Guardianship and Protective Placement of Verma L.B., Matter of, 96-2313

• Decision Date: 14 October 1997
• Docket Number: No. 96-2313,96-2313
• Citation: 571 N.W.2d 860,214 Wis.2d 207
• Parties: In the Matter of the Guardianship and Protective Placement of VERMA L.B., Alleged Incompetent. Michael A. YAMAT, Temporary Guardian, Petitioner-Appellant, v. VERMA L.B., Respondent.
• Court: Wisconsin Court of Appeals

Page 860

571 N.W.2d 860

214 Wis.2d 207

In the Matter of the Guardianship and Protective Placement of VERMA L.B., Alleged Incompetent Michael A. YAMAT, Temporary Guardian, Petitioner-Appellant, v. VERMA L.B., Respondent.

No. 96-2313.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 7, 1997.

Opinion Released Oct. 14, 1997.

Opinion Filed Oct. 14, 1997.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Michael A. Yamat, of Milwaukee.

On behalf of the respondent, the cause was submitted on the brief of Laura Neuman of the Elderly Advocacy Project, Legal Action of Wisconsin, Inc., of Milwaukee.

On behalf of the respondent, an amicus curiae brief was submitted by Patricia M. Cavey and Jeannine C. Valenti, guardian ad litem for Verma L.B., of the Mental Disability Law Center of Milwaukee.

Before WEDEMEYER, P.J., and SCHUDSON and CURLEY, JJ.

CURLEY, Judge.

Michael A. Yamat appeals from an order denying his request for attorney fees from Verma L. B.'s estate. Yamat argues that the trial court erroneously exercised its discretion by failing to set forth the process of reasoning which led to its decision, and by failing to make the necessary factual findings. We conclude that the trial court's decision was supported by proper factual findings, but we conclude that the trial court improperly failed to set forth the reasoning behind its decision. However, after an independent review of the record, which revealed a serious conflict of interest between Yamat, the temporary guardian, and Verma, his ward, we conclude that a sufficient basis exists to support the trial court's decision. Therefore, we affirm the trial court's order.

I. BACKGROUND.

In September 1995, Benjamin J. B., a son of Verma L. B., filed a petition for guardianship of Verma, alleging Verma was incompetent. The petition was drafted by Benjamin's attorney, Janet F. Resnick. The trial court appointed Attorney Jeannine C. Valenti as guardian ad litem for Verma. Later, after receiving an objection to the proceedings from Attorney Valenti, the trial court appointed adversary counsel for Verma. Following a delay in the guardianship proceedings, Benjamin filed a request asking for the appointment of a temporary guardian for Verma pursuant to § 880.15(1), STATS.

Benjamin's temporary guardianship petition asked that a temporary guardian be appointed for the specific purposes of admitting Verma to a nursing home or other similar facility; consenting to surgery and other related health care for her; paying her expenses related to her real property, medical care and living expenses; and preparing an inventory of her assets. The petition nominated Attorney Michael A. Yamat as the temporary guardian. Following a hearing, the trial court appointed Attorney Yamat as the temporary guardian of Verma's person and estate. The trial court's order gave Attorney Yamat authority to admit Verma to a nursing home or other similar facility; to consent to health care for Verma but not to surgery; and to inventory her assets and pay necessary expenses relating to her property and care. Because of a divergence of opinions between the experts about Verma's medical condition, the trial court appointed an additional expert. As a result, the trial court adjourned the trial and extended Attorney Yamat's appointment as Verma's temporary guardian.

During a guardianship hearing, the trial court discovered that Attorney Yamat was currently employed by Benjamin's attorney's law firm, Resnick and Associates. The trial court also learned that during the pendency of the action Attorney Yamat paid Benjamin's attorney, Janet Resnick, then his employer, $3,000; and that Attorney Yamat paid himself attorney fees of approximately $4,000, all out of Verma's estate. Attorney Yamat did not seek court approval for either of these expenditures. By court order, these sums were later returned to Verma's estate.

