In re Guardianship & Conservatorship of Alice H.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/28/2019 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
In Guardianship and Conservatorship of
re
A lice H., an incapacitated and
protected person.
Jodie H aferbier McGill, Successor Guardian
and Conservator, appellee, v. Douglas
County, Nebraska, appellant.
___ N.W.2d ___
Filed May 24, 2019. No. S-18-780.
1. Guardians and Conservators: Appeal and Error. An appellate court
reviews guardianship and conservatorship proceedings for error appear-
ing on the record in the county court.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Courts: Jurisdiction. Under Neb. Rev. Stat. § 25-2720.01 (Reissue
2016), county courts have the power to vacate or modify their own judg-
ments and orders during or after the term in which they were made in
the same manner as provided for district courts.
4. Guardians and Conservators: Counties: Attorney Fees: Costs. Under
Neb. Rev. Stat. § 30-2620.01 (Reissue 2016), a court may order the
county to pay the reasonable fees and costs of an attorney appointed
by the court for the incapacitated person, but only if the incapacitated
person does not possess an estate.
5. ____: ____: ____: ____. Under Neb. Rev. Stat. § 30-2643 (Reissue
2106) a court may order the county to pay the reasonable fees and costs
of an attorney appointed by the court for the protected person, but only
if the protected person does not possess an estate.
Appeal from the County Court for Douglas County: M arcena
M. Hendrix, Judge. Affirmed in part, and in part reversed.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
Donald W. Kleine, Douglas County Attorney, Timothy K.
Dolan, and Tess M. Moyer for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In 2016, the county court for Douglas County surcharged
a former guardian-conservator and ordered her to pay, among
other things, $37,505.70 in attorney fees to the successor
guardian-conservator. The former guardian-conservator paid
only a portion of the attorney fees, and in 2018, the successor
guardian-conservator asked the court to order Douglas County
to pay the balance. The court granted that request, and Douglas
County appeals. Because the record contains no evidence that
the ward did not possess an estate from which the attorney fees
could be paid, we reverse that portion of the order.
BACKGROUND
In 2007, a guardianship-conservatorship was established for
Alice H. (the ward) in Douglas County. The ward’s adult daugh-
ter, Pamela Grimes, was appointed her guardian-conservator.
In 2012, the court was notified that Grimes had not been
paying the ward’s nursing home bills and had refused to sell
the ward’s home, which had become infested with bugs. The
nursing home sought the appointment of a nonfamily member
to serve as guardian-conservator for the ward. A hearing was
held, and the court appointed attorney Jodie Haferbier McGill
to serve as the ward’s guardian-conservator.
A pplication for Surcharge
After her appointment, McGill filed an application for sur-
charge, alleging Grimes had misappropriated the ward’s funds.
The application alleged that $ 26,914.91 of the ward’s funds
were “unaccounted for” and sought to have Grimes surcharged
“in an amount that the Court deems appropriate.” The applica-
tion also sought an award of attorney fees.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
An evidentiary hearing on the application was held on
February 19, 2016. Grimes appeared pro se, and McGill rep-
resented herself. McGill offered into evidence an affidavit
in which she averred that she spent 20.5 hours initiating and
prosecuting the surcharge action, at a rate of either $180 per
hour for an attorney or $60 per hour for an assistant, for a total
of $2,360. At the hearing, however, McGill also indicated she
planned to amend her affidavit “to include the unpaid amount
for my attorney’s fees for acting as guardian/conservator.”
McGill filed such an amended affidavit on March 8, 2016.
The amended affidavit itemized all the time McGill had spent
on the case in her capacity as a guardian-conservator, averring
she spent 219.36 hours at an hourly rate of $180 for an attor-
ney or $60 for an assistant, for a total of $37,252.20, plus costs
and expenses of $253.50. The amended affidavit included the
20.5 hours McGill attributed in her earlier affidavit to initiating
and prosecuting the surcharge action.
