IN RE EDWARD T. SMITH BRUCE E. GARDNER

District of Columbia
Court of Appeals
No. 13-PR-1034
MAY 12 2016
IN RE EDWARD T. SMITH;
BRUCE E. GARDNER,
CON-101-58
Appellant.
On Appeal from the Superior Court of the District of Columbia
Probate Division
BEFORE: WASHINGTON, Chief Judge; THOMPSON, Associate Judge; and
FERREN, Senior Judge.
JUDGMENT
This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the order on appeal is reversed insofar as
it was premised on a contrary interpretation, and the case is remanded to the Superior
Court with instructions to reconsider the appellant‟s petition for compensation.
For the Court:
Dated: May 12, 2016.
Opinion by Associate Judge Phyllis D. Thompson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-PR-1034 5/12/16
IN RE EDWARD T. SMITH;
BRUCE E. GARDNER, APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(CON-101-58)
(Hon. Gerald I. Fisher, Trial Judge)
(Submitted February 2, 2016 Decided May 12, 2016)
Bruce E. Gardner, pro se.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Stacy L.
Anderson, Senior Assistant Attorney General, were on the brief for appellee.
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
FERREN, Senior Judge.
THOMPSON, Associate Judge: Appellant, Bruce E. Gardner, Esq., asserts in
this appeal that he is “entitled to compensation from the Guardianship Fund for the
time he spent protecting his rights to compensation in appeals to this Court that are
related to his appointment as guardian and the guardianship duties he performed.”
He seeks a remand to the Superior Court for that court to reconsider his fee petition
and “to determine the reasonableness of the compensation” he requested for his
2
appellate work. For the reasons discussed below, we agree that the Superior Court
is authorized to approve compensation to Mr. Gardner for his fee-related appellate
litigation work relating to his service as guardian — and, if the ward‟s assets are
depleted, to approve payment to Mr. Gardner from the Guardianship Fund — even
if (as appellee District of Columbia contends) “the fee-related litigation was of no
benefit to the [particular] ward.” We remand to the Superior Court the issue of Mr.
Gardner‟s entitlement to compensation for his appellate work.
I. Background
As recounted in this court‟s opinion in In re Smith, 99 A.3d 714 (D.C. 2014)
(“Smith I”), in 2010, the Superior Court issued an order appointing Mr. Gardner as
the successor “conservator of the person of Edward T. Smith” to make “decisions
with respect to [Mr. Smith‟s] daily care, medical decisions, and other decisions that
are required for him to be made by a court-appointed fiduciary.”1 Id. at 717-18.
The Certificate of Appointment stated that Mr. Gardner‟s appointment was made
“pursuant to the provisions of D.C. Code, section 21-1506 et seq. (1967 ed.)[.]” Id.1
Mr. Smith had been a ward since 1958, when he was found after a hearing
to be of “unsound mind and in need of treatment in a hospital for his mental
condition.” Smith I, 99 A.3d at 715.
3
at 718. This was notwithstanding the fact that, in 1987, the District of Columbia
Guardianship, Protective Proceedings, and Durable Power of Attorney Act,
codified at D.C. Code §§ 21-2001 to -2085 (2012 Repl.) (the “Guardianship Act”
or the “Act”), was enacted, repealing the statutes in Chapter 15 which had
governed conservatorships, and establishing in their place “a comprehensive
system of guardianship and conservatorship proceedings to deal with a wide range
of legal problems which arise from varying degrees of adult physical and mental
incapacity.” Id. at 716 (quoting Report of the Council, Committee on the
Judiciary, on Bill 6-7, at 2 (June 18, 1986)). Among other provisions, the
Guardianship Act established a fund (the “Guardianship Fund” or the “Fund”) for
compensation of conservators, guardians, and other fiduciaries in cases where there
are no longer funds available in the ward‟s estate to pay that compensation. See
D.C. Code § 21-2060 (a), (b).
Mr. Gardner‟s conservatorship of the person of Mr. Smith was effectively
terminated when Mr. Smith died in 2013. Smith I, 99 A.3d at 718. Before that
time, however, Mr. Gardner had filed with the court petitions for compensation for
his services. Id. at 719. Because the aggregate amount of compensation requested
in the petitions exceeded the amount of funds remaining in Mr. Smith‟s estate, Mr.
Gardner requested that compensation be paid in part from the Guardianship Fund.
