In re Estate of Strader

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NOT DESIGNATED FOR PUBLICATION

No. 115,418

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE ESTATE OF
BETTY JO STRADER, DECEASED.

MEMORANDUM OPINION

Appeal from Marshall District Court; WILLIAM B. ELLIOTT, judge. Opinion filed May 19, 2017.
Affirmed in part, reversed in part, and remanded with directions.

David P. Troup, of Weary Davis, L.C., of Junction City, for appellant.

William C. O'Keefe, of O'Keefe Law Office, of Seneca, for appellee.

Before MCANANY, P.J., MALONE, J., and STUTZMAN, S.J.

Per Curiam: The bitter battle between siblings in these probate proceedings
following the death of their mother, Betty Jo Strader, led to various trips to our appellate
courts. The dispute has finally devolved to the sole remaining issue of attorney fees. The
district court granted fees to some lawyers working on the matter but denied some of the
fees requested for the lawyer working for the challenger in these proceedings. The appeal
of those orders brings the matter to us.

History of the Proceedings

The contestants are children of Gerald and Betty Jo Strader. Gerald and Betty Jo
executed mutual wills in 1985. Gerald died shortly thereafter, and his estate passed to
Betty Jo. Betty Jo died in October 2006. She was survived by five adult children: Roger
Strader, Alan Strader, Janet Pralle, Eric Strader, and Regina Crowell. It appears that the
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sons and Regina are on one side, and Janet is on the other. Janet apparently had been
estranged from her mother for a number of years.

The family enterprise was an oil well drilling business which was run by sons
Roger, Alan, and Eric. In her will Betty Jo devised the drilling business and the
associated real and personal property to her sons. The family farm and any residual real
and personal property was devised in equal shares to the five children. Betty Jo's estate
was initially valued at about $1.3 million.

Unfortunately, after an extended search, the family was unable to locate Betty Jo's
will, so in December 2006 Eric filed a petition for letters of administration. In February
2007, over Janet's objections of a conflict of interests, the court granted letters of
administration to Jerry Weis, a banker.

Weis engaged Darrell Spain, an attorney, to perform legal services for the estate.
Weis and Spain entered into a written agreement that noted that the heirs had agreed to
pay Weis an administrator's fee equaling 3% of the estate's gross value but not more than
$12,000. Spain was to charge $120 per hour for his legal services rendered in the
administration of the estate.

In May 2007, Weis petitioned for approval to pay Eric an annual employment
bonus of $10,000 for operating the family drilling business. Janet opposed the bonus to
her brother. Over Janet's objections, the district magistrate judge granted Weis' motion to
pay the bonus. Janet appealed to the district court judge.

Meanwhile, in August 2007, Eric and Roger submitted written offers to purchase
some of the estate assets. Weis petitioned to approve these sales, but Janet offered to
purchase the assets for $1 higher than Eric's and Roger's bids.

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In April 2008, the district judge held a hearing on Janet's appeal from the district
magistrate judge's decision to authorize the $10,000 bonus to Eric. At that time Weis
hired attorney Rodney Olsen, an experienced litigator, to assist him in representing the
estate.

In May 2008, the district court judge dismissed Janet's appeal from the district
magistrate judge's decision because she failed to post an appeal bond, as ordered. Janet
appealed to our court.

In 2010, our court considered Janet's appeal in In re Estate of Strader, No.
101,195, 2010 WL 1882146, at *1-3 (Kan. App. 2010) (unpublished opinion) (Strader I).
We determined that Janet's failure to post an appeal bond did not deprive the district court
of jurisdiction and remanded the matter to the district court. 2010 WL 1882146, at *1-3.

In June 2010, the district court ordered all the estate property to be sold at auction.

In November 2010, the district court allowed Weis to resign as administrator due
to his poor health and appointed attorney William O'Keefe to take his place. The
following month, O'Keefe petitioned for reimbursement for Olsen's attorney fees.

In December 2010, the court approved a public auction to dispose of all the
estate's property. The court decided to defer to the final settlement hearing any ruling on
fees for Weis as administrator.

In February 2011, before the public auction could be held, Eric discovered Betty
Jo's will and petitioned for its admission into probate.

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In March 2011, the district court admitted the will, and Janet once again appealed
to our court. That month, O'Keefe notified Spain that his legal services were no longer
needed. On March 25, 2011, Spain submitted his bill for attorney fees to O'Keefe.

In 2012, a divided panel of our court affirmed the district court's admission of
Betty Jo's late-discovered will in In Re Estate of Strader, 47 Kan. App. 2d 374, 277 P.3d
1163 (2012), rev'd 301 Kan. 50, 339 P.3d 769 (2014) (Strader II), and Janet petitioned
for Supreme Court review.

In 2014, the Supreme Court granted Janet's petition for review and reversed the
decisions of the Court of Appeals and the district court in In re Estate of Strader, 301
Kan. 50, 55-60, 339 P.3d 769 (2014) (Strader III). The Supreme Court declared that
because Betty Jo's will was not intentionally withheld but simply misplaced, it was too
late for the district court to admit the will to probate. 301 Kan. at 57.

