Opinion
No. 81799-COA
10-20-2021
In the MATTER OF the GUARDIANSHIP OF the Person and Estate of Kathleen June JONES, an Adult Protected Person. Kathleen June Jones, Appellant, v. Robyn Friedman ; and Donna Simmons, Respondents.
Ballard Spahr LLP/Las Vegas Michaelson & Associates, Ltd. Claggett & Sykes Law Firm
Ballard Spahr LLP/Las Vegas
Michaelson & Associates, Ltd.
Claggett & Sykes Law Firm
ORDER OF AFFIRMANCE
The fees at issue in this case stem from a period in 2019 when Donna Simmons and Robyn Friedman served as temporary co-guardians for Kathleen June Jones. After that period, Jones's other daughter, Kimberly Jones, assumed the role of general guardian. Kimberly is not a party here.
We recount the facts only as necessary for our disposition.
We refer to all of Jones's daughters, including Donna and Robyn, by their first names for clarity between the numerous parties in this litigation.
Before Jones needed a guardian, she executed multiple power of attorney forms, each naming Kimberly as her power of attorney. She later executed a will in which she named Kimberly as her preferred guardian should she ever need a guardian. Years after she executed these documents, Jones began experiencing the onset of dementia and eventually required full-time care. Initially, Jones's husband, Gerald Rodney Yeoman, handled much of Jones's caretaking. Yeoman started experiencing health problems of his own, however, and he relocated to Arizona for treatment, rendering him unable to keep caring for Jones. As a result, Kimberly moved from California to Las Vegas and assumed the caretaker role. At this point, Kimberly was Jones's caretaker and power of attorney, and no party had filed a guardianship petition.
Despite his struggling health, Yeoman wanted to maintain as much contact with Jones as possible. Yeoman's children, Richard and Candice Powell (collectively the Powells), assisted Yeoman in his efforts to remain close with Jones despite his move to Arizona. But as power of attorney, Kimberly believed she was the more appropriate caretaker; moreover, considering her recent move from California, Kimberly wanted Jones to remain in Las Vegas. These competing interests created tensions between Jones's daughters and Yeoman's side of the family.
Despite Kimberly's status as power of attorney, concerns about Jones's estate arose, particularly with regard to ownership of Jones's home, which she had owned as separate property from before her marriage to Yeoman. After the onset of her dementia symptoms, Jones had executed a quitclaim deed, conveying the property to the Powells for far under market value. When Jones was asked of this transfer, she denied any recollection of transferring the property to the Powells. Nevertheless, as owners of the property, the Powells brought an eviction action against Kimberly, who was living with Jones in the home as her caretaker.
In addition to the issues with the home, the Powells—at the direction of Yeoman—withdrew money from Jones's bank account without Kimberly's consent as power of attorney and even held Jones's dogs against the wishes of Jones's side of the family. While the Powells and Yeoman offered pure intentions to support their actions, these interactions between the families created grave concerns for Donna and Robyn and prompted them to act. While Kimberly possessed power of attorney, her requests and demand letters were ineffectual at stopping the financial transactions with Jones's assets. In addition, Yeoman took Jones to Arizona without Kimberly's knowledge or permission, and Kimberly went to Arizona and brought her mother back to Las Vegas citing her power of attorney. In short, the families disagreed on Jones's property, location, and finances. Realizing this, Donna and Robyn sought legal counsel. Donna and Robyn's attorney considered the case, and spent extensive time investigating, negotiating and preparing two comprehensive guardianship petitions, one for temporary guardianship and one for general guardianship. In the end, Donna and Robyn, through counsel, filed the temporary guardianship petition.
After their appointment as temporary guardians in September 2019, Donna and Robyn set to work filing proposed care plans for Jones. Meanwhile, Kimberly filed a competing petition to become Jones's general guardian. The district court appointed counsel for Jones and an investigator to determine whether Kimberly had misused Jones's funds. After the investigation concluded she had not misused any property the court appointed Kimberly as Jones's general guardian, thereby ending Donna and Robyn's temporary co-guardianship in October.
