In re Guardianship of Donald H. Lienemann, an incapacitated person, Robert W. Lienemann v. Richard A. DeWitt, successor guardian and successor conservator.

Robert W. Lienemann, the former temporary guardian and conservator and former conservator for Donald H. Lienemann, appeals from an order of the county court for Sarpy County denying Robert's application for fees. Because we find that Robert was entitled to a reasonable fee for his work as temporary guardian and conservator and as conservator, we reverse, and remand with directions.

II. BACKGROUND

On November 23, 1999, Robert filed a petition seeking the appointment of a guardian and conservator for his father, Donald. On the same date, temporary letters were filed naming Robert as temporary guardian and conservator. On April 14, 2000, Robert's sister, Jean Hillyer, accepted an appointment as guardian. On April 17, Robert accepted an appointment as conservator.

In May 2000, the county court approved applications for fees from Robert's attorneys, Hillyer's attorneys, Donald's attorneys, and the court-appointed visitor. These applications covered the time period from November 1999 to April 2000. The fees ranged from $120 to $175 per hour and altogether totaled more than $30,000. The county court approved each of these applications in its entirety.

On May 16, 2000, Robert filed an inventory of Donald's estate. The inventory indicated that the estate was worth approximately $1,988,000.

On July 24, 2000, Robert filed a motion for the removal of Hillyer as guardian. On the same date, Robert also filed an application for reimbursement of approximately $2,300 out-of-pocket expenses he had incurred on behalf of Donald's estate. The application for reimbursement was granted on August 8. On August 1, Hillyer filed a motion for the removal of Robert as conservator.

On September 12, 2000, the court removed Hillyer and Robert as guardian and conservator, respectively. The court appointed one of Donald's attorneys, Richard A. DeWitt, as the successor guardian and successor conservator.

In September and October 2000, Robert's attorneys, Hillyer's attorneys, and the court-appointed visitor filed subsequent applications for fees. These applications covered the period of time from April to September 2000 and totaled more than $13,000 in fees. The court granted these applications in their entirety.

On April 23, 2001, DeWitt, as the successor guardian and successor conservator, filed an application for fees. DeWitt's application covered the period of time from April 2000 to April 2001 and requested more than $17,000 in fees. In addition, DeWitt's application requested reimbursement and compensation for a friend of Donald who had spent time and money providing companionship to Donald. The amount DeWitt requested for this friend was more than $13,000, of which approximately $6,000 consisted of reimbursement for out-of-pocket expenses incurred by the friend in Donald's behalf. On April 23, DeWitt's attorneys filed an application for fees of approximately $2,300.

On May 8, 2001, the county court granted the applications of DeWitt and his attorneys in their entirety. The court also granted $10,000 to Donald's friend.

On November 16, 2001, Robert filed an application for fees. Robert's application covered the time periods when he was the temporary guardian and conservator and the conservator. Robert alleged that he had spent more than 850 hours working on Donald's estate, and he requested more than $34,000 in compensation for that time. On December 4, DeWitt filed an application for fees which covered the time period from April to October 2001 and requested fees of more than $15,700.

On January 15, 2002, the county court approved DeWitt's December 2001 application in its entirety. The county court also denied Robert's application for fees in its entirety.

Robert appealed to this court the county court's denial of his application for fees. See In re Guardianship of Lienemann, No. A-02-194, 2003 WL 138481, (Neb. App. Jan. 21, 2003) (not designated for permanent publication). That appeal was dismissed for lack of jurisdiction because the county court failed to properly file stamp the journal entry which purported to be the judgment denying Robert's application. Id. See, also, Neb. Rev. Stat. § 25-2729(3) (Cum. Supp. 2002). On January 24, 2003, the county court entered a file-stamped order denying Robert's application for fees. This appeal followed.

III. ASSIGNMENT OF ERROR

Robert assigns two errors on appeal, which we consolidate for discussion to one: The county court erred when it found Robert was entitled to no compensation or fees for the services he rendered as temporary guardian and conservator and as conservator.

IV. ANALYSIS

1. Standard of Review

The parties agree that this case is governed by Neb. Rev. Stat. § 30-2643 (Cum. Supp. 2002), which provides in relevant part:

.

The reasonable fees and costs of . . . a conservator . . . 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.

.

The parties further acknowledge that § 30-2643 implies that the lower court has discretion in awarding such fees, inasmuch as § 30-2643 provides that the fees shall be allowed, disallowed, or adjusted by the court.

As such, we review the county court's decision to deny Robert's application for fees in its entirety for an abuse of discretion. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Macke v. Pierce, 266 Neb. 9, 661 N.W.2d 313 (2003).

