Opinion
No. 335454 No. 335790
11-21-2017
In re Conservatorship & Guardianship of LOUIS NIEDZWIECKI. LOUIS NIEDZWIECKI, a legally incapacitated person, and BARBARA NIEDZWIECKI, Appellants, v. KATHLEEN ROBSON, Conservator, and PHILIP NIEDZWIECKI, Appellees, and JANE M. HISKE, a Limited Guardian, Other Party. In re Conservatorship of LOUIS NIEDZWIECKI. LOUIS NIEDZWIECKI, a legally incapacitated person, Other Party, and BARBARA NIEDZWIECKI, Appellant, v. KATHLEEN ROBSON, Conservator, Appellee.
UNPUBLISHED Alpena Probate Court
LC No. 14-015897-GL Alpena Probate Court
LC No. 14-015898-CA Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
These consolidated appeals arise from a conservatorship and guardianship proceeding for Louis Niedzwiecki, a legally incapacitated person. In Docket No. 335454, appellants, Louis and his spouse Barbara Niedzwiecki, appeal as of right the probate court's order appointing counsel for Louis over Louis's objection. In Docket No. 335790, appellant Barbara Niedzwiecki appeals as of right the probate court's order approving the first annual account of Kathleen Robson, the ward's guardian and conservator. We affirm in part, reverse in part, and remand for further proceedings. A. The Ward's Death Renders Moot the Issue in Docket No. 335454
Because multiple parties share the same last name, we use first names in this opinion where appropriate.
In Docket No. 335454, appellants argue that the probate court erred when it repeatedly failed to appoint an attorney of the ward's choice to represent his interests. Because the ward is now deceased, we conclude that this issue is moot, and therefore, decline to address it.
"An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief." B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998). "As a general rule, an appellate court will not decide moot issues." Id. Louis passed away on March 27, 2017. The question whether Louis should have been allowed to retain counsel of his choice is personal to him. Because Louis has died, it is no longer possible for him to retain counsel of his choice. Moreover, because Louis's disability ceased upon his death, there is no longer a guardianship or conservatorship estate requiring continued representation of him. See MCL 700.5431.
Accordingly, there is no remedy that can be granted even if we were to conclude that Louis should have been allowed to retain counsel of his own choosing. Because there is no meaningful relief this Court can provide, this issue is moot and we decline to consider it further. B. Remand is Necessary in Docket No. 335790 to Determine the Reasonableness of the Requested Fee
In Docket No. 335790, Barbara argues that the probate court erred in approving the first annual account of Robson, Louis's guardian and conservator. Specifically, Barbara objects to the probate court's approval of the fiduciary and attorney fees requested by Robson. We review the probate court's approval of those fees for an abuse of discretion. Doe v Boyle, 312 Mich App 333, 346; 877 NW2d 918 (2015); B & B Investment Group v Gitler, 229 Mich App 1, 15; 581 NW2d 17 (1998).
The Fee Invoices Were Not Deficient. First, Barbara argues that the fee invoices Robson submitted below were deficient in that they did not supply adequate information to determine that the assistance was reasonable, necessary, and to the benefit of Louis, the protected ward. We disagree.
MCR 5.313(C), which applies to conservatorship and guardianship proceedings through MCR 5.401, provides the following requirements for attorney fee invoices:
Regardless of the fee agreement, every attorney who represents a personal representative must maintain time records for services that must reflect the following information: the identity of the person performing the services, the date the services are performed, the amount of time expended in performing the services, and a brief description of the services.MCR 5.310(C)(2)(c), which applies to this case through MCR 5.401, provides:
All accountings must be itemized, showing in detail receipts and disbursements during the accounting period, unless itemization is waived by all interested persons. A written description of services performed must be included or appended regarding compensation sought by a personal representative. This description need not be duplicated in the order. The accounting must include notice that (i) objections concerning the accounting must be brought to the court's attention by an interested person because the court does not normally review the accounting without an objection; (ii) interested persons have a right to review proofs of income and disbursements at a time reasonably convenient to the personal representative and the interested person; (iii) interested persons may object to all or part of an accounting by filing an objection with the court before allowance of the accounting; and (iv) if an objection is filed and not otherwise resolved, the court will hear and determine the objection.Having reviewed the record, we conclude that the probate court did not err in finding that the submitted invoices met each of the descriptive requirements of MCR 5.313(C) and MCR 5.310(C)(2)(c). Accordingly, we reject Barbara's first claim of error.
The Probate Court's Reasonableness Inquiry Was Not Fully Explained. Next, Barbara argues that the probate court did not properly determine the reasonableness of the requested fees. We agree that the probate court did not fully explain its determination on the record and remand for further proceedings, but we do not pass any judgment on whether the requested fees were reasonable.
An attorney or fiduciary is only entitled to the reasonable fees incurred in representing the ward. MCR 5.313(A); MCL 700.5413. In determining the reasonableness of fees, the probate court should look to the factors set forth in MRPC 1.5(a), as well as the extent and manner of services rendered by the guardian or conservator. MCR 5.313(A); In re Bender's Estate, 246 Mich 405, 408; 224 NW 381 (1929).
A trial court should normally hold an evidentiary hearing when the opposing party challenges the reasonableness of requested fees. Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 113; 593 NW2d 595 (1999). An evidentiary hearing is not required, however, where the parties have created a record sufficient to review the issue, and the court fully explains the reasons for its decision. Id.
The reasonableness of the requested attorney fees was a contested issue below, including whether the fees were reasonable in light of an apparent conflict of interest arising from Louis's other attorney's representation of both Robson and Louis. See MRPC 1.9. In light of this contention, the probate court was required to hold a hearing or review the record, determine whether the requested fees were reasonable, and then explain that decision on the record.
The probate court stated that it would review the invoices and other documentation supporting Robson's request for fiduciary and attorney fees and that it would hold a hearing if it determined that one would be helpful. Once the underlying fee invoices were provided, however, the probate court simply approved the first annual account without further explanation. In doing so, the probate court failed to explain its decision on the record, leaving us without an adequate record to review the reasonableness of the fee. Therefore, we vacate the probate court's approval of the first accounting and remand for the probate court to determine the reasonableness of the requested fees and explain that determination on the record.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey