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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-PR-0616
IN RE EDWARD T. SMITH; BRUCE E. GARDNER, APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(1958-CON-000101)
(Hon. Gerald I. Fisher, Trial Judge)
(Submitted January 11, 2022 Decided December 14, 2023)
Bruce E. Gardner, pro se.
Karl A. Racine, Attorney General for the District of Columbia at the time of
submission, Loren L. AliKhan, Solicitor General at the time of submission, Caroline
S. Van Zile, Principal Deputy Solicitor General at the time of submission, Ashwin P.
Phatak, Deputy Solicitor General at the time of submission, and Stacy L. Anderson,
Senior Assistant Attorney General, filed a brief on behalf of the District of Columbia
as amicus curiae.
Before BECKWITH and MCLEESE, Associate Judges, and GLICKMAN, * Senior
Judge.
GLICKMAN, Senior Judge: In 1998 and 2010, the Superior Court appointed
Bruce E. Gardner to serve as conservator on behalf of the estate or person of Edward
*
Judge Glickman was an Associate Judge of the court at the time of
submission. He began his service as a Senior Judge on December 21, 2022.
2
T. Smith. Mr. Smith, who was civilly committed in 1958, passed away in September
2013. This is Mr. Gardner’s fourth appeal of a Superior Court determination
regarding his entitlement to compensation for his service to Mr. Smith.
In the first appeal (“Smith I”), this court clarified issues relating to the
statutory basis for Mr. Gardner’s appointment and held that he was eligible from his
2010 appointment onward for compensation from the Guardianship Fund pursuant
to the District of Columbia Guardianship, Protective Proceedings, and Durable
Power of Attorney Act of 1986, D.C. Code §§ 21-2001 to -2077. 1 In the second
appeal (“Smith II”), we held that Mr. Gardner could be awarded reasonable
compensation from the Fund for litigating the first appeal. 2 In his third appeal
(“Smith III”), on motion by the Attorney General on behalf of the District, this court
vacated an October 3, 2016, fee award and remanded the case to the Superior Court
for additional findings relating to the amount of compensation that Mr. Gardner had
been awarded. 3 The present, fourth appeal, is from the Superior Court’s June 7,
2019, fee award on remand. This award covered services rendered by Mr. Gardner
1
In re Smith, 99 A.3d 714, 715 (D.C. 2014) (Smith I).
2
In re Smith, 138 A.3d 1181, 1182 (D.C. 2016) (Smith II).
3
In re Smith, No. 16-PR-1109 (D.C. June 7, 2018) (order) (Smith III).
3
from June 2012 to February 2016 (including, but not limited to, his appeals in Smith
I and II).
The District was not a party in the proceedings in Superior Court. However,
in Smith I, this court invited the Attorney General to participate in the appeal on
behalf of the District as an amicus. The Attorney General accepted the invitation,
and since then the District has participated in Mr. Gardner’s subsequent appeals in
Mr. Smith’s matters. It is participating in this appeal without objection; Mr. Gardner
identified the Attorney General as “appellee’s counsel” in his notice of appeal.
Technically, however, the District participates as an amicus. It does so with this
court’s appreciation.
Mr. Gardner raises the following issues. First, he contends that this court did
not have subject-matter jurisdiction in Smith III to remand the case for further
findings relating to compensation requests that the Superior Court had approved.
This is so, he argues, because his notice of appeal limited the scope of the appeal to
“the part of the October 3, 2016 order that denied his compensation/fees as medical
guardian” and the District had not cross-appealed to challenge other parts of the
order. Accordingly, Mr. Gardner asserts, the Superior Court’s downward correction
on remand of compensation that it had approved in October 2016 must be set aside.
Second, Mr. Gardner contends the Superior Court erred in ordering that he be
paid from the Guardianship Fund (at the Fund’s lower hourly rate) without first
4
depleting Mr. Smith’s funds (from which Mr. Gardner might have received payment
at a higher hourly rate). Third, Mr. Gardner challenges the reasonableness of the
Guardianship Fund rate cap of $90 per hour. Fourth, Mr. Gardner argues that,
because the Superior Court did not decide his fee petitions within thirty days, in
accordance with former Superior Court Probate Rule 308(i)(1), the petitions should
have been accepted as filed and paid in full, together with interest and other relief
for the consequences of the delay. Lastly, Mr. Gardner contends the Superior Court
abused its discretion in reducing his compensation for appellate work in Smith I and
II and in other respects.
I.
A. Background
In 1958, the United States District Court for the District of Columbia granted
a petition for the civil commitment of Edward T. Smith upon determining that he
was of “unsound mind” and in need of hospitalization. 4 In 1972, following court
reorganization in the District of Columbia, Mr. Smith’s case was transferred to the
Superior Court. 5 He remained a ward of the Superior Court from then until his death
4
Smith I, 99 A.3d at 715.
5
Id. at 716.
5
in September 2013, even though he left the District of Columbia in 1962 and never
returned to this jurisdiction. 6
In May 1998, the Superior Court appointed Bruce Gardner to serve as a
successor “conservator” for Mr. Smith’s estate. 7 At that time, Mr. Smith was 78
years old and had been living for several years in a psychiatric facility in New York
paid for by the Veterans Administration (“VA”). At some point, he was moved to a
nursing home in New York, where he remained at all times relevant to this appeal
until his demise. According to Mr. Gardner’s reports, fee petitions, and other
representations in this case, Mr. Smith’s sole sources of income were his VA and
social security benefits; he was a Medicaid beneficiary or eligible for Medicaid; and
the VA paid for his nursing home care.
Mr. Smith’s social worker informed Mr. Gardner that no one had been serving
as Mr. Smith’s guardian and that his doctors had been making all medical decisions
for him. In 2009, after Mr. Gardner recommended that a medical guardian be
appointed for Mr. Smith, Superior Court Judge Burgess directed Mr. Gardner to file
a petition for guardianship as the necessary first step to filing a petition to transfer
Mr. Smith’s guardianship to New York. Mr. Gardner agreed to do this. He filed a
6
See id. at 716-18.
7
Id. at 716-17.
6
petition to be appointed guardian, but the court dismissed it in July 2009 because
Mr. Gardner had not properly served Mr. Smith personally. Mr. Gardner did not
pursue the matter further (though he visited Mr. Smith regularly and could have
served him in person) and made no effort to transfer supervision of Mr. Smith’s
estate or person to New York.
On June 7, 2010, the Superior Court issued a supplemental order appointing
Mr. Gardner “conservator of the person of” Mr. Smith. 8 In 2011, the court
terminated the conservatorship of Mr. Smith’s estate, but directed that the
conservatorship of his person continue. 9 Mr. Gardner remained Mr. Smith’s
conservator until Mr. Smith died in September 2013. 10
B. Smith I and Smith II
In Smith I, Mr. Gardner sought review in this court of Superior Court orders
that had denied him compensation from the Guardianship Fund on the ground that
he was not appointed under and in compliance with the Guardianship Act. 11 We
8
Id. at 717-18. Mr. Gardner refers to this appointment as a “medical
guardianship,” and his position as Mr. Smith’s “medical guardian,” because that was
the main focus of his responsibilities.
9
Id. at 718.
10
Id.
11
Id. at 719.
7
held that Mr. Gardner was ineligible to receive compensation from the Guardianship
Fund for services rendered under his original appointment in 1998 up until June
2010, but that his appointment in June 2010 as conservator of the person was
“properly construed to have been made pursuant to the Guardianship Act,” and that
he was “eligible to receive compensation from the Guardianship Fund” for services
rendered in that capacity after that appointment. 12 We remanded the case for the
Superior Court to consider Mr. Gardner’s compensation petitions “anew.” 13
Mr. Gardner filed six fee petitions for his activities as Mr. Smith’s conservator
following his June 2010 appointment. For convenience, we list these petitions in the
following chart, arranged by the dates of the services for which he sought
compensation. The last three are the ones directly at issue in this appeal.
Filed Services From Services To Decided by Superior Court
Sept. 2011 June 7, 2010 Aug. 11, 2011 Jan. 2016 (upon remand in Smith I)
July 2012 Aug. 9, 2011 June 22, 2012 Jan. 2016 (upon remand in Smith I)
June 2013 June 23, 2012 June 18, 2013 July 2013 (appealed in Smith II)
Jan. 2016 June 23, 2012 June 18, 2013 Oct. 2016 (remanded in Smith III)
Dec. 2015 June 20, 2013 Jan. 22, 2014 Oct. 2016 (remanded in Smith III)
Mar. 2016 Jan. 23, 2014 Feb. 29, 2016 Oct. 2016 (remanded in Smith III)
In January 2016, after the remand in Smith I, the Superior Court ruled on the
first two fee petitions in the above chart, which Mr. Gardner had filed for the two-
12
Id. at 722 (emphasis omitted).
13
Id.
8
year period from his appointment in June 2010 to June 2012. In each of these
petitions, Mr. Gardner requested compensation from the Guardianship Fund at the
rate of $90 an hour. The petitions did not request compensation relating to his
litigation of the Smith I appeal (other than for preparing the notice of appeal and
paying the $100 filing fee). The Superior Court awarded some but not all of the fees
sought. Mr. Gardner did not appeal the award.