The trial court appointed Attorney Patricia M. Cavey as amicus curiae, and, during a later hearing, heard her report. Attorney Cavey advised the court that she had inventoried Verma's property (a task Attorney Yamat was originally designated to perform) and found an automobile, as well as a possible interest in some real property which Verma may have inherited from a deceased son, to be missing from Verma's estate's inventory. Additionally, Attorney Cavey urged the court to disallow payment of $777.19 to Verma's daughter for new clothes, because Attorney Cavey had inspected Verma's home and the nursing home where she was residing and found that she owned no new clothes worth over $100. More importantly, Attorney Cavey urged the court to disallow payment of Resnick's attorney fees and Yamat's attorney fees, partly because of a conflict of interest between Attorney Yamat and Verma resulting from Yamat's employment with Resnick's law firm. Attorney Cavey stated Attorney Yamat had a clear conflict of interest, given the fact that, while acting as Verma's temporary guardian, Attorney Yamat negotiated and obtained new employment with Attorney Resnick, who represented Benjamin, a party adverse to Verma. During the hearing, the trial court also learned that prior to securing employment with Benjamin's attorney, Attorney Yamat worked for an attorney who lived with Attorney Resnick and had, as Attorney Cavey described it, "an intimate relationship" with her.

Besides the turmoil surrounding the conflict of interest accusations, a significant dispute existed between the experts as to Verma's mental state. The doctor hired by Benjamin found Verma to be incompetent, while the court's expert and the one requested by the adversary counsel found her to be competent. Ultimately Benjamin withdrew his petition and the trial court found Verma competent.

After the disclosures regarding the conflict of interest, and despite Benjamin's unwillingness to proceed with the guardianship proceedings, both Attorneys Resnick and Yamat renewed their requests for payment of their attorneys' fees from Verma's estate. Attorney Resnick sought fees for herself, as well as fees for Benjamin's expert witness, who would have testified Verma was incompetent. Attorney Yamat sought fees of approximately $5,200. The trial court issued a memorandum decision which, among other things, denied Attorney Yamat payment of his fees from Verma's estate, stating: "[T]his court must find that the fees of the temporary guardian, the attorney for the petitioners and the doctors hired by the petitioners are the responsibility of the petitioners herein who have withdrawn their petition." Attorney Yamat now appeals.

II. ANALYSIS.

Attorney Yamat contends that the trial court erroneously exercised its discretion by finding that Benjamin, the petitioner, was responsible for paying his attorney fees, and by denying his request for payment of his attorney fees by Verma's estate. We conclude that the trial court improperly failed to set forth the reasoning behind its exercise of discretion. However, after independently reviewing the record, we conclude that there was more than an adequate basis for the trial court's decision.

Courts are statutorily authorized to compensate temporary guardians for their expenses by ordering payment from the ward's estate. See § 880.24(1), STATS. ¹ Courts have discretion, however, to determine what constitutes a "just and reasonable" amount of compensation, and may even decide to award no compensation. See Matter of Filardo, 221 Wis. 589, 601-02, 267 N.W. 312, 317 (1936), and Guardianship of Barnes, 275 Wis. 356, 362-64, 82 N.W.2d 211, 215-16 (1957). ² Our review is limited to whether the trial court properly exercised its discretion. "An appellate court will sustain a discretionary act if it finds that the trial court (1) examined the relevant facts, (2) applied a proper standard of law, and (3) using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." State v. Gudenschwager, 191 Wis.2d 431, 440, 529 N.W.2d 225, 229 (1995). The trial court should set forth the basis of its exercise of discretion, as evidence for the appellate court that discretion was actually exercised. See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983).

First, we note that the trial court's conclusion that Attorney Yamat's fees were the responsibility of the petitioner, Benjamin, is without statutory support. Trial courts are only authorized by statute to order payment of a temporary guardian's fees from the ward's estate. See § 880.24(1), STATS. However, since Benjamin is not appealing that ruling, we need not decide the issue. Additionally, since the trial court ordered all of Attorney Yamat's fees to be paid by Benjamin, we treat its decision as an implicit finding that Attorney Yamat was not entitled to any fees from Verma's estate.

Next, we conclude that the trial court improperly failed to set forth the rationale by which it reached its conclusion. While the trial court's order sets forth a number of facts pertaining to Yamat, the order completely fails to explain how the application of the relevant legal standard to those facts produced the court's conclusion. Although the court easily could have explicitly stated the reasoning for its decision to deny payment of Yamat's attorney fees from Verma's estate, the court instead opted to merely state, "Accordingly, this Court must find that the fees of the temporary guardian are the responsibility of the petitioners herein." In the same order, the court ably explained the reasoning behind its decision to deny payment of Benjamin's attorney's fees from Verma's estate. For example, the court stated:

The Court can find no authority to sustain the argument that the alleged incompetent is now financially responsible for the expenses incurred by the petitioners who have withdrawn their petition. Sections 880.33(2) and 55.06(6), Wis. Stats., allow for reasonable attorney fees to be paid from the estate...