Sara Hernandez, Administratrix of the Estate of Selma Kovalik v. Mary Ann Smolicz et al. (2012)

DECISION RE HEARING IN DAMAGES

The defendant Mary Ann Smolicz was represented by counsel in this matter until January 12, 2009, when her counsel was permitted to withdraw his appearance.   Thereafter the defendant Smolicz did not file a new appearance on her own behalf or by counsel.   On May 24, 2011, she was defaulted for failure to appear.   Simultaneously with the report of a settlement against the defendant Farmington Savings Bank, the plaintiff appeared at a duly noticed Hearing in Damages on June 4, 2012, and presented evidence of its damages as to Mary Ann Smolicz.   The plaintiff presented an updated military affidavit and the court finds that the defendant is not in the military service.   The court further notes that the effect of the default is that all of the well-pleaded allegations in the complaint are deemed proven and true.

The court finds damages in favor of the estate of Selma Kovalik in the name of the administratrix Sara Hernandez as follows:

As to missing cash and accounts, $131,918.00, calculated as $146,918.00, less $15,000 that was paid over by Mary Ann Smolicz;

As to missing personal property, $25,000.

The court will treble these amounts as damages for theft.   The court makes no award related to the PacificCorp stock, and no award related to the failure to pay the Jerome Home.

On the issue of attorney fees, the court has carefully reviewed the affidavit of counsel fees in this matter.   The court disallows or reduces certain of the items because they either appear excessive or duplicative, or they appear to involve work as to the other defendant Farmington Savings Bank that ought not be charged to Smolicz, or they involve work associated with Sara Hernandez in her ordinary capacity as administratrix of the estate for which Smolicz ought not be charged.   Rather, as to the torts ascribed to the defendant Mary Ann Smolicz, the court awards punitive damages equal to attorney fees to the plaintiff in the sum of $63,065.00 and expenses in the sum of $2,947.00.

Award of Damages against the defendant Mary Ann Smolicz:

Award of $131,918 missing cash and accounts and $25,000 missing property is trebled to $470,754;  plus $63,065 punitive damages, calculated as attorney fees;  plus $2,947 expenses.

Total:  $536,765.00

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.