However, in June 2013, while the appeal in Smith I was still pending,
Mr. Gardner filed a third fee petition in Superior Court, in which he sought
compensation for the period between June 23, 2012, and June 18, 2013. This
petition, and the Superior Court’s decision on it, set the stage for the issues raised by
the three subsequent petitions that are at issue in this appeal.
In his June 2013 fee petition, Mr. Gardner sought compensation for (by his
calculation) a total of 101.3 hours of work, the bulk of which related to his appeal in
Smith I. At this time, Mr. Smith reportedly had assets in an account amounting to
$11,897.72. Mr. Gardner requested that he be awarded compensation from that
account at his regular hourly billing rate of $300 for 39.66 hours—which would have
completely depleted the account—and that he be compensated from the
Guardianship Fund for the rest of his total hours (i.e., for 61.64 hours) at the Fund’s
rate cap of $90 per hour.
9
On July 24, 2013, the Superior Court granted Mr. Gardner’s petition in part.
The court ruled that Mr. Gardner’s hours of work on his fee petition appeal in Smith
I were not compensable at all because that work was of no benefit to Mr. Smith.
After deducting those hours and making other adjustments, the Superior Court
awarded Mr. Gardner $6,000 in fees for twenty hours of non-litigation work at an
hourly rate of $300, plus $1,022.96 in costs, for a total of $7,022.96. The court
ordered payment of this award from Mr. Smith’s estate because it would not exhaust
his assets.
Mr. Gardner appealed the ruling that he could not be compensated for his work
on the appeal in Smith I. In Smith II, decided in May 2016, this Court agreed with
Mr. Gardner and held that the Guardianship Act “authorizes the Superior Court in
its discretion to approve a petition for compensation based on a conservator’s . . .
fee-related appellate work, even without a showing of benefit to the particular
ward.” 14 Accordingly, we remanded for the Superior Court to reconsider its ruling
with respect to Mr. Smith’s appellate work.
14
Smith II, 138 A.3d at 1188. However, we acknowledged that there may be
circumstances in which compensation for fee-related appellate litigation will not
serve the Guardianship Act’s objectives, “such as where a guardian unsuccessfully
pursues on appeal a claim for reimbursement that the Superior Court has rejected as
unreasonable in amount, or where a conservator appeals from an order surcharging
him for mismanagement of a ward’s assets.” Id. at 1186. We emphasized that
“[n]othing in [our] opinion would cabin the trial court’s discretion to deny such a
claim.” Id.
10
C. The Three Petitions Decided After Smith II
We come now to the three fee petitions that are at issue in this appeal. In
January 2016, Mr. Gardner filed a revised petition for the period June 23, 2012, to
June 18, 2013, that was the subject of Smith II. The January 2016 petition sought
compensation for the same services for which the Superior Court already had
awarded Mr. Gardner his full fees of $6,000 plus $1,022.96 in costs from
Mr. Smith’s estate in July 2013; only this time, Mr. Gardner sought compensation
for those services from the Guardianship Fund at a rate of $90 per hour. The January
2016 petition did not disclose that (as was later revealed) Mr. Gardner had already
taken the full $6,000 in fees (and, apparently, the $1,022.96 in costs) from
Mr. Smith’s assets, and Judge Fisher, to whom the petition was presented, was
unaware of that fact. In addition, there were several unexplained discrepancies
between the hours and expenses shown in the June 2013 and January 2016 petitions.
For example, the earlier petition sought compensation for a total of 101.3 hours of
work, while Mr. Gardner’s January 2016 petition for the same period sought
compensation from the Guardianship Fund for 113.8 hours of work.
The other two petitions were filed on December 16, 2015, and March 21,
2016, respectively. The former, covering the seven months from June 20, 2013, to
January 22, 2014, requested compensation for 109.6 hours, all of it from the
Guardianship Fund at the $90 per hour rate. The latter, Mr. Gardner’s final fee
11
petition, covered the two-year period from January 23, 2014, to February 29, 2016,
and requested compensation for a total of 138.6 hours of work. (This included
appellate work in Smith II.) Mr. Gardner reported that, as of the date of filing,
Mr. Smith’s estate contained only $4,384.17 (which reflected, though Mr. Gardner
did not explain this, his aforementioned withdrawal of over $7,000 in awarded fees
and expenses from the estate). As Mr. Gardner’s total fee request in his March 2016
petition exceeded the residue in Mr. Smith’s estate, he asked that $3,480 be paid
from that estate for 11.6 hours at his $300 per hour rate, and that the balance be paid
from the Guardianship Fund at $90 per hour.
On October 3, 2016, Judge Fisher ruled on the three fee petitions, and he
explained the basis for his rulings in a written opinion that reviewed the entire course
of Mr. Gardner’s conservatorship. Judge Fisher partially denied the fees
Mr. Gardner sought for the time he spent in three activities: (1) his travel to and from
New York to visit Mr. Smith at his nursing home there; (2) his appeals in Smith I
and Smith II; and (3) his preparation of fee petitions and for a court appearance
relating to his fees. 15
15
Judge Fisher awarded all the costs that Mr. Gardner sought in each of the
three petitions.
12
1. Travel to Visit Mr. Smith in New York
In the two petitions that together covered the time period from June 23, 2012,
to January 22, 2014, Mr. Gardner sought fees for around 50 hours of travel time in
connection with four round-trip visits he made by car to Mr. Smith in New York
between December 2012 and August 2013. “On none of those visits,” Judge Fisher
found, “did he spend more than .6 hours with Mr. Smith. Yet for each trip he billed
more than $1500.00, the overwhelming majority of which [was] attributable to travel
time and expenses.” These last four visits before Mr. Smith passed away were the
tail end of a series of some eleven to thirteen trips to visit Mr. Smith in New York
(which began after Mr. Gardner was appointed conservator of Mr. Smith’s person in
June 2010). 16 The judge noted that Mr. Gardner had billed over $20,000 for services
and expenses associated with these trips, “of which less than $1,000.00 was for time
spent seeing Mr. Smith and speaking with VA staff about his care[.]”
Judge Fisher found it “hard to discern” any benefit to Mr. Smith from the
visits. 17 Mr. Gardner’s biannual reports with the court on Mr. Smith’s medical and
16
Judge Fisher referred to eleven visits, but Mr. Gardner stated in his brief in
Smith III that he made thirteen separate trips to New York for the purpose of visiting
Mr. Smith.
17
The judge acknowledged that D.C. Code § 21-2047(a)(1) requires a
guardian to “maintain sufficient contact with the ward to know of the ward’s
capacities, limitations, needs, opportunities, and physical and mental health,” and
that D.C. Code § 21-2043(e)(2) provides that a guardian should visit a ward “a
13
living conditions did not suggest a need for them. His two reports covering the
period from June 2012 to June 2013 stated, among other things, that he had been in
communication with the nursing facility staff through correspondence and telephone
calls; that Mr. Smith’s mental and physical health remained unchanged; that
Mr. Smith was under “regular physician’s care” and being cared for by a
“professional health care team” (comprising a physician, a psychiatrist, a social
worker, a dentist, a podiatrist, and a dietician); that Mr. Smith’s living arrangements
were “good”; and that Mr. Smith had “no unmet needs” and was “content.” The
reports also stated that Mr. Gardner did not participate in any care planning meetings
minimum of one visit per month” unless the court specifies otherwise based on the
ward’s preferences or best interests. However, the judge explained, “[g]uardians
routinely seek approval from Probate Division Judges for less frequent visits when
the Ward is located far outside the District of Columbia, particularly where, as here,
the Ward’s medical and other needs are clearly being well taken care of and the
Guardian can provide little, if any, meaningful assistance by visiting the Ward.” The
judge was of the view that Mr. Gardner should have petitioned the Superior Court
for such approval. The judge noted that when Mr. Gardner was appointed
conservator of the person of Mr. Smith in June 2010, he “assured [the court] he
would serve in that role by making occasional visits to Mr. Smith, but primarily by
communicating with VA staff—presumably by phone or email—about Mr. Smith’s
needs.” “That approach was appropriate,” Judge Fisher stated, “since Mr. Smith was
then 90 years old and unable to communicate, had been cared for by the VA for
almost two decades, VA doctors and other medical staff had been making medical
decisions for him for quite some time, and Mr. Gardner had not seen or had contact
with Mr. Smith since 2003.”
14
during the covered periods (presumably because he had no concerns necessitating
such involvement). 18
Moreover, Judge Fisher found that Mr. Gardner’s long-distance guardianship
and consequent visits to New York should have been unnecessary. Judge Fisher
faulted Mr. Gardner for failing to petition the Superior Court to transfer the
supervision of Mr. Smith and his assets to New York, especially after Judge Burgess
had directed him to do so in 2009. 19 If Mr. Gardner “had done as Judge Burgess
directed,” Judge Fisher concluded, “it is likely this case would have been transferred
to New York, where the oversight of Mr. Smith would have been better and most of
the cost of this case would have been avoided.” Taking all this into consideration,
Judge Fisher deemed it appropriate to limit the travel time for which Mr. Gardner
could be compensated. The judge imposed a fifty-percent cut on travel time spent
on Mr. Gardner’s last four visits to Mr. Smith, resulting in a reduction of 13.3 hours
18
Mr. Gardner said the same things in his final report, covering the period
from June 2013 to September 2013, when Mr. Smith died at the age of 93, while
also noting that Mr. Smith’s condition “deteriorated” during this period.