In February 2015, on remand, the district court authorized a public auction, and
O'Keefe sold the estate's real property for $1,401,500 and personal property for
$104,325.50.

In April 2015, O'Keefe petitioned for final settlement of the estate. In the petition,
O'Keefe sought reimbursement of attorney fees for Spain's, Olsen's, and his own legal
services incurred in representing the estate. He also requested fees for Weis, the prior
administrator. Janet separately petitioned for her own attorney fees.

In December 2015, after a November 2015 evidentiary hearing, the district court
denied fees for administrator Weis but granted O'Keefe's requests for attorney fees,
including those incurred in litigating the two appeals. The district court partially granted
Janet's petition for attorney fees.

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Now, on appeal, Janet challenges the district court's attorney fees awards in three
respects. First, she contends the district court lacked authority to award attorney fees for
Spain's and Olsen's services. Second, she argues that Weis and O'Keefe failed to preserve
claims for appellate attorney fees and, therefore, the district court erred in awarding them.
Third, she asserts the district court erred in partially denying her petition for attorney
fees.

Spain's Attorney Fees

Janet challenges the district court's order granting O'Keefe attorney fees for
Spain's legal services. First, she argues the district court lacked statutory authority to
award fees to O'Keefe. As an alternative, she contends, even if the district court had
proper authority, its award was not just and reasonable.

 Authority to Award Fees

With respect to her first argument, Janet asserts that Weis was responsible for
Spain's attorney fees and only Weis could apply to the district court for reimbursement of
those fees. Because Weis never sought payment or reimbursement of these fees he
incurred in administering the estate, the district court did not have statutory authority to
enter an award for Spain's fees and expenses.

A Kansas court may not award attorney fees absent statutory authority or an
agreement by the parties. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162,
298 P.3d 1120 (2013) (Snider III); Rogers v. ALT-AM JV, 52 Kan. App. 2d 213, 219, 364
P.3d 1206 (2015). Whether a court has the authority to award attorney fees is a question
of law over which we exercise unlimited review. Rinehart v. Morton Buildings, Inc., 297
Kan. 926, 942, 305 P.3d 622 (2013).

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An administrator "has a duty to collect and preserve the assets of a decedent's
estate and in so doing he [or she] may employ counsel to assist" in the estate's
administration. In re Murdock's Estate, 213 Kan. 837, 852, 519 P.2d 108 (1974). Under
K.S.A. 59-1717, an administrator may recover all "necessary expenses incurred in the
execution" of the estate, including reasonable attorney fees. Further, a fiduciary may
apply for an allowance for attorney fees "at any time during administration." See In re
Estate of Bertrand, 188 Kan. 531, 537, 363 P.2d 412 (1961).

The district court appointed Weis as the estate's administrator in February 2007.
Weis hired Spain to perform legal services for the estate. Over approximately the next 3
years, Spain provided legal services and related expenses in the amounts of $24,680 and
$193.70. In November 2010, the district court discharged Weis due to his poor health and
appointed O'Keefe in his stead. In its written order, the district court reserved
determination of "[a]ny fees due Mr. Weis, as administrator, [until] final settlement."

When O'Keefe was appointed the substitute administrator, Weis did not file a
motion with the district court seeking reimbursement for Spain's attorney fees, very
possibly because of the court's order deferring the issue of fees to the final settlement.
Instead, after he was appointed administrator, O'Keefe sent Spain a letter informing him
that his legal services were no longer needed and, thereafter, O'Keefe asked Spain to
submit an invoice for his attorney fees. Spain submitted his bill to O'Keefe. According to
the parties, Weis died from his illness before final settlement of the estate. When O'Keefe
petitioned for final settlement, he attached Spain's invoice to the petition and requested
that the district court reimburse him for Spain's attorney fees. The district court granted
O'Keefe's request and directed full payment of Spain's attorney fees.

Janet argues Spain had to pursue payment of his attorney fees directly from Weis,
as the person who originally retained him. She contends that Weis should have petitioned
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for reimbursement of Spain's fees and that the district court lacked authority to grant
Spain's fees or to award them to O'Keefe.

We can view the facts surrounding this issue in one of two ways: first, as O'Keefe
being Spain's agent to pursue the payment of fees on Spain's behalf; or second, as
O'Keefe, the successor administrator, assuming Weis' obligation to pay Spain's fees.

In Bertrand, our Supreme Court recognized an exception to the general rule that
the administrator is charged with seeking the reimbursement of fees. That exception
arises when attorney fees are allegedly uncollectable from the estate's representative. The
Supreme Court explained that in such cases "the attorney is generally entitled to be
subrogated to the rights of the representative by proceeding in equity and may compel the
representative to enforce such claim against the estate for the benefit of such attorney."
Bertrand, 188 Kan. at 542-43.

Here, Weis did not seek reimbursement for Spain's fees when he was replaced by
O'Keefe. Then Weis died before the final settlement of the estate. So Spain could not
collect his fees from Weis, and there is no indication that he could have collected them
from Weis' estate. Thus, when Spain sent his fee statement to O'Keefe, he apparently
looked to O'Keefe to act on his behalf to enforce for him his claim to fees at the time of
the final settlement of the estate. And O'Keefe undertook that task for Spain when he
sought reimbursement for Spain's fees at the final settlement. Under the circumstances
with Weis having passed away, we view this as a proper means for O'Keefe to seek for
Spain the payment of Spain's fees and expenses.

