February 1, 2011
IN RE GUARDIANSHIP AND CONSERVATORSHIP OF ARDELLE E. SHANNON, AN INCAPACITATED PERSON.
DENNIS SHANNON AND GARY SHANNON,
Appeal from the County Court for Douglas County: MARCENA M. HENDRIX, Judge.
The opinion of the court was delivered by: Moore, Judge.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE GUARDIANSHIP & CONSERVATORSHIP OF SHANNON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IRWIN, CARLSON, and MOORE, Judges.
The county court for Douglas County appointed Dennis Shannon and Gary Shannon as guardian and conservator, respectively, of their mother, Ardelle E. Shannon, over the objection of Danny Shannon. The court also assessed attorney fees against Danny to be reimbursed to the estate. On appeal, Danny challenges only the assessment of attorney fees against him. Because we find no abuse of discretion by the county court in this regard, we affirm. Pursuant to Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was submitted without oral argument.
Dennis, Gary, and Danny are all children of Ardelle. Dennis resides in Omaha, Nebraska; Gary resides in California; and Danny resides in Virginia. There are also two other siblings:
Lynda Tews (Lynda), who resides in Virginia, and another sister whose whereabouts are unknown and who is not in contact with the family. At some point prior to the filing of the petition for appointment of guardian and conservator, the three brothers and Lynda agreed generally that their mother was incapacitated and needed a guardian and conservator. The record shows that Danny and Lynda initially paid the fees of the attorney who was hired to file the petition for appointment. On October 31, 2008, the petition for appointment was filed, seeking appointment of Dennis as guardian and Gary as conservator, alleging that all four siblings were in agreement with these appointments. On the same day, an order was entered appointing Dennis as temporary guardian and Gary as temporary conservator. On January 13, 2009, Danny, with different counsel, filed an objection to Dennis' appointment. The objection alleged that Ardelle did not trust Dennis due to the way he ran the family business, that Dennis has animosity toward Ardelle because she fired him from and sold the family business, that a conflict of interest existed due to a debt owed by Dennis to Ardelle, that Dennis does not pay rent for his use of a building owned by Ardelle, and that Ardelle does not trust Gary because of the way he assisted Dennis in running the family business and not holding Dennis accountable. As a result of Danny's objection, the original attorney who filed the guardianship and conservatorship petition withdrew and new counsel represented Dennis and Gary for the balance of the proceedings. The court appointed a guardian ad litem for Ardelle to recommend a guardian and conservator.
Discovery was conducted, which included written interrogatories and requests for production of documents, as well as depositions of Dennis, Gary, and Danny. The focus of this discovery generally entailed the suitability of Dennis and Gary to serve as guardian and conservator in response to Danny's objection. Pretrial hearings were held on discovery disputes. The record shows that Danny resisted having his deposition taken in Omaha and sought allowance of a telephone deposition. Danny's initial refusal to voluntarily submit to a deposition necessitated the issuance of a subpoena and the filing of a motion to compel his attendance. Following a hearing on this motion to compel, the county court ordered that Danny have his deposition taken in Omaha. This discovery dispute resulted in a continuance of the first trial date. Danny thereafter sought a motion to compel Dennis to answer questions that he refused to answer in his deposition, including questions regarding his Social Security number, his income and finances, who was paying his attorney fees, his sexual activities, and domestic abuse charges against him. The court sustained the objections to these questions, denied Danny's motion to compel, and stated on the record, "Let's get on with it please."
Trial was held on July 27, 2009. At the commencement of trial, various medical records were stipulated into evidence, which records and reports generally confirm Ardelle's progressive dementia and need for a guardian and conservator. The focus of the trial was Danny's objection to, and the suitability of, Dennis and Gary serving as permanent guardian and conservator. The evidence shows that there has been a fair amount of acrimony between Ardelle and all of her children over the years, and that Ardelle is a fiercely private, independent, and strong-willed person. Ardelle was unhappy about the instant proceedings and did not want to have someone else in control of her life. Gary, who is an accountant, has been assisting Ardelle with her finances for several years, and Gary was a joint holder on some of Ardelle's bank accounts. Dennis, as the only child in Omaha, has helped and cared for his mother over the years. Danny had not seen his mother for several years prior to November 2008. The record shows that Ardelle has a current estate valued at approximately $2 million.