19
Judge Fisher noted that when he asked Mr. Gardner at a hearing in
November 2015 why he had not petitioned to establish a guardianship for Mr. Smith
in New York, “Mr. Gardner answered that he had not considered that option.” It is
difficult to understand that answer given Judge Burgess’s directive, as well as
Mr. Gardner’s initial (unsuccessful) attempt to follow that directive by petitioning
for guardianship.
15
from Mr. Gardner’s January 2016 fee petition and a reduction of 12.3 hours from his
December 2015 petition.
2. Appellate Work in Smith I and Smith II
Judge Fisher stated that his review of Mr. Gardner’s three fee petitions
revealed them to be “significantly inflated”—mainly because Mr. Gardner sought
payment for spending some 250 hours on his appeals in Smith I and Smith II. The
judge found this figure excessive for a number of reasons. First, the judge said that,
“[h]aving read the Smith I and Smith II opinions and having reviewed the appellate
briefs filed in those cases, I do not find the issues presented to be so complex that
they merited nearly as much time as Mr. Gardner insists he spent.” Second,
“Mr. Gardner was unsuccessful in one of the two issues he raised in Smith I” (i.e.,
this court denied him compensation under the Guardianship Act for his services as
conservator of Mr. Smith’s estate pursuant to his appointment in 1998). Third,
Mr. Gardner also sought to be compensated for various efforts he made, “all
unsuccessful,” to oppose the filing of, or to strike, pleadings by the District of
Columbia and to obtain reconsideration or withdrawal of this court’s decision on
appeal. 20 Fourth, Mr. Gardner sought to be compensated at attorney rates for
20
“[F]or example,” Judge Fisher stated, Mr. Gardner requested payment for
“2.5 hours of time for opposing the District’s request for an extension of time to file
its brief in Smith I; 3.3 hours of compensation for researching whether the Court of
Appeals possessed authority to invite a party to serve as amicus and file a brief after
16
“administrative tasks that are either non-compensable or compensable at [a] lower
hourly rate,” including such clerical and secretarial tasks as “collating, filing,
copying, and mailing documents.”
Judge Fisher concluded that “an appropriate expenditure of time for each
appeal” was 70 hours. For Mr. Gardner’s appellate work in Smith II, the judge
accordingly approved a fee award of $6,300 (70 hours at $90 per hour), which “[f]or
simplicity’s sake” he divided evenly between the December 2015 petition and the
March 2016 petition. However, for Mr. Gardner’s appellate work in Smith I, Judge
Fisher made an adjustment that was based, in part, on a mistake of fact. Judge Fisher
reasoned that Mr. Gardner was not entitled to be compensated for a full 70 hours of
work in Smith I because he had been successful on only one of the two issues he
raised in that appeal. Then, stating that Mr. Gardner already had “been paid for 36.4
hours [i.e., roughly half] of that time” as part of the January 2016 award on remand
from Smith I, Judge Fisher decided to award him only an additional ten hours of
the time for seeking oral argument has passed; 2.7 hours on a motion to strike the
District’s brief; 8.5 hours to prepare a motion for reconsideration of the Court of
Appeals’ decision in Smith I; and 2.6 hours to prepare a motion to recall the Court
of Appeals’ mandate.” Judge Fisher also cited Mr. Gardner’s request for payment
for “his time (2.0 hours) spent preparing and filing a motion to extend the time to
file his own appellate briefs.” The judge concluded that, “[w]hile these efforts may
be perfectly appropriate litigation strategy, they did nothing to advance the
substantive issues raised by the appeals and cannot reasonably be construed as
fostering the availability of guardians or otherwise promoting the objectives set forth
in Smith II.” (Internal quotation marks omitted.)
17
compensation for his appellate work in that case (“because portions of the briefs
apply to all issues raised”). But as the District concedes, Judge Fisher was mistaken
in his belief that the January 2016 award (which covered the petition that
Mr. Gardner had filed in September 2011 for services from June 2010 to August
2011, and which is not at issue in this appeal) encompassed appellate work in Smith
I. Thus, Judge Fisher erred in subtracting 36.4 hours in awarding Mr. Gardner
compensation for his appellate work in Smith I based on the belief that Mr. Gardner
previously had been compensated for those hours.
3. Time Expended to Prepare Fee Petitions and for Court Appearance
Finally, Judge Fisher found that Mr. Gardner charged for “inordinate lengths
of time spent in the preparation of his fee petitions and the statements of services in
support of those petitions.” As the “best example” of this, Judge Fisher cited “the
28.7 hours [Mr. Gardner] claims to have spent on the preparation and filing of fee
petitions and statements of services in his March 21, 2016 fee petition, which was in
addition to the 7.7 hours he charged for preparing for the November 2015 hearing
. . . held to address the fee petitions remanded by the decision in Smith I, a hearing
that took approximately .5 hours.” This latter preparation included several hours of
reviewing, correcting errors and defects in, and revising his earlier petitions “to
anticipate questions” at the November hearing. Judge Fisher considered it
18
appropriate to approve compensation for only fifty percent of this total request, i.e.,
18.2 hours.
4. The Fee Awards
On October 3, 2016, having decided to make the foregoing reductions to
Mr. Gardner’s fee requests, Judge Fisher ruled as follows with respect to each of the
three fee petitions; as we indicate in footnotes, the judge’s calculations were partially
incorrect, and they resulted in incorrectly computed fee awards.
Regarding the January 2016 fee petition, the judge said he “approved 10.0
hours for appellate work (rather than the 75.8 hours sought), 13.3 hours for travel
time (rather than the 26.6 sought), and the remaining 24.2 hours[21] of compensation
[that Mr. Gardner] requested ([a] total of 34.2 [sic] hours, rather than the 113.3 [sic]
requested).” 22 The judge awarded $5,211.00 in fees and $1,359.00 in reimbursement
of costs.
21
This figure included the 20 hours for which the court previously had
awarded Mr. Gardner $6,000 in fee compensation from Mr. Smith’s estate, when the
court considered the earlier fee petition for the same time period.
22
The Superior Court’s calculations were incorrect. The approved hours add
up to 47.5 (10.0 + 13.3 + 24.2), not 34.2 hours; similarly, the hours for which the
judge said Mr. Gardner sought compensation add up to 126.6 (75.8 + 26.6 + 24.2),
not 113.3 hours.
19
With respect to the December 2015 petition, the judge said he “approved 35.0
hours for appellate work (rather than the 74.4 sought), 12.3 hours for travel time
(rather than the 24.6 sought), and the remaining 22.9 hours of compensation
requested ([a] total of 57.9 [sic] hours, rather than the 109.6 [sic] requested).” 23 The
judge awarded $3,078.00 in fees and $1,153.46 in costs.
As for the March 2016 petition, Judge Fisher said he “approved 35.0 hours for
appellate work (rather than the 98.6 sought), 14.35 hours for preparation and filing
of fee petitions and statements of services (rather than 28.7) and 3.85 hours for
preparing for the November 18, 2015 hearing (rather than 7.7 hours), and the
remaining 21.8 hours of compensation requested ([a] total of 56.8 [sic] hours, rather
than the 138.6 requested).” 24 The judge awarded $5,112.00 in fees and $432.00 in
costs.
Judge Fisher ordered that all the payments were to come from the
Guardianship Fund. He explained that Mr. Smith’s estate should not be responsible
for any of the fees awarded because if Mr. Gardner had “diligently pursued” a
transfer of supervision to New York, “most of the fees” would not have been
The approved hours add up to 70.2 (35 + 12.3 + 22.9), not 57.9 hours, and
23
the hours “sought” total 121.9 (74.4 + 24.6 + 22.9), not 109.6 hours.
The approved hours add up to 75 (35.0 + 14.35 + 3.85 + 21.8), not 56.8
24
hours, and the hours “sought” total 156.8 (98.6 +28.7 +7.7 +21.8), not 138.6 hours.
20
incurred and Mr. Smith might have retained some of his funds. “Under these
circumstances,” Judge Fisher said, “it would be unfair to require his estate to pay”
for Mr. Gardner’s services. 25
D. The Third Appeal (Smith III)
Mr. Gardner appealed from the Superior Court’s October 3, 2016, fee award
concerning these three petitions. His notice of appeal stated that he “appeals only
the part of the October 3, 2016 order that denied his compensation/fees as medical
guardian” in Mr. Smith’s case. In his brief on appeal, Mr. Gardner asked this court
not to remand the case to Judge Fisher for another review of his fee petitions; instead,
arguing that the existing record was “complete and well documented . . . for a
decision concerning fair compensation to Gardner on his fee petitions,” he urged this
court to determine his compensation on the existing record itself.
