In re Guardianship of Holly

Decision Date26 June 2007
Docket NumberNo. 103,840.,103,840.
Citation2007 OK 53,164 P.3d 137
PartiesIn the Matter of the GUARDIANSHIP OF Danny HOLLY, a partially incapacitated adult. Russell L. Mulinix, Sally Ketchum Edwards, and John B. Nicks, Nominated Attorneys, Appellants, v. Robert B. Sartin and Adam K. Marshall, Court-Appointed Attorneys; Robyn Owens; and Timothy E. Houchin, Limited Guardian, Appellees.
CourtOklahoma Supreme Court

Appeal from District Court of Tulsa County; Honorable Kyle B. Haskins, Trial Judge.

¶ 0 A ward subject to a limited guardianship sought to retain new counsel. The trial court improperly denied the ward's nomination of his new attorneys without conducting an evidentiary hearing and based only on the arguments of the court-appointed attorneys and limited guardian. On remand, the trial court must conduct an evidentiary hearing to determine the ward's wishes and whether the nominated attorneys are independent and free of conflicts of interest.

THE JUDGMENT OF THE DISTRICT COURT IS VACATED AND THE MATTER IS REMANDED FOR FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION.

Russell L. Mulinix, Sally Ketchum Edwards, Mulinix Ogden Hall Andrews & Ludlam, Oklahoma City, OK, and John B. Nicks, Tulsa, OK, for Appellants.

Robert B. Sartin, Adam K. Marshall, Cori D. Powell, Barrow & Grimm, P.C., Tulsa, OK, for Appellees Court-Appointed Attorneys.

Robyn Owens, George W. Owens, and Randall E. Rose, The Owens Law Firm, P.C., Tulsa, OK, for Appellee Robyn Owens.

Timothy E. Houchin, University of Tulsa Boesche Legal Clinic, Tulsa, OK, for Appellee Limited Guardian.

COLBERT, J.

¶ 1 Danny Holly is a 58-year-old man who is partially incapacitated from a head injury he sustained in a motor vehicle accident in 1999. Mr. Holly's wife died and his daughter was seriously injured in the same accident. Because of the extent of Mr. Holly's injuries, a general guardian was appointed over his person and property. Although her injuries initially prevented her from serving as her father's general guardian, Mr. Holly's daughter Ashely Holly Goodner, was appointed general guardian after she recovered. In the ensuing years, Mr. Holly was confined first to rehabilitation hospitals and then to assisted living facilities.

¶ 2 Mr. Holly's share of the settlement proceeds from the accident exceeded $6 million. In late 2003, Mr. Holly began attempting to assume some control over his person and property. He retained the services, with court approval, of Robert B. Sartin and Adam K. Marshall of the Barrow & Grimm law firm ("Court-Appointed Attorneys"). Mr. Holly applied for the termination of the guardianship, but reached a court-approved settlement in 2005 with his daughter that allowed him to regain a significant amount of control over his life while remaining subject to a limited guardianship over his person. Under the agreement, Mr. Holly could leave the assisted living facility, buy a house and a car, and gain control of a sizable monthly allowance while placing the corpus of his estate in two irrevocable trusts. Pursuant to the agreement, the district court partially restored Mr. Holly's capacity,1 terminated the general guardianship, and appointed Timothy E. Houchin ("Limited Guardian") as the limited guardian of Mr. Holly's person to protect his interests and assist him with health care and other major decisions.

¶ 3 In the hearing on the agreed settlement, the trial court declared Mr. Holly "competent to manage his financial resources, as well as his medical and psychiatric care." In its order, the court also waived bond and gave the Limited Guardian the following powers and duties:

(i) monitor and meet [Mr. Holly's] health care requirements; (ii) provide for his safe living environment; (iii) coordinate medical services for him; (iv) protect his rights; (v) assist him in fulfilling his civic duties; (vi) obtaining any necessary services; and (vii) take any and all other actions necessary to the exercise of the above powers and controls in his service as limited guardian of the person of the Ward not otherwise prohibited by 30 O.S. § 3-119.

The court concluded that Mr. Holly "lacks the capacity without assistance to prudently consider and make decisions regarding the contractual obligation of more than modest pecuniary amounts" and, as a result, required him to obtain the Limited Guardian's assistance and approval of contracts exceeding $10,000. Nevertheless, the monthly allowance Mr. Holly received was approximately $25,000 and the court provided that Mr. Holly should have exclusive control of this allowance. The court further provided that Mr. Holly "shall have all the rights, duties, powers, and controls over his person except as modified or qualified by the limited guardianship."

