280 September 23, 2026 No. 892
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Estate of Cathy Ann Gerlett,
Deceased.
Renee TOWON,
Appellant,
v.
NICOLE SVOBODA’S FIDUCIARY SERVICES, LLC,
Personal Representative; Peter Gerlett; Kristine D. Periria;
and Kristi Gerlett,
Respondents.
Klamath County Circuit Court
23PB03901; A183640
Kelly N. Kritzer, Judge.
Submitted September 24, 2025.
Michael L. Spencer filed the briefs for appellant.
Brook D. Wood, Nathan A. Rudolph, and Rudolph &
Edgel, LLP, filed the brief for respondent Nicole Svoboda’s Fiduciary Services, LLC.
No appearance for respondents Peter Gerlett and Kristine
D. Periria.
No appearance for respondent Kristi Gerlett.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
O’CONNOR, J.
Affirmed.
Cite as 353 Or App 280 (2026) 281
282 Towon v. Nicole Svoboda’s Fiduciary Services
O’CONNOR, J.
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 Cite as 353 Or App 280 (2026) 283
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
284 Towon v. Nicole Svoboda’s Fiduciary Services
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, Cite as 353 Or App 280 (2026) 285
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.
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.” 286 Towon v. Nicole Svoboda’s Fiduciary Services
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
Cite as 353 Or App 280 (2026) 287
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.