In re Conservatorship of Bardwell, 2001-CA-01951-SCT.

• Decision Date: 17 July 2003
• Docket Number: No. 2001-CA-01951-SCT.,2001-CA-01951-SCT.
• Citation: 849 So.2d 1240
• Parties: In the Matter of the CONSERVATORSHIP OF Mary Caroline Lambert BARDWELL, an Incapacitated Person. Michael Randall Bardwell v. Mary Caroline Lambert Bardwell.
• Court: Mississippi Supreme Court

849 So.2d 1240

In the Matter of the CONSERVATORSHIP OF Mary Caroline Lambert BARDWELL, an Incapacitated Person.

Michael Randall Bardwell v. Mary Caroline Lambert Bardwell.

No. 2001-CA-01951-SCT.

Supreme Court of Mississippi.

July 17, 2003.

Wayne Dowdy, Donald Edwin Walsh, Liberty, Attorneys for Appellant.

T. Mack Brabham, McComb, Attorney for Appellee.

Before McRAE, P.J., DIAZ and CARLSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the chancellor's actions in failing to recuse himself, disallowing conservator's fees, and directing partial repayment of conservator's fees, the stepson of the ward has appealed to this Court for relief. Finding no reversible error, we affirm the judgment of the Amite County Chancery Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On May 5, 2000, Michael Randall Bardwell (Randy), the stepson of Mary Caroline Lambert Bardwell (Mrs. Bardwell) petitioned the Amite County Chancery Court to be appointed as conservator of the person and estate of Mrs. Bardwell, then eighty-three (83) years of age and a stroke victim. By order dated May 11, 2000, the chancellor appointed Randy to serve as the conservator. The order also required Randy to perform an inventory of real and personal property owned by Mrs. Bardwell and file this inventory with the court within sixty (60) days. Randy also was required to post a $500 bond. This conservatorship was established in cause number 2000-92 on the docket of the Chancery Court of Amite County. On July 13, 2000, Randy filed in the conservatorship cause a petition to enter into a timber management contract with Timber and Wildlife Management, Inc. in order to preserve the assets of Mrs. Bardwell's estate, which included the timber located on certain real property belonging to Mrs. Bardwell.

¶ 3. The following day, Randy also filed a Petition for Appointment of a Successor Trustee in a separate cause (cause number 2000-139) in the Amite County Chancery Court, requesting the court to appoint him as the successor trustee for the Mary Lambert Bardwell Living Trust.¹ Apparently, that petition was granted because Randy, as successor Trustee, subsequently joined in the Petition to Enter Into Timber Management Contract which had previously been filed in the conservatorship cause. On August 29, 2000, Randy petitioned the court to make monetary gifts of $10,000 to himself, his three children, and Leslie Lambert (nephew of Mrs. Bardwell). In this petition, Randy swore under oath that the value of Mrs. Bardwell's estate, consisting of cash on hand, timber, real property and personal assets, was $1,851,426; however, that petition was denied.²

¶ 4. The Forest Management Plan was filed with the chancery court on September 1, 2000. On the same day, the chancellor entered a decree authorizing the Plan and likewise authorizing the conservator "to pay such expenses and fees that have accrued to the conservatorship and to continue to make such payments as are deemed proper and to account therefore annually." At the end of this sentence, the chancellor inserted a comma in place of the period and then inserted in his own handwriting the words "including conservator's fee to one (sic) of $27,000."

¶ 5. Thereafter, on October 4, 2000, a Petition to Set Aside Conservator, Appoint New Conservator, Provide an Accounting, and Issuance of a TRO or a Restraining Order was filed by Lester Lambert, Jr. (Lester) as next friend of Mrs. Bardwell. In this petition, Lester alleged that Randy was not acting in the best interest of Mrs. Bardwell in that Randy had violated the applicable statutes on numerous occasions regarding the handling of Mrs. Bardwell's estate. Lester alleged, inter alia, that Randy had (1) failed to provide medical documentation that the establishment of the conservatorship was necessary; (2) failed to post bond as required by statute and the chancellor's order; (3) failed to post a sufficient bond since Randy subsequently filed a petition alleging the value of Mrs. Bardwell's estate to be in excess of $1.8 million; (4) failed to timely file an inventory of the real and personal property of the estate as required by statute and the chancellor's order; (5) made expenditures from estate funds without court authority; (6) entered into a timber contract knowing that at a time when Mrs. Bardwell was capable of understanding business affairs, she had expressly stated to Randy she did not want her timber cut; (7) filed a petition requesting the chancellor to authorize Randy to "give away" $50,000 cash to himself, his three children, and a nephew of Mrs. Bardwell; (8) sought excessive conservator's fees in the amount of $27,000; and (9) locked Mrs. Bardwell out of her home. Lester further prayed through the petition that a temporary restraining order (TRO) be issued thereby prohibiting further timber cutting on Mrs. Bardwell's property; that a new conservator be appointed; that Randy be directed to render an accurate accounting for all monies expended and received on Mrs. Bardwell's behalf; and, that Randy be required to pay for the cost of the proceedings, including attorney's fees. Fifteen days after the filing of this petition, the chancellor entered an agreed TRO directing Randy to forthwith "cease and desist" from the cutting of timber on Mrs. Bardwell's property.

