In re the Matter of the Guardianship of A.S. and G.S. , 922 N.W.2d 105 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1000
Filed July 18, 2018
IN RE THE MATTER OF THE GUARDIANSHIP OF A.S. and G.S.,
ANITA PORTER and ROBERT SLAVISH,
Appellants.
________________________________________________________________
Certiorari to the Iowa District Court for Scott County, Henry W. Latham II,
Judge.
Former guardians appeal from an order of sanctions against them. WRIT
ANNULLED.
Ciara L. Vesey of Law Office of Ciara L. Vesey P.L.L.C., Davenport, for
appellants.
Jennifer M. Triner Olsen of Olsen Law Office, Davenport, for appellee.
Considered by Danilson, C.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
BLANE, Senior Judge.
Anita Shae Porter and Robert Slavish petition for writ of certiorari1 from an
order of sanctions against them for misleading the court regarding a guardianship
over two children. They contend the district court erred in hearing an untimely
motion for sanctions, acted beyond its authority and abused its discretion in
granting sanctions, and exhibited unlawful bias against them. We find the district
court acted within its authority and without any abuse of discretion or evidence of
bias, and we affirm the district court order in every respect.
I. BACKGROUND FACTS AND PROCEEDINGS
The following facts are supported by substantial evidence in the record 2:
Anita Shae Porter worked as a paralegal for attorney Maria Pauly from 2014 to
2017. Porter’s duties included preparing pleadings, answering telephones, and
filing documents at Pauly’s direction over the Iowa Electronic Document
Management System (EDMS). Porter had access to and regularly used Pauly’s
EDMS login and password to carry out her duties.
1
An appeal from a motion for sanctions generally must be by petition for writ of certiorari.
Barnhill v. Iowa Dist. Ct. for Polk Cty., 765 N.W.2d 267, 272 (Iowa 2009). Porter and
Slavish filed only a notice of appeal. However, Iowa Rule of Appellate Procedure 6.108
indicates:
If any case is initiated by a notice of appeal, an application for
interlocutory appeal, an application for discretionary review, or a petition for
writ of certiorari and the appellate court determines another form of review
was the proper one, the case shall not be dismissed, but shall proceed as
though the proper form of review had been requested. The court may treat
the documents upon which the action was initiated as seeking the proper
form of review and, in appropriate cases, may order the parties to file
jurisdictional statements.
We treat this appeal as a request for writ of certiorari.
2
The district court’s findings of fact are binding on us, if supported by substantial evidence.
Barnhill, 765 N.W.2d at 272.
3
In September 2015, Porter used Pauly’s EDMS information to file
documents to obtain a guardianship for herself and her ex-husband, Robert
Slavish, over the two children3 of her friend, April Sanders. Sanders consented in
writing to a voluntary guardianship. In the order appointing legal guardians, which
Porter drafted and proposed and which listed Pauly as her legal representative,
the court found, “(April Sanders) is the biological mother of both children.
Whereabouts of putative fathers is unknown.” The putative father of the two
children is Jeffrey Shadden.4 At the time the guardianship was established, he
was living with Sanders in Moline, Illinois. He had occasional contact with Porter
and Slavish. Porter and Slavish knew Shadden was a possible father of the
children5 and knew his whereabouts. They neither gave notice of the guardianship
to Shadden, as required under Iowa Code section 633.553(2)(b)(1) (2015), nor
sought appointment of a guardian ad litem to represent the children, as required
under Iowa Code section 633.561(1)(b).
In a January 2017 criminal matter, Shadden appeared in district court before
Judge Latham in Scott County. In the course of those proceedings, it emerged
that Shadden found out his children were living with Porter and Slavish under a
legal guardianship in 2016, but he had not consented to or been served with notice
at the time it was created. The court, seeking to determine whether the
guardianship was valid, set a hearing in probate for February 14. In its order, the
3
A.S. and G.S.
4
The record shows Shadden had already established paternity in the case of A.S., but
was still in the process of establishing paternity for the younger child, G.S. The case
before us does not proceed from a paternity action. This case is about whether Shadden,
as a putative father, was given proper notice of a guardianship. The court found he was
not. Shadden need not be the established father to have standing here.
5
The other putative father of the younger child was Slavish.
4
court issued a summons to the guardians’ attorney of record, Pauly, to appear and
explain whether Shadden had received proper notice.
