Trusts and Estates

Estate of Kempton

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Cite as A164148
Filed May 5, 2023
First District, Div. Four

By Michelle Barnett Batista
Aaron, Riechert, Carpol & Riffle, APC

Headnote:  Probate Administration – Payment of Statutory Fee to Third Party

Summary:  Special administrator had discretion to pay statutory fee earned by administrator’s attorney to third-party judgment creditor in partial satisfaction of attorney’s judgment debt.

Kinney briefly served as attorney for the administrator of Kempton’s estate.  Prior to Kempton’s death, Kinney and Kempton filed numerous baseless lawsuits in state and federal courts which resulted in multiple judgments against them and ultimately led to Kinney’s disbarment.  After the probate court removed the administrator for delays in winding up the estate, the special administrator filed a petition for final accounting.  The special administrator requested authority to pay Kinney’s $1,000 statutory fee to Clark, a lienholder on the judgments against Kinney.  The trial court approved the petition and Kinney appealed.

The appellate court affirmed.  Having been presented with an abstract of judgment showing judgment indebtedness exceeding $1,000 owed by Kinney to Clark and having no legitimate reason to question the validity of the judgment, the special administrator was within his discretion to conclude that Kinney’s statutory fee should be paid to Clark in partial satisfaction of his judgment debt.  Since the probate court had discretion to deny payment of statutory fees outright, it also had discretion to approve payment of such fees to a third party who was legally entitled to the money in payment of debt owed by Kinney on a judgment lien.  The court directed the probate court to award sanctions against Kinney payable to the special administrator and the appellate court clerk.  Sanctions for an appeal which is partially frivolous are appropriate if the frivolous claims are a significant and material part of the appeal.  Here, nine out of the ten claims asserted in Kinney’s appeal were frivolous.

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