Viewed another way, as O'Keefe assuming Weis' obligation to pay Spain's fees,
the transaction could be viewed as a novation in which O'Keefe assumed Weis' obligation
for Spain's fees and undertook to seek reimbursement for Spain's fees by asking for
Spain's bill and submitting it to the court for approval and for an order for fees. Spain
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agreed to this arrangement by submitting his bill to O'Keefe. There is no indication Spain
ever made a claim against Weis personally or against his estate. The arrangement
between Spain and O'Keefe can be viewed as a substitute for the original agreement
between Spain and Weis. Under this new arrangement, O'Keefe became the substitute
obligor for Weis with respect to the payment of Spain's fees. The only novation element
lacking is Spain's formal release of Weis, the original obligor. See Davenport v. Dickson,
211 Kan. 306, 310, 507 P.2d 301 (1973). But it seems rather unrealistic to think that
Spain, whose legal fees ultimately were paid in full when O'Keefe submitted Spain's bill
to the court for approval, retained a claim for fees against the estate of the now deceased
Weis. Davenport posits the propriety of an implied release of the original debtor, in this
case Weis. "There must be an agreement expressed or implied to do so." 211 Kan. at 311.
We believe such an implied release can be found under these circumstances.

In any event, however we view the transaction, we are satisfied that the district
court had authority to consider and order reimbursement for Spain's fees and expenses.

 Reasonableness of Fees

As an alternative, Janet contends that even if the district court had authority to
award attorney fees, Spain's attorney fees were not just or reasonable. We review the
reasonableness of the district court's award for any abuse of discretion. Wiles v. American
Family Life Assurance Co., 302 Kan. 66, 81, 350 P.3d 1071 (2015). In doing so we
consider the eight factors set out in Rule 1.5(a) of the Kansas Rules of Professional
Conduct. See Snider, 297 Kan. at 169. Those eight factors are:

"(1) the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal service properly;
"(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
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"(3) the fee customarily charged in the locality for similar legal services;
"(4) the amount involved and the results obtained;
"(5) the time limitations imposed by the client or by the circumstances;
"(6) the nature and length of the professional relationship with the client;
"(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
"(8) whether the fee is fixed or contingent." Rule 1.5(a) (2017 Kan. S. Ct. R. 292).

Janet's attack on the reasonableness of Spain's fees is based on three arguments:
(1) Spain erroneously supported the contention that the district court lacked jurisdiction
to hear Janet's appeal from the district magistrate's ruling, a contention that was rejected
on appeal; (2) Weis was denied fees as administrator, so his lawyer also should not be
paid; and (3) Spain abandoned his role as attorney for an independent fiduciary.

- Spain's Support of Faulty Jurisdiction Claim

With respect to Janet's first argument, she directs us to the May 2008 hearing at
which the court determined it lacked jurisdiction to hear Janet's appeal of the district
magistrate's order. She contends that Spain was present and supported Eric's position that
an appeal bond was mandatory. But it does not appear that O'Keefe sought attorney fees
for Spain related to the district court's dismissal of Janet's appeal. Besides, the district
court raised the matter of an appeal bond at a pretrial conference in April 2008. At that
hearing, Spain did not comment on the requirement of an appeal bond. When Janet did
not post an appeal bond, Eric's personal attorney, not Spain, filed a motion to dismiss
Janet's appeal. Spain did not respond to the dismissal motion on the estate's behalf. Spain
attended another pretrial conference in May 2008 at which the district court addressed
Eric's motion. But Spain was there to participate in the other issues to be addressed at the
pretrial conference, not Eric's motion which was advanced by Eric's personal attorney.

We find no support for Janet's first argument.
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- Weis Was Denied Fees So Spain Should Be Denied Fees

With respect to Janet's second argument, she objected to O'Keefe's request for
Spain's attorney fees on the grounds that had Spain properly advised Weis regarding his
duties in selling real property at a private sale, the parties could have avoided the
subsequent litigation, including the two appeals. She recognized that Spain provided legal
services to the estate but asserted the "bulk" of his services did not benefit the estate.

After an evidentiary hearing, the district court denied Weis an administrator's fee.
Janet argues the district court's decision granting fees for Spain is incongruent because
Weis made all administrative decisions with Spain's knowledge and approval. She
maintains the district court could not find Weis' fee was not just and reasonable and, at
the same time, find Spain's fee was just and reasonable.

The district court found Weis' administrator's fee was unjust and unreasonable for
three reasons: (1) Weis failed to secure an independent appraisal before petitioning for
approval to privately sell estate property, even after Janet requested one; (2) Weis paid
Eric an employment bonus before the appeal time had run; and (3) Weis failed to apply
for fees for his work as administrator and failed to present any evidence to support the
requested fee.

