AlaFile E-Notice

02-CV-2014-900513.00
Judge: SARAH HICKS STEWART
To: MCDONALD DAVID ALLEN
dam@krmlaw.com

NOTICE OF ELECTRONIC FILING
IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA
TODD HILL VS ESTATE OF LEROY HILL DECEASED
02-CV-2014-900513.00
The following matter was FILED on 10/7/2015 5:38:04 PM

Notice Date:

10/7/2015 5:38:04 PM

JOJO SCHWARZAUER
CIRCUIT COURT CLERK
MOBILE COUNTY, ALABAMA
205 GOVERNMENT STREET
MOBILE, AL 36644
251-574-8420
charles.lewis@alacourt.gov

 DOCUMENT 471
ELECTRONICALLY FILED
10/7/2015 5:38 PM
02-CV-2014-900513.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA
HILL TODD,
Plaintiff,

)
)
)
) Case No.:
)

V.
ESTATE
OF
DECEASED,
Defendant.

LEROY

HILL

CV-2014-900513.00

)
)

ORDER
This matter is before the Court on issues concerning the amount of attorneys’ fees
recoverable by Vincent F. Kilborn III and David A. McDonald (“Kilborn and
McDonald”) from the Estate of Leroy Hill.
To put this dispute in context, the Court will provide a short recap of the facts. In
2009, Leroy Hill died leaving a Will executed in 2000 conveying the vast majority
of his assets to his widow, Deborah Hill, those assets being the Leroy Hill Coffee
company (“the Coffee Company”) and the 4,000 acre property (“the Ranch”).
Leroy’s children from his first wife (the Hill children”) received very small specific
bequests of money only or nothing at all under the will.
The Hill children and their mother Bonnie Hill, Leroy’s first wife, retained Kilborn
and McDonald to represent them in circuit court to prove that the 2000 will
violated a contract between Bonnie and Leroy negotiated as part of their 1984
divorce that Leroy would leave the Coffee Company and the Ranch to the Hill
children. The civil court action was extensively litigated and the result appealed to
the Alabama Supreme Court. In the end, however, the Hill children won.
This matter is the Probate Estate which has been removed to Circuit Court. After
the litigation in the civil court action was exhausted, the Probate Estate was ready
to be administered. Not, however, with much legal argument and voluminous
pleadings regarding the widow's elective share and other matters particular to the
Probate Estate. The Hill children, still represented by Kilborn and McDonald,
continued to succeed.

 DOCUMENT 471

After the Hill children prevailed in or settled the legal issues before the Probate
Court, the Estate appeared to be ready to be distributed and closed. As part of this
process, this Court ordered on March 31, 2015 that Kilborn and McDonald’s fees
and expenses were for the benefit of the Estate finding “the Estate would not have
been distributed to the persons entitled to it” without the work of Kilborn and
McDonald. The Court approved a 40% attorneys fee of “all cash and real or
personal property of the Leroy Hill Estate. . . . taking into account the size and
character of the Estate and the local law and practice.” Kilborn and McDonald
were reimbursed their expenses and received 40% of the cash on hand at the time
pursuant to the Order.
In a classic case of “buyer’s remorse,” the Hill children now want the rest of the
fee owed by the Estate to Kilborn and McDonald to be as minimal as possible, if
not zero.
With this factual context, the Court holds as follows:
The Hill children’s motion for the Court to reconsider its March 31, 2015 Order is
denied.
The Hill children’s motion to terminate the proceedings seeking enforcement of the
claim for attorneys fee is denied.
The Hill children’s motions to strike the affidavits in support of Kilborn and
McDonald’s attorneys’ fees are denied.
Based on a review of all the evidence before it, the Court finds the value of the
remaining assets of the Estate of Leroy Hill to be as follows:
$6,000,000 for the Coffee Company;
$23,146,500 for the Ranch real Estate;
$2,208,000 for the Ranch improvements;
$450,000 for funds not already subject to disbursement;
$700,000 for Ranch equipment; and
$625,000 for the average projected sales price of cattle.
The total value of the remaining assets is $33,129,500. The attorneys’ fee awarded
to Kilborn and McDonald under the Court’s March 31 Order is therefore is
$13,251,800.

