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HomeMy WebLinkAbout10-20-11 (3)~. c7 ~.. , ~:. p ~ c~ ~~ r=te c'_'~ :J'J'S ~ "~ i_'" ~_: T. _.. ~~-7~ - ~--.. ~ ~ w i= ;, n .~ `~ ~ ~ ' : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF GEORGE F. DIXON, JR. :ORPHANS' COURT DIVISION DECEASED No.21-1994-0754 ~ ~' : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF LOTTIE IVY DIXON :ORPHANS' COURT DIVISION DECEASED No.21-07-0686 MOTION FOR ATTORNEYS' FEES OF MARSHALL DIXON, EXECUTOR OF THE ESTATE OF LOTTIE IVY DIXON Marshall Dixon, in his capacity as Executor of the Estate of Lottie Ivy Dixon (the "Executor"), files this motion seeking recovery of the attorneys' fees that the Executor incurred in litigating the Objections asserted by Richard E. Dixon and George F. Dixon, III (collectively "the Brothers") to the First Intermediate Accounting of the Estate of Lottie Ivy Dixon. In support of this Motion, the Executor states as follows: The Executor filed the First Intermediate Accounting of the Estate of Lottie Ivy Dixon and Petition for Adjudication (the "Account") on July 25, 2008. ' Pursuant to a stipulation of counsel and approval of the auditor, the deadline for filing this motion was extended to October 20, 2011. •. 2. In August 2008, the Brothers filed the following four sets of objections to the Account: (a) Objections of M&T Bank, Richard E. Dixon and George F. Dixon III To The First Intermediate Accounting of Marshall L. Dixon, Executor; (b) Objections of Richard E. Dixon and George F. Dixon to the First Intermediate Accounting of Marshall L. Dixon, Executor; (c) Objections To The First Intermediate Accounting of the Estate of Lottie Ivy Dixon (filed by Richard E. Dixon, George F. Dixon, and M&T Bank, as trustees of the TIP Trust); and, (d) Objection To the First Intermediate Accounting of the Estate of Lottie Ivy Dixon (filed by Richard E. Dixon and George F. Dixon, III as co-Trustees of the QTIP Trust). 3. The Brothers' Objections included, inter alia, an objection to the appraisals of personal property and jewelry; an objection to the allocation of the Unified Tax Credit; an objection to the Estate's retention of the portion of the federal tax refund related to the QTIP Trust; an objection that the attorneys' fees billed to the Estate were excessive; an objection that the Executor's commissions were excessive; an objection to certain payments for expenses related to the real estate that had been bequeathed to Charlotte Dixon and Marshall Dixon; an objection to certain losses in value of securities during the administration of the Estate; and an objection that "substantial assets includable in the Estate are not accounted for." 4• Many of these objections were eventually withdrawn or simply not pursued by the Brothers. 5• The Brothers did not pursue their objections in good faith. 2 6. In pursuit of their objections, the Brothers and their counsel engaged in substantial conduct that was dilatory, obdurate, and vexatious, including, but not limited to, the following: (a) asserting one or more objections that the Brothers knew or should have known had no basis in law or fact; (b) asserting one or more objections in which the Brothers had no interest in the outcome; (d) needlessly delaying and prolonging the discovery period, and seeking information after the close of discovery that could have been obtained during the lengthy discovery period; (e) continuing to advocate one or more objections after discovery was closed and the Brothers had no evidence to support the objection(s); (fl making allegations against the Executor after the close of discovery that the Brothers had no evidence to support; (g) disregarding the Court's order requiring the Brothers to itemize the assets allegedly missing from the Account, and to support their position with rationale and legal authority; (h) disregarding the Court's order requiring the Brothers to identify their witnesses and exhibits that they intended to use at the audit hearing; (i) submitting multiple documents in the month before the audit hearing which raised completely new legal theories, while conceding that the Brothers had no witnesses or exhibits to present in support of the objections; (j) disclosing exhibits in the two weeks before the hearing that had never been produced in discovery, and months after the date by which the Brothers were required to identify exhibits; (k) filing a petition seeking to abandon the audit process a year and a half after the Brothers initiated it, and seeking the appointment of an administrator pro tem; (1) advocating an objection at the hearing which was completely unsupported by any cogent legal theory or any evidence; and (m) delaying the resolution of the audit proceeding by filing an improper interlocutory appeal of the denial of the petition for appointment of administrator pro tem. 7. The Brothers did not prevail on any of the objections that they advocated, other than two objections that were conceded, in part, by the Executor. 8. As a result of the inappropriate conduct of the Brothers and their counsel, the Executor incurred attorneys' fees in excess of $193,000 in responding to and litigating the Brothers' objections. 9. All of the attorneys' fees that the Executor incurred reflect chazges reasonably incurred for the Executor's counsel to respond to the Brothers' objections. 10. The Executor requests that the Court schedule a hearing on this motion. WHEREFORE, the Marshall L. Dixon, in his capacity as the Executor of the Estate of Lottie Ivy Dixon, requests that the Court award him the attorneys' fees incurred in an amount to be proven at the hearing, but which amount is reasonably expected to exceed the sum of $193,000.00. The Executor further requests that the Court order that the Brothers and their counsel aze jointly and severally liable for the payment of the Executor's attorneys' fees. McNEES WALLACE & NURICK LLC By: Elizabe . Mullaugh (I.D. No. 76397) Kimberly M. Colonna (I.D. No. 80362) 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 717-232-8000 Date: October 19 2011 Counsel for Marshall Dixon as Executor of the Estate of Lottie Ivy Dixon a CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the forgoing document was served by first class mail, postage prepaid, addressed as follows: Walter W. Cohen, Esquire Kevin J. Kehner, Esquire Obermayer Rebmann Maxwell & Hippel LLP 200 Locust Street, Suite 400 Harrisburg, PA 17101 Paul C. Heintz, Esquire Nina B. Stryker, Esquire Erin E. McQuiggan, Esquire Obermayer Rebmann Maxwell & Hippel LLP One Penn Center, 19a' Floor 1617 JFK Boulevazd Philadelphia, PA 19103 Mark Bradshaw, Esquire Stevens & Lee, P.C. 17 N. Second St., 16~' Floor Harrisburg, PA 17101 Daniel L. Sullivan, Esq. Saidis Sullivan & Rogers 26 West High Street Cazlisle, PA 17013 Wayne F. Shade, Esquire 53 W. Pomfret St. Carlisle, PA 17013 Charlotte Ivy Dixon 323 Bayview Street Camden, ME 04843 Kimberl . Colonna Dated: October 19, 2011