The morning after she received the order setting hearing, Pauly went to the
courthouse and approached Judge Latham to determine the basis of the
summons; admittedly this was outside the presence of Porter, Slavish, Sanders,
and Shadden. She looked at the documents in the guardianship court file
submitted through EDMS under her name but did not recognize them.6 The day
after the summons, Chief Judge Marlita A. Greve specially assigned the
guardianship case to Judge Latham. A few days later, Porter and Slavish filed a
motion to dismiss the guardianship.
On February 14, Porter, Slavish, and Shadden appeared for the hearing
scheduled by Judge Latham in the guardianship. Porter and Slavish were
represented by new counsel. The court terminated the guardianship effective
immediately, but requested briefs on whether the court had authority to award
attorney fees.
On March 26, Shadden filed a motion for sanctions against Porter and
Slavish. At the hearing in May, Pauly testified she was not aware Porter had been
appointed a legal guardian to any minor children until she received the January
summons from Judge Latham. She recalled some general questions Porter had
asked her by text message about guardianships but nothing specific to Sanders,
Shadden, or these children. She had not advised Porter on the guardianship and
6
Pauly immediately suspended and, several days later, fired Porter. Pauly also believed
Porter intercepted and responded to, as Pauly, any email communications pertinent to the
guardianship as Porter also had access to her email accounts.
5
had not drafted the filings that contained her name. She had no knowledge of the
guardianship and had never even represented a party in a guardianship before.
She testified, “I don’t do guardianships.”
Porter and Shadden also testified. Porter initially claimed she did not know
who the putative fathers were, but later admitted she knew Shadden might be the
children’s father. She also testified that, based on the text messages, she believed
Pauly was her attorney in the guardianship. Shadden testified although Porter and
Slavish let him see his children on a regular basis, they completely controlled his
access to them. Shadden had been ordered to complete anger management and
domestic violence classes for unrelated criminal charges but Porter falsely told him
he could not have custody of his children until he had completed them. Shadden
did not challenge Porter believing she had superior legal knowledge as a paralegal.
At the conclusion of the hearing, ruling from the bench, the court stated, “I
do not find the testimony of . . . Porter credible whatsoever.” Recounting some of
Porter’s testimony, the court found Porter “made a falsehood upon the court.”
Specifically, the court pointed to Porter’s testimony that she knew Shadden might
be the children’s father and where he lived but represented to the court that the
putative fathers’ whereabouts were unknown. The court also pointed to Porter’s
admission she drafted and filed the documents for the guardianship and submitted
them under Pauly’s name. After quoting from Iowa Rule of Civil Procedure 1.413,
the court imposed sanctions against Porter and Slavish, ordering them to pay
$1000 of Shadden’s attorney fees.
Porter and Slavish appeal, contending the court (1) should not have
entertained Shadden’s motion for sanctions because it was untimely, (2) did not
6
have the authority to grant attorney fees, (3) erred in finding sanctionable conduct
occurred, and (4) exhibited personal bias against them. We review a ruling on a
motion for sanctions for abuse of discretion. Barnhill, 765 N.W.2d at 272.
“Although our review is for an abuse of discretion, we will correct erroneous
application of the law.” Id.
II. ANALYSIS
A. Timeliness
Porter and Slavish contend the district court should not have considered
Shadden’s motion for sanctions because it was untimely. At the February 14
hearing, Shadden applied to be awarded attorney fees. At the conclusion of the
hearing, the court reserved ruling on the issue until the parties could provide
briefing as to whether the court had authority to award attorney fees under Iowa
probate code. See Iowa Code § 633.673. The court further stated the attorneys
could set the matter for further hearing if they believed that was necessary. On
the record, the court advised when it wanted the briefs: “Within a month would be
fine. There is no need for anything sooner.” Porter and Slavish’s attorney
submitted a brief on March 17. Shadden did not file a brief regarding his
application for attorney fees under probate law. Instead, on March 26, Shadden
filed a motion for sanctions, citing the Iowa Rules of Civil Procedure.7
7
The record is not clear whether Shadden withdrew his earlier application for attorney
fees in the termination of the guardianship, or the district court declined to grant them.
The later hearing and ruling were on the motion for sanctions; the sanctions took the form
of attorney fees, but do not include an attorney fee award contemplated in Iowa probate
code under section 633.673, as Porter and Slavish suggest.