On March 9, 2016, the court entered an order granting the
application for surcharge. The court found that Grimes “mis-
appropriated several thousand dollars of the ward’s income
and assets” and “utilized the ward’s bank account for her own
personal use.” It also found McGill was an attorney who spent
time “in furtherance of duties on the legal issues in this mat-
ter” at rates that were fair and reasonable. The order directed
Grimes to “purchase a prepaid funeral policy for [the ward]
as restitution for the misappropriated funds.” The order also
sustained McGill’s amended motion for attorney fees and spe-
cifically ordered Grimes to: “Pay the Successor Guardian and
Conservator’s attorney’s fees in the amount of $37,505.70 to
. . . McGill. This amount shall accrue interest at the judicial
rate of 2.510% until paid in full.”
No appeal was taken from this 2016 order.
2018 A pplication for A pproval
of Attorney Fees
In March 2018, McGill filed an application and support-
ing affidavit for approval of attorney fees in the amount of
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
$2,088 plus costs of $12.57 as “payment for the work done
[as guardian-conservator from] March 9, 2017 to February 9,
2018.” This was the only relief requested in the application.
The supporting affidavit averred that the ward had died and
referenced bank assets of $1,768.76 as of February 21. The
affidavit sought an order directing the bank assets to be applied
toward the $2,088 in attorney fees.
The affidavit also made several additional requests that were
unrelated to the motion seeking $2,088 in attorney fees. As rel-
evant to this appeal, the affidavit referenced the court’s March
9, 2016, order requiring Grimes to pay McGill’s attorney
fees, and averred that Grimes had paid only $100 and owed
“an outstanding total balance of $42,990.23.” The affidavit
requested that Douglas County be ordered to pay the balance
of the attorney fee award at the reduced hourly rate of $60 per
hour for a total of $15,160.64, but also asked that “Grimes be
liable for any and all unpaid portions of the total balance of
the account.” In an amended affidavit, McGill asked that the
“balance of the order entered on March 9, 2016” be paid by
Douglas County “at the reduced rate of $80 per hour for a total
of $15,725.60.”
At a hearing on June 22, 2018, the county court took up
several matters, including McGill’s application for approval
of attorney fees, and a separately filed motion to terminate
the guardianship which is not in our record. Douglas County
appeared at the hearing to oppose McGill’s request that the
county be ordered to pay the balance of the attorney fees
previously taxed to Grimes. After the hearing, the county
court entered two orders. The first order was filed the same
day as the hearing, and the second was filed approximately 1
week later.
In its first order, the “Douglas County Court Fund” was
ordered to pay two sums: (1) “[g]uardian fees in the amount of
$1,923.57” and (2) “the balance of the order entered March 9,
2016 in the amount of $17,649.17 . . . for prior Guardian Fees
and expenses incurred by . . . McGill in her duties as Guardian
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
of [the ward].” The second order, entered June 29, terminated
the guardianship-conservatorship, approved the final account-
ing, and ordered the “Douglas County Court” to pay two
sums: (1) attorney fees of $1,923.57 for McGill’s “current
fees” and (2) prior attorney fees and expenses in the sum of
$15,725.60. Additionally, the court ordered that $1,768.76 was
“to be paid from [the ward’s] American National Bank trust
account” to McGill.
Motions to A lter or A mend
On June 27, 2018, Douglas County filed a motion to alter or
amend the June 22 order and filed an amended motion the next
day. The county did not ever seek to alter or amend the order
entered June 29.
As to the order of June 22, 2018, Douglas County asked
the court to amend the requirement that Douglas County “pay
the Successor Guardian and Conservator the balance of an
earlier order entered March 9, 2016 (said balance totaling
$17,649.17).” The county argued the fees had been assessed
against Grimes due to her misappropriation of the ward’s
funds and claimed it would violate public policy to require
the county to expend taxpayer funds to indemnify Grimes for
her private misconduct. Douglas County did not challenge
the June 22 order to the extent it required Douglas County to
pay the guardian-conservator’s “current fees” in the amount
of $1,923.57.