Danny was initially in agreement with Dennis and Gary serving as guardian and conservator. On October 30, 2008, the day before the petition was filed, Danny sent an e-mail to the attorney, objecting to the portion of the petition and proposed order which gave Dennis authority to enter into agreements or apply for benefits in his mother's name due to Dennis' being indebted to Ardelle. Danny stated that this should be the responsibility of the conservator. No other objections to the petition or to Dennis' or Gary's appointment were made by Danny at that time. Danny testified that his concerns about Dennis and Gary "escalated" after the filing of the petition. Danny stated that Dennis, Gary, and Lynda are "unethical and dishonest," that they are trying to get control of Ardelle's assets, and that the "whole court ordeal is definitely payback to my mother in gaining control of her assets for their own personal benefit." Danny also referred to Gary as being "constantly drunk" based upon a visit Danny had with Gary in 2008. Danny admitted that he had not seen his mother for several years, some of which time he was imprisoned for a felony offense.
Evidence was given concerning each of the allegations in Danny's objections. Dennis admitted that he used vulgar language toward his mother during a conversation in January 2009. However, one thing that all of the brothers could apparently agree upon was that their mother could be very difficult to get along with and was particularly contentious as her dementia worsened. Testimony was given about Ardelle's selling of the family business in 2002 to an outsider instead of to Dennis and Gary as originally planned by their deceased father. Both Dennis and Gary were very disappointed at the time. Dennis acknowledged and explained that his mother loaned him $68,000 for him to invest in a business and that the agreement was that Dennis would repay her when he was repaid. There was evidence that Ardelle loaned all of her children money in the past and did not always receive repayment. Dennis also acknowledged that for several years he has stored personal property in a portion of a commercial building owned by Ardelle with her permission and agreement. During the period of temporary guardianship, Ardelle was extremely reluctant to let strangers in her home, making it difficult for Dennis to get her necessary help, including plumbing repairs that needed to be made. Dennis testified to a conversation that his mother had with each of the children, stating she would leave her money to whoever would drop the guardianship proceedings. Dennis testified that he loves his mother and that he checks on her every day, usually in person and if not in person, by telephone.
Gary testified that he is an accountant. He has been involved in his mother's finances for many years, most actively within the last 4 or 5 years, at her request. Ardelle has not complained about his services, with the exception of a recent disagreement when she attempted to remove several hundred thousand dollars in cash to keep at home, at which time Gary was notified by the bank and prevented the transaction. Gary provided a very detailed interim accounting to the court, which listed the indebtedness owed Ardelle by Dennis.
The guardian ad litem, Julie Frank, testified, and her report was also received in evidence. Frank testified that she had done an investigation, including a personal visit with Ardelle at her home. Frank recommended that Dennis and Gary be appointed permanent guardian and conservator for Ardelle. Frank stated that Dennis is providing appropriate care to Ardelle and that Ardelle expressed to Frank that she wants Dennis to be her permanent guardian. Frank testified that it was important for a family person to act in this capacity as it would cause Ardelle great stress to have a stranger act in this role. Frank indicated that Dennis has genuine affection and concern for his mother and visits her nearly daily. Frank attended Danny's deposition and asked questions regarding his concerns about Dennis and Gary. Frank testified that nothing in Danny's responses convinced her that Danny's concerns were legitimate; rather, she thought his concerns were "baseless." Frank indicated that nothing had changed regarding Ardelle, Dennis, or Gary since Danny initially agreed to their appointment. Frank testified that Danny's concerns were just "red flags" raised by Danny to attempt to "control these proceedings." Frank indicated that Danny's suggestion of a cousin to act as guardian was not feasible as the cousin was unwilling to serve due to the disagreement between the family. Frank stated that it appeared that Danny was trying to influence Ardelle regarding the outcome of these proceedings and regarding her estate.
At the conclusion of the hearing, the court orally found that Dennis and Gary were suitable to act as permanent guardian and conservator. Following the trial, Dennis and Gary filed an application for reimbursement of attorney fees by the estate as well as a motion to assess attorney fees against Danny. The latter motion alleged that Danny's actions throughout the proceedings were often frivolous, made in bad faith, and utilized for purposes of delay and/or harassment; specifically, those actions include his refusal to sit for a deposition until ordered to do so, the filing of motions to strike pleadings filed by prior counsel, the attempted use of undue influence over Ardelle, and the filing of a motion to compel discovery regarding personal matters to the guardian. The motion further alleged that Dennis and Gary were forced to incur additional attorney fees and sought recovery of a portion of those fees. Danny filed an objection to the assessment of attorney fees against him, alleging that he was motivated by his concerns for the health and safety of his mother, as well as his concerns for Gary's fitness to handle an estate over $2 million. A hearing was held on the motion to assess fees against Danny, at which time the billing statements of counsel were received in evidence along with counsel's affidavit attesting to the fairness and reasonableness of the fees. Frank also submitted a request for reimbursement of fees to which no objections were made.
