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.

__________
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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
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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.
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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.
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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