After Mr. Gardner filed his brief, the District moved the court to vacate the
fee award and remand the case to the Superior Court for further consideration in light
of specific issues it had identified with the award. The District argued that a remand
was necessary for four reasons.
First, the District pointed out that Mr. Gardner had applied for, and been
awarded, fees from the Guardianship Fund for the same twenty hours of legal work
25
The judge evidently applied the same reasoning to Mr. Gardner’s expense
reimbursements.
21
for which the Superior Court had, in 2013, awarded him $6,000 in fees from
Mr. Smith’s estate. The District sought a remand for the Superior Court to determine
whether Mr. Gardner had collected that $6,000 (as his brief on appeal appeared to
indicate), and if so, the effect of his failure to disclose that fact in his renewed
petition for compensation from the Fund for the same work.
Second, the District asked for a remand so that Mr. Gardner could explain the
discrepancies in hours and costs between the two fee petitions he had submitted for
the period from June 2012 to June 2013. The District advised that Mr. Gardner’s
2013 petition requested fees for 101.3 hours of services and costs of $1,027.96, while
his 2016 petition sought fees for 113.8 hours of services and costs of $1,153.46, with
no explanation for the difference.
Third, the District sought further findings regarding Judge Fisher’s apparently
mistaken determination that he already had compensated Mr. Gardner for 36.4 hours
of his appellate work in Smith I. And fourth, the District said a remand was
necessary for Judge Fisher to correct the several other mathematical and
computational errors in his October 3, 2016 order.
In June 2018, this court granted the District’s motion over Mr. Gardner’s
objection, vacated the compensation order on appeal, and remanded the case to the
Superior Court for further proceedings regarding the statements made in the
District’s motion.
22
E. The Fee Award on Remand
In March 2019, Judge Fisher issued a preliminary order on remand, in which
he addressed the four issues identified by the District and recomputed his award on
Mr. Gardner’s three fee petitions. Judge Fisher found that Mr. Gardner had collected
$6,000 in fees for twenty hours of legal work and $1,022.96 in costs from
Mr. Smith’s estate but had not disclosed this collection in his January 2016 fee
petition seeking reimbursement for the same work and costs from the Guardianship
Fund. The judge agreed that his October 3, 2016, order overcompensated
Mr. Gardner as a result. Judge Fisher further found that the January 2016 fee petition
contained 15 entries for services, and some additional costs, which were not included
in the earlier petition for the same time period or that were for greater amounts of
time than were specified previously. In addition, the judge agreed that his October
3 order contained several computational errors and that he had been mistaken about
Mr. Gardner having previously been paid for 36.4 hours of work relating to his
appeal in Smith I. Making all the necessary corrections to the three awards (which
included adding compensation for the aforesaid 36.4 hours and subtracting the
duplicative reimbursement for previously compensated work and costs), Judge
Fisher calculated that the October 3 order underpaid Mr. Gardner. The judge
23
computed that Mr. Gardner was entitled to receive an additional payment from the
Guardianship Fund in the amount of $2,004.57. 26
Judge Fisher scheduled a hearing on June 7, 2019, to allow Mr. Gardner to
address his preliminary resolution of the issues on remand. At that hearing,
Mr. Gardner did not challenge Judge Fisher’s determinations and corrections on
remand in any respect. 27 That same day, Judge Fisher entered a final order awarding
Mr. Gardner another $2,004.57 from the Guardianship Fund for the reasons stated
in his preliminary order.
26
Specifically, Judge Fisher calculated that he had approved an overpayment
to Mr. Gardner totaling $3,070.53 on his January 2016 petition (this overpayment
mainly reflected the erroneous charge against the Guardianship Fund for the same
twenty hours of work and related expenses that were the subject of an award of
$7,022.96 from Mr. Smith’s estate in 2013), but that he had approved underpayments
of $3,446.10 on the December 2015 petition and $1,629.00 on the March 2016
petition, resulting in a net underpayment to Mr. Gardner of $2,004.57.
27
During the hearing, Mr. Gardner represented that an amended fee petition
he had filed in November 2015 was still pending. The amendment purported to
modify the fee petition he filed in July 2012, which as of 2015 had been remanded
in Smith I. Judge Fisher had approved in part the original July 2012 petition in 2016
in an order that Mr. Gardner did not appeal. After it was raised in the June 2019
hearing, Judge Fisher denied the amendment because he believed it was untimely
and because Mr. Gardner had “sought neither reconsideration of nor appeal” from
the 2016 order resolving the original petition. Without addressing the timeliness
argument, we conclude that Judge Fisher’s denial of the amended petition—brought
to his attention three years after he decided the original petition—is not properly
before us on appeal because Mr. Gardner did not appeal the disposition of the
original petition in 2016.
24
Mr. Gardner now seeks review of the Superior Court’s June 7, 2019, order
denying him additional compensation for his services as Mr. Smith’s medical
guardian.
II.
A. Standard of Review
Court-appointed guardians and conservators are “entitled to reasonable
payment for their work, ‘[a]s approved by order of the court.’” 28 Such compensation
normally “shall be paid from the estate of the ward or [protected] person or, if the
estate of the ward or person will be depleted by payouts made under this subsection,
from a fund established by the District.” 29 That fund, known as the “Guardianship
Fund,” is a separate account within the General Fund of the District of Columbia. 30
When a guardian petitions for compensation, the probate court must determine
“whether the compensation request is reasonable.” 31 “We review the denial of a
compensation request for abuse of discretion and review the underlying legal
28
In re Cannon, 278 A.3d 726, 727 (D.C. 2022) (alteration in original)
(quoting D.C. Code § 21-2060(a)).
29
D.C. Code § 21-2060(a).
30
Id. § 21-2060(b).
31
In re Robinson, 216 A.3d 887, 889-90 (D.C. 2019) (per curiam).
25
principles de novo,” 32 but we “will not upset factual determinations underpinning
[compensation] awards unless they are ‘plainly wrong or without evidence to
support’ them.” 33 “In evaluating and determining a reasonable amount of counsel
fees, we have held that a trial court abuses its discretion by: (1) failing to consider a
relevant factor; (2) relying upon an improper factor; or (3) failing to provide reasons
that support the court’s conclusions.” 34 However, “[o]ur scope of review [of an
award of attorney’s fees] is a limited one because disposition of such motions is
firmly committed to the informed discretion of the trial court. Therefore, it requires
a very strong showing of abuse of discretion to set aside the decision of the trial
court. We limit our review to prevent squabbles over attorneys’ fees from
blossoming into a second major litigation.” 35
32
Id. at 890.
In re Goodwin, 275 A.3d 283, 286 (D.C. 2022) (quoting In re Orshansky,
33
952 A.2d 199, 209 (D.C. 2008)).
34
In re Est. of McDaniel, 953 A.2d 1021, 1023-24 (D.C. 2008) (per curiam).
Lively v. Flexible Packaging Ass’n, 930 A.2d 984, 988 (D.C. 2007) (second
35
alteration in original) (internal quotation marks and citations omitted).
26
B. Subject-Matter Jurisdiction to Order Remand in Smith III
“Subject matter jurisdiction concerns the court’s authority to adjudicate the
type of controversy presented by the case under consideration.” 36 Mr. Gardner
contends that this court exceeded its subject-matter jurisdiction in Smith III when it
remanded for consideration of issues he did not present in his appeal and the District
did not present in a cross-appeal pursuant to D.C. App. R. 4(a)(3). 37
Mr. Gardner reasons that his notice of appeal in Smith III specifically limited
the scope of this court’s jurisdiction in the appeal to the parts of Judge Fisher’s
October 2016 order that denied him compensation, as was permitted by D.C. App.
R. 3(c)(1)(B). 38 The District did not file a notice of cross-appeal. Mr. Gardner
36
Davis & Assocs. v. Williams, 892 A.2d 1144, 1148 (D.C. 2006) (quoting In
re J.W., 837 A.2d 40, 44 (D.C. 2003)).
37
D.C. App. R. 4(a)(3) provides: “If one party files a timely notice of appeal,
any other party to the proceeding in the Superior Court may file a notice of appeal
within 14 days after the date on which the first notice of appeal was filed, or within
the time otherwise prescribed by Rule 4(a)(1), whichever period ends later.”
38
At the time Mr. Gardner filed his appeal in Smith III, D.C. App.
R. 3(c)(1)(B) (2021), which was based on its counterpart in the Federal Rules of
Appellate Procedure, provided that a notice of appeal must “designate the judgment,
order, or part thereof being appealed.” The scope of an appeal is determined by the
designation in a notice of appeal (or the designations in the notices collectively, if
there are multiple appellants). See, e.g., Johnson v. Perry, 859 F.3d 156, 167 (2d
Cir. 2017) (“[T]he contents of the notice of appeal define the scope of the appellate
court’s jurisdiction.”); Vines v. Mfrs. & Traders Tr. Co., 935 A.2d 1078, 1083 (D.C.
