In re Goodwin (Bruce E. Gardner) ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-PR-1065
IN RE RHUMEL GOODWIN;
BRUCE E. GARDNER, APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(INT-436-16)
(Hon. Alfred S. Irving, Jr., Probate Judge)
(Submitted April 27, 2021 Decided May 26, 2022)
Bruce E. Gardner, pro se.
Before GLICKMAN, MCLEESE, and DEAHL, Associate Judges.
DEAHL, Associate Judge: Bruce Gardner appeals a probate court order
compensating him for guardianship services at a rate below what he petitioned for.
The probate court set his hourly rate at $90 per hour—about 25% of the $350 hourly
rate he sought—after concluding his ward’s assets were depleted so that Gardner’s
compensation would have to come from the Guardianship Fund. See D.C. Code
§ 21-2060(a) (2012 Repl. & 2021 Supp.) (“Compensation shall be paid” from the
Guardianship Fund “if the estate of the ward or person will be depleted by payouts
2
made under this subsection.”). In calculating Gardner’s compensation at the $90
rate, the court reasoned that $90 per hour was “the maximum [compensation]
allowed” from the Guardianship Fund, as indicated in the Probate Division’s Case
Management Plan.
Gardner challenges that ruling on appeal, arguing that the $90 hourly rate
reflected in the Case Management Plan has no legal effect and the court erred in
treating it as a cap. He also argues, among a host of subsidiary claims, that we should
levy “[s]tiff monetary sanctions” in excess of $100,000 against the probate court for
its delay in resolving his fee petition, and that the probate court erred in failing to
self-impose such sanctions itself. Detecting no reversible error, we affirm.
Consistent with our recent opinion in In re Gardner, we also remand with
instructions for the Superior Court to reexamine Gardner’s fees for commuting from
a “dummy address,” which he misrepresented as his office address throughout his
fee petition. 268 A.3d 850, 860 (D.C. 2022).
I.
The Probate Division of the Superior Court appointed attorney Bruce Gardner
to serve as Rhumel Goodwin’s guardian and conservator. Goodwin was elderly,
blind, and had endured a stroke. She also suffered from dementia, diabetes, and
3
other impairments. In his capacities as guardian and conservator, Gardner provided
a number of services for Goodwin. He hired contractors to clean and renovate
Goodwin’s home, retained pest services, hired home health aides, and negotiated an
insurance settlement on her behalf. But Gardner also charged Goodwin exorbitant
rates for menial tasks. As one example, he sought more than $500 from Goodwin
for a trip he took to Costco to pick up adult diapers, charging her $300 per hour for
1.8 hours of his time ($540), consisting of 1.6 hours of driving, .1 hours of shopping,
and .1 hours for dropping off the diapers. Gardner filed two previous fee petitions
in the probate court seeking compensation for his services, neither of which is the
subject of this appeal. The court awarded him more than $26,000 in fees based on
those first two petitions, all of which Goodwin paid directly. After Goodwin raised
concerns about Gardner depleting her assets, Gardner resigned as guardian and
conservator, and the court appointed a successor.
Gardner then submitted his third fee petition, the subject of this appeal, shortly
after resigning. He requested $13,469 for 49.7 hours of services. For the first 34.6
hours, he asked to be compensated by Goodwin at an hourly rate of $350, for a total
of $12,110, which he acknowledged would leave Goodwin with less than $100 of
liquid assets. Gardner asked that he be reimbursed for the remaining 15.1 hours out
of the Guardianship Fund, at a rate of $90 per hour. The Guardianship Fund consists
4
of public funds and is used to reimburse guardians and conservators, among others,
where direct payment by the ward would deplete the ward’s assets. See In re
Orshansky, 952 A.2d 199, 210 (D.C. 2008) (citing D.C. Code § 21-2060(a)).
The probate court took roughly eight months to rule on that third fee petition.
In its ruling, the court first found that Gardner’s requested $350 hourly rate was
unreasonable, and reduced it to $300. As support for that finding, it noted that
Gardner sought to charge $350 for various tasks requiring no specialized skills,
including billing Goodwin $2870 for 8.2 hours of driving, amounting to 21% of his
total requested fees. 1 That initial fee reduction was ultimately of no moment,
however, as the court further found that Goodwin’s assets were “depleted” within
the meaning of D.C. Code § 21-2060(a), so that Gardner’s fees would be paid from
the Guardianship Fund. The court thus declined to compute any portion of Gardner’s
fee at either the requested $350 or the reduced $300 rate, and instead awarded
compensation at $90 per hour, “the maximum hourly rate an attorney may receive
from the Guardianship Fund” under Administrative Order 14-13, effectuating the
Probate Division’s Case Management Plan. Based on that rate, and after making a
1
The bulk of Gardner’s driving hours were for commuting to or from his
“Office located at 12138 Central Ave., Mitchellville, MD,” which we recently
explained is the address of a UPS store that Gardner uses as a “dummy address” in
his fee petitions. In re Gardner, 268 A.3d 850, 860-61 (D.C. 2022).
5
1.1-hour reduction to the hours Gardner billed, the court awarded Gardner $4374 for
48.6 hours of work.
Gardner moved for reconsideration. He asked the court to revise its order
reducing his hourly rate, and sought “damages” in the amount of $9095—the
difference between his requested fee and the court’s award—based on the court’s
“unconscionable delay” in rendering its decision. He argued that if the court had
acted in a timely manner on his petition, then Goodwin’s assets would not have been
depleted and he would have received his requested rate. The court denied both
requests, specifically noting that in finding Goodwin’s funds depleted, “the Court
considered [her] financial picture contemporaneously” with Gardner’s fee petition.
Gardner now appeals.
II.
Gardner’s principal challenge is to the probate court’s ruling that he be
reimbursed at a rate of $90 per hour from the Guardianship Fund. He also challenges
the court’s refusal to award him “damages,” payable by the court itself, for its delay
6
in deciding his fee petition. We consider these claims in turn, concluding neither
has merit. 2
A.
We review the probate court’s fee awards for abuse of discretion, but will not
upset factual determinations underpinning those awards unless they are “plainly
wrong or without evidence to support” them. In re Orshansky, 952 A.2d at 209, 211.
Gardner maintains the court abused its discretion by reducing his hourly rate to $90
because (1) Goodwin’s funds were not depleted so there was no cause to draw his
compensation from the Guardianship Fund, and (2) in any event, the court was
wrong to put a $90-per-hour cap on compensation from the Guardianship Fund.
2
We dispose of two subsidiary claims more summarily in this footnote. First,
Gardner claims that the court erred by initially reducing his rate from $350 to $300,
based on its finding that many of his services required no “legal expertise or skill or
financial acumen.” That is a moot point, given our disposition that the $90 hourly
rate was appropriate, so we have no occasion to consider which of the two potentially
higher rates was appropriate. Second, Gardner suggests the court erroneously relied
on D.C. Code § 11-2604 (2012 Repl. & 2021 Supp.), a statute that fixes the rate of
fees for counsel appointed to represent indigent criminal defendants at $90, in fixing
his rate at $90 per hour. That’s wrong. The court never mentioned or relied on that
statute.
7
On the first point, Gardner makes only a cursory argument—citing to no legal
authority—that Goodwin’s funds were not depleted “because she owned [a] house
with a value of $291,000,” received some monthly annuities, and “had $12,091.27”
in liquidity when he filed his fee petition. This is largely a new argument that
Gardner raises for this first time on appeal, and he has therefore failed to preserve it.
Hollins v. Fed. Nat’l Mortg. Ass’n, 760 A.2d 563, 572 (D.C. 2000). Gardner’s fee
petition acknowledged that Goodwin’s assets would be depleted by his first 34.6
hours of work, for which he sought $12,110 (leaving her with less than $100 in
liquidity), despite her house and annuities. 3 That is why he expressly requested that
the remainder of his fees come from the Guardianship Fund—contrary to his present
argument—noting that Goodwin’s assets would be “depleted by the [initial] payout
payment.”
But even if we overlook the lack of preservation, Gardner’s argument is
meritless. A ward’s assets need not be zeroed out to be depleted; it is enough that
the ward would suffer “substantial financial hardship” by paying the fees herself.
D.C. Code § 21-2060(a-1)(6). The probate court found that Goodwin suffered such
3
Section 21-2060(a) does not require the ward’s estate to be depleted before
resort to the Guardianship Fund. Rather, § 21-2060(a) states that compensation
“shall” be paid from the Guardianship Fund if the estate of the ward “will be depleted
by payouts” from the ward’s funds.
