Probate, Substantiation Of Reasonableness Of Fees: Removed Trustee’s Failure To Challenge Fee Entitlement Under Judgment Affirmed In A Prior Appeal Also Disposed Of Same Challenge In A Second Appeal

However, The Lower Court Did Reduce The Fee Request Because of Unusually Redacted Time Entries.

               The Fifth District, in Trunick v. Calloway, Case No. F086766 (5^th Dist. June 11, 2025) (unpublished), affirmed an award of attorney’s fees to a beneficiary who was instrumental in removing co-trustees in a probate dispute.  In earlier proceedings, the lower court had awarded beneficiary prejudgment attorney’s fees and costs under Probate Code section 17211(b) relating to trustees’ actions with respect to the removal petition.  The judgment in the case was affirmed in an earlier appeal, with the co-trustees not challenging the fees/costs award.  While the appeal was pending, beneficiary moved for more fees and costs under the judgment.  The lower court awarded beneficiary $77,073.50 in fees (out of a requested $99,156) and $11,558.35 in costs (the total ask).  Co-trustees appealed again, with the same result—the fee award was affirmed.  The reason was that co-trustees should have challenged fee entitlement in the prior appeal, but they did not such that the appellate court affirmed—losing jurisdiction on any fee entitlement issue.  However, the lower court did reduce the fee request based on unduly redacted time entries, a record substantiation issue which practitioners must be attuned to.  Also, the appellate court observed that the lack of a reporter’s transcript on the fee hearing hampered review, with the lower court’s decision presumed to be correct.