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In re Orshansky

July 10, 2008

IN RE MOLLIE ORSHANSKY


Appeals from the Superior Court of the District of Columbia (INT-355-01) (Hon. Peter H. Wolf, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued May 25, 2006

Before RUIZ and REID, Associate Judges, and PRYOR, Senior Judge.

The matter of Ms. Mollie Orshansky's conservatorship first came before this court in 2002, when we ruled that the probate court had erred in appointing a guardian and conservator, the appellee, Harry J. Jordan, from the court's fiduciary list, without following the safeguards of the District of Columbia Guardianship, Protective Proceedings, and Durable Power of Attorney Act of 1986, D.C. Code § 21-2081 et seq. In re Orshansky, 804 A.2d 1077, 1080 (D.C. 2002) (hereinafter referred to as "Orshansky I").

Appellant, Jane Pollack, is Ms. Orshansky's niece and the appellant in the original proceeding. She has presented a seventeen-point appeal of the rulings that have taken place since we remanded the case in Orshansky I. These seventeen points can be grouped into three questions: 1) whether the probate court acted properly in reappointing Mr. Jordan as special conservator to gradually wind down the government's involvement in Ms. Orshansky's estate; 2) whether Mr. Jordan is due compensation for the service he rendered at the request of the court; and 3) if so, whether the probate court's assessment of the amount owed Mr. Jordan is reasonable. We hold that we are without jurisdiction to consider the first question, concerning Mr. Jordan's appointment as special conservator. We answer the second question in the affirmative, as a matter of law; and we conclude that the probate court acted within its discretion in determining the amount to be awarded as fees and costs. Therefore, we affirm.*fn1

I. Facts and Procedural History

The proceedings leading up to this court's first ruling remanding the case are detailed in Orshansky I. We briefly summarize them here, and describe the proceedings following remand. In early November 2001, the District of Columbia's Adult Protection Services (APS) paid several visits to Ms. Orshansky, who was 87 years old at the time and living alone in the District, and found her "malnourished, frail, and in 'a self-neglecting state.'" 804 A.2d at 1080. On December 19, 2001, finding her "lying helpless on the floor of her apartment . . . . malnourished, dehydrated and filthy," id., APS took Ms. Orshansky to George Washington University Hospital for emergency care. The hospital filed a petition with the probate court for an intervention proceeding, to have a permanent guardian and conservator appointed for her, based on a medical report which diagnosed Ms. Orshansky as "suffering from a progressive global dementia," and "unable to take care of herself" or her affairs. Id. at 1081. The court appointed Mr. Jordan, an attorney on the court's fiduciary list, to represent Ms. Orshansky, and scheduled a hearing for February 12, 2002. Id. In the interim, however, appellant presented a health care proxy, duly executed under New York law well before Ms. Orshansky's hospitalization, which granted to appellant the power to make health decisions on her aunt's behalf. Id. at 1081 & n.2. Appellant repeatedly complained that the hospital was not providing adequate care, but, despite the proxy, the Hospital refused to discharge Ms. Orshansky into appellant's care. On January 21, appellant removed her aunt, without informing the hospital until the two were in Ms. Orshansky's New York City apartment. Id. at 1081.

Upon the Hospital's request, the probate court, Judge Kaye K. Christian presiding, held an emergency hearing on January 25, 2002, at which Mr. Jordan was appointed temporary guardian and conservator, and Ms. Tanja Castro replaced him as appointed counsel for Ms. Orshansky. Id. at 1082-83. The full hearing was held on February 12, as scheduled. Id. at 1083. Appellant's lawyer attended the hearing, as well as representatives from the Hospital and APS, but neither Ms. Orshansky nor her sister Rose, who is co-trustee of Ms. Orshansky's trust, were present, and the court-appointed attorney, Ms. Castro, had failed to contact or consult with her client about the pending petition. Id. at 1082-84, 1088-89 & n.10. We concluded that this lack of notice and consultation violated Ms. Orshansky's statutory right to adequate representation, id. at 1095 (citing D.C. Code § 21-2033 (b)), and that her absence should not have been excused without "good cause." Id. at 1096 (citing D.C. Code § 21-2041 (h)). We also concluded that the trial court abused its discretion by voiding the health care proxy without good cause, and ignoring Ms. Orshansky's wishes -- as expressed in her designation of appellant on the health care proxy -- in determining who should represent her interests. Id. at 1097-98 (citing D.C. Code §§ 21-2202 (3), -2043 (b)). Concluding that the "elevated benchmark of informed and careful decision making," required by the Guardianship Act had not been satisfied, id. at 1098, "we reverse[d] the decision and orders of the probate court, and vacate[d] the appointments of Harry Jordan as guardian and conservator of Mollie Orshansky." Id. at 1104. Noting that the state of New York was engaged in similar proceedings, however, we remanded the case "to the extent that the probate court determines that further proceedings are advisable for the protection of Ms. Orshansky." Id.