8
substantial financial hardship, noting that her express concerns about Gardner’s rates
“depleting her assets” and “exacerbating her financial situation” were what
prompted Gardner’s removal as her guardian and conservator. The record supports
that finding, and Gardner provides no basis for us to deem it plainly wrong.
That brings us to Gardner’s principal claim, that the probate court erroneously
imposed a $90-per-hour cap on compensation from the Guardianship Fund. 4 He
maintains that the probate court’s reliance on Administrative Order 14-13, and the
Case Management Plan that it implemented, was misplaced because that order “is
not the law.” Indeed, he argues that applying a $90-per-hour cap on compensation
would contravene the baseline rule that guardians are entitled to “reasonable”
compensation for their services. See In re Brown, 211 A.3d 165, 167 (D.C. 2019)
(citing Super. Ct. Prob. R. 308(a), (b)(1)). Reasonable compensation, his argument
goes, must be “based on the prevailing market rate” for guardianship services, which
he posits is $350 per hour in this case. See Tenants of 710 Jefferson St., NW v.
District of Columbia Rental Hous. Comm’n, 123 A.3d 170, 181 (D.C. 2015)
4
We might also deem this argument waived, given that Gardner expressly
requested that any Guardianship Fund compensation be calculated at $90 per hour.
We nonetheless exercise our discretion to consider this argument.
9
(considering the “prevailing market rate” to determine whether a fee is reasonable
under the District’s Rental Housing Act).
Gardner is wrong at each step of his argument. First, the $90-per-hour cap on
compensation from the Guardianship Fund is set by the D.C. Courts’ Joint
Committee on Judicial Administration, which has the authority to fix that rate in its
role as the D.C. Courts’ “policy-making body.” 5 D.C. Code § 11-1701(a) (2012
Repl.). Gardner does not contend otherwise, as he entirely ignores the fact that the
$90 rate was set by the Joint Committee. He instead misdirects his fire at
Administrative Order 14-13 itself, which implements the Probate Division’s Case
Management Plan, insisting that neither has the force of law. Whether he is right
about that or not is beside the point, because the Case Management Plan simply
memorializes the independent $90 cap “fixed by the D.C. Courts’ Joint Committee
on Judicial Administration.” 6
5
“The Joint Committee on Judicial Administration in the District of Columbia
is the policy-making body for the District of Columbia Courts.” DISTRICT OF
COLUMBIA COURTS, JOINT COMMITTEE, https://www.dccourts.gov/about/joint-
committee; https://perma.cc/833Q-CGUX (2017) (last visited May 4, 2022). Its five
members are the Chief Judge and one associate judge of the Court of Appeals, and
the Chief Judge and two associate judges of the Superior Court. D.C. Code § 11-
1701(a).
6
See D.C. Superior Court, Case Management Plan for the Probate Division at
48, available at https://www.dccourts.gov/sites/default/files/matters-docs/Probate-
10
While Gardner betrays no knowledge that the Joint Committee fixed the $90
rate, and so never directly contests its authority to do so, we note that it had such
authority. By statute, the Joint Committee is responsible for overseeing and
administering the D.C. Courts’ accounts. D.C. Code § 11-1701(b). The
Guardianship Fund is one such account, so its management falls squarely within the
Joint Committee’s purview. See D.C. Code § 21-2060(b) (establishing a
“‘Guardianship Fund’ . . . to be administered by the court”). As part of the Joint
Committee’s authority to set “policies and practices” for the accounts it administers,
D.C. Code § 11-1701(b)(9), it had the authority to cap the rates at which
compensation would be paid from the Guardianship Fund. Cf. Zoglio v. District of
Columbia Police & Firefighters Ret. & Relief Bd., 626 A.2d 904, 906-07 (D.C. 1993)
(“hard realities of fiscal management” often include “trade-offs between liberality
and fiscal tight-fistedness”). It is not for us to second-guess that policy decision,
committed to the discretion of the Joint Committee. See D.C. Code § 11-1701; Peter
R. Kolker, Organization, Budgeting and Funding of the District of Columbia's Local
Courts, 11 UDC L. REV. 43, 45 (2008).
