Giventer v. Malousek (In re Giventer)
| Decision Date | 09 April 2013 |
| Docket Number | No. A-11-974,No. A-11-806,A-11-806,A-11-974 |
| Parties | IN RE GUARDIANSHIP AND CONSERVATORSHIP OF PEARL GIVENTER, A PROTECTED PERSON. PEARL GIVENTER, APPELLANT, v. MARK MALOUSEK, GUARDIAN, ET AL., APPELLEES AND CROSS-APPELLEES, AND MARLYS LEBOWITZ AND PAUL GIVENTER, APPELLEES AND CROSS-APPELLANTS |
| Court | Nebraska Court of Appeals |
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the County Court for Douglas County: CRAIG Q. MCDERMOTT, Judge. Affirmed in part, and in part vacated and remanded with directions.
Edward F. Fogarty and John J. Gross, of Fogarty, Lund & Gross, for appellant.
Bryan S. Hatch, of Stinson, Morrison & Hecker, L.L.P., for appellee Wells Fargo Bank, NA.
James D. Sherrets and Diana J. Vogt, of Sherrets, Bruno & Vogt, L.L.C., for appellee Marlys Lebowitz.
Willliam E. Seidler, Jr., of Seidler & Seidler, P.C., for appellee Paul Giventer.
Pearl Giventer (Giventer), a protected person, has appealed from an order of the Douglas County Court finding that her right to retain an attorney was limited, pursuant to Neb. Rev. Stat. § 30-2620 (Reissue 2008), solely to challenging "the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward." Giventer also appeals from the county court's approval of the accounting and request for fees by the conservator, Wells Fargo Bank,NA (Wells Fargo), and the county court's denial of a request to remove or terminate Wells Fargo as conservator. Giventer's children, Marlys Lebowitz and Paul Giventer, have both filed cross-appeals.
This case presents an unfortunate set of circumstances surrounding Giventer, a 91-year-old widow with Alzheimer's and dementia who exhibits symptoms of cognitive decline and impairment, and two of her adult children at odds over Giventer's estate.
Giventer has had a temporary guardian and conservator since July 2010. On December 3, 2010, pursuant to an agreement among the parties, the county court found that Giventer had a sufficient level of incapacity to warrant appointment of a permanent guardian and conservator, and William G. Stevens was appointed as her permanent guardian. Wells Fargo was appointed as conservator "until a hearing is held on said matter."
One month later, on January 3, 2011, Giventer executed a client noncontingent fee agreement with her current attorneys, Edward Fogarty and John Gross. The client noncontingent fee agreement set forth that Fogarty and Gross were hired to provide legal services to Giventer in the following matters: "PR10-1026, estate, guardianship and family/financial and conservatorship, recoupment of money ($250k?) will start appeal, defer pushing." That same day, Fogarty and Gross filed an appeal on Giventer's behalf, jointly with Giventer's daughter, Lebowitz, challenging the validity of the guardianship and conservatorship that had been entered on December 3, 2010. That appeal, which was docketed in our court at case No. A-11-039, was dismissed in May 2011 for being premature. Giventer and Lebowitz have not pursued that appeal, and in her brief, Giventer admits that she and Lebowitz have abandoned any appeal of the December 3, 2010, order finding her incapacitated. In February 2011, Mark J. Malousek replaced Stevens as Giventer's permanent guardian.
On January 7, 2011, Giventer's son, Paul, filed a motion challenging the authority of Fogarty and Gross to act as attorneys for Giventer. Giventer filed a response with attachments consisting of her retainer contract and affidavits by Giventer and Fogarty.
On June 23, 2011, the county court entered an order granting Paul's motion challenging Fogarty and Gross' authority to act as attorneys for Giventer, finding that their representation of Giventer was limited to "the sole purpose of challenging the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward." In this order, the county court also denied a pending motion to alter or amend filed by Lebowitz which sought, inter alia, to remove or terminate Wells Fargo as conservator.