Regarding the court's first reason for denying a fee to Weis, under K.S.A. 59-2307,
"[b]efore the personal representative sells or leases any real estate at private sale, such
real estate shall be appraised at its full and fair value." The court was critical of Weis'
performance because he petitioned the district court for approval to privately sell estate
property without first obtaining an appraisal of the property, citing K.S.A. 59-2307. But
our Probate Code does not require an independent appraisal prior to the representative's
petition for authority to conduct a private sale.

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Under K.S.A. 59-2303(a), a petition to privately sell real estate need only "state
the facts constituting the reasons for the application and describe the real estate to be
sold. . . . The petition also may state the name of the prospective purchaser and the terms
of the proposed sale, and may include a request for approval of named appraisers and for
confirmation of the proposed transaction." (Emphasis added.) If a court approves a
request for a private sale, the court must "direct that the real estate . . . not be sold for less
than 3/4 of the appraised value." K.S.A. 59-2305(b). The court's "order for sale . . . shall
remain in force until terminated by the court, but no private sale or lease shall be made
unless the real estate or the leasehold interest in the real estate has been appraised or
reappraised within six months preceding the sale or lease." K.S.A. 59-2305(e).

Here, Weis petitioned for approval to privately sell the estate property to Eric and
Roger. Janet offered to purchase the real property for $1 higher than Eric's and Roger's
bids. After an initial hearing, the district magistrate continued the matter. Before the
district magistrate's ruling on Weis' petition, Janet appealed to the district court judge. At
this point, the issue of an appeal bond arose, which led the parties to our court in Strader
I and the remand of the matter to the district court for further proceedings. On remand,
Weis and the heirs agreed to obtain an appraisal of the estate's property, and a three-
person appraisal committee valued the property. Before any further action to sell the
property, Weis resigned as administrator due to his poor health and O'Keefe took over
and discharged Spain because O'Keefe was a lawyer and did not need Spain's assistance.

Based on these facts, it is clear that there was no misconduct by Spain in his
representation of the administrator. To the extent the district court found Weis'
performance to be inadequate, that inadequacy cannot be attributed to Spain.

Regarding the court's second reason for denying a fee to Weis—that Weis paid
Eric an employment bonus before the appeal time had run—the issue is moot because, at
the time of final settlement, the district court reduced Eric's distribution by $10,000, the
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amount of the annual bonus he previously received. Moreover, we find no evidence that
Spain played any part in a premature distribution of the bonus.

Regarding the court's third reason for denying a fee to Weis—that he failed to
apply for fees for his work as administrator and failed to present any evidence to support
a requested fee—this reason is unrelated to the reasonableness of Spain's fees.

Based on these facts, none of the bases for the court's denial of an administrator's
fee to Weis constitutes a basis for denying fees to Spain.

- Spain Abandoned His Role as an Independent Fiduciary

In her third argument, Janet asserts that Spain "abandoned his role as attorney for
an independent fiduciary by siding with some of the heirs." She claims Spain sided with
her siblings and "conspir[ed]" against her.

An administrator's duties include the duty to act as a fiduciary for all interested
parties and to pursue the decedent's interests. Estate of Draper v. Bank of America, 288
Kan. 510, 532, 205 P.3d 698 (2009). At the November 2015 hearing, Spain testified he
commenced the probate proceedings, attempted to marshal the assets in a forthright and
expeditious manner, and tried to liquidate the assets in an appropriate manner. Spain
further testified he proceeded in good faith and did the best he could "under difficult
circumstances."

Janet does not argue any specific instance in which Spain abandoned his duties as
an administrator. Spain testified that it was not his primary concern to sell the estate's
property to family members. Although Spain supported a position taken by some of the
heirs, that fact alone does not demonstrate a conspiracy against Janet or his failure to
carry out an administrator's fiduciary duty to all interested parties.
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Janet has failed to establish that the district court's award of Spain's fees was an
award with which no reasonable person could agree. See Northern Natural Gas Co. v.
ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct.
162 (2013). The district court did not abuse its discretion in reimbursing O'Keefe for
Spain's fees and expenses.

Olsen's Attorney Fees

Janet argues the district court erred in granting Olsen's request for attorney fees.
She makes two arguments: (1) the payment of Olsen's fees suffers from the same
jurisdictional infirmity as Spain's fees; and (2) a substantial portion of Olsen's legal
services related to Strader I and Weis failed to preserve a claim for Olsen's fees by a
timely motion for fees under Supreme Court Rule 7.07(b) (2017 Kan. S. Ct. R. 50). Janet
does not contend that the amount of Olsen's fees was unreasonable.

For Janet's first argument, we use the same review standard we used in analyzing
the court's authority for authorizing the payment of Spain's fees. Here, as in her argument
against Spain's fees, Janet argues that the district court lacked authority under K.S.A. 59-
1717 to allow Olsen's attorney fees.

In April 2008, Weis hired Olsen, an experienced litigator, to assist him in
representing the estate. After Weis was replaced by O'Keefe and after Weis died, O'Keefe
sought reimbursement for Olsen's fees at the time of the final settlement of the estate.
Without repeating the analysis above with respect to Spain's fees, we adopt that analysis
in concluding that the district court had jurisdiction to consider Olsen's fees for his work
at the district court level.

