Bastian v. Laffin

Adkins, J., delivered the opinion of the Court. Appellant David C. Bastian is before us for the third time in this case. It is the second appearance for appellees Valentina and Alfred Laffin. The events giving rise to the present phase of their dispute really began in December, 1976, but some earlier history, or perhaps genealogy, will assist in identifying the dramatis personae as well as in highlighting the issues we are now asked to decide.

John and Maria Laffin lived for some time in the Orient, and travelled throughout the world. In the course of their travels, they acquired various objets d’art. They had three children, appellees Valentina and Alfred, and another son, Edward. Maria Laffin died in 1967 and John in 1971.

Their son, Edward, a resident of Montgomery County, died in 1972, leaving his wife, Maj-Lis, and two sons, Edward Jr., and William. Maj-Lis died in December, 1976; her two sons survived her. When Edward Laffin died, Maj-Lis qualified as executrix. The estate was represented by appellant Bastian.

After the death of Maj-Lis, Bastian became successor personal representative of Edward’s estate and personal representative of Maj-Lis’s estate. Dr. and Mrs. Steven Soudakoff became guardians of Edward Jr., and William, who were apparently the principal beneficiaries under her will. The objets d’art and other items of personal property about which the present case revolves were neither inventoried nor appraised in Edward Laffin’s estate. They, or some of them, were inventoried and appraised in Maj-Lis’s estate.

Valentina and Alfred filed a claim in the latter estate, asserting that specified items of personalty belonged to ⁷⁰⁶ them, and asking that the items be returned to them and that Bastían be enjoined from disposing of them. Bastían rejected the claim on March 4, 1977, whereupon Valentina and Alfred sued him in the Circuit Court for Montgomery County, seeking essentially the same relief. In September, 1977, they also filed a petition in the Orphans’ Court seeking Bastian’s removal as successor personal representative of Edward’s estate. The three proceedings — the claim in Maj-Lis’s estate, the petition in Edward’s estate, and the separate equity action — were consolidated for trial.

On September 29, 1978, the court denied all relief requested by the Laffins. This engendered the first appeal to this court. In an unreported per curiam, Laffin v. Bastian, No. 1113, September Term, 1978 (May 11, 1979), cert. den. 285 Md. 727 (1979), we affirmed the court’s refusal to remove Bastían as successor personal representative of Edward’s estate on the ground that neither Valentina nor Alfred had standing to seek Bastian’s removal. 1 We carefully declined to pass on the substantive merits of the removal petition. But we vacated the order to the extent that it denied Valentina and Edward’s claim to the personalty.

We held that "Appellants [Valentina and Alfred] are entitled to have the items in question returned to them.” We remanded the case to the circuit court "for the entry of such further orders as may be necessary to achieve that result.” Laffin v. Bastian, supra, slip opinion at 7. On September 18, 1979, the circuit court ordered Bastían "to forthwith restore” the claimed personalty to Valentina and Alfred. Although Bastían turned over some jewelry promptly, he did not turn over the other property, much of which was then in the possession of the Soudakoffs, in Indiana, whence some of it was retrieved by Valentina and Alfred. On December 18, 1980, Valentina and Alfred filed a petition to compel compliance with the September 18,1979, ⁷⁰⁷ order, and for ancillary relief. 2 The ancillary relief requested included claims for monetary relief against Bastian for damaged items of the personalty, and for the value of lost items, and for attorney’s fees and other expenses incurred by Valentina and Alfred in their efforts to locate and recover their property from 1977 to date.

On June 22,1981, some six months and twenty-six docket entries later, a hearing on the petition was commenced. The hearing concluded on July 6. Almost a year after that, on June 23, 1982, the Circuit Court for Montgomery County filed a memorandum opinion and order. The court held that Bastian was liable for loss of and damage to the personalty in question under § 8-109 of the Estates and Trusts Article, because "Bastian failed to act in a prudent manner [in caring for the property] ... and exposed [Valentina and Alfred] to extraordinary cost and exposure to the ultimate disappearance of their property.” It found that Bastian had by his actions "caused [Valentina and Alfred] to hire counsel and expend considerable sums of money in an effort to conclude a case that was not particularly complicated.” It entered judgment in favor of Valentina and Alfred and against Bastian in the amount of $24,210 by way of damages for the loss of and injury to the personalty, and in the amount of $30,000 for attorney’s fees and costs under Md. Rule 604 b.