On June 18, 2002, after the first appeal was filed but before this court heard oral argument, Judge Christian granted the first of Mr. Jordan's petitions for compensation. The judge authorized payment from the estate of $6,240 ($7,800 had been requested) as full compensation for Mr. Jordan's services as counsel, prior to the probate court's appointment of him as general conservator and guardian. This payment has since been made. On October 10, 2002, Judge Christian recused herself for reasons not relevant to this appeal, and the case was reassigned to Judge Peter H. Wolf.

Judge Wolf's first order, docketed December 9, 2002, stated that the court would address "any issues arising out of the reversal and remand" in Orshansky I, noted those pending issues on which it planned to hear further argument,*fn2 and requested that the parties submit in writing other issues for his consideration. After conducting a three-hour hearing, on March 28, 2003, the probate court issued an order dismissing the intervention proceeding. The probate court recognized that Mr. Jordan could no longer serve as general guardian or conservator, but given "the practicalities of administration" and the need "to avoid the spectacle of asking the New York court to try to pick up and reassemble the chips that have fallen as they may," it sought to avoid creating a "gap" of authority for the actions that had been already taken by Mr. Jordan before this court vacated his appointment as general guardian and conservator. It ruled, therefore, that Mr. Jordan's appointment as general conservator and guardian was void as of August 15, 2002 (the date of our opinion in Orshansky I reversing the appointment and remanding the case) but -- over appellant's vigorous objection -- appointed Mr. Jordan to serve as special conservator. That appointment was made retroactive to the same day the prior appointment was vacated, and was for the limited purposes of winding down the government's involvement, coordinating with any orders from the New York court, and providing a final accounting to the Superior Court.*fn3 The parties agreed that the probate court retained "ancillary jurisdiction" to decide the pending fee and expense requests.*fn4 Appellant had argued to the probate court that our decision in Orshansky I had voided Mr Jordan's appointments retroactively and completely, and, therefore, he was not entitled to any compensation for those services. The probate court, however, "decided to defer the matter [of the pending fee requests] . . . until the New York court appointed a guardian [] or took other appropriate action," in order to permit such person to represent Ms. Orshansky with respect to the fee requests.

On April 22, 2003, the New York court requested that the D.C. probate court handle the matter of Mr. Jordan's compensation. The probate court held the matter in abeyance, however, citing concerns about developments in New York and appellant's "intimation of a law suit on Ms. Orshansky's behalf for her 'to be made whole.'"

On November 20, 2003, the D.C. probate court held a hearing on "any and all pending petitions." Later that day, the court denied appellant's request for compensation of attorney's fees from the public coffer via the Guardianship Fund, see D.C. Code § 21-2060. The court denied the request, and appellant does not challenge that aspect of the court's ruling on appeal.*fn5

At the same hearing, the parties discussed whether Mr. Jordan should be compensated for his services as guardian and conservator or reimbursed for attorney's fees he incurred in defending against appellant's claims. In a ruling entered on January 23, 2004, the probate court divided Mr. Jordan's fee requests into three parts, depending on whether they concerned activities before, during, or after the original appeal. Pre-appeal fees and costs, the court noted, were "already awarded . . . by Judge Christian on June 18, 2002 . . . ." Regarding post-appeal proceedings, the probate court recognized that "Mr. Jordan has eschewed requesting further fees after November 2002 unless there is an additional appeal in this case" (emphasis added) -- a settlement offer that appellant, as it later turned out, rejected by filing this appeal.

Most of the court's order was devoted to the issue of legal fees incurred by Mr. Jordan during the course of the appeal that led to Orshansky I, totaling $18,015.46. The probate court laid out in detail why it felt obliged to defer to this court on the issue of fees related to the appeal, and concluded by ordering Mr. Jordan to file his fee petition with this court. We responded to Mr. Jordan's motion to this court for authority to pay his appellate counsel's fees from Ms. Orshansky's estate by order dated March 26, 2004, in which we referred the question ...


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