4
Id. The Superior Court denied his petitions because he had been appointed
pursuant to the “old law” and not the Guardianship Act. Id. Mr. Gardner appealed
the denials to this court, and we held in Smith I that he was “eligible to receive
compensation from the Guardianship Fund for services rendered after his
appointment in 2010 as conservator of the person” “if there are no longer funds
available in the ward‟s estate to compensate” him. Id. at 722.2 We remanded the
case to the Superior Court for a new determination as to whether Mr. Gardner was
entitled to payment from the Guardianship Fund for the various services he
provided following his 2010 appointment as conservator. Id.
Another of Mr. Gardner‟s petitions for payment (which Mr. Gardner had
filed on June 28, 2013) was pending in the Superior Court while his appeals from
the orders denying the earlier petitions were pending in this court. On July 22,
2013, before the opinion in Smith I was issued, the Superior Court (the Honorable
Gerald I. Fisher) denied Mr. Gardner‟s June 28, 2013, petition for compensation
insofar as it would have required payment from the Guardianship Fund, explaining
2
We reasoned that “at least some of the duties performed by Mr. Gardner
after the 2010 appointment appear to be those of a guardian[,]” id. at 721, that his
2010 appointment as conservator of the person “is properly construed to have been
made pursuant to the Guardianship Act[,]” id. at 722, and that his “[s]ervice in
good faith pursuant to court order is compensable, regardless of whether the
probate court erred in making the appointment[,]” id. at 722 (quoting In re
Orshansky, 952 A.2d 199, 210 (D.C. 2008)).
5
that the denial was “[f]or the reasons that form the bases of the prior denials of his
identical requests[.]”3
Appellee District of Columbia (the “District”), which filed its brief after the
issuance of Smith I,4 agrees that insofar as Judge Fisher‟s denial of Mr. Gardner‟s
June 28, 2013, petition was premised on Mr. Gardner‟s putative ineligibility for
compensation from the Guardianship Fund, the denial was “contrary to th[is]
Court‟s subsequent decision in Smith [I].” We therefore need not focus in this
appeal on that aspect of Judge Fisher‟s decision. The parties‟ ongoing dispute is
with respect to Judge Fisher‟s additional rationale for denying Mr. Gardner‟s June
28, 2013, petition, which Judge Fisher explained as follows:
[E]ven were this Court of the view that compensation
from the Fund was appropriate, it would deny most of
Petitioner‟s request for compensation. That is because
the bulk of the work for which Petitioner seeks
compensation is related to his appeal of the prior denials
3
Judge Fisher likewise denied payment from Mr. Smith‟s estate for any
portion of the requested payment that was based on Mr. Gardner‟s fee-related
appellate work. Judge Fisher approved compensation from Mr. Smith‟s estate for
Mr. Gardner‟s work that was “performed on behalf of [Mr. Smith]” and for
expenses that “appear to relate to [Mr. Smith‟s] care.”
4
On August 20, 2013, Mr. Gardner appealed Judge Fisher‟s order.
Pursuant to the District of Columbia‟s consent motion, this court held completion
of the briefing in the instant case in abeyance and stayed the appeal pending
resolution of the Smith I appeal.
6
of his compensation petitions. That work is of no benefit
to the Ward.
Thus, the issue before us is whether the Superior Court has authority under
the Guardianship Act to approve compensation to Mr. Gardner for fee-related
appellate work relating to his appointment as guardian. And, because it appears
that the ward‟s remaining assets are insufficient to cover payment of the requested
compensation based on Mr. Gardner‟s fee-related appellate work,5 the issue is in
part whether the Superior Court has authority under the Act to approve payment to
Mr. Gardner from the Guardianship Fund for his work in (successfully) pursuing
an appeal from the denial of his earlier petitions for compensation from the Fund.6
Our review is de novo. See In re Estate of Green, 896 A.2d 250, 252 (D.C. 2006)
(“Although a trial court‟s decision to grant or deny a request for fees and costs is
5
Mr. Gardner‟s brief represents that there is a balance of $4,384.17 in the
ward‟s estate and a denied-compensation balance of $11,450.32 (of Mr. Gardner‟s
original fee request of $18,473.28).
6
The District articulates the issue not as a question of statutory authority,
but as whether the Superior Court “abused its discretion by denying a court-
appointed guardian compensation for litigating the issue of his own compensation
where such litigation did not benefit the incapacitated ward or his estate.” It is
well-established, however, that the trial court may abuse its discretion by “not
recogniz[ing] its capacity to exercise discretion or . . . not purport[ing] to exercise
it.” Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979) (citation omitted).
We therefore must address whether the court had discretion under the Act to
approve payment to Mr. Gardner for his appellate work without a showing of
direct benefit to the ward.