7
Even though the court set a deadline of one month for filing briefs on
awarding attorney fees in probate, we find Shadden simply chose not to submit a
brief and filed for sanctions instead. There was no specific time limit on this action.8
It was not untimely and the court properly set it for hearing.
B. Can the court grant attorney fees as sanctions?
Porter and Slavish contend the district court did not have authority to grant
Shadden attorney fees under Iowa probate code. They assert the probate code
only permits an award of attorney fees against a losing party who has acted in bad
faith, wantonly, or for oppressive reasons. See Iowa Code § 633.673; In re
Guardianship of M.D., 797 N.W.2d 121, 130 (Iowa Ct. App. 2011).
Shadden clarifies he does not rely upon the Iowa probate code in his motion
for sanctions, but upon Iowa Court Rules for the unauthorized practice of law and
Iowa Rule of Civil Procedure 1.413(1) regarding signatures on filings. Shadden
referred to both in his motion for sanctions, and the court cited the Iowa Rules of
Civil Procedure when granting sanctions; it did not cite the probate code. Rule
1.413(1) provides:
Counsel's signature to every motion, pleading, or other paper shall
be deemed a certificate that: counsel has read the motion, pleading,
or other paper; that to the best of counsel's knowledge, information,
and belief, formed after reasonable inquiry, it is well grounded in fact
8
Generally, parties “should request sanctions at the earliest time rule [1.413, the
successor rule to] 80(a) violations occur to facilitate judicial economy and effective
determination of the issues.” Darrah v. Des Moines Gen. Hosp., 436 N.W.2d 53, 55 (Iowa
1989) (citing Franzen v. Deere & Co., 409 N.W.2d 672, 675 (Iowa 1987). Darrah
recognizes a reasonable exception to this general rule where the action is terminated by
a voluntary dismissal rather than a final judgment. Id. at 54. The present case also
warrants departure from these expectations since the rule violations occurred in
September 2015 and were not discovered until considerably later. Shadden and his
attorney filed an application for attorney fees on February 8, before the hearing terminating
the guardianship, so both the court and the guardians were given notice reasonably
promptly. See id.
8
and is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law; and that it is not
interposed for any improper purpose, such as to harass or cause an
unnecessary delay or needless increase in the cost of litigation. . . .
If a motion, pleading, or other paper is signed in violation of this rule,
the court, upon motion or upon its own initiative, shall impose upon
the person who signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay the other party or parties
the amount of the reasonable expenses incurred because of the filing
of the motion, pleading, or other paper, including a reasonable
attorney fee.
Porter and Slavish did not act with counsel when they signed and filed several
pleadings to establish the guardianship.9 But even pro se litigants can be
sanctioned if they run afoul of this rule since, “The signature of a party shall impose
a similar obligation on such a party.” Iowa R.Civ.P. 1.413(1). See also Barnhill,
765 N.W.2d at 273 (“A party or his attorney cannot use ignorance of the law or
legal procedure as an excuse”); Citizens State Bank v. Harden, 439 N.W.2d 677,
682 (Iowa Ct. App. 1989) (applying Iowa Rule of Civil Procedure 80(a), which was
subsequently superseded by Rule 1.413). The rule instructs that when an attorney
or party violates the rule, the court “shall” impose an “appropriate” sanction, which
may include “a reasonable attorney fee.” The court had authority under Rule 1.413
to impose a sanction of attorney fees.
C. Did Porter and Slavish’s conduct warrant sanctions?
Porter and Slavish violated Rule 1.413(1). They filed papers with the court,
signed by them, but purporting to be under the representation of attorney Pauly.
They stated the whereabouts of the putative fathers were unknown, when they
knew both that Shadden was a possible father and where he was residing. Their
9
We, like the district court, give no credit to Porter’s asserted belief Pauly was her attorney
in this matter.
9
filings were not “well grounded in fact” and were deliberately filed for the “improper
purpose” of depriving Shadden of care and control of his children. Their
subsequent conduct in denying Shadden time with the children based on false
pretenses amply demonstrates their improper purpose.
The district court considered the motion for sanctions and the
accompanying affidavit claiming over $2000 in attorney fees. It determined the
amount requested was not reasonable and included some fees for the attorney’s
representation in Shadden’s paternity proceedings, which were extraneous to the
guardianship proceedings. The court awarded the reasonable amount of $1000.
