138 Nev., Advance Opinion 47
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 81799-COA
GUARDIANSHIP OF THE PERSON
AND ESTATE OF KATHLEEN JUNE
JONES, AN ADULT PROTECTED
PERSON.
KATHLEEN JUNE JONES,
Appellant,
vs.
ROBYN FRIEDMAN; AND DONNA
SIMMONS,
Respondents.
Appeal from a district court award of attorney fees to former
temporary guardians. Eighth Judicial District Court, Family Court
Division, Clark County; Linda Marquis, Judge.
Affirmed.
Ballard Spahr LLP and Joel E. Tasca, Las Vegas; Legal Aid Center of
Southern Nevada, Inc., and Maria L. Parra-Sandoval, Las Vegas,
for Appellant.
Claggett & Sykes Law Firm and Micah S. Echols, Las Vegas; Michaelson &
Associates, Ltd., and Patrick C. McDonnell and John P. Michaelson,
Henderson; Sylvester & Polednak, Ltd., and Jeffrey R. Sylvester, Las Vegas,
for Respondents.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.
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OPINION
PER CURIAM:
This case places at issue NRS 159.344, a statute the Nevada
appellate courts have not previously had occasion to consider. That statute
governs the award of attorney fees in guardianship cases where the
guardian requests the protected person's estate to pay attorney fees. While
granting attorney fees in this way is disfavored under NRS 159.344, the
district court may require the protected person's estate to pay attorney fees
if the guardian makes a persuasive showing under the statutes 14-factor
framework.
In this appeal, we must first determine whether the award of
fees itself is proper given the statute's general presumption against such an
award payable from the protected person's estate. Second, we consider
whether the amount of that award is excessive under Brunzell v. Golden
Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). We first
conclude the award itself was proper because the district court applied the
relevant NRS 159.344 factors and reasonably found that respondents
Donna Simmons and Robyn Friedman's complex temporary co-
guardianship warranted compensation. For similar reasons, we conclude
the district court acted within its discretion in setting the amount of the
award, as this case involved numerous parties and many filings, making for
complex and time-consuming litigation. Accordingly, we affirm.
BACKGROUND
The fees at issue in this case stem from a period in 2019 when
Donna and Robyn served as temporary co-guardians for their mother,
appellant Kathleen June Jones. After that period, Jones's other daughter,
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Kimberly Jones, assumed the role of general guardian. Kimberly is not a
party here.
Before Jones needed a guardian, she executed multiple power
of attorney forms, each granting Kimberly power of attorney. She later
executed estate planning documents 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 continue 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 had
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 daughter and son-in-law,
Richard and Candice Powell (collectively the Powells), assisted Yeoman in
his efforts to remain close with Jones despite his move to Arizona. But
Kimberly believed she was the more appropriate caretaker and, considering
her recent move from California, she wanted Jones to remain in Las Vegas,
despite the Powells' requests and efforts to relocate her to Arizona. These
competing interests created tensions between Jones's daughters and
Yeoman's side of the family.
Notwithstanding Kimberly's power of attorney status, concerns
about Jones's estate arose, particularly with regard to ownership of Jones's
1We refer to all of Jones's daughters, including Donna and Robyn, by
their first names for clarity between the numerous parties in this litigation.
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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, 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 and even held Jones's dogs against the wishes ofJones'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.
Around this time, 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, residence, and finances. Realizing
this, Donna and Robyn sought and retained 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 in September 2019; in that petition,
Donna and Robyn noted the significant time spent in fruitless negotiations
before they resorted to filing the petition. Acknowledging the tensions
4
between the family members, the district court appointed Donna and Robyn
as temporary co-guardians later in September.
After their appointment, 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 en.ding Donna and Robyn's temporary co-guardianship in
October 2019. While their guardianship ended upon Kimberly's
appointment as general guardian, Donna and Robyn were required to file
requisite inventories and accountings related to Jones's estate. They
completed these filings, and the district court formally discharged Donna
and Robyn in May 2020.