7
generally reviewed for abuse of discretion, the issue of whether a trial court
possesses the statutory authority to award particular fees and costs is reviewed de
novo.”).
For the reasons discussed below, we agree with Mr. Gardner that the
Superior Court has authority under D.C. Code § 21-2060 (a) to award him
compensation for his work in appealing the Superior Court‟s prior denials of his
petitions for compensation from the Fund for his work as medical guardian of Mr.
Smith. Accordingly, we reverse that portion of Judge Fisher‟s order denying Mr.
Gardner‟s petition for compensation for his appeal work, and remand for further
proceedings.
II. Analysis
Section 21-2060 (a), the Guardianship Act‟s compensation provision, states
in pertinent part that:
As approved by order of the court, any . . . conservator
. . . or guardian is entitled to compensation for services
rendered either in a guardianship proceeding, protective
proceeding, or in connection with a guardianship or
protective arrangement.
8
D.C. Code § 21-2060 (a). The District argues that under the Guardianship Act,
“fee-related litigation is not compensable” and that fiduciaries are not entitled to
fees that do not “provide . . . a benefit” to “a ward or his estate.”7 However, given
the plain language of § 21-2060 (a), which must be our “starting point for statutory
interpretation[,]”8 we conclude that “benefit to the particular ward” is not the
governing standard for every compensation claim.
7
The District relies in part on Super. Ct. Prob. R. 308 (b)(1)(E), which
provides that a guardian‟s or conservator‟s petition for compensation shall describe
“the benefits that accrued to the estate or the subject of the proceeding as a result
of the services[.]” We are not persuaded that this rule, which describes what is to
be set forth in a petition for compensation, establishes the sine qua non for
compensation. The District also relies on Mitchell v. Ensor, 412 F.2d 155, 160
(D.C. Cir. 1969) (holding that “the compensation to be awarded . . . must be based
upon (1) the character of the services rendered, (2) the amount of time spent, (3)
the size of the estate administered, and (4) the benefits that accrued to the estate as
a result of the services[,]” criteria that “are limited only to the extent of reason”).
However, even if it is assumed that Mitchell invariably required a showing of
benefit to the ward‟s estate, the opinion predates the Guardianship Act and does
not control our interpretation of the Act.
8
District of Columbia Office of Tax & Revenue v. Sunbelt Bev., LLC, 64
A.3d 138, 145 (D.C. 2013) (citing Peoples Drug Stores, Inc. v. District of
Columbia, 470 A.2d 751, 753 (D.C. 1983) (“The primary and general rule of
statutory construction is that the intent of the lawmaker is to be found in the
language that he has used.”) (internal quotation marks and further citations
omitted); In re Al-Baseer, 19 A.3d 341, 344 (D.C. 2011) (“The court‟s task in
interpreting a statute begins with its language, and, where it is clear, and its import
not patently wrong or absurd, our task comes to an end.”) (internal quotation marks
omitted).
9
By its plain language, § 21-2060 (a) authorizes a conservator or guardian to
be compensated for services rendered “in connection with a guardianship or
protective arrangement.” In various contexts, courts have construed the phrase “in
connection with” to have a very broad meaning. See, e.g., Maracich v. Spears, 133
S. Ct. 2191, 2199 (2013) (stating that the phrase “in connection with” is essentially
“„indeterminat[e]‟ because connections, like relations, „stop nowhere‟”) (additional
internal quotation marks omitted); Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Dabit, 547 U.S. 71, 85-86 (2006) (endorsing a “broad” construction of the phrase
“in connection with the purchase or sale” of securities); In re Storey, No. 08-
00198, 2009 Bankr. LEXIS 2547, at *6-7 (Bankr. D.D.C. June 26, 2009) (stating
that the scope of the phrase “in connection with the case” in 11 U.S.C. § 329 (a) is
“broad”); Murphy v. Licht, 195 P.3d 1147, 1151 (Colo. App. 2008) (reasoning that
“in connection with” means “logically relating to”). We construe the phrase “in
connection with” in § 21-2060 (a) also to have a very broad meaning because it is
surrounded by “absolutely no limiting language or restrictive terms.” Estate of
Green, 896 A.2d at 252. For that reason and for the reasons discussed below, we
are persuaded that the phrase as used in § 21-2060 (a) has a broad enough meaning
to permit the Superior Court, in its discretion, to approve compensation for a
conservator or guardian‟s work on an appeal in pursuit of a claim for compensation
even if there is no benefit to the guardian‟s particular ward.