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The same cannot be said for Olsen's claim for $11,230.56 in fees for his appellate
work, Janet's second argument. Supreme Court Rule 7.07(b) (2017 Kan. Sup. Ct. R. 51)
provides:

"(1) Generally. An appellate court may award attorney fees for services on appeal in
a case in which the district court had authority to award attorney fees.
"(2) Motion for Attorney Fees. A motion for attorney fees on appeal must be made
under Rule 5.01 and be filed not later than 14 days after oral argument. If oral
argument is waived, the motion must be filed not later than 14 days after the day
argument is waived or the date of the letter assigning the case to a non-argument
calendar, whichever is later. An affidavit must be attached to the motion
specifying:
"(A) the nature and extent of the services rendered;
"(B) the time expended on the appeal; and
"(C) the factors considered in determining the reasonableness of the fee."

In Evans v. Provident Life & Accident Ins. Co., 15 Kan. App. 2d 97, 113, 803 P.2d
1033 (1990), aff'd in part, rev'd in part 249 Kan. 248, 815 P.2d 550 (1991), the plaintiff
moved for appellate attorney fees, and this court remanded to the district court for a
determination of those fees. On review, the Kansas Supreme Court held that our decision
was contrary to Rule 7.07(b). The court explained, "[c]ivil appellate attorney fee awards
are to be determined by the appellate court hearing the appeal." 249 Kan. at 265. Thus,
"[m]otions for attorney fees incurred before the Court of Appeals should be determined
by the Court of Appeals." 249 Kan. at 265.

More recently, in Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 298
P.3d 1120 (2013) (Snider III), the Kansas Supreme Court revisited Rule 7.07(b). The
Snider court clarified "the procedure for seeking and awarding appellate attorney fees is
established in Rule 7.07(b). . . . Rule 7.07(b) applies to all requests for attorney fees
related to an appeal," whether authorized by statute or by an agreement of the parties. 297
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Kan. 162-63. Regardless of the circumstances, a party must file a timely Rule 7.07(b)
motion to preserve the right to appellate attorney fees.

Here, Weis did not file a timely Rule 7.07(b) motion, nor did anyone else, seeking
reasonable attorney fees for Olsen's services in representing the estate's interests in
Strader I. Thus, Weis failed to preserve the administrator's right to appellate attorney
fees. O'Keefe's later request for fees was neither timely nor addressed to the proper court.

But as Janet acknowledges in her appellate brief, Olsen rendered legal services in
connection with trial proceedings. She does not challenge the reasonableness of those
fees. Those fees incurred at the district court level did not have to be preserved by a Rule
7.07(b) motion. Thus, we must remand to the district court to separate out the fees and
expenses for Olsen's services at the district court level and consider the reasonableness of
those fees and expenses incurred before the district court.

O'Keefe's Attorney Fees

In approving the O'Keefe's fee as administrator, the district court found:

"Mr. O'Keefe's request for fees and expenses is just and reasonable. As a tree in
the wind he bowed with each new family dispute and problem. In a neutral and effective
fashion he dealt with the Strader siblings, their attorneys and others involved in these
proceedings. He employed appraisers, auctioneers and accountants to assist him; he hired
others to prepare the personal property for sale. His actions resulted in a successful
conservation, management and liquidation of estate resources. . . .
. . . .
"In sum, O'Keefe discharged his fiduciary responsibilities. No credible evidence
was presented to indicate Mr. O'Keefe acted with anything other than a full consideration
of his fiduciary obligation. Absolutely no evidence established that Mr. O'Keefe failed to
act in a prudent, diligent and business-like manner in order to obtain the best prices for
estate resources. To the contrary, under extremely difficult circumstances and in spite of
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sometimes unreasonable demands made upon him by the heirs, he exercised admirable
qualities of patience."

Janet does not contest the district court's order for the payment of O'Keefe's fees as
administrator of the estate. But she contends that the district court erred in allowing
O'Keefe to reimburse himself from estate proceeds for appellate attorney fees incurred in
Strader II. She argues that O'Keefe did not preserve the right to appellate attorney fees
by filing a timely Rule 7.07(b) motion. In his appellate brief, O'Keefe does not address
the application of Rule 7.07(b) to him.

As an alternative, Janet complains O'Keefe's involvement in Strader II was
unnecessary and divisive.

As in the case of Olsen's appellate attorney fees, whether a court has the authority
to award attorney fees is a question of law over which we have unlimited review.
Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013).

Our analysis of Olsen's fees on appeal applies equally here. O'Keefe failed to
preserve the right to appellate attorney fees incurred in Strader II by filing a timely Rule
7.07(b) motion. Therefore, we must set aside the district court's order reimbursing
O'Keefe for his legal services on appeal in Strader II and remand for the district court to
consider O'Keefe's fees without including his fees on appeal. With this, Janet's alternative
argument against the payment of O'Keefe's appellate fees is now moot.