In response, on June 30, 2011, Giventer filed a motion for ad hoc orders enabling her to fight attorney fees and costs in which she requested that the county court enter a formal order confirming her right to object to the fees and costs being sought. Giventer argued that the power to fight fees was "a term of the guardianship" and that her guardian had refused to fight fees, preferring to remain neutral. That same day, Giventer also moved for a new trial and/or rehearing or clarification on the basis that the county court had abruptly terminated the hearings on the lawyer authority issue without allowing Fogarty and Gross to address the areas in which Giventer needed her own counsel and without allowing Giventer to present evidence. On August25, the county court denied the motions for new trial and/or rehearing or clarification and the motion for ad hoc orders enabling Giventer to fight fees. On September 16, Giventer timely appealed from the August 25 county court order, and the appeal was assigned Court of Appeals case No. A-11-806.
In September 2011, Wells Fargo, Giventer's conservator and trustee, filed an annual accounting and statement of assets beginning July 20, 2010, and ending July 31, 2011, along with an application to approve the accounting. Wells Fargo also sought authorization to approve the conservator's attorney fees for the time period of April 1 to July 31 in the amount of $9,437.50 and costs of $340.81. Giventer responded, objecting to the annual accounting and fee request, alleging that the county court lacked jurisdiction due to the appeal found at case No. A-11-806 in which the issue of attorney fees was raised; the fees were unreasonable, excessive, and unlawful; the accounting is incomplete because transactions and activity on the trust were not included; and the conservator and trustee refused to send Giventer's attorneys the periodic report of the trust's activities. A hearing thereon was held on October 20. Lebowitz did not file an objection, nor did she or her attorney attend the hearing. No evidence was received at the October 20 hearing.
On October 26, 2011, the county court entered an order granting an oral motion by Wells Fargo to strike Giventer's response to Wells Fargo's application to approve the annual accounting and fees. After taking judicial notice of the court's prior order dated June 23, 2011, the court struck Giventer's response because it did not challenge the guardianship, the terms of the guardianship, or the actions of the guardian. That same date, the county court entered an order finding that the annual accounting was true and correct and thereby approving it and authorizing payment of the attorney fees and costs requested. Fogarty and Gross filed an appeal on November 1, 2011, and the appeal has been docketed at case No. A-11-974.
Giventer makes the following assignments of error, summarized and restated, on appeal: The county court erred in approving Wells Fargo's accounting and application for fees and costs, in limiting her right to an attorney, in failing to remove Wells Fargo as conservator and trustee, in failing to grant her motion to fight attorney fees, and in various evidentiary rulings.
Paul has filed a cross-appeal alleging that the county court erred in its June 23, 2011, order by failing to disqualify Fogarty and Gross from representing Giventer in the guardianship and conservatorship proceeding.
Lebowitz has filed a cross-appeal contending that the county court erred in approving the annual conservatorship accounting and attorney fees, in depriving Giventer of her right to her own attorney, in failing to remove Wells Fargo as conservator and trustee, in approving attorney fees and costs without proof that they were necessary or reasonable, and in approving fees to which Giventer objected even if the guardian did not object.
Guardianship and conservatorship proceedings are reviewed for error appearing on the record. In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (2009). The inquiry iswhether the order conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
Statutory interpretation presents a question of law. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013). An appellate court independently reviews questions of law decided by a lower court. Id.
Giventer has alleged numerous assignments of error, including that the county court erred in approving Wells Fargo's accounting and application for fees and costs, in failing to remove Wells Fargo as conservator and trustee, in failing to grant her motion to fight attorney fees, and in various evidentiary rulings. However, the more crucial issue is Giventer's claim that the county court has limited her right to an attorney and denied her an opportunity to present her case in support of her retainer contract, legal needs, and choice of attorneys. Giventer argues that the county court's order limiting Fogarty and Gross' representation to challenging the guardianship, the terms of the guardianship, or the actions of the guardian on her behalf, "deprived and/or unlawfully interfered with her right to an attorney she [had] contracted with to advise her on conservatorship matters, family matters, will[-]making matters, estate matters, protesting fees, and . . . other legal needs she has." Brief for appellant in case No. A-11-806 at 2. We specifically note that Giventer has not asserted that § 30-2620 was unconstitutional.
Section 30-2620(9) provides, in part, "[a]fter appointment, the ward may...
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