction or approval from the
court. When attempting to determine whether these actions were
sufficient, however, we note that the approval sentence in the
retainer agreement is ambiguous. It could be interpreted as
meaning that Wickerham needed to consult with and obtain approval
from the executors for all legal work and, once approved and
performed, he could bill it as being based on extenuating
circumstances if they occurred. Or it could mean that, prior to
rendering additional services, he needed to inform the executors
that those specific services would fall within the definition of
extenuating circumstances and would, therefore, be considered in
addition to his base fee for billing purposes, such that the
executors could make an informed decision knowing the costs
involved in approving those additional services. "The general
rule that 'equivocal contracts will be construed against the
drafters' is subject to particularly rigorous enforcement in the
context of attorney-client retainer agreements," such that we
must construe the agreement in the light most favorable to the
clients (Albunio v City of New York, 23 NY3d 65, 71 [2014],
quoting Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 176
[1986]; see Jacobson v Sassower, 66 NY2d 991, 993 [1985];
Ruthman, Mercadante & Hadjis, P.C. v Nardiello, 16 AD3d 815, 817-


     1
        Due to the retainer agreement's definition of extenuating
circumstances, and the unfortunately not-so-rare scenario where
coexecutors regularly cannot agree or cooperate, we are not
particularly persuaded by the argument that the disputes between
the executors here and Wickerham's difficulty in attempting to
help them reach decisions constituted extenuating circumstances.
                                -5-                516471

818 [2005]).

      While Wickerham diligently kept the parties informed of his
work on behalf of the estate, the record does not indicate that
he identified any of his services as being necessitated by
extenuating circumstances such that they would result in
additional counsel fees.2 Some of his conference outlines and
correspondence generally caution respondent that her behavior may
result in increased counsel fees, but – viewing the retainer
agreement in petitioner's and respondent's favor – this falls
short of meeting the retainer agreement's condition of
consultation and preapproval for specific services to be rendered
based on extenuating circumstances. Inasmuch as Wickerham failed
to meet his burden of showing that he consulted with the
coexecutors and obtained their preapproval before he rendered
legal services that were necessitated by extenuating
circumstances, which would entitle him to additional counsel
fees, Surrogate's Court abused its discretion in finding that he
was entitled to such additional fees. Accordingly, we modify by
fixing Wickerham's counsel fees at the base fee in the retainer
agreement, namely $19,753.79 (5% of the total taxable estate
value) plus expenses.

        Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.




    2
        Wickerham asserts that preapproval was not realistically
obtainable from respondent because she was obstructing the
administration of the estate, so he should be relieved of that
condition. Even if that assertion could be accepted as true, the
record does not indicate that Wickerham ever informed petitioner
that any of his services would result in a higher fee and sought
at least her approval with that knowledge.
                              -6-                  516471

     ORDERED that the order is affirmed, without costs.

      ORDERED that the amended decree is modified, on the law and
the facts, without costs, by reducing Richard D. Wickerham's
counsel fees to $19,753.79, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