Fees for Janet's Attorney

Finally, Janet challenges the district court's partial denial of her request for
attorney fees and expenses. The district court awarded her total fees and expenses of
$10,751.98 for the work of her attorneys at the district court level with respect to her
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challenge to the admission of Betty Jo's will. She does not contest the adequacy of this
award. Further, the district court ordered O'Keefe as administrator to pay appellate
attorney fees of $8,146.90 and expenses of $746.90 ordered by the Supreme Court in In
re Estate of Strader, 301 Kan. 50, 63, 339 P.3d 769 (2014) (Strader III).

But Janet claims the district court erred in finding she failed to preserve a claim
for appellate attorney fees incurred in Strader I. She also claims the district court erred in
declining to award her trial attorney fees incurred in opposing Eric's petitions for annual
employment bonuses and Weis' petition for approval to privately sell estate property to
Eric and Roger.

 At the Appellate Level

Janet complains the district court erred in denying her request for appellate
attorney fees incurred in Strader I on the grounds that she failed to file a timely Rule
7.07(b) motion with our court. She argues that Rule 7.07(b) only applies when the district
court has authority to award fees, and she was seeking fees under K.S.A. 59-1504, which
predicates an award of fees on her having "in good faith and for good cause, successfully
prosecut[ed] . . . any other action for the benefit of the ultimate recipients of the estate."
Thus, she contends that because Strader I dealt with procedure—whether she was
required to post an appeal bond before the district court could hear her appeal from the
district magistrate's decision—and not the merits of her appeal from the district
magistrate's decision, it was impossible at the time of the decision in Strader I to
determine whether the district court had authority to award her attorney fees under K.S.A.
59-1504, a prerequisite for a request for fees under Rule 7.07. This is because "it would
have been impossible to tell at that time whether [her] action would be successful or
whether it would [ultimately] benefit the . . . recipients of the estate." Thus, Janet argues
that her failure to timely file a Rule 7.07(b) motion in Strader I not did preclude her
recovery of appellate attorney fees before the district court.
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The Kansas Supreme Court rejected a similar argument in Snider III. There,
Snider was insured under a policy that provided coverage for contractor's equipment.
After tools and equipment were stolen from Snider's storage facility, he filed a claim
which his insurer denied. He sued the insurer in the district court, but the district court
entered summary judgment against him. He appealed and this court reversed and
remanded with directions to enter judgment in Snider's favor and to determine the amount
of attorney fees Snider should be awarded under K.S.A. 40-908. Snider v. American
Family Mut. Ins. Co., No. 101,202, 2009 WL 2902588, at *15 (Kan. App. 2009)
(unpublished opinion) (Snider I). On remand, the district court ordered fees which Snider
considered inadequate, so he appealed again to this court, where we determined that the
district court erred in including in its fee award the fees for the appellate work of Snider's
lawyer in the first appeal because Snider's lawyer had not sought fees under Rule 7.07(b).
Snider v. American Family Mut. Ins. Co., 45 Kan. App. 2d 196, 205-08, 244 P.3d 1281
(2011) (Snider II). The Supreme Court took the matter up on review. See Snider III, 297
Kan. 157.

On review, Snider argued that the Court of Appeals did not have the authority
under Rule 7.07(b) to award appellate attorney fees so a Rule 7.07(b) motion would have
been futile. But our Supreme Court held that "these potentially futile motions are
procedurally required to advance a party's position and to secure the relief the party
seeks." Snider III, 297 Kan. at 167. The Supreme Court explained, "even though the
district court would enter the final judgment at the conclusion of further proceedings on
remand, the Court of Appeals was authorized to render a decision on the reasonableness
of appellate attorney fees and that decision would be controlling in the district court
proceedings." 297 Kan. at 166. The Supreme Court concluded that, "if a party would be
entitled to appellate attorney fees under a statute or contract upon prevailing on appeal,
then the party must timely file a Rule 7.07(b) motion in order to preserve the right to
those fees." 297 Kan. 167.

19

Under the rule announced in Snider III, Janet should have filed a Rule 7.07(b)
motion to preserve her claim for appellate attorney fees regardless of whether she
ultimately would receive them. If Janet had appropriately filed a Rule 7.07(b) motion,
this court could have made a preliminary judgment as to the reasonableness of fee
request. But because Janet failed to timely file a Rule 7.07(b) motion, the district court
did not err in denying her request for appellate attorney fees incurred in Strader I.

 At the Trial Level

Janet contends the district court abused its discretion in denying her request for
attorney fees incurred at the trial court level opposing Eric's petition for annual
employment bonuses and opposing Weis' petition for approval to privately sell some of
the estate's property to Eric and Roger. She concedes that although the district court's
reasons may have warranted a reduced award, they did not warrant a total denial of fees
on these two issues.

To restate our standard of review, when the district court has the authority to grant
attorney fees, its decision is reviewed for any abuse of discretion. Wiles v. American
Family Life Assurance Co., 302 Kan. 66, 81, 350 P.3d 1071 (2015). A district court
abuses its discretion when it bases its decision on an error of fact or law or when its
decision is so unreasonable that no reasonable person would agree with it. Snider III, 297
Kan. at 169.

To analyze the district court's ruling denying these fees, it is helpful to revisit the
facts and the court rulings relating to the private versus public sale issue and Eric's
employment bonus issues.

