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No. 99-441 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 135N 

IN THE MATTER OF THE ESTATE OF 

CHARLES RAYMOND SMITH, Deceased,

Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Art Tadewaldt, Esq., Pro Se, Great Falls, Montana

For Respondent:

William G. Sternhagen; Sternhagen Law Firm, Helena, Montana 

Submitted on Briefs: February 10, 2000 

Decided: May 25, 2000

Filed:

__________________________________________

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Clerk

Justice Karla M. Gray delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent but shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Art Tadewaldt, Esq., the former attorney for the Estate of Charles Raymond Smith 

(Estate), appeals from the Order Re Attorneys Fees entered by the Eighth Judicial District 

Court, Cascade County, awarding him attorney fees and expenses in the amount of 

$1,687.50. We affirm.

¶3 The sole issue on appeal is whether the District Court abused its discretion in awarding 

Tadewaldt $1,687.50 in attorney fees and expenses for his work on the Estate.

¶4 Charles Raymond Smith died on July 28, 1996, leaving an Estate ultimately valued at 

approximately $80,000, and a will dividing the Estate equally among his four children. A 

son, Daniel Smith, was named personal representative. On August 1, 1996, he hired 

Tadewaldt to probate the Estate.

¶5 Because of significant delays in the probate proceedings, including a six-month delay 

in publishing the notice to creditors, William Sternhagen, Esq., replaced Tadewaldt as 

counsel for the Estate on November 10, 1997. Sternhagen closed the Estate one month 

later and billed--and received--$1,687.50 for his services.

¶6 Tadewaldt submitted a $5,189.70 claim to the Estate. It consisted of $4,520 in attorney 

fees (45.20 hours at $100 per hour), $127.50 in expenses and $542.20 in interest (10% per 

annum on amount claimed over 14 months). The personal representative disputed 

Tadewaldt's entitlement to the amount requested and asserted Tadewaldt was entitled to 

only $1,500 for his services. The other heirs also voiced strenuous objection to 

Tadewaldt's claim.

¶7 After a hearing on Tadewaldt's claim, the District Court entered its Order Re Attorneys 

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Fees awarding him $1,687.50 in fees and expenses, the same amount received by 

Sternhagen. It did so after observing that the Estate was a simple one which should not 

have taken 16 months to close, determining that Tadewaldt's actions or inactions caused 

some of the lengthiest delays, and reviewing both Tadewaldt's itemized statement of 

services and the work evidenced in the probate file. Tadewaldt appeals.

¶8 Did the District Court abuse its discretion in awarding Tadewaldt $1,687.50 for work 

done on the Estate?

¶9 We review a district court's award of attorney fees to determine whether the court 

abused its discretion. In re Estate of Lande, 1999 MT 179, ¶ 8, 295 Mont. 277, ¶ 8, 983 

P.2d 316, ¶ 8 (citation omitted). Moreover, the appellant bears the burden of establishing 

error. In re Estate of Lande, 1999 MT 162, ¶ 30, 295 Mont. 162, ¶ 30, 983 P.2d 308, ¶ 30 

(citation omitted). 

¶10 Tadewaldt advances a number of arguments in support of his overall contention that 

the District Court erred in the amount of attorney fees awarded. We address each 

argument in turn.

¶11 Tadewaldt argues first that he had a contract with the Estate under which he would 

receive $100 per hour for his services. He relies on Matter of Estate of Barber (1989), 239 

Mont. 129, 146, 779 P.2d 477, 488, for the proposition that the Estate is bound by the 

contract because it is "fair and equitable." His arguments are flawed.

¶12 First, it is undisputed that the dollar amount of the fees Tadewaldt claims exceeded the 

generally applicable maximum allowed by § 72-3-633, MCA. Moreover, he did not apply 

for further compensation as required by § 72-3-633(5), MCA. Had he done so, he would 

have failed to establish "good cause" for excess fees, as required by § 72-3-633(5), MCA, 

given his testimony at the hearing on his attorney fees claim that there was nothing 

particularly complex about the Estate proceeding. 

¶13 Furthermore, while Estate of Barber states that an estate is bound by a personal 

representative's contract with an attorney if the contract is fair and equitable, that case is of 

no help to Tadewaldt here. The District Court did not expressly determine that such a 

contract existed. The court also did not state that $100 per hour was not fair or equitable; 

indeed, that rate appears to be roughly equivalent to what attorney Sternhagen charged. 

Nothing in Estate of Barber, however, requires a probate court to accept as necessary and 

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reasonable all the hours an attorney itemizes as spent on the case. Here, the District Court 

expressly stated it had considered both Tadewaldt's itemized statement and the actual work 

performed as evidenced by the file. Given the fees awarded, it is clear the court was not 

persuaded the billed time and services were reasonable and necessary.

¶14 Tadewaldt also argues that he did not delay the administration of the Estate. In doing 

so, however, he essentially concedes his lengthy delay in publishing the notice to 

creditors--as found by the District Court--by contending only that the delay had "no effect" 

on the administering of the Estate. In any event, this argument is not particularly relevant 

to the issue of whether the District Court abused its discretion in the amount of attorney 

fees awarded.

¶15 Tadewaldt also argues that "[t]here is no negligence to the estate" and that, pursuant to 

§ 72-3-801, MCA, he is exempt from "liability" for failure to give timely notice to 

creditors. These arguments are irrelevant in their entirety. No professional negligence 

claim against Tadewaldt is at issue in this case. Nor was such "liability" imposed. The 

District Court merely observed that the Estate had taken longer than necessary and 

Tadewaldt had caused some of the lengthiest delays.

¶16 Finally, Tadewaldt claims he is entitled to interest at the rate set forth in § 31-1-106(1)

(b), MCA, on his "account stated," for the 14 months from the time he submitted it in 

November of 1997 until paid.

¶17 The statute on which Tadewaldt relies is located in Part 1, captioned Loans of Money 

- Interest Rates of Chapter 1, entitled Credit Transactions, of Title 31, Credit Transactions 

and Relationships. Tadewaldt makes no showing that this portion of the MCA, or § 31-1-

106, MCA, in particular, is applicable to an attorney's statement for services rendered in a 

probate proceeding. Moreover, we have determined that interest on charges and expenses 

of administration--such as attorney fees--are not allowable against an estate. See In re 

Bielenberg's Estate (1935), 98 Mont. 546, 550, 40 P.2d 49, 51.

¶18 Tadewaldt has failed to meet his burden of establishing error by the District Court. 

Accordingly, we hold the District Court did not abuse its discretion in awarding Tadewaldt 

$1,687.50 in attorney fees and expenses for his work on the Estate.

¶19 Affirmed.

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/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

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