IN RE: the ESTATE OF Cathy Ann GERLETT (2026)

Appellant was appointed as the personal representative of a contested will. After several months, she admitted to allegations of fraud, forgery, and misrepresentation relating to the validity of the will, and she was removed as the personal representative. Appellant filed a final accounting from her time as personal representative, and the probate court issued a limited judgment in which it awarded less than the full amount of attorney fees that she had requested and denied her a personal representative fee and a cleaning expense reimbursement. She appeals from that limited judgment.

Appellant raises three assignments of error. In her first assignment of error, she contends that the probate court erred when it found that $16,695.00 was an unreasonable amount of attorney fees and reduced the attorney fees to $4,659.30 without complying with the provisions of ORS 116.183(2)(b) and in violation of appellant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In her second assignment of error, appellant argues that the probate court erred when it found it had “no authority for the Court to order personal representative fees to a person who was not legally acting as personal representative” and denied personal representative fees in violation of ORS 116.183(1) and ORS 111.275(1). In her third and final assignment of error, appellant contends that the probate court erred when it found there was not enough information to support approval of a payment for a cleaning bill that appellant made out of the estate when she was personal representative, also in violation of ORS 116.183(1) and ORS 111.275(1).

We conclude that appellant did not preserve her arguments, we decline to review for plain error, and we affirm.

STANDARD OF REVIEW

Appellant argues that we should review de novo because this is an action in equity. But we have discretion whether to review de novo in “an equitable action or proceeding other than an appeal from a judgment in a proceeding for the termination of parental rights.” ORS 19.415(1)(3)(b). We decline to review de novo here because this is not an exceptional case that justifies de novo review. See ORAP 5.40(8)(c) (there is a presumption against exercising our discretion to review de novo, and we will only do so in “exceptional cases”). Instead, we review the probate court's decisions on requested equitable relief for abuse of discretion, its legal conclusions for errors of law, and its factual findings for any evidence. Lynch v. Romano, 285 Or App 243, 244, 396 P3d 267, rev. den., 361 Or 800 (2017).

STATEMENT OF FACTS

The decedent and appellant were “life partners” for 32 years. Decedent passed away on February 9, 2023. In a will dated September 7, 2018, appellant was named as the personal representative. Before probate was initiated, appellant found a will dated October 21, 2022, also naming appellant as personal representative. In April 2023, appellant filed a petition to probate the 2022 will and appoint herself as the personal representative.

In June 2023, decedent's daughter, K, contested the 2022 will. She sought to have the court declare the 2022 will invalid, remove appellant as personal representative, and probate the 2018 will. K alleged that decedent's signature on the 2022 will was forged by someone, allegedly appellant or appellant's daughter, and that no witness or notary public could have attested to decedent's mental competency because decedent did not execute the 2022 will. Appellant initially filed a response denying those allegations but later filed an amended response that admitted to the entirety of the allegations. That is, appellant admitted that the 2022 will was fraudulent and that someone, including possibly appellant or her daughter, had forged decedent's signature.

The probate court declared the 2022 will invalid and removed appellant as personal representative. Appellant filed her final accounting and asked the court to approve it. In her request, she sought a limited judgment awarding $16,695 in reasonable attorney fees and asked that “the statutory personal representative's fee be determined.” Appellant also submitted documentation that she had hired a third party, who billed the estate $2,000 “for assisting with cleaning and setting up the Estate Sale[,]” of which $674 was paid from the proceeds of the estate sale.

K and P, decedent's daughter and son, objected to the final accounting. P objected to the “payment of any personal representative's fee to the former personal representative.” (Underline in original). P also objected to the attorney fees and appellant's request for a $2,000 cleaning expense. K joined in P's objections.

At the hearing scheduled for the objections, the probate court told the parties that it would consider the final accounting, the statement for attorney fees, the objections, and a motion to reduce the personal representative's bond.

The probate court determined that it had no authority to “order personal representative fees to a person who was not legally acting as personal representative.” It thus denied appellant's request for a personal representative fee. As to attorney fees, the probate court noted that appellant's counsel “performed perfunctory services on this estate,” referring to the actions taken to “file[ ] the petition, provide[ ] notice, file[ ] an inventory, and respon[d] to the motions that were filed within this case.” But it determined that

“the final amount of attorney fees of $16,695 exceeds not only the reasonable attorney fees in this area for that amount of work, but that it also exceeds the quality of the work that was performed. This will be hard to hear, [appellant's counsel], but I'm reducing these attorney fees to one quarter of that amount. The costs will remain, and you're—there was no objection to the costs.”

The probate court also denied reimbursement for the cleaning expense because “[t]here's simply not enough information as to the work that was completed.”

The probate court then asked the parties if it “missed any of the issues this * * * morning?” Appellant's counsel said his “only concern” was that the probate court had appeared to find that the estate sale violated a temporary restraining order and denied the cleaning expense for that reason. The court acknowledged that the temporary restraining order came after the estate sale was conducted, and it clarified that it had not denied the cleaning expense for that reason. Appellant's counsel raised no other issues.