The court entered a written order appointing Dennis and Gary as guardian and conservator. The court granted the application for reimbursement of fees by Dennis and Gary in the total sum of $26,771. In a separate order, the court found that Danny should be assessed attorney fees and shall reimburse the estate $10,000. It is from this order that Danny appeals.
ASSIGNMENT OF ERROR
Danny asserts that the county court abused its discretion in assessing attorney fees against him.
STANDARD OF REVIEW
On appeal, a trial court's decision allowing or disallowing attorney fees under Neb. Rev. Stat. § 25-824 (Reissue 2008) for frivolous or bad faith litigation will be upheld in the absence of an abuse of discretion by the trial court. Brummels v. Tomasek, 273 Neb. 573, 731 N.W.2d 585 (2007); Haskell v. Madison County School Dist. No. 0001, 17 Neb. App. 669, 771 N.W.2d 156 (2009).
Section 25-824(2) provides generally that a court can award reasonable attorney fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense that a court determines is frivolous or made in bad faith. In the context of § 25-824, a frivolous action is one in which a litigant asserts a legal position wholly without merit, that is, without rational argument based on law and evidence to support the litigant's position. Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664 N.W.2d 23 (2003). The term "frivolous," as used in § 25-824(2), connotes an improper motive or legal position so wholly without merit as to be ridiculous. Cornett, supra.Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question. Id.
The record shows that Danny was initially in agreement with the appointment of Dennis and Gary as guardian and conservator. Danny initially expressed an objection to the provision in the temporary appointment regarding Dennis contracting for services for Ardelle due to Dennis' indebtedness to Ardelle. Thereafter, Danny's objections changed, but according to Frank, Danny's concerns were "baseless" and were an attempt to "control the proceedings." Evidence also suggested that Danny, who had not had contact with his mother for several years, changed his position with regard to Dennis' and Gary's appointment after learning about the size of Ardelle's estate. The record thus contains some support for a finding that Danny's actions were based upon an improper motive and were without merit.
Danny argues that his objection to the proceedings was motivated by concern for his mother's health and safety as well as concerns regarding the suitability of Dennis and Gary to serve as guardian and conservator. Even if we were to resolve the question about whether Danny's legal position was frivolous in his favor, we must still analyze whether assessment of fees against him was appropriate under § 25-824(4), which provides:
The court shall assess attorney's fees and costs if, upon the motion of any party or the court itself, the court finds that an attorney or party brought or defended an action or any part of an action that was frivolous or that the action or any part of the action was interposed solely for delay or harassment. If the court finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct, including, but not limited to, abuses of civil discovery procedures, the court shall assess attorney's fees and costs.
We conclude that the record clearly supports a finding that assessment of fees was appropriate under § 25-824(4). Danny refused to sit for a deposition in Nebraska until the court ordered him to do so. This action necessitated serving a subpoena, filing a motion, and holding a hearing, and it resulted in a continuance of the trial. Danny's counsel asked questions of a personal nature during Dennis' deposition, to which Dennis apparently objected and refused to answer. Danny thereafter filed a motion to compel for which a hearing was held. The questions at issue involved Dennis' personal finances, his sexual activities, and a domestic abuse charge that was apparently never prosecuted and that was unrelated to Ardelle. Dennis argued that these questions were irrelevant to his suitability to serve as guardian. The court agreed and denied the motion to compel. Danny testified that Dennis and Gary are "unethical and dishonest" without providing any evidence to support this assertion. Danny also cast aspersions on Gary regarding his excessive drinking, which allegation Frank essentially determined was unfounded. The discovery abuses, together with Danny's protraction of the proceedings for what Frank felt were "baseless" reasons, caused unnecessary delay and amounted to harassment of Dennis and Gary. Thus, the record supports an award of attorney fees for Danny's improper conduct under § 25-824(4). See Randolph Oldsmobile Co. v. Nichols, 11 Neb. App. 158, 645 N.W.2d 566 (2002) (defendant entitled to award of attorney fees and costs because plaintiff unnecessarily expanded action solely for harassment and delay).
We conclude that the county court did not abuse its discretion in assessing attorney fees in the sum of $10,000 against Danny.
We conclude that Danny did unnecessarily expand the proceedings for the purpose of harassment and by improper conduct. The county court did not abuse its discretion in awarding attorney fees under § 25-824(4). The judgment of the county court is affirmed.
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