Porter and Slavish have not shown any abuse of discretion.
D. Did the court exhibit personal bias?
Porter and Slavish contend the court’s decision was influenced by personal
bias and animosity toward them. They question Judge Latham’s assignment to
the case. “A judge shall disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned, including . . . [t]he judge
has a personal bias or prejudice concerning a party or a party’s lawyer, or personal
knowledge of facts that are in dispute in the proceeding.” Iowa Ct.R. 51:2.11.
“Only personal bias or prejudice stemming from an extrajudicial source constitutes
a disqualifying factor.” State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005).
The court expressed appropriate shock and dismay at Porter and Slavish’s
conduct throughout the proceedings and made appropriate credibility findings
regarding Porter’s testimony. We find no evidence of a personal bias or any
inappropriate conduct on the court’s part prior to or after the hearing on sanctions.
The court considered Shadden’s statements in his criminal proceeding as alerting
10
it to possible impropriety in a guardianship proceeding and set the matter for
hearing. We cannot conclude this constitutes an “extrajudicial source” of personal
bias or prejudice. Further, nothing inappropriate has been shown regarding Judge
Latham’s assignment to the case. He was the judge who first became aware of
the dubious background of the guardianship. But nothing in the record shows
Chief Judge Greve appointed Judge Latham with any inappropriate purpose or
effect.
Porter and Slavish contend Judge Latham engaged in off-the-record ex
parte communication with attorney Pauly. First, she was purportedly their attorney
and the only attorney appearing in the case—Porter and Slavish were not,
according to their own account, excluded from the discussion. Shadden does not
raise any issue about being left out of the off-the-record discussion.
Second, the court held a hearing, and Pauly testified as to her entire
knowledge of the case including the substance of the off-the-record discussion she
had with Judge Latham when she first became aware of the filings in her name.
The record shows the only discussion held was that Judge Latham showed Pauly
the file and asked her questions about the guardianship. Pauly was then able to
determine Porter named her as the attorney of record in the case. Furthermore,
Porter and Slavish had their opportunity to respond at the hearing. See Iowa Ct.R.
51:2.9(B) (“If a judge inadvertently receives an unauthorized ex parte
communication bearing upon the substance of a matter, the judge shall make
provision promptly to notify the parties of the substance of the communication and
provide the parties with an opportunity to respond.”)
11
Third, the rule on ex parte communications applies to lawyers acting in
adversary proceedings: in an adversary proceeding, “[a] lawyer shall not . . . seek
to influence a judge . . . or other official by means prohibited by law . . . [or]
communicate ex parte with such a person during the proceeding unless authorized
to do so by law or court order.” Iowa Ct.R. 32:3.5; see also Iowa Supreme Ct. Bd.
Of Professional Ethics and Conduct v. Rauch, 650 N.W.2d 574, 577 (Iowa 2002)
(discussing an attorney’s ex parte communication under predecessor Iowa Rule of
Professional Conduct 7-110(B). Pauly was not an attorney in this context10, and
the guardianship matter was not an adversary proceeding. Porter and Slavish
have not shown any evidence of court bias or inappropriate ex parte
communication.
E. Costs and Fees
Shadden requests appellate attorney fees.11 An award of appellate attorney
fees is within our discretion. We consider whether the party making the request
was obligated to defend against the appeal. In re Guardianship of G.G., 799
N.W.2d 549, 554 (Iowa Ct. App. 2011). We deny Shadden’s request for appellate
attorney fees. Porter and Slavish are to pay the costs of the appeal.
WRIT ANNULLED.
10
We note that attorney Pauly filed an application to withdraw as counsel for Porter and
Slavish in the guardianship matter after it came to her attention that she was listed in the
court docket as their attorney of record. Pauly stated in her application that she was not
attorney of record as she had not filed an appearance and documents “filed in the above
captioned matter were filed without the undersigned’s [Pauly’s] knowledge and/or
consent.”
11
Due to the unusual facts of this case, we issued an order allowing appellees ten days
to submit an affidavit supporting the claim for appellate attorney fees and appellants ten
days to file objections to the affidavit. Appellee failed to timely file the affidavit and did not
file any request to allow a late filing. Appellants moved to strike the appellee’s affidavit.
We deny the motion to strike.