HALL v. CUTSINGER

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HALL v. CUTSINGER

2015 OK CIV APP 17

345 P.3d 412

Case Number: 111781

Decided: 02/05/2015

Mandate Issued: 03/02/2015

DIVISION III

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

Cite as: 2015 OK CIV APP 17 , 345 P.3d 412

NORMA J. HALL, INDIVIDUALLY AND AS TRUSTEE OF THE NORMA J. HALL

LIVING TRUST AND KATHRYN S. MEDLIN, AS TRUSTEE OF THE NORMA J. HALL LIVING

TRUST, Plaintiffs/Appellants,

v.

BOBBY GENE CUTSINGER, II,

Defendant,

and

GEORGE N. KEENEY, III, Interested Party/Appellee. 1

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE BILL GRAVES, JUDGE

AFFIRMED

James K. Larimore, Jennifer K. Christian, DURBIN, LARIMORE & BIALICK,

Oklahoma City, Oklahoma, for Plaintiffs/Appellants,

L. Vance Brown, Elisabeth

D. Brown, ELIAS, BROOKS, BROWN & NELSON, P.C., Oklahoma City, Oklahoma, for

Interested Party/Appellee.

Bay Mitchell, Presiding Judge:

¶1 Plaintiffs/Appellants Norma J. Hall (Hall) and Kathryn S. Medlin (Medlin)

(collectively, Appellants) seek review of the trial court's Order requiring

Appellants to advance Defendant Bobby Gene Cutsinger's (Cutsinger) portion of

fees owed to the court-appointed expert, Interested Party/Appellee George N.

Keeney, III (Keeney) and awarding Appellants a cost judgment against Cutsinger

for those fees. After review of the record and applicable law, we hold the trial

court did not abuse its discretion and affirm the Order.

¶2 Hall, as trustor, created the Norma J. Hall Living Trust (the Trust) and

appointed Cutsinger, her son, to serve as co-trustee. In 2008, upon learning

that Cutsinger had misappropriated money and assets belonging to both her and

the Trust, Hall removed Cutsinger as trustee and appointed Medlin, her daughter,

as co-trustee. Appellants commenced this action on September 3, 2008 to recover

the money and assets misappropriated by Cutsinger.

¶3 Appellants filed a Motion to Compel an Accounting. At a hearing on the

motion, Appellants and Cutsinger agreed that the court should appoint Keeney as

an independent forensic accountant and agreed to split the costs of the

accounting. Each paid $5,000 toward Keeney's initial $10,000 retainer fee. The

trial court memorialized the parties' agreement in an Order dated October 13,

2009. 2

¶4 On March 22, 2012, upon Keeney's Application for Order Approving

Accounting Fees and Requesting Discharge of Accountant, the trial court entered

an Order requiring Keeney to complete certain aspects of his report and to

perform additional work. The court specifically reserved the determination of

the proportion of fees to be paid by each party:

Further, having been advised by Mr. Keeney that he has not been paid for

all charges incurred by Mr. Keeney in rendering services as Court-appointed

accountant, the Court directs Mr. Keeney to file an appropriate fee

application at the conclusion of his work and the Court will order

payment of reasonable costs not yet paid, in such proportions as the Court

shall subsequently order.

(emphasis added).

¶5 Keeney finished the additional work, submitted a supplemental report, and

filed a second application for payment. In an Order dated August 10, 2012, the

trial court reduced Keeney's requested fees from $93,020.70 to $71,020.70 and

noted that each party was responsible for $35,510.35. Cutsinger, however,

claimed he had no ability to pay his share of Keeney's fees. The trial court

stated:

This Court will ultimately order payment of all that is owed to Mr.

Keeney pursuant to this Court's findings herein preferably with each party

ultimately paying fifty percent (50%) of the total fees. The Court views

what is owed Mr. Keeney as costs and it is therefore appropriate not to

order complete and final payment until this matter is

completed.

¶6 Trial on the merits was held in December, 2012, with Keeney testifying as

Appellants' principal witness. Appellants recovered a judgment against Cutsinger

of approximately $1.4 million. Appellants subsequently filed an Application for

Costs and for Allocation of Expert Fees, requesting that Cutsinger be ordered to

pay the balance of the unpaid fees owed to Keeney. Keeney filed a response

asking the court to order actual payment by Appellants because Cutsinger was

insolvent.

¶7 After a hearing, the trial court issued an Order finding that each party

was responsible for one-half of Keeney's fees but that Cutsinger had no apparent

ability to pay his share. The court ordered Appellants to pay the balance owed

to Keeney and granted Appellants a cost judgment against Cutsinger in the amount

of $30,510.35, the portion of Keeney's fees owed by Cutsinger.

¶8 The issues on appeal deal solely with the trial court's ruling that

Appellants must advance all of Keeney's fees due to Cutsinger's inability to pay

his portion. Appellants allege: (1) the trial court's Order was contrary to its

prior Orders concerning payment of Keeney's fees; (2) Keeney's response to

Appellants' Application for Costs and Allocation of Expert Fees was untimely;

and (3) there was no evidentiary support for the trial court's finding that

Cutsinger had no apparent ability to pay his share of Keeney's fees.