2007). Effective December 1, 2021, Rule 3(c)(1)(B) was amended to state that the
notice of appeal must “designate the judgment—or the appealable order—from
27
argues that it therefore was improper for this court to remand for reconsideration of
unchallenged parts of Judge Fisher’s order that approved his compensation—even
the part that inadvertently approved what concededly was a $1,800 overpayment
from the Guardianship Fund that Mr. Gardner sought without disclosing his prior
award and receipt of $6,000 as full payment for the same work from Mr. Smith’s
estate. 39 According to Mr. Gardner, this court’s remand order should have directed
the Superior Court to address only those errors that had reduced his compensation
from the Guardianship Fund.
This court granted the District’s motion for remand, over Mr. Gardner’s
opposition, in a single-judge order, as the appeal was then in its preliminary stages.
The court construed the remand motion as one in which the District conceded error
on the part of the trial court and requested a remand for the trial court to consider
which the appeal is taken,” and new Subsection 3(c)(6) was added to the Rule to
provide more specifically that “[a]n appellant may designate only part of a judgment
or appealable order by expressly stating that the notice of appeal is so limited.
Without such an express statement, specific designations do not limit the scope of
the notice of appeal.”
39
$1,800 is the amount of the overpayment resulting from 20 hours of work,
at the Fund rate of $90 per hour, for which Mr. Gardner had already been
compensated from the ward’s estate. The District has not challenged Mr. Gardner’s
receipt of that $6,000 award (or the award of the associated costs in the amount of
$1,022.96) from Mr. Smith’s estate, and on remand Judge Fisher did not alter that
earlier award.
28
Mr. Gardner’s arguments. Mr. Gardner did not object to the remand on the ground
that it exceeded the scope of his notice of appeal and this court’s subject-matter
jurisdiction, and this court did not address that claim. Arguably, Mr. Gardner waived
this ground for objection by failing to assert it in opposition to the remand motion;
nor did he raise it in the proceedings on remand in Superior Court. But the District
has not made that argument to us in this appeal and in effect has waived any waiver
by choosing instead to address Mr. Gardner’s contention on its merits. 40 In the
exercise of our discretion, and particularly because Mr. Gardner’s claim may be
perceived as raising a question of subject-matter jurisdiction, we opt to do likewise.
The District argues that this court did not exceed the scope of Mr. Gardner’s
appeal because it merely sent the case back to the Superior Court, on the District’s
concession that the order on appeal was erroneous, to determine whether
Mr. Gardner was owed more fees (and the Superior Court agreed that he was). We
do not find that argument persuasive, however, because we did not simply remand
solely for correction of errors that had reduced Mr. Gardner’s total award; we
vacated the entire award, and some of the errors identified for correction on remand
(such as the errant approval of double payment for services and costs) had enlarged
that award and were outside the scope of Mr. Gardner’s appeal.
40
See, e.g., In re T.L., 859 A.2d 1087, 1090-91 n.6 (D.C. 2004).
29
We are not persuaded by Mr. Gardner’s contention, however. We addressed
an analogous issue in In re Gardner, 41 where this court also directed on remand a
broader review of the trial court’s fee award than the appellant, Mr. Gardner, had
sought. In that case we did so sua sponte; Mr. Gardner was the only party before the
court in that appeal (unlike in Smith III where the District actually participated in the
appeal, called this court’s attention to the overpayments, and expressly requested a
remand). We explained our action as follows:
We acknowledge that we usually limit our review to the
issues raised by an appellant and will not broaden our gaze
to examine defects in a challenged ruling that operate to
the appellee’s detriment in the absence of a cross-appeal.
The so called “cross-appeal” rule is not jurisdictional,
however, and we have held that it can yield in appropriate
circumstances. See, e.g., District of Columbia v. Chinn,
839 A.2d 701, 712 n.10 (D.C. 2003) (citing cases); see
also D.C. Code § 17-306 (2012 Repl.). We conclude such
circumstances are present in this case.[42]
As this court said in Chinn, “while the [cross-appeal] rule ‘should not be discarded
lightly,’ deviation could be warranted ‘to the extent necessitated by justice and the
circumstances of [the particular] case.’” 43 The cross-appeal rule is “a rule of practice
41
268 A.3d 850 (D.C. 2022).
42
Id. at 859 n.17.
43
Chinn, 839 A.2d at 712 n.10 (second alteration in original) (quoting
Edwards v. Woods, 385 A.2d 780, 783 (D.C. 1978)).
30
which generally has been followed; but [it does not] deny the power of the court to
review objections urged by [the opponent], . . . if the court deems there is good
reason to do so.” 44
The interests of justice and the circumstances of Smith III warranted relaxation
of the cross-appeal rule in that appeal. There was no formal cross-appeal in Smith
III because the District was not a party or a participant in the trial court proceedings
relating to the fee petitions addressed in that appeal and hence was not a party that
could notice an appeal or cross-appeal. 45 The ward likewise was not a party in the
trial court (and could not have been, as he was deceased). Nonetheless, the purposes
of the cross-appeal rule were served in Smith III, and Mr. Gardner was not prejudiced
by the District’s failure to file a formal cross-appeal. As the Supreme Court has said
with respect to the counterpart provision of the Federal Rules of Appellate
Procedure, the cross-appeal rule implements principles of “party presentation” to the
appellate court and notice to the opposing side of the issues that the court will be
44
Langnes v. Green, 282 U.S. 531, 538 (1931).
45
See D.C. App. R. 3(a)(1) (“If a timely notice of appeal is filed by a party,
any other party to the proceeding in the Superior Court may file a notice of appeal
within the time prescribed by Rule 4.” (emphasis added)); accord D.C. App.
R. 4(a)(3), supra note 37.
31
asked to decide. 46 The cross-appeal requirement “is not there to penalize parties who
fail to assert their rights, but is meant to protect institutional interests in the orderly
functioning of the judicial system, by putting opposing parties and appellate courts
on notice of the issues to be litigated . . . .” 47 The District’s motion for remand
fulfilled the purposes of the rule and was not untimely under the circumstances, and
thus was the “functional equivalent of the formal notice of appeal demanded” by the
appellate rules. 48 To be sure, the motion was not in form a cross-appeal notice; but
the Supreme Court has held that even a party’s brief on appeal may serve the function
and satisfy the formal requirements of a notice of appeal. 49 And we do not consider
the District to have been dilatory in filing its motion and identifying the problems
with the compensation order on appeal in Smith III. As a practical matter, because
the District did not participate in the trial proceedings, it was not in a position to
46
See Greenlaw v. United States, 554 U.S. 237, 244 (2008) (explaining that
“[t]he cross-appeal rule . . . is both informed by, and illustrative of, the party
presentation principle[]” under which courts generally confine themselves to the
issues as the parties present them); El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473,
480 (1999) (noting “the institutional interests in fair notice and repose that the rule
advances”).
47
El Paso Nat. Gas Co., 526 U.S. at 481-82.
48
Smith v. Barry, 502 U.S. 244, 248 (1992) (internal quotation marks
omitted).
49
See id. at 248-49.
32
identify those problems until the trial court record was available for its review and
Mr. Gardner had filed his appellate brief. Mr. Gardner had ample opportunity to
respond to the motion and to address the issues identified by the District, including
those errors that had benefitted Mr. Gardner by enlarging the award (e.g., the errant
approval of double payment for services and costs).
If the cross-appeal rule were not relaxed where a court-appointed fiduciary is
appealing an award of compensation from either an incapacitated individual’s estate
or the Guardianship Fund, the appellate court almost inevitably would be left with a
one-sided presentation and the ward or the Fund would be prejudiced. In the typical
case that comes to us, there was no party protecting the ward’s or Fund’s interests in
the trial court proceedings, and there is no party doing so on appeal. That, for
example, was the situation in In re Gardner, supra. 50 Rigid adherence to a cross-
50
We consider it fortunate that the District entered its appearance in the Smith
appeals, albeit only in an amicus role. But this is an infrequent occurrence in these
cases. We are moved to observe that the courts and the interests of justice would
benefit if the Attorney General were to intervene more frequently on behalf of the
District in probate court and appellate proceedings on fee petitions and awards. See
Super. Ct. Civ. R. 24; EMC Mortg. Corp. v. Patton, 64 A.3d 182, 185 (D.C. 2013)
(“This court has previously permitted entities that were not a party to proceedings in
the trial court but were aggrieved by a ruling of the trial court to intervene for
purposes of pursuing an appeal.”). The District has a direct interest at stake in
protecting the assets of the Guardianship Fund, which is a separate account within
the General Fund of the District of Columbia, see D.C. Code § 21-2060(b), and an
interest as parens patriae in protecting the assets of incapacitated individuals who
are unable to fend for themselves.
33
appeal notice requirement in these circumstances would thwart the interests of
justice rather than serve them.