2. Application and Resolution

Robert alleges that the county court abused its discretion in entirely disallowing his application for fees. He asserts that he had established that he expended significant time rendering services to the estate while serving as temporary guardian and conservator and as conservator; that the court had already approved significant fees to the various attorneys involved, the court-appointed visitor, and DeWitt; and that the court had disallowed his application without considering the merits of the application. We agree.

The record in this case indicates that the county court approved applications for fees totaling nearly $90,000. Applications in behalf of DeWitt, the court-appointed visitor, and the various attorneys representing Robert, Hillyer, Donald, and DeWitt were all approved in their entirety. In addition, the court granted $10,000 of DeWitt's request regarding the friend of Donald who had expended time and money on Donald's behalf; approximately $6,000 of this award was reimbursement for expenses incurred by the friend, while the remainder appears to have been compensation for the friend's time spent providing companionship to Donald.

The record indicates that on the date the court held a hearing on Robert's application for fees, the court had first held a hearing on DeWitt's annual accounting and application for fees. At the conclusion of that hearing, the court attempted to excuse the parties and was reminded by Robert's attorney that Robert's application was also scheduled to be heard.

After being reminded that Robert's application for fees had been scheduled for hearing, the court stated, "Actually, the last time I had a hearing on this case, I said I wouldn't approve any more fees for anyone except for the Guardian/Conservator on this case." The court inquired why Robert's application was filed a year after his removal as conservator, to which Robert indicated, "I just never submitted a request for compensation prior to that." The court responded:

.

"Well, let me put [it] this way. I made the statement and I'm sticking with that statement. Sometime back when I approved a bunch of fees that I wouldn't approve any more except for the Guardian/Conservator and I'm sticking with that. If everybody in this room wants to agree [to] it, I'll order it. Otherwise, no way."

.

After indicating that he did not understand what was being discussed, Donald indicated that he did not agree with Robert's request for payment. When the court asked DeWitt for his opinion as the successor guardian and successor conservator, DeWitt indicated that he had "no doubt that Robert spent many . . . hours working on [the estate and] that [Robert is] self-employed and lives in Colorado and [that] he was out for a lot of time that took him away from his business and [had] no ability to generate income while he was here working on [the estate]." DeWitt also indicated his belief that the court had meant "legal fees" when indicating that no other fees would be approved.

In response, the court indicated, "I was referring to any fees." The court then noted that Hillyer had also "spent a great deal of time" and had not submitted an application for fees on her own behalf. The court said, "I'm tired of spending [Donald]'s money."

Robert's attorney asked to make an offer of proof. Before allowing the offer of proof, the court stated, "I'm just denying your Motion for Fees." Robert's attorney made five separate requests to make an offer of proof or call Robert to testify before the court acquiesced in the request to allow Robert to present evidence in support of his motion. The court eventually allowed Robert to testify concerning the accuracy and thoroughness of the documentation provided with his application for fees. After Robert testified, the court again held that Robert's application for fees was denied.

Without making any specific findings concerning the reasonableness of the total hours Robert alleges to have spent as temporary guardian and conservator and as conservator, and without making any specific findings concerning the reasonableness of the total amount of fees requested by Robert, it is apparent to this court that the county court abused its discretion in denying Robert's application for fees in its entirety. It is apparent from the record that the court gave no consideration to the reasonableness of the time spent or the amount requested, made no findings concerning the adequacy of Robert's documentation concerning the time spent, and just summarily denied the application without considering its merits. In light of the record demonstrating that DeWitt, the court-appointed visitor, and the various attorneys representing Robert, Hillyer, Donald, and DeWitt all received reasonable compensation for their services, we find it an abuse of discretion to summarily deny Robert any compensation for his services without any consideration or findings concerning the merits of his application.

We make no findings concerning what compensation Robert is entitled to, save the statutory limitation that the fees be "reasonable." See § 30-2643. We reverse the county court's judgment denying Robert's application for fees and remand the case to the county court with directions to determine a reasonable fee to be allowed Robert.

3. Directions on Remand

In light of the circumstances of this case and the appearance that the county court denied Robert's request for fees before considering the merits of his application, we feel it appropriate to order that the case, on remand, be assigned to a different county court judge.

* * *

Click the case caption above for the full text
of the Court's opinion.

We find the county court abused its discretion in summarily denying Robert's application for fees in its entirety. We reverse the county court's judgment and remand the case to the county court with directions to determine a reasonable fee to be allowed Robert.

Reversed and Remanded in favor of Plaintiff.

Unavailable

Unavailable

Reported by L. Hargraves.