¶ 6. Randy shortly thereafter filed a response generally denying the material allegations of Lester's petition, and on November 14, 2000, Randy filed an inventory reflecting estate assets which included (1) a life estate interest in a home located on 120 acres in Amite County; (2) personal property located in the home; and (3) checking and money market accounts and certificates of deposit in the total amount of $360,459.69. On December 21, 2000, the chancellor entered an agreed order directing Randy, inter alia, to "go forward with the bonding process;" to not expend any conservatorship monies other than that necessary to appropriately attend to Mrs. Bardwell's personal and medical needs; to give Mrs. Bardwell a key to her home; and, to not "remove, damage or destroy anything" on the property. In due course, Randy posted a corporate surety bond in the amount of $350,000 on January 19, 2001. On February 5, 2001, the chancellor entered an order appointing attorney Joseph Stinson (Stinson) as Guardian Ad Litem of Mrs. Bardwell. This same order directed Stinson to conduct an investigation and report back to the court on whether Mrs. Bardwell was in current need of a conservator; whether Mrs. Bardwell was mentally capable of designating a conservator; and, whether Randy should remain as conservator and if not, who should be appointed as conservator of Mrs. Bardwell's person and estate. Additionally, by this same order, the chancellor appointed Michael Faust (Faust), a certified public accountant, to investigate all financial matters of the conservatorship estate and report back to the court.

¶ 7. On March 21, 2001, Faust filed a report with the court thereby setting out the findings of his investigation and further making certain recommendations to the court. This report found, inter alia, that for the period of May 22, 2000—to February 9, 2001, expenditures exceeded revenue by $41,565.59. Most notably, the report likewise revealed that during this same period covering less than nine months, Randy had received payments of $47,880.92.

¶ 8. On March 26, 2001, Stinson filed his First Report of Guardian Ad Litem which contained specific findings and recommendations.³ Suffice it to state here that the findings justified Stinson's recommendations to the court that (1) Randy should be removed as conservator and be required to file an inventory and a final accounting as well as justify the conservator's fee of $27,000; (2) the conservatorship process should be begun anew with the appointment of a new conservator; (3) a timber consultant should be employed on an hourly basis and not on commission; (4) that any sale of timber from Mrs. Bardwell's property should be treated as a sale of real estate as far as seeking court approval for such sale; (5) that the newly appointed conservator should consider appointing an independent estate planning attorney for Mrs. Bardwell's estate; (6) that the current holder of the timber contract should make an accounting as to timber thus far cut and monies received from the conservatorship estate; and, (7) that a fiduciary should be appointed to protect Mrs. Bardwell's Louisiana property.

¶ 9. On April 2, 2001, an attorney on behalf of Mrs. Bardwell and Lester, filed a Motion for Removal of Conservator requesting that Randy be removed as conservator of Mrs. Bardwell's person and estate. Although not filed with the clerk until April 3, 2001, the chancellor had signed and marked filed on March 30, 2001, an order in response to the reports filed by the CPA and Guardian Ad Litem. This order directed Randy to return monies representing unauthorized expenditures from estate assets; to retrieve from the timber consultant and deposit into the conservatorship account any monies held by the consultant and due the estate; and, to re-evaluate and document the $27,000 claim for conservator's fees. The same day a show cause order was entered by the chancellor thereby directing Randy to show cause, if any he could, as to why he should not be removed as conservator for Mrs. Bardwell. On April 5, 2001, the chancellor by order set a hearing date to determine if Randy should be removed as conservator of Mrs. Bardwell's person and estate. Also on April 5, 2001, an amended petition to remove Randy as conservator was filed alleging, among other things, that Randy had been negligent and breached his fiduciary duty and that he misrepresented his fees. The amended petition further charged Randy's conduct throughout his tenure as conservator as being not only in violation of numerous statutes, but also as exhibiting "reckless and callous disregard of his fiduciary obligations to...