ANALYSIS

Appellant argues that the probate court erred when it reduced the attorney fee award without allowing appellant's attorney the opportunity to submit additional materials under ORS 116.183(2),¹ which appellant argues violated her federal due process rights. Appellant also argues that the probate court erred in finding that appellant was not legally acting as a personal representative and in denying her a personal representative fee and reimbursement for the cleaning expense as a part of the final accounting. Appellant contends that the probate court violated ORS 116.183(1)² and ORS 111.275(1)³ because neither party requested approval of either the personal representative fee or the cleaning expense. We conclude that appellant failed to preserve each assignment of error because she did not alert the probate court that she believed additional process was necessary, despite having an opportunity to do so.

We will not review a matter assigned as error “unless the claim of error was preserved in the lower court * * *, provided that the appellate court may, in its discretion, consider a plain error.” ORAP 5.45(1). To qualify as plain error, several requirements must be met. The error must be (1) an error of law; (2) that is apparent, meaning the legal point is obvious and not reasonably in dispute; and it must (3) appear “ ‘on the face of the record.’ ” State v. Reynolds, 250 Or App 516, 519-20, 280 P3d 1046, rev. den., 352 Or 666 (2012) (quoting State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990)). Even where those conditions are satisfied, we must determine whether to exercise our discretion to reach the error and correct it. Id. at 520. “[W]e normally will not exercise [our] discretion in the absence of an explicit request for plain-error review and concomitant plain-error arguments.” State v. Atwood, 332 Or App 495, 498 n 2, 549 P3d 51 (2024); see also ORAP 5.45(7) (“The court may decline to exercise its discretion to consider plain error absent a request explaining the reasons that the court should consider the error.”).

Here, the probate court informed the parties at the beginning of the hearing that it intended to consider both the final accounting and the objections to the final accounting and attorney fees. Appellant did not alert the probate court that she had any issue with that process. Because appellant's first assignment of error goes to the process—the court's failure to permit appellant or appellant's attorney to submit additional information—we would expect her to have raised the process objection when the court announced its intent to follow a process that she believed was unlawful by, for example, requesting additional time to respond to the objection to attorney fees. She did not.

The probate court made an oral ruling on attorney fees and told appellant's counsel that it was reducing attorney fees to one-quarter of the amount requested. The probate court then asked the parties if it “had missed any of the issues * * * this morning,” and appellant took that opportunity to clarify the court's reasoning for denying the cleaning expense. But appellant made no objection to the three-quarter reduction to attorney fees and made no mention of ORS 116.183(2). Furthermore, appellant did not alert the court that she believed the court's ruling on the personal representative fee or the cleaning expense violated ORS 116.183(1) or ORS 111.275(1). Therefore, as to each of appellant's assignments of error, the probate court was not presented with “the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made[.]” Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008).

Appellant argues that she was excused from preserving the issues because the error arose when the probate court announced its decision. But this is not a circumstance where we would excuse the requirements of preservation. See State v. Manigo, 342 Or App 384, 386, 576 P3d 525 (2025) (explaining that we excuse preservation when a party did not have an opportunity to object or challenge a trial court ruling). Appellant had an opportunity to raise the objections in the probate court, as we described above.

We also will not review the alleged errors as plain error. Appellant waived her argument for plain-error review “by failing to raise it in [her] opening brief.” State v. Webb, 342 Or App 426, 446, 576 P3d 995, adh'd to as modified on recons., 344 Or App 365, 578 P3d 1290 (2025). She first requested plain-error review in her reply brief. That is too late. Id.

In sum, appellant failed to preserve each of her three assignments of error. We will not excuse preservation on this record. We will not review the purported errors as plain error because appellant did not request plain-error review in her opening brief.

Affirmed.

FOOTNOTES

1.   ORS 116.183(2)(b) provides:“Before the court awards attorney fees in an amount less than the amount requested by the personal representative, the court must allow the attorney an opportunity to submit additional materials supporting the requested amount.”

2.   ORS 116.183(1) provides:“A personal representative shall be allowed in the settlement of the final account all necessary expenses incurred in the care, management and settlement of the estate, including reasonable fees of appraisers, attorneys and other qualified persons employed by the personal representative. A partial award of such expenses, including fees, may be allowed prior to settlement of the final account upon petition, showing that the final account reasonably cannot be filed at that time, and upon notice as directed by the court.”

3.   Appellant refers to ORS 111.275(1)(e) in her briefing for the probate court's authority to enter a limited judgment. Subsection (h), not (e), appears to apply. Regardless, the parties agree that the probate court had authority to enter a limited judgment. ORS 111.275(1) provides, in relevant part:“The court in a probate proceeding may enter a limited judgment only for the following decisions of the court:“* * * * *“(e) A decision on a petition or motion for support or elective share.“* * * * *“(h) A decision on a request for an award of expenses under ORS 116.183.”

O'CONNOR, J.