                            STATE OF MICHIGAN

                              COURT OF APPEALS



In re Estate of MARIAN I. CARY.


PHILIP A. CARY, Personal Representative of the                      UNPUBLISHED
Estate of MARIAN I. CARY,                                           June 1, 2017

               Appellee,

v                                                                   No. 331287
                                                                    Branch Probate Court
DEPARTMENT OF HEALTH AND HUMAN                                      LC No. 14-033893-DE
SERVICES,

               Appellant.


Before: O’BRIEN, P.J., and SERVITTO and STEPHENS, JJ.

O’BRIEN, P.J. (dissenting).

       I respectfully dissent.

        Marian I. Cary passed away on April 1, 2014, leaving behind only two assets worth
$92,451.73: real property valued at $92,000.00 and $451.73 in cash. Between her death and the
order appealed, which was entered on January 6, 2016, three attorneys charged Cary’s estate
$46,390.40 in attorney fees, according to the first annual and final accountings filed before the
trial court.1 The issue presented before the trial court and again on appeal is whether this amount
was reasonable under the facts and circumstances of this case. On the record before me, I cannot
conclude whether it is or is not. In concluding that this amount was reasonable, the trial court
explained, in full, as follows:

       What the Court’s going to do in this particular case is I am going to approve the
       attorney fees that have been submitted on the first . . . annual accounting. I will
       also approve what has been submitted on the final accounting and those will be
       attorney fees in this case. Nothing since then, so that means everything that


1
 To be clear, this amount reflects only the requested attorney fees. It does not reflect any other
expenses sought by the attorneys or their firms.


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       you’ve done today or from the date of that filing up until this day will not be
       reimbursed for, but I will approve those amounts and that will be the amounts that
       the Court will approve and nothing else.

        In my view, this is simply insufficient. See Smith v Khouri, 481 Mich 519, 530-534; 751
NW2d 472 (2008).2 The decedent received, and appellant sought reimbursement for,
$113,196.71 in Medicaid benefits prior to her death. The estate, represented by three attorneys,
unsuccessfully defended against appellant’s claim in a zealous fashion. According to the
invoices provided by each law firm, these three attorneys spent 169.6 hours on this case during
that time period. Despite this amount of work, the parties ended up stipulating to allow
appellant’s claim. Nevertheless, the estate’s attorneys sought compensation for their zealous,
albeit unsuccessful, efforts. Their charged fees, coupled with various other costs such as funeral
expenses, costs related to the sale of the real property, and other fees, reduced the value of the
estate from its original value of $92,451.73 to $14,895.42.3 While attorney fees in an amount
that is equal to 50 (50.177969 to be precise) percent of the entire estate might be reasonable in
some cases, I believe that a more thorough analysis is required in this matter.4 Therefore, I
would remand to provide the trial court with an opportunity to do exactly that.



2
  In Smith, 481 Mich at 530-531, our Supreme Court explained the proper procedure for
evaluating the reasonableness of claimed attorney fees as follows:
       We conclude that our current multifactor approach needs some fine-tuning. We
       hold that a trial court should begin its analysis by determining the fee customarily
       charged in the locality for similar legal services, i.e., factor 3 under MRPC 1.5(a).
       In determining this number, the court should use reliable surveys or other credible
       evidence of the legal market. This number should be multiplied by the reasonable
       number of hours expected in the case (factor 1 under MRPC 1.5[a] and factor 2
       under Wood). The number produced by this calculation should serve as the
       starting point for calculating a reasonable attorney fee. We believe that having
       the trial court consider these two factors will lead to greater consistency in
       awards. Thereafter, the court should consider the remaining Wood/MRPC factors
       to determine whether an up or down adjustment is appropriate. And, in order to
       aid appellate review, a trial court should briefly discuss its view of the remaining
       factors.

While it is possible that the trial court may have followed this procedure off the record, the
record does not reflect that such a procedure was followed, and, at least in my view, such a lack
of record precludes adequate appellate review.
3
  Additionally, that remaining amount, $14,895.42, remains subject to various statutory
exemptions. See, e.g., MCL 700.2404.
4
 My review of the record leaves me with serious questions as to the reasonableness of various
charges against the estate under the facts and circumstances in this case. For example, I question
whether it is reasonable for attorneys in a case such as this, i.e., a case where the estate is valued

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         Similarly, despite the majority’s conclusion to the contrary, I would also conclude that,
on remand, the trial court should additionally address the reasonableness of the personal
representative’s claimed fee, which was a flat-rate $5,000.00 fee. The majority disregards
appellant’s arguments in this regard due to appellant’s failure to “properly raise an objection.”
My review of the record, however, reflects that these arguments were adequately preserved to
facilitate appellate review.5 Therefore, I am of the view that the trial court should be provided an
opportunity to review those as well.

                                                             /s/ Colleen A. O'Brien




at less than $100,000.00 and subject to claims in excess of that amount, for attorneys to charge a
client $225.00 per hour to request meeting minutes from the Senate Appropriations Committee.
While this is only one example, there are various other charges to the estate that leave me with
concerns regarding the reasonableness of the strategy taken by the estate’s attorneys. As another
example, I also question whether it was reasonable for the estate’s attorneys to contact various
probate courts to obtain lower-court files regarding cases that were appealed until more
information was available before this Court. While it is possible that these extraordinary efforts
were requested by the personal representative, it is these concerns, coupled with appellant’s
assertions that the estate’s attorneys were using this case to improve their overall knowledge of
estate recovery rather than to actually benefit the estate, that leave me with serious questions as
to whether the fees, as requested, were reasonable. I believe that these questions could be
adequately answered by the trial court on remand.
5
  Specifically, appellant expressly contested the reasonableness of the fees claimed by the
personal representative. For example, it specifically argued that “the attorney fees and the
Personal Representative cannot justify a large percentage of the fees charged.” (Emphasis
added.) While this argument could well have been further developed by appellant, I nevertheless
believe it was sufficient for preservation purposes. I would note, however, that the fee sought by
the personal representative seems, at least at first blush, to be significantly more reasonable than
the fees sought by the attorneys in this matter.


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