Only one issue of Donna and Robyn's temporary guardianship remained: attorney fees. They sought fees payable from Jones's estate, and produced their attorney's billing invoices to support a claim for $62,029.66 in fees. After some argument on the rate charged for paralegal time, Donna and Robyn's counsel conceded and reduced the paralegal fees. After the reduction, Donna and Robyn reproduced the invoices and requested $57,742.16 in attorney fees—to be exacted as a lien against Jones's estate after her death. The district court granted the full amount of this request, addressing almost every factor under the controlling NRS 159.344 and rejecting Jones's "specific objections" "for each billing entry." Jones now appeals.
While the district court titled its order, "Order Granting Robyn Friedman's and Donna Simmons’ Petition for Attorneys Fees in Part," it granted Donna and Robyn's request in full after the adjustments to paralegal fees.
On appeal, Jones challenges the award of fees primarily on two grounds. First, she alleges that the grant of the award was an abuse of the district court's discretion because the fees conveyed no benefit on Jones, as appointing Donna and Robyn instead of Kimberly—Jones's clearly preferred guardian—only delayed the inevitable guardianship arrangement. Because Kimberly's guardianship was what she sought from the outset, Jones argues, any fees accrued by Donna and Robyn were actually harmful to Jones. On this first point, we disagree.
To begin, we review an award of attorney fees for an abuse of discretion. NRS 159.183(1) (noting that payment of attorney fees in guardianship cases is subject to discretion and approval of the court); Miller v. Wilfong, 121 Nev. 619, 622, 119 P. 3d 727, 729 (2005).
With that, we first address whether a guardian must confer a benefit to a protected person before the protected person's estate is required to pay guardianship fees.
We note that we possess jurisdiction under NRS 159.375(5).
Other courts have read such a mandatory requirement into guardianship fee statutes. See, e.g., In re Guardianship of Sleeth, 244 P.3d 1169, 1174 (Ariz. Ct. App. 2010) ("We cannot agree that the legislature intended that courts overlook whether an attorney's or a fiduciary's services produced any value or benefit to the protected person."); In re Guardianship of Ansley, 94 So. 3d 711, 713 (Fla. Dist. Ct. App. 2012) (requiring courts consider benefits conferred despite the statute's failure to list such benefits as a factor in an enumerated list of factors to support guardianship fees). Nevada has no such strict requirement; rather, NRS 159.344 employs permissive language—"may"—to invite courts to consider any benefit to the protected person. See NRS 159.344(5) (providing factors for consideration).
Here, the language of the statute does not mandate a finding that the guardian rendered a benefit, but the district court determined Jones did benefit from Donna and Robyn's temporary guardianship. Accordingly, we review that determination for an abuse of discretion and need not reach Jones's invitation to read the strict requirement into the permissive statute codified by the Nevada Legislature.
Before the court appointed a guardian in this case, the Powells had received ownership of Jones's home and withdrawn funds from her bank account. While it is true that Jones would have preferred Kimberly as her guardian, it is also true that Donna and Robyn's guardianship petition was the first petition filed amidst concerns surrounding Jones's pecuniary and proprietary interests. Further, there were reasonable concerns involving money Kimberly had taken from Jones. Because of these concerns, the district court appointed an investigator to reassess Jones's financial and medical wellbeing. Even though Kimberly was ultimately awarded the general guardianship role after the investigation established she did not mishandle Jones's funds, the temporary guardianship facilitated the investigation that examined Jones's finances and enabled Kimberly, Jones's preferred guardian, to be appointed.
NRS 159.344 begins with a presumption that guardians are personally liable for their own fees. NRS 159.344(1). Fees are awardable from the protected person's estate, but only if sought by petition and the court concludes the statutory requirements support a finding that fees are just, reasonable and necessary. See NRS 159.344(4)-(5). NRS 159.344(5) sets forth several factors to determine when fees are just, reasonable and necessary, all of which may be considered by the district court. Among these factors, the district court may consider (1) whether the guardian conferred a benefit on the protected person, (2) the character of the work performed, including its difficulty, (3) the result of the work, (4) and any other factor that may be considered relevant, NRS 159.344(5)(b), (d), (f), (n).
