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Attorney Fee Award Against a Guardian or Conservator in Arizona

Posted on : February 7, 2018, By:  Christopher Hildebrand

Attorney Fee Award Against a Guardian or Conservator in Arizona

The Arizona Court of Appeals in a memorandum decision had to address the award of attorney fees in a guardianship and conservatorship case. Mr. Lanfor, individually and as guardian and conservator of the estate of Ms. Quinn appeals from the trial court’s award of compensation to a court-appointed investigator, Ms. Brydges, for her work in the case, along with costs and attorney fees Brydges expended defending her compensation request against Mr. Lanfor’s challenge. For the following reasons, we affirm. Our review of the issues presented on appeal requires a detailed recitation of the procedural history of this case. In July 2016, Mr. Lanfor petitioned the Pima County Superior Court to appoint him Quinn’s guardian and conservator on both a temporary and permanent basis. The trial court set a hearing for August 11, 2016, on Lanfor’s petition and in the interim appointed Brydges as investigator in Quinn’s case.

Mr. Lanfor filed two notices of appeal, one on behalf of the estate and another stating he was appealing “personally and separately.” Two case numbers were generated on appeal, No. 2 CA-CV 2017-0060 and No. 2 CA-CV 2017-0078, but because the briefs in this case address the trial court’s judgment as to both the estate and Lanfor personally, we consider both issues in this appeal. Additionally, although the transcript of the hearing on Brydges’s petition for compensation was filed in No. 2 CA-CV 2017-0078, we have made it a part of the record in the case before us.

Because Mr. Lanfor’s statement of facts does not include citations to the record as required by Rule 13(a)(4), Ariz. R. Civ. App. P., we have disregarded it and relied on Brydges’s statement of facts as well as our own review of the record. See Sholes v. Fernando, 228 Ariz. 455, n.2 (App. 2011). Pursuant to A.R.S. § 14-5303(C), upon a petition for appointment of a guardian, “[t]he alleged incapacitated person shall be interviewed by an investigator appointed by the court” who “also shall interview the person appointed.

The court granted the portion of Mr. Lanfor’s petition asking for his emergency appointment as temporary guardian and conservator. In July 2016, less than two weeks after Brydges’s appointment, Mr. Lanfor petitioned the trial court to remove her as the investigator and appoint another. In his petition, he asserted that “Brydges was extremely rude and demanding” when he contacted her regarding her appointment and displayed “[a] pushy, bullish Gestapo type personality.” He further complained that Brydges had trespassed by going to Quinn’s home without notifying him and “asking for [Quinn’s] consent to [take] her to the court,” prompting Lanfor to contact the police.

A few days later, the trial court held a status conference to address concerns raised by Brydges and Quinn’s court-appointed attorney after Mr. Lanfor called the police and accused them of attempted kidnapping when they visited Quinn. The court questioned Mr. Lanfor to gauge his understanding of the investigator’s role and then permitted him to explain his concerns about Brydges and Quinn’s attorney. When the issue of their fees arose, the court told Mr. Lanfor, “it’s not for you to decide what [they do] because you think they’re overcharged,” and warned he “may be doubling what Quinn would have to pay out” if the court needed to replace them. The court also noted that Lanfor was “standing in the way of a process that if . . . allowed to go smoothly, would get him what he wanted without all of these problems.”

Finally, the court arranged a date for Mr. Lanfor to bring Quinn to the courthouse for Brydges to interview her and directed Mr. Lanfor to provide contact information for anyone Brydges wanted to speak with as part of her investigation. The minute entry for that status conference stated, “The Court admonished Mr. Lanfor not to interfere with the duties of the Court-appointed Investigator or the Court-appointed Attorney.” Mr. Lanfor filed a “motion to correct” the minute entry by removing the admonition, asserting “he did never interfere with the duties of the counsel or the court investigator and the statement that suggests he did was unfair and seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person . . . and submit a report in writing to the court.” Section 14-5407(B), A.R.S., similarly provides for the appointment of an investigator upon a petition for conservatorship.