10
In Maracich, the Supreme Court admonished that the phrase “in connection
with” “provides little guidance without a limiting principle,” which must be
discerned by reference to “the structure of the statute and its other provisions.”
133 S. Ct. at 2200; see also New York State Conference of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (“We simply must go
beyond the unhelpful text and the frustrating difficulty of defining [„in connection
with‟], and look instead to the objectives of the . . . statute”). Consistent with that
admonition, we look to the objectives of the Guardianship Act, which are
expressed in D.C. Code § 21-2001 (b): The underlying purposes and policies of
this chapter are to:
(1) Simplify and clarify the law concerning the
affairs of missing individuals, protected individuals, and
incapacitated individuals;
(2) Promote a speedy and efficient system for
managing and protecting the estates of protected
individuals so that assets may be preserved for
application to the needs of protected individuals and their
dependents; and
(3) Provide a system of general and limited
guardianships for incapacitated individuals and
coordinate guardianships and protective proceedings
concerned with management and protection of estates of
incapacitated individuals.
11
D.C. Code § 21-2001 (b)(1)-(3). Further, the Act is to be “liberally construed and
applied to promote its underlying purposes and policies.” Id. § 21-2001 (a).
We have little trouble concluding that the compensation-appeal-related work
for which Mr. Gardner seeks compensation from the Guardianship Fund assisted in
“clarify[ing] the law” concerning guardianships, id. § 21-2001 (b)(1), because the
appeal established, through the opinion in Smith I, that an individual who was
appointed by the court without explicit reference to the Guardianship Act, but who
in good faith performed the duties of a guardian, is eligible to receive
compensation from the Guardianship Fund. Moreover, construing the Act
liberally, we conclude that allowing compensation for work on an appeal related to
a compensation claim can be reasonably thought to benefit wards and prospective
wards generally (even if not any particular ward) by fostering the availability of
guardians, who may be more willing to serve with the understanding that they can
be compensated for their work in protecting their right to compensation. 9 In that
9
In that sense, compensation for the guardian‟s appellate work relating to
his fees is not, as the District argues, “hostile to the ward.” We have previously
noted our reluctance to embrace an interpretation of the Guardianship Act that
could make it harder for “those seeking guardians or conservators for low-income
individuals . . . to secure the assistance of counsel.” In re Estate of Grealis, 902
A.2d 821, 827 (D.C. 2006); cf. In re Guardianship of Miles, 660 N.W.2d 233, 238-
39 (S.D. 2003) (“[I]f the fees for services of an attorney employed by the
[guardian] are necessarily incurred in the administration of the trust, that this is
(continued…)
12
way, allowing compensation for appeal work assists in “[p]rovid[ing] a system of
general and limited guardianships for incapacitated individuals[.]” D.C. Code §
21-2001 (b)(3). To be sure, there may be circumstances in which the Superior
Court may discern that allowing a claim for compensation for work on fee-related
appellate litigation would not serve these objectives, such as where a guardian
unsuccessfully pursues on appeal a claim for reimbursement that the Superior
Court has rejected as unreasonable in amount, or where a conservator appeals from
an order surcharging him for mismanagement of a ward‟s assets.10 Nothing in this
opinion would cabin the trial court‟s discretion to deny such a claim.
This court‟s opinion in Estate of Green furnishes support for our conclusion.
In that case, a surety had appealed from the trial court‟s decision approving, and
requiring the surety to pay, a special master‟s claim for compensation for her work
relating to a decedent‟s estate. 896 A.2d 251-52. After this court affirmed the trial
court‟s ruling requiring the surety to pay the special master, the special master filed
a supplemental petition for compensation for services related to her defense of the
appeal. Id. at 251. We reversed the Superior Court‟s denial of the supplemental
(…continued)
sufficient to authorize their allowance without a showing of benefit to the estate.”)
(italics added).
10
See D.C. Code § 21-2074 (d).
13
petition, explaining that the language of the relevant rule (Super. Ct. Civ. R. 53 (a))
gave the Superior Court “broad authority to compensate the special master for any
and all fees and costs associated with and related to her court mandated duties,” id.
at 252-53 (emphasis in original), and observing that the special master was
“required to defend against the appeal in order to protect her right to fair
compensation[]” for her services, id. at 253 (emphasis added). Of particular note,
we reasoned that the special master‟s appellate work was “directly related to and
associated with her role as a special master.” Id. We see no reason why it would
be “patently wrong or absurd,” Al-Baseer, 19 A.3d at 344, to interpret § 21-2060
(a) to authorize a similar result in this case. Like the special master in Estate of
Green, Mr. Gardner was required to prosecute his appeal in order to protect his
right to fair compensation.11 That the special master sought reimbursement from
the surety for her work as an appellee, while Mr. Gardner seeks compensation
from the Guardianship Fund for his work as an appellant, does not negate the fact
11
We further note that the Guardianship Act states that “[u]nless displaced
by the particular provisions of this chapter, the principles of law and equity
supplement its provisions.” D.C. Code § 21-2002 (a). We conclude that “on
general principles of law and equity,” appellant is entitled to have the Superior
Court consider his claim for compensation for “the reasonable value of the work he
performed” in protecting his right to compensation. Mason v. Rostad, 476 A.2d
662, 666 (D.C. 1984).