¶9 Issues that arise in the context of administration of trusts are matters

of equitable cognizance. See In re Lorice T. Wallace Revocable Trust , 2009 OK 34, ¶2 , 219 P.3d 536, 537 . "In an equitable

matter, the Court will examine the whole record and weigh the evidence, but the

trial court's findings will not be disturbed in that review unless they are

clearly against the weight of the evidence or some governing principle of law."

Id.

¶10 Appellants claim the trial court's Order requiring Appellants to advance

all of Keeney's fees was contrary to its prior Orders concerning payment of

Keeney's fees. Appellants construe the court's October 13, 2009 and August 10,

2012 Orders as final judgments requiring the parties to pay equal shares of

Keeney's fees. We disagree. Although the trial court noted that each party was

responsible for half of Keeney's fees, the court did not order either

Appellants or Cutsinger to pay the balance due to Keeney. The trial court

specifically and consistently noted that it viewed payment as a cost issue to be

determined after final judgment on the merits. Accordingly, this claim is

denied.

¶11 Appellants also argue that Keeney's response to their Application for

Costs and for Allocation of Expert Fees was untimely pursuant to 12 O.S. §1031.1(B), 12 O.S. §696.4(B), and District

Court Rule 4(e). Keeney's response was not a §1031.1(B) motion to vacate or

modify the court's August 10, 2012 Order, as Appellants contend, because that

Order made no determination regarding payment of Keeney's fees and specifically

reserved judgment on the issue. Nor was Keeney's response an untimely

application for fees under §696.4(B) or an untimely response under Rule 4(e).

Section 696.4(B) provides that a party seeking to recover costs or fees

not provided for in the judgment must file an application within thirty days of

the filing of that judgment. Similarly, Rule 4(e) provides that "Any

party opposing a motion . . . shall serve and file a brief or a list of

authorities in opposition within fifteen (15) days after service of the motion,

or the motion may be deemed confessed." (emphasis added). These provisions are

not applicable because Keeney was not a party to the action below.

¶12 Appellant's final contention is that there was no evidentiary support for

the court's finding that Cutsinger had no apparent ability to pay his share of

the fees. The record shows that seven attempts to serve Cutsinger with a Writ of

General Execution were unsuccessful. The record also shows attempts to garnish

Cutsinger's bank accounts were unsuccessful because Cutsinger had no money or

assets, other than exempt funds, in his accounts. Appellants insist that "Keeney

fail[ed] to establish that the trial court was presented or considered" this

evidence. However, Appellants bear the burden of producing a sufficient

record to demonstrate error. Pracht v. Oklahoma State Bank , 1979 OK 43 , ¶5, 592 P.2d 976, 978 . The record is

silent on what evidence was submitted at the final hearing concerning

apportionment of Keeney's fees. Accordingly, this Court must assume the trial

court's Order finding Cutsinger had no apparent ability to pay was supported by

the evidence. See Fleck v. Fleck , 2004 OK 39, ¶12 , 99 P.3d 238, 241 .

¶13 Under the record presented, the trial court did not abuse its discretion

by ordering Appellants to pay the balance due to Keeney and awarding Appellants

a cost judgment for Cutsinger's share of the fees.

¶14 AFFIRMED.

JOPLIN, J., concurs.

HETHERINGTON, C.J., dissents:

¶1 As the majority notes in footnote 1, George N. Keeney, III was not a party

to the action below as a court-appointed accounting expert. As such, he has no

standing to pursue his claim for the balance of his fees in this case. His

remedy rests solely in a separate cause of action for breach of contract and any

other possible claims for relief as the law might allow.

FOOTNOTES

1 George

N. Keeney, III (Keeney) was a court-appointed expert and was not a party to the

action below. In this appeal, Appellants served Keeney with its appellate

filings. Keeney filed a Response to Appellants' Petition in Error, a

Counter-Designation of Record, and an Answer Brief, all without leave of Court

or by written consent of Appellants. Appellants did not object to Keeney's

responsive filings. Rather than just proceeding as if he was a proper party, the

better course of action would have been for Keeney to intervene in the

proceeding below or seek leave of the Supreme Court to intervene on appeal. We

treat Keeney as a proper Appellee here just as Appellants do. Keeney has a

direct financial interest in the outcome of this appeal and would be aggrieved

if we were to deny him the right to defend his interests on appeal.

2 "The

parties shall split the costs of the accounting. The initial estimate of the

cost is $10,000.00 for the total accounting. The parties agree to split that

amount $5,000.00 each. The parties shall meet with the accountant on or before

seven business days from August 5, 2009, to make arrangements with the

accountant to compensate him, and will pay such deposit as the accountant

requires, at least initially, up to $5,000.00 each."

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Supreme Court Cases

Cite Name Level

2004 OK 39 , 99 P.3d 238 , FLECK v. FLECK Discussed

2009 OK 34 , 219 P.3d 536 , IN RE: WALLACE REVOCABLE TRUST Discussed

1979 OK 43 , 592 P.2d 976 , PRACHT v. OKLAHOMA STATE BANK Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 696 .4, Provision for Costs, Attorney Fees, and Interest Cited

12 O.S. 1031 .1, Authorization to Correct, Open, Modify or Vacate Judgments - Time - Notice - Costs Cited