Bastian seeks reversal of the judgment below because, in his view, 1. The trial court was clearly erroneous in finding that Bastian’s conduct caused the destruction and loss of or damage to Valentina and Alfred’s property. ⁷⁰⁸ 2. The court’s assessment of damages was clearly erroneous because based on inadmissible and insufficient evidence. 3. The court erred, as a matter of law, in awarding attorney fees and other costs to Valentina and Alfred.

Bastian’s Liability Section 8-109 of the Estates and Trusts Article provides, in pertinent part: (a) The individual liability of a personal rep- ■ resentative to third parties arising from the administration of the estate is that of an agent for a disclosed principal, as distinguished from his fiduciary accountability to the estate. (c) A personal representative is not individually liable for obligations arising from possession or control of property of the estate or for torts committed in the course of administration of the estate unless he is personally at fault. A personal representative is required to "take possession or control of the estate of the decedent....” Estates and Trusts Art. § 7-102. He has an obligation to protect and preserve the property so entrusted to him.

A. Bagby, Maryland Law of Executors and Administrators § 134 (1927). In carrying out that obligation, he is required to act in good faith, and must perform his fiduciary duties with the same degree of care and diligence that would be exercised by a prudent person under similar circumstances in the management of his own affairs. Goldsborough v. DeWitt, 171 Md. 225 , 189 A. 226 (1937). The claim that Bastian breached his fiduciary duty, and thus was "personally at fault” for the losses sustained by Valentina and Alfred, is largely based on Bastian’s selection and retention of Sligo Moving and Storage Company as a repository for property which he possessed as personal representative of the Maj-Lis Laffin estate. ⁷⁰⁹ Bastían selected Sligo and caused personalty from Maj-Lis’s home — including the property later awarded to Valentina and Alfred, and other items concededly not belonging to the estate, but rather to Edward and Maj-Lis’s sons — to be transported to Sligo’s warehouse in Prince George’s County.

He selected Sligo because he wanted a company that "could move swiftly and at a relatively short notice”, although his efforts to see if other storage companies might be available were minimal at best. He claimed he knew Mr. Roberts, the proprietor of Sligo (although Roberts denied this), and that he had had prior dealings with Sligo. He claimed that he received assurances that the warehouse was bonded, with a high security storage area and protection by a burglar alarm system. These representations, if made, turned out to be false.

In any event, Bastían never inspected the warehouse facilities before placing the property there. And he never insured the property, although warned by Sligo that it was his responsibility to do so. See Md. Code, Art. 56, § 176A. There was evidence to support a finding that when the property was removed from Maj-Lis’s home in early 1977, it was in good condition.

While there was also some evidence to the contrary, the trial court was entitled to resolve the conflict against Bastían. But there is no dispute that when an inspection of the warehouse was finally made, conditions there were, to put it mildly, deplorable. The conditions were discovered by Dr. Soudakoff, the guardian of Edward, Jr., and William Laffin. He went there on May 10,1978, to retrieve some things that belonged to his wards.

He discovered that their property had been commingled with estate property, as well as finding extensive evidence of improper storage, lack of security, and damaged goods. He communicated his findings to Bastían by letter on May 15. Bastían finally visited the warehouse on May 30 or thereabouts and confirmed that the conditions were as described by Dr. Soudakoff. In the interim, there had been intimations that all was not well at Sligo.

As early as March, 1977, Bastían learned that ⁷¹⁰ Roberts, the proprietor of Sligo, had been evading process. There were indications that Roberts was having financial problems. Roberts was reluctant to permit Bastian to enter the warehouse. Nevertheless, despite the straws in the wind, and despite the actual knowledge Bastian gained in May, Bastian did virtually nothing.

After his own visit to the warehouse, he communicated with Roberts, who was becoming increasingly difficult to locate. He asked that conditions be improved. He sought information from the Prince George’s County police as to "robbery” problems at the warehouse. He filed suit against Roberts at the end of September, 1978.

But the property was allowed to remain in the warehouse until October 9, when it was finally shipped to the Soudakoffs in Indiana. And that action was only taken, it seems, because Roberts had advised Bastian that Sligo would be evicted by October 20, so that all property would have to be removed from the warehouse. Bastian argues that he was not negligent in his initial selection of Sligo, and that he cannot be charged for conditions in the warehouse after he had learned of the circumstances there, because by that time (the end of May 1978) the damage to or loss of Valentina’s and Alfred’s property had already occurred. As to the first point, we do not question that a personal representative may, within limits, delegate authority to an agent; see Mobley v. Mobley, 149 Md. 401 , 131 A. 770 (1926).