Furthermore, we do not believe that court-appointed guardians and
conservators have reasonable grounds to insist on limiting the appellate scrutiny of
their fee awards on appeal merely because there is no party opposing them. They
are fiduciaries, and are held to the standards of a fiduciary; it is a violation of the
trust reposed in them to take advantage of the absence of opposition. The trial court
has plenary authority to examine every aspect of their requests for compensation
from the ward’s estate or the Guardianship Fund, even in the absence of objection
by an opposing party. When the fiduciaries ask this court on appeal to review a
reduction of their requested compensation, we think it unreasonable for them to
insist that we conduct that review with blinders on. The cross-appeal rule was not
meant to apply in this sort of situation, where there is no adversary to protect the
interests at stake and it is the court itself that bears the onus of doing so.
But here we had the functional equivalent of a cross-appeal by an opposing
party with an interest at stake. That sufficed. We conclude that this court did not
exceed its jurisdiction when it remanded in Smith III for the Superior Court to
address the deficiencies in its compensation order. The Superior Court therefore did
not violate Mr. Gardner’s rights by doing so.
34
C. Payment From The Guardianship Fund Without Depletion of the
Ward’s Estate
Mr. Gardner asserts that Judge Fisher erred by ordering payment from the
Guardianship Fund prior to the depletion of Mr. Smith’s assets. He relies on D.C.
Code § 21-2060(a), which states, in pertinent part, that a guardian’s “[c]ompensation
shall be paid from the estate of the ward or person or, if the estate of the ward or
person will be depleted by payouts made under this subsection, from a fund
established by the District.” But for the following reasons, we conclude that
Mr. Gardner’s three final fee petitions before Judge Fisher did not entitle him under
Section 21-2060(a) to receive payment of his compensation awards in whole or part
from Mr. Smith’s estate.
Sometime after Mr. Smith’s death in 2013, Mr. Gardner discovered that there
was a balance of $4,384.17 in his nursing home account, which he noted in his March
2016 petition. (No other significant assets in Mr. Smith’s estate have been
identified.) In his December 2015 and January 2016 petitions, however,
Mr. Gardner represented that Mr. Smith had “no assets” (or “no contingent assets”
and “insufficient assets to pay the guardian”), and accordingly he specifically
requested an award only from the Guardianship Fund. We agree with the District
that, in so doing, Mr. Gardner waived an argument that Judge Fisher should have
made the award on either of those petitions payable in whole or part from
35
Mr. Smith’s estate. But for the reasons we now discuss, it would not matter even if
there had not been such a waiver.
In his March 2016 fee petition, Mr. Gardner requested over $15,000 (and the
trial court eventually awarded him a total of $7,173). Acknowledging that his fee
request exceeded Mr. Smith’s assets in his nursing home account, Mr. Gardner asked
the Superior Court to award him only $3,480 from Mr. Smith’s estate (i.e., for 11.6
hours of work at $300 per hour), which would not have fully depleted the account,
and the remainder from the Guardianship Fund (at the lower rate of $90 per hour).
As recounted above, Judge Fisher denied this request, deeming it “unfair” under the
circumstances to pay Mr. Gardner anything from Mr. Smith’s estate in light of his
failure to diligently transfer the case to New York.
We do not rely on Judge Fisher’s “unfairness” rationale to reject
Mr. Gardner’s contention. The point of the reductions that Judge Fisher made in the
compensation Mr. Gardner requested was to render the resulting award a fair one,
and the statute presumes that fair compensation “shall be paid from the estate of the
ward” if it will not deplete the estate, unless a statutory exception applies.
“Unfairness” of the kind Judge Fisher identified is not such an exception.
But, as the District points out, the statute contains a provision that did preclude
Mr. Gardner’s application for payment from Mr. Smith’s estate as a matter of law.
Although Subsection (a-1) of D.C. Code § 21-2060 appears to have been overlooked
36
by both Mr. Gardner and Judge Fisher, it states in pertinent part that “[t]he estate of
a person or ward shall be presumed to be depleted for purposes of this chapter, and
all compensation, expenses, and payouts made under this section shall be paid from
[the Guardianship Fund] . . . [i]f the person or ward qualifies for federal
Supplemental Security Income under Title XVI of the Social Security Act[.]” 51 As
Mr. Gardner himself had represented to the Superior Court, Mr. Smith qualified for
and received Supplemental Security Income.
Mr. Gardner argues that we should not consider the District’s invocation on
appeal of Subsection (a-1) because it is a new argument that was not presented to
the trial court. It is well-settled, however, that “[w]here there will be no procedural
unfairness, we may affirm a judgment on any valid ground, even if that ground was
not relied upon by the trial judge or raised or considered in the trial court.” 52 We see
no unfairness in affirming on the ground that Subsection (a-1) requires affirmance
51
D.C. Code § 21-2060(a-1)(1). The District also cites Subsections (a-1)(2)
and (4), which similarly provide for a presumption of depletion if the ward qualifies
for Medicaid or if the ward qualifies for Veterans benefits and such benefits
constitute the ward’s “sole source of income[.]” However, we perceive that there
may be a disputed issue of fact as to whether Mr. Smith qualified for Medicaid at
the relevant time, and it appears that his Veterans benefits were not his sole source
of income (given that he also received social security income).
52
Grimes v. District of Columbia, 89 A.3d 107, 112 n.3 (D.C. 2014) (quoting
Nat’l Ass’n of Postmasters of the U.S. v. Hyatt Regency Wash., 894 A.2d 471, 474
(D.C. 2006)); see also Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546,
559-60 (D.C. 2001).
37
as a matter of law, because Mr. Gardner does not dispute the material fact of
Mr. Smith’s qualification for Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, and he has had the opportunity to brief the
significance of this point.
Mr. Gardner contends that Mr. Smith “no longer qualified” for SSI benefits
as of the filing of the March 2016 fee petition because “Mr. Smith was dead,” or, in
the alternative, that the presumption of depletion was rebutted by the fact of
Mr. Smith’s demise. Thus, Mr. Gardner argues, Subsection (a-1) was not applicable.
We disagree. Up until the day of Mr. Smith’s death, his estate was presumed
depleted as a matter of law because he qualified for SSI benefits. The fact of his
death did not change the amount of funds in his estate, the source of those funds, or
any other debts or claims against Mr. Smith’s estate (about which we have little to
no information). While Mr. Smith may no longer have actively “qualified” for SSI
benefits after his death, the presumption of a depleted estate continues for purposes
of final compensation of the guardian. 53 Mr. Gardner proffers no facts that could
have supported an argument before the trial court to rebut that presumption.
53
We note that a guardianship for an incapacitated individual terminates upon
the death of the ward. D.C. Code § 21-2048. By court rule, a guardian’s “final
petition for compensation must be filed no later than 60 days after termination of the
guardianship.” Super. Ct. Prob. R. 322(d)(1) (formerly Rule 308(c)(1) (2022)); In
re Estate of Yates, 988 A.2d 466, 469 (D.C. 2010). Thus, fee petitions filed over
38
Mr. Gardner further argues that “[t]he purpose of the (a-1) presumption of
depletion is for the court not to use the ward’s estate for compensation if the use of
the assets would create a ‘substantial financial hardship’ on the ward,” citing
Subsection (a-1)(6); and that Mr. Smith obviously would not suffer such a hardship
if compensation were paid from his remaining funds after his demise. But
Mr. Gardner misreads Subsection (a-1)(6); it states that “[i]f the circumstances listed
in paragraphs (1), (2), (3), (4), and (5) of this subsection do not apply, the person or
ward may establish, by affidavit or other proof satisfactory to the court, the inability
to pay any costs without substantial financial hardship to himself or herself or his or
her family.” (Emphasis added.) This does not mean that any of the first five
paragraphs is rendered inapplicable if the sixth paragraph is not independently
satisfied as well. The sixth paragraph is simply an alternative ground for applying
the presumption of depletion. While there might be sound policy reasons for
compensating a guardian from a deceased ward’s estate—rather than from public
funds—after the ward no longer has need of it, this rationale would apply
irrespective of whether such payment would deplete the estate. We decline to adopt
such a rule in light of the statutory silence on the effect of the ward’s death.
two years after a ward’s death (like the March 2016 petition at issue here) should, at
the least, be rare occurrences.
39
Mr. Gardner also asserts that Subsection (a-1) did not apply to his March 2016
fee petition because the term “estate of a person or ward” in that subsection “refers
to a ‘conservatorship estate’ and not a ‘decedent’s estate.’” But Mr. Gardner makes
no argument in support of this bare assertion, and we do not find it persuasive. As
used in Section 21-2060 (and elsewhere in the Guardianship Act), “estate” is a
defined term; it “means the property of the individual whose affairs are subject to
this chapter.” 54 That definition is broad enough to encompass the funds left in
Mr. Smith’s nursing home account after his death.
We conclude that Judge Fisher did not err in denying Mr. Gardner’s request
to be paid, in part, from Mr. Smith’s estate. 55
D. Imposition of the Guardianship Fund Rate Cap
Mr. Gardner contends that the Superior Court failed to adequately justify
compensating him at $90 an hour from the Guardianship Fund, instead of at his
considerably higher $300 hourly rate. In making this argument, Mr. Gardner barely
acknowledges that $90 an hour is the fee cap imposed by the District of Columbia
54
D.C. Code § 21-2011(6).