Only one issue arising from 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. Following 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,2 addressing almost every factor under the
2 Whi1e 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.
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controlling statute, NRS 159.344, and rejecting Jones's "specific objections"
"for each billing entry." Jones now appeals.3
ANALYSIS
On appeal, Jones primarily challenges the award of fees on two
grounds.4 First, she alleges that the attorney fee award was an abuse of the
district court's discretion because the work that generated 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. Second, and relatedly, Jones argues
the amount of the fee award was excessive. On both points, 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).
Whether fees were properly awarded from the estate
We first address whether a guardian must confer a benefit on a
protected person before the protected person's estate is required to pay the
guardian's attorney fees.
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
3We initially affirmed in an unpublished order on October 20, 2021.
Donna and Robyn thereafter filed a motion to reissue our order as an
opinion. We grant the motion and now issue this opinion.
4We note that we possess jurisdiction under NRS 159.375(5).
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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 to
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).
However, NRS 159.344 contemplates protected person benefits and
expressly employs permissive language—"may"—to invite, but not require,
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; nevertheless, 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
received ownership of Jones's home and withdrew 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 evaluate Jones's financial and
medical well-being. After the investigation established she did not
mishandle Jones's funds, a conclusion not contested by Donna and Robyn,
Kimberly was awarded the general guardianship role without further
opposition; Donna and Robyn's temporary guardianship facilitated the
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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's attorney
conferred a benefit on the protected person; (2) the character of the work
performed, including its difficulty; (3) the result of the work; and (4) 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 benefited from
counsel's services to establish 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 the sale of
her home. And the understanding of Jones's financial situation enabled
Kimberly's appointment. Moreover, Jones benefited 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 benefited from
Donna and Robyn's temporary guardianship and their counsel's services in
connection therewith.
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Second, and for many of the same reasons, the district court did
not abuse its discretion in determining that the fees were payable from
Jones's estate. The district court acknowledged NRS 159.344 and found its
requirements had been satisfied. Expanding on this conclusion, in finding
that the requested fees were just, reasonable, and necessary, the district
court made 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.
Whether the awarded fees were proper in amount
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 because
Donna and Robyn were active temporary co-guardians for only one month
between September and October 2019. 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 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 the duration of representation,
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 attorney fees are likewise
limited. NRS 159.0525(6).
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Here, the amount of the award is not improper based on the
relatively short duration of the formal temporary guardianship or the work
performed during the guardianship. While, in the strictest sense, their
guardianship spanned only one month, the record supports a more
extensive commitment. To the extent the duration of a guardianship may
shade the analysis, we disagree with Jones's strict one-month
interpretation. Donna and Robyn are correct to note that the duration of
representation is not a factor in the directly controlling statute or
precedent.5 Instead, the complexity of the case is a factor. With that, it is
important to acknowledge the complexity of Jones's case; some motions at
the district court level attracted four filings, one each from Jones, Kimberly,
Donna and Robyn together, and Yeoman. 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 this
technically could be construed as 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 power of attorney issue was within the scope
of the temporary guardianship under NRS 159.0525.
Thus, considering the complexity of the litigation and the
concerns involving Kimberly's power of attorney, we conclude that the
5We acknowledge Jones challenged the district court's fee award for
compensating work Donna and Robyn's attorney 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.
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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 coures fee award for
improperly compensating work expressly excluded under NRS 159.344(6).
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 his or 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 appellanes 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 offends the standards of NRAP 28(e)(2).
Nevertheless, we note that 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. In light of these findings,
we cannot conclude that the district court abused its discretion in
determining the amount of fees to award Donna and Robyn.
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CONCLUSION
The district court did not abuse its discretion when it both
elected to award fees from Jones's estate and set the amount of those fees
at $57,742.16. Accordingly, we affirm the district court's award of attorney
fees.
, C.J.
Gibbons
Tao
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Bulla
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