T&E Litigation Update – Guardianship of Kenneth E. Simon

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After more than a month with no summary-worthy decisions reported in this area (in your author’s opinion), the Appeals Court has issued two Rule 1:28 decisions in the same case. 

In Guardianship of Kenneth E. Simon, Sr. No. 1, Case No. 12-P-630, 2013 Mass. App. Unpub. LEXIS 400 (April 8, 2013), the Appeals Court affirmed a decision by the single justice denying the guardian’s motion for an enlargement of time to file a notice of appeal from a Probate Court decree. In that decree, the Probate Court ordered the guardian to pay legal fees and costs to the ward’s children. 

The guardian argued that (1) the clerk of the Probate Court never provided him with notice that his motion under Rule 63 had been denied, (2) he did not check the docket until after the usual appeal period had already expired, and (3) there was good cause to allow his late filing because there was a meritorious basis for appeal. The Appeals Court disagreed, explaining that an attorney’s oversight or lack of notice of entry of a judgment – the guardian is an attorney – is neither excusable neglect nor good cause to extend the time for filing a notice of appeal. The Court further explained that an attorney cannot simply rely on a clerk’s duty to send notice of orders, because the attorney has an obligation to check docket entries periodically. “The petitioner [guardian] has not shown good cause for failing to check the docket entries . . . Nor does the suggestion of a clerk’s error, without more, create ‘unique and extraordinary’ circumstances.” 

Moreover, the Court held that the denial of the guardian’s motion under Rule 63 did not toll the time for filing a notice of appeal in any event. Rather, the denial of the guardian’s motion for a new trial under Rule 59 is what triggered the running of the appeal period, and the guardian did not dispute having received notice of that denial. 

In addition to affirming the decree ordering the guardian to pay legal fees and costs to the ward’s children, the Court also ordered the guardian to pay their legal fees and costs on appeal pursuant to G.L. c. 215, § 45. 

On the same day, but in a separate decision, Guardianship of Kenneth E. Simon, Sr. No. 2, Case No. 12-P-1510, 2013 Mass. App. Unpub. LEXIS 404 (April 8, 2013), the Appeals Court affirmed a judgment of the Probate Court with respect to the guardian’s first and final account. The issue in dispute was the nearly $330,000 in fees and costs that the guardian and his attorney were ordered to return to the ward’s estate. The Probate Court found that “during the eighty-three days of guardianship prior to the ward’s death, the guardian and his attorney acted in concert, and in their own interest rather than that of the ward, to generate outrageous, excessive, and improper guardian’s and attorney’s fees.” 

The Appeals Court held there was no merit to the attorney’s argument that, because he was not a named party to the proceedings, the Probate Court lacked authority and subject matter jurisdiction to enter a disgorgement order against him. The Appeals Court reasoned that the reasonableness of the attorney’s fees and costs had been identified in the pretrial order, and that “it was well within the judge’s broad equitable discretion to order the guardian and his attorney, who acted in concert, to return fees taken that were in excess of those to which they were lawfully entitled.” Their acting in concert “rendered them both fiduciaries who could be required to return to the estate the monies beyond which they were lawfully entitled.” 

The Appeals Court rejected the attorney’s argument that he had not been given proper notice and an opportunity to be heard on the question of disgorgement. “The attorney examined the witnesses, reviewed the exhibits, and argued extensively at trial. . . [T]he attorney was well aware that what was at stake during the trial was the reasonableness of the fees charged during the guardianship, as to which the attorney had already received payment (and had assured himself by constantly replenishing his retainer). At no point in the proceedings did the attorney request to testify or present his other evidence as to the reasonableness or necessity of the fees charged or the propriety of an order of disgorgement.” 

The Appeals Court also rejected the attorney’s argument that the Probate Court committed error in denying a motion to strike the testimony of the opposing side’s expert witness, who was permitted to testify regarding his survey of attorney rates within Barnstable County. The Appeals Court described this kind of survey as a “historically accepted method of determining local rates.” Moreover, both the expert and the Probate Court had properly relied on the lode-star method of calculating a reasonable fee by multiplying hours reasonably incurred by a reasonable hourly rate. The Appeals Court did not address the attorney’s related argument that the expert’s testimony stifled competition in violation of the interstate commerce clause, other than to find that this argument was waived because it had not been raised below. 

Finally, the Court rejected the attorney’s arguments that the judge should have recused himself based on an alleged ex parte communication (bar counsel spoke with the judge’s case manager by telephone to request a copy of the trial transcript) and the judge’s alleged bias, and that the Probate Court improperly denied the attorney’s motion for a new trial pursuant to Rule 63. “Rule 63 does not entitle litigants to a new trial, and the judge did not err in so ruling.” 

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