Because the estate should have been presumed depleted as a matter of law,
55
we do not reach the District’s argument that the statute does not require partial fee
payment from an estate before turning to the Guardianship Fund when full payment
would deplete the estate funds.
40
Courts’ Joint Committee on Judicial Administration on all fees awarded from the
Guardianship Fund. 56 Nonetheless, he argues that the Superior Court abused its
discretion by applying the rate cap without independently assessing whether $90 per
hour was reasonable considering the prevailing market rates in the community.
Mr. Gardner waived this argument by not only failing to challenge the Guardianship
Fund’s $90 hourly rate as unreasonable in the Superior Court, but also by expressly
asking to be paid at that rate in each of his three fee petitions. 57 But, as it happens,
during the pendency of this appeal this court squarely rejected Mr. Gardner’s same
contention in another case, In re Goodwin. 58 There, we explained that the Joint
Committee has the authority under law to cap the rates at which compensation would
be paid from the Guardianship Fund, that “the $90 cap reflects the Joint Committee’s
judgment about what a reasonable fee is—in light of fiscal realities and limited
public funding—and [that] nothing in our precedents precludes it from fixing such
56
See D.C. Superior Court, Case Management Plan for the Probate Division
at 48 (July 31, 2014), https://www.dccourts.gov/sites/default/files/matters-
docs/Probate-Division-Case-Management-Plan.pdf; https://perma.cc/5M5P-NRU5.
57
See, e.g., District of Columbia v. Patterson, 667 A.2d 1338, 1347-48 (D.C.
1995) (declining to consider an argument that the plaintiffs had an opportunity to
raise but failed to raise in their fee petition in the trial court).
58
275 A.3d 283, 284 (D.C. 2022).
41
caps as a policy matter.” 59 We accordingly held that the probate court did not exceed
its authority or abuse its discretion by reducing Mr. Gardner’s fees to $90 per hour
in compliance with the Joint Committee’s restriction on funds drawn from the
Guardianship Fund. 60 We reach the same conclusion here.
E. Failure to Dispose of Mr. Gardner’s Fee Petitions Within 30 Days of
Filing
At the times that Mr. Gardner filed his fee petitions and Judge Fisher
considered them, Superior Court Probate Rule 308(i)(1) provided that “[t]he [c]ourt
shall enter an order disposing of any request for payment from the Guardianship
[F]und . . . within 30 days of the filing of such request.” 61 Mr. Gardner proposes
Id. at 288. “It is not for us,” we stated, “to second-guess that policy decision,
59
committed to the discretion of the Joint Committee.” Id.
60
Id. Obviously, if Mr. Gardner had deemed the rate cap unreasonably low,
he was not compelled to seek a court appointment to serve as a guardian or
conservator subject to that cap. Mr. Gardner’s invocation of In re Robinson for the
proposition that “the fact that $90 is the hourly rate paid to guardians when an
estate’s assets are depleted does not mean that rate should be viewed as the
reasonable rate for all non-legal guardianship services” is inapposite here—in that
case, the trial court had reduced Mr. Gardner’s $300 hourly rate to $90, suggesting
that $90 was reasonable by analogy to the Guardianship Fund fee cap, but was not
actually paying fees from the Fund. 216 A.3d 887, 891-92 (D.C. 2019) (per curiam).
61
Super. Ct. Prob. R. 308(i)(1) (2022). The Superior Court Probate Rules
were substantially amended in August 2022. See D.C. Super. Ct., Rule Promulgation
Order 22-03 at 1 & n.1 (2022), https://www.dccourts.gov/sites/default/files/2022-
03/Promulgation-Order-22-03-Amending-Super-Ct-Prob-R.pdf;
https://perma.cc/8CDZ-N5K5. Appendix E to the amended Probate Rules, added in
September 2022, now sets forth standards for petitions for compensation under D.C.
42
that, because the Superior Court did not render a decision on his fee petitions within
that 30-day period, they should be deemed to have been granted in full, regardless
of any defects or overreaching, together with interest and other monetary relief. This
is another argument that this court rejected in Goodwin—explaining there that “Rule
308(i)(1)’s thirty-day deadline specifies no remedy for when a court fails to decide
a fee petition within that timeframe, and when a statutory or rule-based deadline
‘does not specify a consequence for noncompliance,’ our ‘courts will not in the
ordinary course impose their own coercive sanction.’” 62 We adhere to that holding
here; because the Rule did not provide for a sanction or adjustment of any kind for
the court’s failure to rule on a compensation petition within 30 days, let alone a full
award of all requested fees with interest and other relief, we view the 30-day deadline
as merely directory (or, we might say, precatory) rather than mandatory. 63
Code § 21-2060. See D.C. Super. Ct., Administrative Order 22-25 (Sept. 23, 2022),
https://www.dccourts.gov/sites/default/files/2022-09/Administrative_Order_22-
25_Standards_for_Submission_of_Petitions_for_Compensation_Vacating%2022-
22.pdf; https://perma.cc/Y7JN-UB5S. These standards provide that the Court will
pay interest on petitions that have not been paid within 45 days after the time for
filing an opposition has passed and the petition is deemed complete. Id. at 3. No
argument has been made to us that this provision applies retroactively to petitions
submitted before the Probate Rule amendments.
62
275 A.3d at 289 (quoting Dolan v. United States, 560 U.S. 605, 611 (2010)).
63
See In re Morrell, 684 A.2d 361, 370 (D.C. 1996) (“Nothing in the text of
the rules, however, specifies the result of a Hearing Committee’s failure to adhere
to the time limit, so we presume that the rule is directory, rather than mandatory.”);
43
Accordingly, we reject Mr. Gardner’s claim that the delay in rendering awards on
his fee petitions entitled him to any of the relief he proposes.
F. The Awarded Fees
Mr. Gardner contends that Judge Fisher abused his discretion in cutting his
fee requests for appellate work in Smith I and Smith II, time spent traveling to and
from New York in connection with four visits in nine months to Mr. Smith at the
nursing home, and time spent in connection with the preparation and explanation of
his billing. With one qualification that will require clarification of the fee award for
appellate work on remand, we disagree with Mr. Gardner and conclude that there
was no abuse of discretion here.
1. Appellate Work
In his December 2015 fee petition, Mr. Gardner sought fees for 74.4 hours of
work related to his appeal in Smith I. He requested fees for an additional 75.8 hours
for Smith I appellate work in his January 2016 petition. And in his March 2016
petition, Mr. Gardner submitted a fee request for 98.6 hours of work on his appeal
in Smith II—for a total of 248.8 hours of appeal-related work. In his final order on
remand, Judge Fisher granted these requests in part; we understand him to have
Spicer v. D.C. Real Est. Comm’n, 636 A.2d 415, 418 (D.C. 1993) (“[S]tatutory time
limits on agency decision making, where the statute fails to provide for a sanction,
are ‘directory rather than mandatory.’” (quoting Hughes v. D.C. Dep’t of Emp.
Servs., 498 A.2d 567, 571 n.8 (D.C. 1985))).
44
awarded fees for 35 hours of appellate work on each of the three petitions (for a total
of 105 hours)—of which 70 hours were for Smith II and the rest were for his partial
success (prevailing on one of the two issues) in Smith I. This was, obviously,
substantially less than Mr. Gardner sought.
We perceive what may be a small but not insignificant computational mistake
or inconsistency with respect to the award of fees for Mr. Gardner’s work on the
Smith I appeal, and we will remand for the court to clarify that portion of the award.
(We have no such concern with the fee award for work on the Smith II appeal.) 64
Mr. Gardner argues that he was entitled to full payment for his appellate work
in Smith I and Smith II because he “substantially prevailed” and ultimately was
vindicated in the appeals. Setting aside that Smith I was not a complete success, as
Judge Fisher properly took into account, this is the same contention that this court
64
Regarding the award for Smith I, Judge Fisher originally appeared to believe
that roughly 45 hours (i.e., half of 70 hours plus 10 hours) were reasonably
compensable in light of the fact that Mr. Gardner was only partially successful in
that appeal. As a result, Judge Fisher initially awarded 10 hours of compensation on
top of the 36.4 hours he (mistakenly) believed to have already been compensated. It
is unclear whether the order on remand accounted for the 10 hours originally
awarded in 2016, or if the 35 hours awarded in 2019 supplanted the earlier award in
Judge Fisher’s calculations, for a reduced total of 35 instead of 46.4 (or 45) hours.
We remand for the Superior Court to clarify the total number of hours awarded for
Mr. Gardner’s work on Smith I and, if there was a reduction in that amount between
the October 2016 award and the June 2019 award, for the court to either correct the
difference or adequately explain it.
45
squarely rejected in In re Gardner. There we emphasized that we “did not endorse
the . . . rule that whenever a court-appointed fiduciary prevails in a dispute about
payment for court-appointed work, they are entitled to payment for any and all work
done to obtain compensation.” 65 As always, “approval is contingent on an
assessment of the reasonableness of a court-appointed fiduciary’s fee petition.” 66
The present case is no exception.
