IN RE EDWARD T. SMITH; BRUCE E. GARDNER, Appellant.
Submitted February 2, 2016
On Appeal from the Superior Court (CON-101-58) of the District of Columbia Probate Division Hon. Gerald I. Fisher, Trial Judge
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.
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.
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 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.
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." 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.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.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. 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, ...