On July 11, 2018, a hearing was held on the motions to alter
or amend. No evidence was adduced. Douglas County argued
that although the March 2016 order had not cited any statu-
tory authority for ordering Grimes to pay McGill’s attorney
fees, the court likely relied on Neb. Rev. Stat. § 30-2658(b)
(Reissue 2016). That statute provides in relevant part that a
conservator is individually liable for torts committed in the
course of administration of the estate if he or she is personally
at fault. Douglas County argued that by assessing a surcharge
in March 2016, the court found Grimes was individually liable
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
for the amount surcharged. The county’s argument character-
ized the entire $37,505.70 judgment against Grimes as relat-
ing to the time McGill spent investigating and prosecuting
Grimes’ misappropriation.
On July 27, 2018, the court entered an order granting, in
part, the county’s motions, and amending its prior order “to
the extent that the Guardian’s hourly rate is reduced to $50.00
per hour. It is further ordered that Douglas County Court pay
. . . McGill $10,968.00.”
On August 8, 2018, Douglas County filed a notice pur-
porting to appeal from the court’s orders of June 22 and July
27. We moved this case to our docket on our own motion.
McGill has not filed a brief or otherwise participated in this
appeal.
ASSIGNMENTS OF ERROR
Douglas County assigns, restated, that the county court erred
in (1) modifying its 2016 order 2 years after issuing it and (2)
ordering Douglas County to assume Grimes’ personal liability
for paying McGill’s attorney fees.
STANDARD OF REVIEW
[1,2] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record in the
county court.1 When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.2
ANALYSIS
As a threshold matter, we note that although Douglas County
seeks to appeal from the orders of June 22 and July 27, 2018,
the order of June 22 was effectively superseded by the order of
1
In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859
N.W.2d 856 (2015).
2
Id.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
June 29. We thus focus our analysis on the final order of July
27, which purported to modify the order of June 29.
2016 Order Not Vacated
or Modified
[3] Douglas County first argues that the county court’s
order was improper because it vacated or modified the March
2016 order without legal authority. County courts have the
power to vacate or modify their own judgments and orders
during or after the term in which they were made in the same
manner as provided for district courts.3 But on this record, we
cannot find that when the county court entered its July 27,
2018, order, it also vacated or modified its earlier order of
March 2016.
The court’s March 2016 order required Grimes to pay McGill
attorney fees in the amount of $37,505.70. The court’s July 27,
2018, order required Douglas County to pay McGill attorney
fees of $10,968 for the same period. Neither the July 27 order
nor the June 29 order referenced, expressly or impliedly, the
March 2016 order.
Douglas County assumes the July 27, 2018, order sought
to modify the March 2016 order, because both orders relate to
McGill’s attorney fees for the same time period. But the fact
that both orders relate to payment of McGill’s attorney fees
does not compel the conclusion that the latter order vacated or
modified the former. Two parties can both be responsible for
the same financial obligation,4 and the record indicates that in
2018, when McGill asked the court to order Douglas County
to pay a portion of the 2016 attorney fee award, she expressly
asked that Grimes also remain liable.
On this record, we find no merit to Douglas County’s con-
tention that the order of July 27, 2018, vacated or modified
3
See In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017),
citing Neb. Rev. Stat. § 25-2720.01 (Reissue 2016).
4
See, generally, Cano v. Walker, 297 Neb. 580, 901 N.W.2d 251 (2017).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
the March 2016 order, and we proceed to the consideration of
whether the July 27 order conformed to the law, was supported
by competent evidence, and was neither arbitrary, capricious,
nor unreasonable.5
No Personal Liability Shifted
Douglas County argues it would violate public policy to
make the county pay sums the court previously ordered Grimes
to pay individually because of her wrongful conduct. This
argument is premised on the county’s assumption, expressed
repeatedly before the county court and in its briefing to this
court, that the $37,505.70 in attorney fees Grimes was ordered
to pay in the March 2016 order is related to time McGill spent
investigating and prosecuting the surcharge action.
But the record here, specifically the affidavits submitted by
McGill at the time the surcharge action was tried, does not
support Douglas County’s assumption that the $37,505.70 in
attorney fees was attributable to Grimes’ misappropriation.
