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In re Estate of Nelson

Court of Appeals of Columbia District

February 27, 2014

In re ESTATE OF Clarateen G. NELSON; James M. Taylor, Jr., Appellant.

Argued Nov. 5, 2013.

As Amended March 13, 2014.[1]

Page 846

Andrea J. Sloan, McLean, VA, for appellant.

Michael P. Bentzen, with whom Elizabeth Hughes, Washington, DC, was on the brief, for appellees.

Before WASHINGTON, Chief Judge, McLEESE, Associate Judge, and KING, Senior Judge.

KING, Senior Judge.

James Taylor, Jr., appellant, challenges his removal as co-personal representative of his mother's estate and the denial of his emergency petition for appointment of a successor personal representative. Appointed alongside his sister, appellee Jo Ann Smoak, James Taylor was removed during a hearing convened to consider Smoak's motion to strike Andrea Sloan as his counsel. After finding that there was no basis upon which to strike Sloan's appearance and to disqualify her, the trial court ordered James Taylor's removal

Page 847

as co-personal representative, leaving Smoak as the sole personal representative of the estate. We remand the case,[2] with instructions for the Superior Court, Judge Campbell specifically to conduct a hearing in accord with D.C.Code § 20-526(b) (2012 Repl.) and to state the grounds for James Taylor's removal, if he finds an adequate basis to do so. We dismiss for lack of standing the portion of James Taylor's appeal dealing with his petition for appointment of a successor personal representative.

I.

After Clarateen Nelson's death on October 9, 2011, two of her children— James Taylor, Jr. and Jo Ann Smoak— were appointed on December 15, 2011, as co-personal representatives (CPRs) of her estate pursuant to a provision in decedent's will. James Taylor was represented by Andrea Sloan, who had been appointed previously as Nelson's conservator and guardian. Following a period of friction between the CPRs and a delay in administering the estate, James Taylor and his brother, Carl Taylor, filed a joint emergency petition to remove Smoak as CPR on February 24, 2012. In so doing, James Taylor offered to resign as CPR on the condition that Smoak be removed and that a disinterested member of the bar be appointed in their place. Smoak filed an opposition on March 5, 2012, denying James Taylor's allegations that she had breached her fiduciary duties, and asking the trial court to accept his resignation, thereby allowing Smoak to administer the estate as the sole personal representative.

On March 5, 2012, the Judge Campbell ordered a hearing on the petition for removal pursuant to D.C.Code § 20-526(b). At that hearing on April 5, Judge Campbell acknowledged that Sloan's representation of James Taylor was causing issues in the estate's administration, noting that he was surprised that James Taylor hired Sloan as his attorney and, because of Sloan's previous involvement as conservator, " Mr. Taylor's decision to retain [Sloan] as counsel ... seems like a poison pill" because of a " practical" conflict of interest. Sloan agreed to resign as his counsel and the hearing then ended. On April 13, however, James Taylor filed a Joint [3] Motion for Judgment on the Pleadings or, in the alternative, a Joint Motion for Summary Judgment on the petition to remove Smoak as CPR, which was signed by Sloan as his counsel. In the motion, James Taylor stated, " the Court cannot order [Sloan's resignation] without [James Taylor's] consent" and " he wished to continue to retain the services of ... Sloan ... as his counsel in th[e] matter."

Smoak opposed the Joint Motion and also filed a Motion to Strike Sloan's appearance and disqualify her as James Taylor's counsel on April 30, 2012, noting that she " has an actual, unwaivable conflict of interest resulting from her position as the Conservator for Clarateen Nelson." At the next hearing, Judge Campbell indicated his surprise that Sloan was present as James Taylor's attorney. Asserting her client's right to select counsel, Sloan continued

Page 848

with the representation. Judge Campbell theorized that James Taylor was attempting to " force [his] hand" by " compelling [him] to grant [James Taylor's] motion to remove [Smoak] and to remove [James Taylor]" in the process. Judge Campbell then denied the motion to remove Smoak, noting that there was no sufficient reason to remove her.

The next hearing, meant to focus on Smoak's Motion to Strike Sloan's appearance as James Taylor's counsel, occurred on September 5, 2012. Judge Campbell stated that he could not " find grounds at this point to remove Ms. Sloan under [the Rules of Professional Conduct]." Judge Campbell then turned his attention to ...


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