After Weis submitted an initial inventory and valuation of the estate, he petitioned
for approval to pay Eric an annual employment bonus of $10,000 for "services rendered
20

to [Betty Jo] and her estate." He also sought approval to sell some of the estate's real and
personal property to Eric and Roger, who had submitted written offers which exceeded
75% of the fair market value as provided in the initial valuation. Janet opposed both the
bonus to Eric and the private sale to her brothers. These matters were set for hearing
before the district magistrate. On the day of the hearing, Janet submitted to the court a
letter offering to buy the property subject to Eric's and Roger's bids for $1 more than each
of their bids. But her bid was contingent upon her being able to pay a portion of the bid
price out of her share of the final disbursement of the estate. Under Janet's scenario, the
estate would benefit $2 from the private sale, but payment would be deferred, at least in
part, until the entire estate was closed and assuming that Janet's share of the remaining
assets of the estate would be sufficient to satisfy this obligation.

After a hearing on both the private sale and the bonus issues, the district
magistrate granted Weis' request to pay Eric a $10,000 employment bonus and signed an
order to this effect. The court continued the hearing on Weis' petition for approval to
privately sell estate property to Eric and Roger. In a dispute that ensued over the wording
of the journal entry regarding the continuance, Janet's attorneys argued: "The court did
not approve a sale of the real state to Eric Strader." The dispute was submitted to the
district magistrate under Supreme Court Rule 170 (2017 Kan. S. Ct. R. 216), but the
judge apparently did not resolve the conflict or file a signed journal entry.

Janet appealed to the district court judge, stating that she was appealing the
authorization of the sale of property to "one of decedent's heirs." This was in spite of the
fact that her attorneys had already acknowledged that the request for a private sale had
not been decided. Nevertheless, on appeal before the district court judge Janet continued
to challenge the private sale of estate property to Eric and Roger.

When Janet appealed, she did not post an appeal bond. After some discovery, the
district court judge determined that filing an appeal bond was required by K.S.A. 59-
21

2401. Janet's counsel did not advise the court that the statute had changed in 2006 and no
longer required an appeal bond. Further, Janet argued the false assertion that the district
magistrate had approved the private sale and that a dismissal of her appeal for lack of a
bond "would result in a $180,000 windfall for Eric." She contended that she did not have
sufficient funds to post a bond. When Janet failed to file a bond, Eric's personal attorney
moved to dismiss the appeal, which the district court judge granted.

Janet appealed this ruling, and our court reversed in Strader I. In doing so, our
court considered only the bond issue. This appeal substantially placed on hold any further
probate proceedings for about 1 year and 8 months. On remand, the district court was
unable to find any signed journal entry approving the private sales, and none of the
parties could produce one. With respect to Eric's $10,000 bonus, the ruling on that matter
was not taken up until the hearing on the final settlement of the estate.

The parties agreed to obtain an appraisal of the estate's property, and, later,
O'Keefe petitioned for approval to publicly auction the property. Janet opposed O'Keefe's
petition to sell the estate property at auction. The district court later observed on the final
settlement of the estate:

"The only disposition Janet seemed to approve was the conditional sale of real estate and
personal property to herself for $2.00 more than Eric's and Roger's offers, and Janet's
offers were made during the same general time framework when she was asserting that
she didn't have the financial ability to pay the premium on a $30,000 commercial appeal
bond."

When Betty Jo's will was found, proceedings were further delayed while the
admissibility of the will was litigated in this court and our Supreme Court for about 3
years and 8 months. During this period, O'Keefe sought to liquidate the estate's assets to
avoid the ongoing depreciation of the personal property, but the heirs did not agree to a
sale.
22

At the final settlement of the estate Janet requested $59,669 in attorney fees and
$1,300.91 in related expenses incurred in opposing the private sale of estate property to
her brothers. The district court denied Janet's request. Citing K.S.A. 59-1504, the district
court found Janet's challenge to the private sales did not benefit the ultimate recipients of
the estate. The court found that Janet's appeal of the dismissal of her appeal of the district
magistrate's "phantom non-decision was not for the benefit of the ultimate recipients of
the estate, but for Janet's benefit."

The court reasoned that because most of the heirs supported the private sale and
Janet's appeal cost the estate substantial attorney fees and time delays in litigating the
appeal bond issue, our court's decision on the matter benefited only Janet. It relieved her
of the obligation to post a bond but never got to the merits of the appeal, which was
predicated on the error of the magistrate judge in a ruling that was never made.

The district court also found Janet did not act in good faith and that it would be
inequitable "to force [Janet's] siblings to bear the burden of paying for her imprudent
actions in not researching current law [on appeal bonds] and in appealing a fictional
order." But Janet argued that by challenging the private sale of estate property to Eric and
Roger, she substantially increased the estate's value. Eric's bid in August 2007 was for
$431,200. Later at public auction, the same property sold for a total of $1,401,500, an
increase of almost $1 million due to the rise in the value of farm land over the years. The
district court noted that even if there had been such an inflation in land values, the
increase would have been offset by (1) all the expenses litigating the matter, (2) the
depreciation in value of some of the estate's personal property, (3) the lost time of family
members spent in litigation, (4) the loss of use of money from the estate caused by the
delay of 8 or 9 years in closing the estate, and (5) additional taxes incurred while the
estate remained open.