To the contrary, the record shows the actual attorney fees
incurred by McGill in investigating and prosecuting the sur-
charge were approximately $2,300, and the remainder of the
$37,505.70 in fees was incurred by McGill during the course
of performing her regular duties as the ward’s guardian and
conservator.
Because the record does not support Douglas County’s con-
tention that the $37,505.70 in attorney fees was incurred as a
result of investigating or proving Grimes’ misconduct, there is
no merit to the related argument that it would therefore violate
public policy to require Douglas County to pay a portion of
those fees.
OrderPay Fees Was Improper
to
Without Evidence
The court entered three separate orders directing Douglas
County to pay McGill’s attorney fees, and none cited any
5
In re Guardianship & Conservatorship of Barnhart, supra note 1.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
authority for doing so. Our review of the relevant authority
indicates two statutes under which the county may be ordered
to pay such fees. The first is Neb. Rev. Stat. § 30-2620.01
(Reissue 2016), which applies in guardianship proceedings for
incapacitated persons and provides in relevant part:
The reasonable fees and costs of an attorney, a guard-
ian ad litem, a physician, and a visitor appointed by the
court for the person alleged to be incapacitated shall be
allowed, disallowed, or adjusted by the court and may be
paid from the estate of the ward if the ward possesses an
estate or, if not, shall be paid by the county in which the
proceedings are brought or by the petitioner as costs of
the action.
The second is Neb. Rev. Stat. § 30-2643 (Reissue 2016), which
applies in conservatorship proceedings and provides in rel-
evant part:
The reasonable fees and costs of an attorney, a guard-
ian ad litem, a physician, a conservator, a special con-
servator, and a visitor appointed by the court for the
person to be protected shall be allowed, disallowed, or
adjusted by the court and may be paid from the estate of
the protected person if the protected person possesses an
estate or, if not, shall be paid by the county in which the
proceedings are brought or by the petitioner as costs of
the action.
These statutes authorize a court to “allow[], disallow[], or
adjust[]” the payment of “reasonable fees and costs” of an
attorney appointed by the court for an incapacitated person in
guardianship proceedings or for a protected person in conser-
vatorship proceedings.6 However, both statutes provide that
if the incapacitated person or protected person “possesses an
estate,” the fees “may be paid from the estate.”7 And both stat-
utes provide that if the incapacitated person or protected person
6
§§ 30-2620.01 and 30-2643.
7
Id.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF ALICE H.
Cite as 303 Neb. 235
does not possess an estate, then the fees and costs “shall be
paid by the county in which the proceedings are brought or by
the petitioner as costs of the action.”8
[4,5] Under either statute, then, the county can be ordered
to pay reasonable attorney fees only if the incapacitated per-
son or protected person does not possess an estate. But in the
instant guardianship-conservatorship proceeding, the record on
appeal contains neither findings nor evidence regarding the
extent of the ward’s estate. There were arguments presented
suggesting the ward was indigent, but counsel’s arguments are
not evidence.9 And although an affidavit was received averring
the ward had a small sum of money in one bank account at the
time of her death, this alone is not sufficient for the county
court, or for this court, to conclude the ward does not “pos-
sess[] an estate” under § 30-2620.01 or § 30-2643.
On this record, we cannot find that either § 30-2620.01 or
§ 30-2643 provides statutory authority for the court’s order
directing Douglas County to pay McGill’s attorney fees. We
have not been directed to any alternative authority or rec-
ognized course of procedure to support an order requiring
Douglas County to pay McGill’s attorney fees, and we there-
fore cannot find the order of the county court conforms to the
law or is supported by competent evidence.
CONCLUSION
On this record, we cannot find the county court’s order of
July 27, 2018, conformed to the law and was supported by
competent evidence to the extent it directed Douglas County to
pay McGill’s attorney fees. We thus reverse that portion of the
order, and in all other respects, the order is affirmed.
A ffirmed in part, and in part reversed.
8
Id.
9
Hausman v. Cowen, 257 Neb. 852, 601 N.W.2d 547 (1999).