The trial court denied that motion. On August 2, 2016, Brydges interviewed Quinn at the courthouse. On that day but prior to the interview, she filed an interim report recommending that Mr. Lanfor “not be appointed as guardian or conservator.” Mr. Lanfor subsequently filed a motion for reconsideration of his petition to remove and replace Brydges based on various objections to her interim report. Brydges submitted a final report on August 9, 2016, similarly recommending against Mr. Lanfor’s appointment, and he, in turn, filed a motion to strike portions of both reports as “redundant, immaterial, impertinent, and/or scandalous” and “contain[ing] segments which were apparently obtained illegally, and/or, without authority and/or by way of negligent investigation.”

At the August 11, 2016, hearing, the trial court determined it was “unable to appoint a permanent guardian” “[g]iven the current circumstance of the matter and the issues that had presented themselves.” The court continued Lanfor’s appointment as “temporary guardian only,” directed him to “prepare and file an accounting” for the time period he had been temporary conservator, and limited his ability to use Quinn’s bank accounts and income. The court also set a hearing for September 2016 to “review the accounting and consider the appointment of a permanent guardian and conservator.” Finally, upon their request, the court dismissed Brydges and Quinn’s appointed attorney, directing that new counsel and a new investigator would be appointed, Brydges and the attorney were to “file their claims for fees against the estate and provide notice to Mr. Lanfor,” and he was “to file an objection to the fees and a request for hearing as to [the] same if he deem[ed] it . . . appropriate.”

The trial court denied Mr. Lanfor’s earlier motion to strike portions of Brydges’s reports and Mr. Lanfor filed a motion for reconsideration, which the court also denied. The latter motion included objections to Upon receiving a request for instructions from the newly appointed investigator, the trial court directed her to “conduct an investigation as she would any other” “given Mr. Lanfor’s strong objection to the reports submitted by Brydges.” The court also “directed Mr. Lanfor not to interfere with or limit the investigation without Court approval.” The new investigator ultimately recommended Mr. Lanfor’s appointment as Quinn’s permanent guardian and conservator, and the court appointed him.

There was an objection to Brydges’s fees, alleging she had committed “gross negligence” and “crimes” in her investigation, which did not benefit Quinn or the case. The court’s denial of Mr. Lanfor’s motion noted that the fee request had not been filed with the court and “directed Mr. Lanfor to file an Amended Objection with a copy of the Investigator’s invoice and specific objections to the fees claimed,” and, if he wanted “to have a hearing on the Objection, [to] submit a Notice of Hearing along with the Objection.” After Brydges filed her claim for $2,917.53, Mr. Lanfor filed a notice disallowing the claim in full. The trial court set a hearing on the claim for January 2017.

In response to an email Mr. Lanfor sent to a member of the court’s staff, the court clarified that the hearing was “to allow in whole or part the claims for compensation” of Brydges and Quinn’s first court-appointed attorney. The court also “directed Mr. Lanfor to Rule 33(D), Arizona Rules of Probate Procedure, with respect to the proper manner in which to contest a claim for compensation or fees.” In November 2016, Mr. Lanfor served two subpoenas on Brydges, another on her attorney, one on Quinn’s first attorney, and three more on various county employees, directing them to produce “copies of all email communications” between Brydges, the attorney, and members of the trial court’s staff, plus “copies of all contracts for employment or services, and/or any other documents regarding appointments of court investigator made between . . . Brydges and Pima County Superior Court.”

Brydges filed a motion to quash the subpoenas served on her and her attorney, arguing that “discovery was not warranted or appropriate” and the subpoenas “would not lead to admissible evidence” and were “simply a tool to harass.” She also requested “a protective order against any discovery” and “a double damage attorney fees award against . . . Mr. Lanfor personally pursuant to A.R.S. § 12-349” for abuse of discovery. The trial court granted Brydges’s motion in part as to portions of the subpoenas. Mr. Lanfor subsequently filed a motion to dismiss Brydges’s claim for compensation, arguing she “had not complied with the subpoena or the rules of discovery” and was an “incompetent” investigator who spent an excessive amount of time on the case and committed various crimes or other wrongs such that “she must not be allowed to ever again be allowed.