14
that in the instant case, as in Estate of Green, the appellate work was “directly
related to and associated with” the claimant‟s court-appointed role.12
The District relies on this court‟s opinion in In re D.M.B., 979 A.2d 15 (D.C.
2009), in which we held that the Superior Court did not abuse its discretion in
disallowing the trustee‟s time that “appeared to represent charges to the Trust for
the time appellant had spent working on his challenges to the court‟s rulings on his
earlier fee petitions, including time spent consulting with his appellate counsel
regarding . . . a Trust accounting[].” Id. at 19. We specifically noted in that case,
however, that the Superior Court judge “previously ordered appellant not to charge
the trust for time spent addressing the judge‟s previous compensation matter.” Id.
at 23. We held that “[i]n light of the court‟s prior order, we [could not] say that the
judge abused his discretion in disallowing compensation for time spent by
appellant in disagreeing with the judge‟s analysis of the compensation issue.” Id.Thus, D.M.B. does not stand for the more general principle (i.e., that fiduciaries are
12
Cf. Merkle v. Weems (In re Guardianship of K.R.C.), 83 So. 3d 932, 933-
34 (Fla. Dist. Ct. App. 2012) (“When court proceedings are instituted to review or
determine a guardian‟s . . . fees . . . , such proceedings are part of the guardianship
administration process and the costs, including fees for the guardian‟s attorney,
shall be determined by the court and paid from the assets of the guardianship estate
unless the court finds the requested compensation . . . to be substantially
unreasonable.”).
15
not entitled to be compensated for litigation related to their own compensation) for
which the District cites it, and does not undermine our analysis above.13
III. Conclusion
The Guardianship Act authorizes a conservator or guardian to be
compensated from the Guardianship Fund for services in connection with a
guardianship, and contains no limiting language or restrictive terms other than that
the compensation promote the underlying purposes and policies of the Act. We
13
The other cases the District cites also do not stand for such a broad
proposition. See In re Guardianship of Lamb, 265 P.3d 876, 885 (Wash. 2011)
(express language of statute excluded fees for time spent on “litigating an award of
guardianship fees or costs”); Whittlesey v. Aiello, 128 Cal. Rptr. 2d 742, 748 (Cal.
Ct. App. 2002) (affirming denial of the trustee‟s claim for his litigation expenses
because he “was representing the interests of one side of the dispute [between
competing trust beneficiaries] over the other, not representing the interests of the
trust or the trustee”); Raszler v. Raszler, 81 N.W.2d 120, 123-24 (N.D. 1957)
(rejecting trustee‟s claims for attorney‟s fees where the trustee was attempting to
“absolve himself from liabilities to the trust fund”); Ellis v. King, 83 N.E.2d 367,
371 (Ill. App. Ct. 1949) (disallowing attorney‟s fees where trustees‟ “recalcitrance
and dereliction in their duties” were cause of litigation). But see In re Sloan
Estate, 538 N.W.2d 47, 49-50 (Mich. Ct. App. 1995) (holding that “the ordinary
fees and costs incurred in establishing and defending a fee petition are inherent in
the normal course of doing business as an attorney, and the [probate] estate may
not be diminished to pay those fees and costs[,]” but not rejecting the validity of
the argument, embraced by the Supreme Court of California, that “precluding „fees
for fees‟ claims may have a deleterious effect on the ability of an estate to retain
qualified and competent counsel in the absence of assurance that counsel will
receive adequate compensation” (citing Estate of Trynin, 782 P.2d 232, 264 (Cal.
1989))).
16
hold that the Act authorizes the Superior Court in its discretion to approve a
petition for compensation based on a conservator‟s or guardian‟s fee-related
appellate work, even without a showing of benefit to the particular ward.
Accordingly, we reverse the order on appeal insofar as it was premised on a
contrary interpretation and remand this case to the Superior Court with instructions
to reconsider Mr. Gardner‟s petition for compensation.
So ordered.