 DOCUMENT 471

Kilborn and McDonald have made an alternative argument to the March 31 Order
under a quantum meruit theory pursuant to the authority in King v. Keith, 257 Ala.
463, 60 So.2d 47 (Ala. 1952) Although the Court finds it unnecessary in view of its
March 31 Order, the Court reviewed all the evidence in support of a quantum
meruit theory and finds an attorneys fee in the amount of $13,251,800 to be more
than fair.
The Court finds that amount to be reasonable in view of the extensive affidavits
and evidence submitted in support of the request and after review of the factors set
out in Peebles v. Miley, 439 So.2d 137 (Ala. 1983).
To recap those factors briefly, the Court finds that Kilborn and McDonald’s
representation of the Hill family and the Estate of Leroy Hill has been nothing
short of exceptional. They have litigated claims related to this Estate before a jury,
in a subsequent proceeding before the trial court where they sought and received
the equitable remedy of specific performance, in numerous hearings before this
Court and, on multiple occasions, before the Alabama Supreme Court.
Kilborn and McDonald have produced remarkable results, particularly in light of
the adverse facts and potentially adverse law. In 2009, Kilborn and McDonald
agreed to accept on a contingency fee basis a case seeking to enforce a 26 year old
agreement (that the law required be in writing, see Ala. Code §43-8-250), knowing
that the clients did not have possession of that writing, and knowing that the
decedent, who, having knowingly breached the agreement had no interest in
preserving it, was the last person in possession of that written agreement.
Further, Kilborn and McDonald accepted this engagement knowing that the only
person outside of the Hill family who had witnessed execution of the agreement
was Leroy Hill’s secretary (who later became Leroy Hill’s second wife, Debbie
Hill), the very person who stood to inherit the Ranch and the Coffee Company as a
result of Leroy’s breach of the agreement.
Nevertheless, Kilborn and McDonald, after appealing the initial dismissal of the
case, convinced a jury, a seasoned trial judge, and the entire Alabama Supreme
Court that the written agreement existed, was breached, and their clients were
blameless in its disappearance.
Even after successfully enforcing the contract, Kilborn and McDonald marshalled,
protected, preserved and recouped Estate assets.

 DOCUMENT 471

The results achieved by Kilborn and McDonald are phenomenal: instead of three
Hill children sharing $675,000, all four Hill children stand to share in an Estate the
Hill children themselves recently valued at over $30 million, unencumbered by any
personal claim by Debbie Hill. Kilborn and McDonald accomplished this feat
against a team of well-funded highly regarded counsel to whom Debbie Hill paid
millions of dollars. Kilborn and McDonald incurred $485,927 in litigation
expenses that they had little hope of recovering if they did not win this case.
Success required that Kilborn and McDonald win every battle – the appeal of the
trial court’s dismissal of the complaint, the jury trial, the post-trial proceeding
seeking specific performance, the subsequent appeal and mandamus proceedings in
the circuit court action, and then the numerous claims against the Estate filed by
Debbie Hill.
Kilborn estimates that he spent over 4,000 hours on this case. McDonald estimates
his time at 5,000 hours through October 2014. Frank Taylor has spent 1408
recorded hours since April 2012.
Based on the evidence before the Court and this Court’s own evaluation of the
reasonable time that such services necessarily required, the Court concludes that
the three primary counsel in this matter: Kilborn, McDonald, and Taylor (without
even counting associates, paralegals, office staff or the other co-counsel who have
appeared before this Court) have spent well over 11,000 hours on the case. This
determination is significant because it eliminates any concern that Kilborn and
McDonald are being overcompensated by this Court’s Order.
The “fee customarily charged in the community” factor has little room for
operation here. It is difficult for this Court to contemplate any other firm taking on
this case on a contingency basis and continuing to fund and litigate this matter in
the manner of Kilborn and McDonald. This matter is at the opposite end of the
spectrum from the frequent and similar matters where a “usual fee” can be
ascertained and considered.
Therefore, even under a quantum meruit theory, the fee of $13,251,800 is
supported by the evidence before this Court.
Kilborn and McDonald made an additional request for fees in the amount of
$2,000,000 for the services rendered to the Estate since October 17, 2014. The
Court will deny that request.

 DOCUMENT 471

This Court Orders that the $1,935,566.00 in Kilborn’s trust account, which
represents the balance of the Arch Insurance settlement as well as the proceeds
from the sale of other Ranch assets (such as boats), be immediately disbursed to
Kilborn and McDonald as partial payment towards the fee of $13,251,800 owed
to them as creditors of the Estate.
This Court further Orders the personal representative of the Leroy Hill Estate to
immediately devise a plan to satisfy the remaining $11,316,234 owed these
creditors.

DONE this 7th day of October, 2015.
/s/ SARAH HICKS STEWART
CIRCUIT JUDGE