Judge Fisher concluded that Mr. Gardner expended substantially more hours
on his appeals in Smith I and Smith II than were reasonably compensable. Although
Mr. Gardner attacks the trial court’s ruling as arbitrary and unsupported by the
record, we disagree. In fact, the judge carefully reviewed the record, considered the
relevant factors, relied on no improper factor, and supported his ruling with
reasonable justification.
Among other things, Judge Fisher reviewed this court’s opinions and
Mr. Gardner’s appellate briefs in Smith I and Smith II. He concluded that the issues
presented in those cases were not “so complex that they merited nearly as much time
as Mr. Gardner insists he spent”; all the more so, the judge observed, because in
earlier petitions Mr. Gardner had already billed for (and had been awarded fees for)
65
268 A.3d 850, 856 (D.C. 2022).
66
Id. at 857.
46
21 hours of trial-level work researching and writing on the same issues as on appeal.
Mr. Gardner asserts that Judge Fisher did “not have an appreciation of the
complexity of the issues” in Smith I and II, but that assertion is both unsupported
and contradicted by Judge Fisher’s investment of time in reviewing those cases and
the appellate briefs.
As we have summarized earlier in this opinion, that review was not all that
Judge Fisher took into consideration. First, he also took into account the fact that
Mr. Gardner was unsuccessful in one of the two issues he raised in Smith I.
Mr. Gardner does not suggest it was improper to take his partial success into
consideration, and we do not find it so. The degree of success is highly material in
computing a fee award; in general, like an opposing party in fee-shifting litigation,
the Fund or the ward generally should not be required to pay for the prosecution of
unsuccessful claims. 67
Second, Judge Fisher identified “several specific categories of excessive
charges,” namely, Mr. Gardner’s practice “[t]hroughout” his petitions of billing “at
67
See, e.g., George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1535 (D.C.
Cir. 1992) (“When a party achieves ‘only partial or limited success,’ however, then
compensation for all of the ‘hours reasonably expended on the litigation as a whole
. . . may be an excessive amount.’” (omission in original) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983)); Shore v. Fed. Exp. Corp., 42 F.3d 373, 381
(6th Cir. 1994) (“It is entirely proper for a court to reduce fees in cases of limited
success[.]”).
47
attorney rates for administrative tasks that [were] either non-compensable or
compensable at a lower hourly rate.” 68 These included “[t]asks such as collating,
filing, copying, and mailing documents,” which the judge noted “are disallowed
even when billed at the rate of a legal assistant.” 69 For example, in his March 2016
fee petition, Mr. Gardner billed at the rate of $90 per hour for having “labeled and
copied exhibits” and “made copies” of briefs and other pleadings for filing and
sharing with interested parties, “time stamped documents,” “prepared . . . cover
pages for Brief,” “had brief and Appendix bound for filing at FedEx Office,”
“[m]ailed brief & appendix to parties,” and “electronically filed” various documents.
We consider it unacceptable for a court-appointed fiduciary to charge for such
68
Mr. Gardner’s complaint on appeal that Judge Fisher failed to consider his
claim to have exercised billing discretion thus is patently meritless.
69
See, e.g., Hampton Cts. Tenants Ass’n v. D.C. Rental Hous. Comm’n, 599
A.2d 1113, 1118 n.14 (D.C. 1991) (“Hours are not reasonably expended . . . if an
attorney performs tasks that are normally performed by paralegals, clerical personnel
or other non[-]attorneys.” (quoting Action on Smoking & Health v. Civ. Aeronautics
Bd., 724 F.2d 211, 220-21 (D.C. Cir. 1984))); Role Models Am., Inc. v. Brownlee,
353 F.3d 962, 973 (D.C. Cir. 2004) (“We do not understand why attorney or even
legal assistant skills were required for this job [filing]. ‘[P]urely clerical or
secretarial tasks should not be billed at a paralegal rate regardless of who performs
them.’” (second alteration in original) (quoting Missouri v. Jenkins, 491 U.S. 274,
288 n.10 (1989))).
48
activities at a rate even close to $90 per hour. Judge Fisher rightly adjusted his fee
award in light of these charges. 70
Third, Judge Fisher also considered that Mr. Gardner sought compensation
for hours spent on a variety of fruitless efforts he made in the appellate proceedings
to oppose the District’s participation and strike its filings and to move for
reconsideration of this court’s decision in Smith I or to recall our mandate. 71 Judge
Fisher reasonably found that these unsuccessful efforts were undeserving of
70
To be clear, this court has stated that “[t]he notion of a blanket rule
precluding a guardian from seeking compensation for tasks that might be called
administrative or clerical is at odds with our ‘expansive view of the kind of duties
that are compensable under the Act[.]’” In re Wilson, 277 A.3d 940, 946 (D.C. 2022)
(quoting In re Weaks, 224 A.3d 1028, 1034 (D.C. 2020)). Some of these tasks are
compensable, “albeit at a rate lower than what attorneys [or paralegals and other
legal assistants] charge.” Id. “An attorney may choose not to hire support staff to
do this work for them, but that decision will not justify billing such work at the
attorney’s hourly rate.” Gardner, 268 A.3d at 859 n.15; see also In re Brown, 211
A.3d 165, 169 & n.5 (D.C. 2019) (“[C]ertain tasks are non-legal, more appropriately
billed at a paralegal rate, or excluded altogether. . . . [T]asks such as ‘organizing
folders, document preparation, copying, and updating a case list’ are more
appropriately considered clerical, not paralegal, tasks and are thus not compensable
as attorney’s fees.” (quoting Vining v. District of Columbia, 198 A.3d 738, 754-55
n.20 (D.C. 2018))).
71
See note 20, supra. Judge Fisher’s enumerated examples add up to 21.6
hours. In its brief on appeal, the District computes that such activities accounted for
a total of 57 billed hours in Mr. Gardner’s fee petitions. Whatever the exact number
of hours, Judge Fisher appropriately took into account that Mr. Gardner billed
extensively for time spent on appellate litigation tactics that did not advance the
presentation of the merits.
49
compensation because they could not reasonably be construed as promoting the
objectives of the Guardianship Act. 72
For these reasons, we conclude that Judge Fisher did not abuse his discretion
in determining the reasonable, compensable time that Mr. Gardner expended in the
Smith I and II appeals based on the relevant considerations.
2. Fee-Petition Work
In his March 2016 fee petition, Mr. Gardner asked for 28.7 hours in fees for
preparing prior billing statements and an additional 7.7 hours in fees spent preparing
for a half-hour hearing held in November 2015 on the fee petitions that had been at
issue in Smith I. This was 36.4 hours in total, all billed by Mr. Gardner at the $90
per hour rate; thus, Mr. Gardner was seeking over $3,200 in fees just for his prior
fee-petition work. As noted above, some of this work was performed to correct
defects and errors that Mr. Gardner himself had made in his earlier billing
statements. It is unreasonable for a fiduciary to expect payment for such self-
generated work. 73 Moreover, some of this work was clerical in nature; for instance,
Mr. Gardner sought to be compensated at $90 per hour for mailing and electronically
72
See Smith II, 138 A.3d at 1186 (quoted in note 14, supra).
73
See Gardner, 268 A.3d at 861 (“Where a fiduciary fails in the first instance
to give a trial court complete or accurate information in their fee petition and creates
more work for himself and the court, he cannot reasonably expect to be paid in full
for this self-generated work.”).
50
filing his petitions for compensation. And why Mr. Gardner found it necessary to
expend some 28 hours on the preparation of his fee petitions (which should be a
routinized and automated administrative task), plus several more hours in
preparation for the post-Smith I hearing, was and is unexplained. Judge Fisher
reasonably found the entire request exorbitant. We conclude that Mr. Gardner has
not made the strong showing necessary to establish that Judge Fisher abused his
discretion by awarding Mr. Gardner compensation (at the full $90 per hour rate) for
half of the time.
3. Travel Time
Finally, Mr. Gardner sought compensation for around 50 hours of round-trip
travel by car in four visits that he made in a period of nine months to visit Mr. Smith
at his nursing home. Finding that this travel time was disproportionately expensive,
involved the most minimal contact by Mr. Gardner with Mr. Smith and his care
givers, did not benefit Mr. Smith, and should have been avoided because
Mr. Gardner should have taken the steps necessary to transfer Mr. Smith’s
conservatorship or guardianship to New York, Judge Fisher awarded Mr. Gardner
only half the travel-time compensation he requested. The judge’s determinations
were all supported by the evidence and the record of the conservatorship. We are
satisfied that Judge Fisher did not abuse his discretion in concluding that
51
Mr. Gardner’s travel was excessive and unwarranted, and in reducing his
compensation for it accordingly.
III. Conclusion
For the foregoing reasons, we affirm the fee awards of the Superior Court on
Mr. Gardner’s petitions filed in December 2015, January 2016, and March 2016 in
all respects except for the hours of appellate work on Smith I awarded to
Mr. Gardner. As to that remaining matter, we remand for the limited purpose
explained in note 64 supra.
So ordered.
In re Edward T. Smith Bruce E. Gardner
Combined Opinion