23

The district court determined in the exercise of its discretion that fees were not
appropriate on the issues of Eric's bonuses and the private sale of assets because of (1)
Janet's failure to ensure there was an appealable order approving the private sales before
appealing to the district court, and (2) her opposition to the private sales and then later
objecting to a public auction which would thwart her effort to buy the estate property for
only $2 more than the proposals made by Eric and Roger, with payment deferred to the
final settlement.

The court also noted the failure of Janet's attorneys to verify a pleading, which the
court conceded to be "nitpicking." But the court noted:

"[T]he court is being called upon to exercise discretion in determining whether to award
attorney fees to [Janet's attorneys] or [Janet], and it seems only appropriate that when
considering that request, the court can note that [Janet's attorneys] committed the same
defects in the form [of their] pleading that they had so vociferously criticized in others."

Finally, the district court noted Janet should shoulder some of the responsibility for the
circumstances that led to the appeal in Strader I because Janet's attorney never alerted the
district court of its error and therefore invited the error.

The district court concluded:

"Having found that [Janet's] actions in prosecuting or defending the actions to oppose
private sales of real estate and personal property were not in good faith and for good
cause and that they did not benefit the ultimate recipients of the estate, this court
exercises discretion and refuses to allow expenses and attorney's fees for those
proceedings at the district court level."

On the matter of Eric's $10,000 bonus, Janet argued to the district court that "'[b]ut
for (her) opposition, those fees undoubtedly would have been approved.'" The district
24

court rejected that notion as "pure conjecture." "Not in this court" said the district court
judge.

The district magistrate approved Eric's $10,000 bonus for 2006, but as far as we
can tell from the record, the district court judge hearing the appeal from the magistrate's
decision did not resolve the bonus issue on remand following Strader I until the hearing
to approve the final settlement years later in 2015. Janet's appeal in Strader I did not
address the merits of her claims, so our court did not give any guidance to the district
court on how the issue of Eric's bonus should be resolved. At that time the district court
rejected Eric's claim for the 2006 bonus and ordered that his share of the estate should be
reduced by the $10,000 bonus he received. Eric had withdrawn his bonus claim for 2007
without any explanation. Janet presumes that but for her intervention the district court
would have approved Eric's bonus for 2006 and Eric would have successfully pursued his
claim for a bonus in 2007. The district court rejected Janet's assumption that it served as
nothing more than a rubber stamp approving such petitions. Janet offers nothing beyond
this speculation to support the linkage between her opposing Eric's bonuses and those
bonus requests being rejected or withdrawn.

In this appeal we recognize that K.S.A. 59-1504 usually governs whether a district
court is authorized to grant attorney fees in probate proceedings. Although the statute sets
forth several ways to recover fees, only K.S.A. 59-1504's second paragraph is applicable
in this appeal. The pertinent language states:

"Any heir at law or beneficiary under a will who, in good faith and for good
cause, successfully prosecutes or defends any other action for the benefit of the ultimate
recipients of the estate may be allowed his or her necessary expenses, in the discretion of
the court, including a reasonable attorney's fee." K.S.A. 59-1504.

25

Under the statute's plain language, a party must demonstrate four elements to
recover attorney fees: (1) the party is an heir at law or beneficiary under a will; (2) the
party has exercised good faith and had a good cause for incurring the claimed attorney
fees; (3) the party is successful in his or her action; and (4) the action benefits the
ultimate recipients of the estate. See In re Estate of Gardiner, 29 Kan. App. 2d 158, 163,
23 P.3d 902 (2001). But once these elements are established, an award of fees is still
discretionary with the district court. As K.S.A. 59-1504 states, with such a showing fees
and expenses "may be allowed."

Here, the district court denied Janet's fee request on two bases: the failure of her
actions to benefit the estate or Betty Jo's heirs and Janet's lack of good faith. There is a
certain element of disingenuousness in Janet's argument that she opposed the private sale
to her brothers in order to obtain a higher return for the estate from a public sale when she
herself offered to buy the same property at a private sale for a mere $2 more. The court
adequately explained how any increase in the value of the real estate was occasioned by
unnecessary delays and offset by other disadvantages for the heirs. Besides, any claimed
increase in the value of the estate was not the result of the work Janet expended on behalf
of the estate, but a fortuitous and unrelated increase in real estate values. Finally, Janet's
appeal to the district court judge on this issue was premised on the claim that the district
magistrate judge erred in approving the private sale, when no such order had been made.

We find support in the record for this analysis and find no abuse of discretion in
denying fees on these bases.

Following oral argument on this appeal, Janet moved pursuant to Supreme Court
Rule 7.07(b)(1) for attorney fees incurred in this appeal. Based on the resolution of the
issues above, we conclude that it would not be appropriate to award fees for this appeal,
and we deny Janet's motion.

26

Affirmed in part, reversed in part, and remanded for further proceedings.