Eventually, Brydges sought and obtained an injunction against harassment against Mr. Lanfor, which we affirmed on appeal. Brydges v. Lanfor, No. 2 CA-CV 2017-0085, ¶ 1, 2017 WL 4548058 (Ariz. App. Oct. 11, 2017). Brydges responded that she had complied with the discovery requests and Lanfor’s motion was “yet another example of his harassment, of unreasonable expansion of the proceedings and of abuse of discovery procedures,” warranting attorney fees as a sanction under § 12-349. Mr. Lanfor’s reply cited as examples of Brydges’s “abuse of her position” her charges for emails to the trial court’s staff requesting permission to spend more time on the case. He also objected to Brydges’s investigation of his Motor Vehicle Department and court records, along with Quinn’s bank records, and her communications with Quinn’s first attorney, claiming she “had no authority under law or court order to work or confer with the court appointed attorney.”

The day of the January 2017 hearing, Brydges filed a memorandum arguing that Mr. Lanfor had “failed to file or provide the required specific objections” to her fee request even after the trial court directed him to do so, and no conservator had “disallow[ed] [the] claim within the required time” under A.R.S. § 14-5428(A)(2). Brydges further asserted Mr. Lanfor’s claims were without merit, his conduct was “objectively unreasonable” and intended to harass, and he had abused the discovery process, again warranting sanctions in the form of attorney fees under § 12-349 against both Mr. Lanfor and the estate. During the hearing, Brydges expounded upon these arguments, maintaining that “the claim had been allowed by operation of law.” Based on that argument, the trial court decided to not hold an evidentiary hearing at that time and instead offered Lanfor the opportunity to respond in writing. Mr. Lanfor orally argued he had properly and timely disallowed Brydges’s claim and “her billing in full was inappropriate.”

Following the hearing, Mr. Lanfor filed another motion to dismiss Brydges’s claims “as premature and defective” because they had been presented prior to the appointment of a permanent guardian and conservator but not again after his appointment. He further asserted he had timely disallowed the claims and “disputed many of the charges and the format of the billing, which caused confusion with all the decimals preceding the times, and contained ‘Block Billing, ‘time spent on billing activities’ and ‘time and expenses for misfeasance and/or malfeasance. Mr. Lanfor also separately responded to the hearing memorandum, asserting that Brydges had expanded the proceedings through “her determination to unjustly destroy Mr. Lanfor’s credibility through her insane work as a court-appointed investigator.” He also argued that Brydges had billed “over 40 unreasonable and unnecessary hours” including “ridiculous investigations of Mr. Lanfor” himself.

As for Brydges’s legal arguments, he again asserted he had properly objected to the claim and the statute only permits payment of “just” claims against the estate. Lanfor later filed a notice allowing $35 of Brydges’s claim. Finally, in February 2017, the trial court denied Mr. Lanfor’s earlier motions to dismiss Brydges’s compensation request, finding that Brydges had “substantially complied” with the court’s order regarding the subpoenas, and her claims “were neither premature nor defective.” The court also determined that “A.R.S. §§ 14-5314(A), 14-5414(A), and 14-5428 should be read in concert,” “payment of an appointed investigator’s reasonable fees is mandatory,” and “a guardian’s or conservator’s disallowance of a claim without explanation is contrary to the Probate Code’s intent that court-appointees be compensated.”

The court allowed Brydges’s claim in full as “reasonable,” finding Mr. Lanfor’s “disallowance of the claim . . . fatally defective for its failure to follow the Court’s August 30, 2016, Order requiring specific objections to the fees claimed,” and directed Brydges to file an affidavit of costs and attorney fees, stating it would then “determine the costs to be assessed under A.R.S. § 12-341 and whether any fees or costs should be assessed under A.R.S. § 12-349.” After Brydges filed her affidavit, the trial court awarded her costs in full pursuant to § 12-341 plus $10,854 in attorney fees pursuant to § 12-349. In a signed judgment, the court noted that rather than filing “any specific objections to Brydges’[s] fees” as the court had directed, Mr. Lanfor “conducted extensive discovery including issuing subpoenas to the Court and its staff.” The court further found that Mr. Lanfor had violated § 12-349(A)(1)-(4) and awarded Brydges’s investigator fees in full plus her costs and attorney fees against Mr. Lanfor as guardian and conservator of Quinn’s estate and against Lanfor personally, “jointly and severally.”