But he must use reasonable diligence in selecting the agent and in supervising the agent’s conduct. United States v. Romitti, 363 F.2d 662 (1966); 3 C.J.S. Agency § 423 nn. 3 & 4 and accompanying text; Restatement of Agency 2d § 213. Compare Athas v. Hill, 54 Md. App. 293 , 458 A.2d 859 (1983); Bogley v. Middleton Tavern, 42 Md. App. 314 , 400 A.2d 15 (1979), rev’d. on other grounds, 288 Md. 645 , 421 A.2d 571 (1980). As to the second point, it is by no means clear that all of the loss and damage had occurred by the end of May, 1978.

For example, Bastian himself admitted that in October of that year, a Chinese rug was in the warehouse. This was one of the items never recovered by Valentina and Alfred. ⁷¹¹ And as to certain jewelry that was retained by Bastian, and never placed in the warehouse, Bastian simply offered no explanation to rebut the evidence that some of it (natural or cultured pearl necklaces) was never delivered by him; what the Laffins finally received was a paste pearl necklace and a necklace of a different type than that initially appraised. We hold that there was evidence to support the trial court’s conclusions that Bastian "chose the warehouseman without making proper inquiry”, that "the damaged condition in which many items were found was not the condition in which they had been when the court appraiser examined them” before Bastian placed them in storage, and that "Mr. Bastian failed to act in a prudent manner and that he exposed [Valentina and Alfred] to extraordinary cost and exposure to the ultimate disappearance of their property.” In light of the record as a whole, we cannot say that these conclusions were clearly erroneous. Evidence of Damages to Property Injured or Lost The trial court entered judgment against Bastian and in favor of Valentina and Alfred in the amount of $24,210 because of damage to or loss of their property.

Bastian claims this was erroneous, because based on inadmissible evidence, specifically the deposition of I. M. Chait and the testimony of Valentina Laffin. Chait’s deposition was taken in California on March 20, 1981, and was admitted into evidence over Bastian’s objections. The deposition discloses that Chait was a highly-qualified appraiser of Oriental objets d’art, and it was as an expert on the value of items of this kind that his deposition was offered. When the Laffins offered the deposition, Bastian raised a question as to the weight of the evidence it contained, but as to its admissibility, his counsel said he relied on the objections made at the time the deposition was taken.

Having expressed only those grounds of objection, he waived any other grounds. Von Lusch v. State, 279 Md. 255 , 368 A.2d ⁷¹² 468 (1977). Three objections were noted when the deposition was taken. The first and third were neither briefed nor argued on this appeal; we consider them as abandoned.

Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md. App. 446 , 406 A.2d 928 (1979); Jacober v. High Hill Realty, Inc., 22 Md. App. 115 , 321 A.2d 838 (1974). The second was: Mr. Chait, the appraiser, is not qualified to testify as to the values of the alleged missing or damaged property at the relative times because he has not viewed those items. The thrust of this objection was clearly that Chait could not testify to the value of items he had not seen, since he would lack the knowledge of their condition required as the basis for an expert opinion as to value. See Kruvant v. Dickerman, 18 Md. App. 1 , 305 A.2d 227 (1973).

But we do not find this argument persuasive. As Chait’s deposition makes clear, he had in fact seen many of the items in question. As to other items, which were missing, he based his appraisal on similar items which were present or on descriptions furnished by Valentina Laffin. Valentina also described those items at the trial, and no question was raised as to the accuracy of her descriptions.

A number of them were also described in the appraisal filed in Maj-Lis Laffin’s estate, which appraisal was also in evidence. It is true that an expert’s opinion is without probative force if it is clear that there was no rational basis for the opinion. Mangione v. Snead, 173 Md. 33 , 195 A. 329 (1937). Despite Bastian’s contention to the contrary, it is not necessarily true that an expert must have direct personal knowledge of an item in order to express an opinion as to its value.

For example, in Bresnan v. Weaver, 151 Md. 375 , 135 A. 584 (1927) an insurance adjuster was permitted to testify to the reasonableness of values of items destroyed in a fire. He had never seen the items. His testimony was based on a memorandum of the items prepared by an owner of them. The late Judge Adkins, writing for the court, held that this expert testimony was proper because it "was in the nature of an ⁷¹³ answer to a hypothetical question,” the factual predicate for which was adequately shown.

Id. at 380 , 135 A. at 586 . We think the admission of the deposition was not an abuse of the court’s discretion. As we said in Thomassen Lincoln-Mercury, Inc. v. Goldbaum, 45 Md. App. 297, 305 , 413 A.2d 218, 223 (1980): "Appellant’s