Under the factors of NRS 159.344(5), the district court did not abuse its discretion in determining, first, that Jones benefitted from the temporary guardianship because the temporary guardianship prompted a rigorous scrutiny of Jones's financial situation as well as an examination into the issues surrounding her home. The understanding of Jones's financial situation enabled Kimberly's appointment. Moreover, Jones benefitted from other guardianship work, such as efforts to secure the return of her dogs of which Yeoman had taken possession. Based on these facts, we cannot say that the district court abused its discretion when it determined Jones benefitted from Donna and Robyn's temporary guardianship.
Second, and for many of the same reasons, the district court did not abuse its discretion in determining that the fees were payable from her estate. The district court acknowledged NRS 159.344(4) and found its requirements had been satisfied. Expanding on this conclusion, the district court conducted findings under almost every single NRS 159.344(5) factor. Accordingly, we affirm the district court's overall decision to award fees from Jones's estate.
We turn now to Jones's challenge to the amount of the award. First, she alleges that the amount of $57,742.16 is unreasonable given the length of Donna and Robyn's guardianship of just over one month. Second, Jones argues that some of the billing entries on the invoices compensated unrelated work or work that the Legislature expressly excluded under NRS 159.344. We address each argument in turn.
The duration of representation is neither an enumerated factor in NRS 159.344 nor is it a consideration provided by Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). "When considering the amount of attorney fees to award, the analysis turns on the factors set forth in Brunzell ." O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 555, 429 P.3d 664, 668 (Ct. App. 2018). Instead of duration, the difficulty of the work is an enumerated factor considered in setting fee awards. NRS 159.344(5)(d) ; Brunzell , 85 Nev. at 349, 455 P.2d at 33. In addition, temporary guardians possess only the powers necessary to address the concerns that prompted the temporary guardian's appointment; thus, the awardable temporary guardianship fees are likewise limited. NRS 159.0525(6).
Here, the amount of the award is not improper based on the relatively short duration of the temporary guardianship or the work performed during the guardianship. First, Donna and Robyn are correct to note that the duration of representation is not a factor in directly controlling statute or precedent. Instead, the complexity of the case is a factor. With that, it is important to acknowledge the complexity of this case; some petitions at the district court attracted four filings, one each from Jones, Kimberly, Donna and Robyn together, and Yeoman. Both the statute and controlling precedent contemplate the difficulty of the representation. In a case like this one, responding to three opposing viewpoints is difficult; it takes time. Donna and Robyn also asked their attorney to work on power of attorney matters. While technically a probate issue, the district court did not err in compensating this work because the ineffectiveness of Kimberly's power of attorney was a factor that contributed to Donna and Robyn's appointment. Therefore, the probate issue was within the scope of the temporary guardianship under NRS 159.0525.
We acknowledge Jones challenged the district court's fee award for compensating work Donna and Robyn performed before the district court appointed them as guardians; however, in her reply, Jones concedes that compensation could start with the drafting of the petition on September 9, 2019. The record demonstrates that the parties contested individual billing entries starting on September 10, 2019. Accordingly, we see no major disagreement on this point.
Thus, considering the complexity of the litigation and the concerns involving Kimberly's power of attorney, we conclude that the district court did not abuse its discretion by awarding fees for the scope of work performed. We turn next to the amount awarded within this scope.
Jones broadly challenges the district court's fee award for improperly compensating work expressly excluded under NRS 159.344. Donna and Robyn do not argue the substance of each billing entry on appeal; they argue Jones's entry-by-entry challenges are not properly before this court due to Jones's violation of appellate briefing rules. We agree with Donna and Robyn and reject Jones's final challenge.
On appeal, parties have a duty to cite relevant authority. NRAP 28(a)(10)(A). "Parties shall not incorporate by reference briefs or memoranda of law submitted to the district court or refer the Supreme Court or Court of Appeals to such briefs or memoranda for the arguments on the merits of the appeal." NRAP 28(e)(2). Without citing supporting authority, a party fails to argue cogently her position, and thus this court need not consider the argument. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need not consider an appellant's argument that is not cogently argued or lacks support by relevant authority).
Here, Jones refers to a copy of her spreadsheet for her legal argument, but the spreadsheet fails to meet the standards of NRAP 28(e)(2). Nevertheless, the district court considered the statute and Jones's itemized challenges. Indeed, the district court made explicit findings on pages 10 and 13 of its order and determined that Jones had not established any fee entries were unjustified, citing directly to NRS 159.344(5)-(6) and Jones's itemized challenges.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.