Division-Case-Management-Plan.pdf; https://perma.cc/23CX-PL6N; see also
Administrative Order 14-13, available at
https://www.dccourts.gov//sites/default/files/2017-03/14-13-Probate-Division-
Case-Management%20Plan-Aug-2014.pdf; https://perma.cc/HRK9-GCQD.
11
Operating from the mistaken premise that there was no authority to pass a
$90-per-hour cap, Gardner insists this limitation contradicts our precedents requiring
the award of “reasonable” fees for guardianship services. Not so. Instead, the $90
cap reflects the Joint Committee’s judgment about what a reasonable fee is—in light
of fiscal realities and limited public funding—and nothing in our precedents
precludes it from fixing such caps as a policy matter. Accordingly, the probate court
did not abuse its discretion by reducing Gardner’s fees to $90 per hour based on the
Joint Committee’s restriction on funds drawn from the Guardianship Fund.
B.
Gardner next argues that the probate court’s failure to rule on his fee petition
within the thirty days provided by Probate Rule 308(i)(1) warrants “stiff monetary
sanctions.” See Super. Ct. Prob. R. 308(i)(1) (“The Court shall enter an order
disposing of any request for payment from the Guardianship fund . . . within 30 days
of the filing of such request.”). More specifically, he argues that the court’s
contravention of the thirty-day deadline—which it exceeded by about seven
months—should result in his fee petition being paid in full on the theory that the
court “acquiesced by its silence” during the thirty-day time period. He also requests
12
that monetary damages in the amount of $101,150 “be imposed against the probate
court and paid from its budget,” and presumably paid to him.
We have recently rejected similar arguments in another of Gardner’s appeals.
In re Gardner, 268 A.3d at 858. While that case did not involve compensation from
the Guardianship Fund, so that Probate Rule 308(i)(1)’s particular thirty-day
deadline was not at issue, its bottom-line applies here: “Mr. Gardner has provided
no support for his argument that a court-appointed fiduciary” is entitled to sanctions
or the entirety of his fee request where the court fails to rule within the thirty days
provided by Rule 308(i)(1). Id. Rule 308(i)(1)’s thirty-day deadline specifies no
remedy for when a court fails to decide a fee petition within that timeframe, and
when a statutory or rule-based deadline “‘does not specify a consequence for
noncompliance,” our “courts will not in the ordinary course impose their own
coercive sanction.’” Dolan v. United States, 560 U.S. 605, 611 (2010) (quoting
United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993)). Gardner
points us to nothing that would authorize or compel us to depart from that baseline
rule and impose the novel remedies he now seeks—awarding him a windfall from
the public fisc—and we decline to do so.
C.
13
While we affirm the probate court’s judgment and reject Gardner’s challenges
in all respects, we remand for a single purpose. The probate court should reexamine
the fees awarded to Gardner based on his time commuting to and from his purported
“Office located at 12138 Central Ave., Mitchellville, MD.” As we recently observed
in another of Gardner’s appeals, that is a “dummy address” that belongs not to
Gardner, but a UPS store. In re Gardner, 268 A.3d at 860-61. Notably, no party
requests such a remand or challenges the fees awarded to Gardner for commuting
to-and-from his fictitious office address; as is often the case in probate appeals from
fee petitions, there is no opposing party at all in this appeal. While “we usually limit
our review to the issues raised by an appellant and will not broaden our gaze to
examine” defects that are not complained of, that practice “can yield in appropriate
circumstances.” In re Gardner, 268 A.3d 850, 859 n.17. This is one such
circumstance, given (1) that our remand concerns only an order that Gardner himself
appeals from, see D.C. App. R. 3(c)(1)(B), (2) Gardner’s apparent
misrepresentations led to a payout from the court-administered Guardianship Fund,
so that the court has its own interest in seeing that those public funds are conserved
and not misspent, and (3) consistency with our recent remand in In re Gardner
counsels in favor of a corresponding remand here.
14
While the probate court may determine that no further adjustments are
warranted, the fact that a hefty 21% portion of Gardner’s requested fees were
attributable to his driving time leads us to conclude that it would be prudent for the
probate court to reexamine this aspect of his fee petition.
III.
For the reasons above, we affirm the probate court’s order partially granting
Gardner’s fee petition and denying his motion for reconsideration. We remand for
the probate court to reexamine the fees Gardner charged for commuting to and
from a dummy address, and to reduce those fees if appropriate.
So ordered.