¶ 4 In the summer of 2006, Mr. Holly became dissatisfied with the Court-Appointed Attorneys and the Limited Guardian. He contacted and retained attorneys Russell L. Mulinix, Sally Ketchum Edwards, and John Nicks ("Nominated Attorneys"). According to the Court-Appointed Attorneys and the Limited Guardian (together with Robyn Owens Ashely Holly Goodner's attorney, "Appellees"), Mr. Holly began refusing to speak with them after he met with the Nominated Attorneys.

¶ 5 On July 31, 2006, the Court-Appointed Attorneys requested an order releasing Mr. Holly's medical and psychological records. According to Appellees, this order was necessary because Mr. Holly was diagnosed with renal cell carcinoma in the summer of 2006. Although the request stated that it was made with Mr. Holly's approval, the certificate of mailing contains no indication that Mr. Holly received notice and Mr. Holly has denied receiving any notice about the request. Formal notice was sent to the Limited Guardian and Ms. Owens. The district court issued the requested order on August 8, 2006. Again, the record contains no indication that Mr. Holly was notified of the order.

¶ 6 On August 14, 2006, the Court-Appointed Attorneys filed a request for reappointment of counsel. This request does not claim that Mr. Holly approved it, although the Court-Appointed Attorneys have stated that Mr. Holly affirmed in an earlier meeting that he still considered them to be his attorneys. The certificate of mailing, however, contains no indication that Mr. Holly received formal notice of the request and Mr. Holly has denied receiving notice. The request was approved by an order entered the same day. Although language in the order states that Mr. Holly desired continued representation, there is no indication that Mr. Holly was present when the request was made or that the court inquired about his absence or approval before entering the order. Again, there is no indication that Mr. Holly received notice of the entry of the order.

¶ 7 Finally, the Limited Guardian filed a petition on August 29, 2006, for the appointment of special guardians over Mr. Holly's person and estate. He alleged:

4.... [T]he Ward has failed to take prescribed medications, specifically antipsychotic and anti-depressant medications, has purchased a handgun, and has threatened the lives of certain people the Ward believes intend to harm him. Additionally, Petitioner has reason to believe the Ward is the target of overreaching and undue influence.

5. The Ward has recently received a diagnosis of renal cell carcinoma and is in need of a second opinion and medical treatment.

6. The Ward failed to attend a scheduled meeting today, August 29, 2006, in Tulsa concerning his assets held by Bank of America. Petitioner believes the Ward does not intend to attend scheduled medical appointments in Tulsa in the coming days.

The petition was granted the same day it was filed with an order appointing the Limited Guardian as special guardian over Mr. Holly's person and Philip Bayouth as special guardian over Mr. Holly's estate and ratifying the appointment of the Court-Appointed Attorneys. The order stated that notice had been waived by the court.

¶ 8 The district court waived bond and set a hearing on the appointment of the special guardians on September 19, 2006. The formal affidavit of mailing states that copies of the petition for appointment of special guardians, the order appointing the special guardians, and the letters of special guardianship were mailed to Mr. Holly's daughter, the Limited (now special) Guardian over Mr. Holly's person, the special guardian over Mr. Holly's estate, and the Court-Appointed Attorneys. According to the affidavit of mailing, Mr. Holly was not given formal notice of the appointment of the special guardians or the date of the hearing and Mr. Holly has denied receiving any kind of notice. The special guardians immediately took control of approximately $75,000 Mr. Holly had accumulated in his personal checking account. Again, Mr. Holly denies receiving any notice of this action.

¶ 9 The Nominated Attorneys filed entries of appearance on Mr. Holly's behalf on August 30, 2006, and September 1, 2006. They then filed a "Nomination of Attorneys to Represent Ward" and a "Petition to Restore Capacity" on September 7, 2006. The Nominated Attorneys asserted that the Court-Appointed Attorneys had obtained reappointment as Mr. Holly's counsel without notice to him, had obtained the order allowing them to release Mr. Holly's medical records without notice to him and without giving him an opportunity to attend the hearing on the issue, and had been present when the special guardians were appointed and had failed to notify Mr. Holly of the hearing and the resulting order. The Nominated Attorneys also claimed that Court-Appointed attorneys had approved orders granting payment of the Limited Guardian's fees and expenses totaling thousands of dollars without informing Mr. Holly.2 Hearings on the nomination and petition to restore capacity were set for the same day as the hearing on the special guardianship, September 19, 2006.

¶ 10 The hearing originally scheduled for September 19, 2006, was moved when the original trial judge recused...

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