We have jurisdiction over Lanfor’s appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1). Investigator Fees ¶17 On appeal, Lanfor argues the trial court erred in awarding Brydges’s requested investigator fees. Specifically, he asserts that he and the estate were entitled to a hearing “and/or a trial with an opportunity for a jury,” and that he could not be held personally responsible for the fees. We review an award of fees for work done in a guardianship or conservatorship case for an abuse of discretion. See In re Guardianship of Sleeth, 226 Ariz. 171, ¶ 12 (App. 2010). Questions of statutory interpretation and other issues of law, however, are reviewed de novo. Section 14-5303(C), A.R.S., provides that when a petition for appointment of a guardian is made, “[t]he alleged incapacitated person shall be interviewed by an investigator appointed by the court” who “also shall interview the person seeking appointment as guardian, visit the present place of abode of the alleged incapacitated person . . . and submit a report in writing to the court.”

Regarding conservatorships, A.R.S. § 14-5407(B) similarly provides that when a petition is filed on the basis of “mental illness, mental deficiency, or mental disorder . . . , the court shall appoint an investigator to interview the person to be protected” and make a recommendation. In accordance with those provisions, upon receiving Lanfor’s petition alleging Quinn’s “mental illness or incapacity,” the trial court appointed Brydges as investigator in the case, and she visited Quinn at her residence and interviewed her prior to filing a written report and recommendation. Under A.R.S. §§ 14-5314(A) and 14-5414(A), court-appointed investigators who are “not otherwise compensated for services rendered” are “entitled to reasonable compensation from the estate” if the petition is granted or from the petitioner if it is denied. Furthermore, “a conservator must pay from the estate all just claims against the estate . . . arising before or after the conservatorship upon their presentation and allowance.” A.R.S. § 14-5428(A). “A claimant whose claim has not been paid may petition the court for a determination of her claim . . . and, upon due proof, procure an order for its allowance and payment from the estate.” § 14-5428(B).

Mr. Lanfor asserts the trial court abused its discretion by “forcing on him the burden of proving the fees were unreasonable, unnecessary or unjust, in only pleadings and without a hearing or opportunity to question Brydges, and/or a trial with an opportunity for a jury.” He does not, however, identify any authority requiring a court presented with a contested fee request to hold a hearing, let alone a jury trial. Brydges argues that Mr. Lanfor “failed to preserve the issue of personal liability by failing to object to the form of judgment.” In our discretion, however, we address Mr. Lanfor’s argument in full.

Although §§ 14-5303(C) and 14-5407(D) entitle the alleged incapacitated person to a hearing or a jury trial on the issue of a guardian or conservator’s appointment, those provisions do not mention investigator fees or entitle the petitioner to request a hearing or trial. Additionally, Mr.  Lanfor did not request a hearing when the trial court expressly told him he could, and the court nevertheless scheduled one after Brydges filed her compensation request. To the extent Mr. Lanfor asserts his due process rights were violated because, “at the hearing set for the issue, the court did not allow [him] to present his case,” our supreme court has noted that “[p]rocedural due process . . . requires nothing more than an adequate opportunity to fully present factual and legal claims.” State v. Hidalgo, 241 Ariz. 543 (2017), quoting Kessen v. Stewart, 195 Ariz. 488 (App. 1999).

Moreover, the trial court specifically directed Mr. Lanfor to Rule 33(D), Ariz. R. Prob. P., which provides “if a petition for compensation or fees is contested, the objecting party shall set forth all specific objections in writing” and does not call for evidentiary hearings on contested petitions for compensation. The opportunity to file written objections afforded sufficient due process in this context, and the court even allowed Lanfor to conduct discovery. Cf. FDIC v. Mallen, 486 U.S. 230, 247- 48 (1988) (“reject[ing] . . . contention that [statute] violates due process because it does not guarantee an opportunity to present oral testimony”).

As the trial court pointed out, Mr. Lanfor did not provide specific objections to Brydges’s compensation request before the scheduled hearing. Rather, he filed numerous subpoenas. The closest Lanfor came to making a specific objection prior to the scheduled hearing was in his first motion to dismiss Brydges’s claim, in which he alleged that Brydges had “trespassed illegally” on Quinn’s property, “invaded the privacy of the petitioner when she unlawfully, and without court order, requested personal and private records that were not relevant,” and “performed unauthorized work to pay her bill.” Those could be construed as allegations of “misfeasance or malfeasance”.

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