Bailey v. Rahe

142 S.W.3d 634, 355 Ark. 560, 2004 Ark. LEXIS 30
CourtSupreme Court of Arkansas
DecidedJanuary 22, 2004
Docket02-1316
StatusPublished
Cited by16 cases

This text of 142 S.W.3d 634 (Bailey v. Rahe) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Rahe, 142 S.W.3d 634, 355 Ark. 560, 2004 Ark. LEXIS 30 (Ark. 2004).

Opinions

Tom Glaze, Justice.

This guardianship case, involving an attorney’s fees issue, was certified to us by the court of appeals under Ark. Sup. Ct. R. 1-2(a)(5); however, we accept the appeal pursuant to Ark. Sup. Ct. R. l-2(b). We reverse and remand the case for further proceedings.

The ward in this matter is Bernita Yvonne Logan, a seventy-six-year-old woman who suffers from vascular dementia. On April 24, 2001, Donna Bailey, Logan’s adopted daughter, filed a petition to be appointed guardian of Logan’s person and estate. Bailey requested an emergency hearing, alleging a “certain person” had attempted to obtain Logan’s money and assets when Logan was discharged from the hospital. The trial court appointed Bailey temporary guardian, but provided the guardianship would expire on May . 31, 2001, at which time a hearing would be held to determine if the guardianship should be continued. The trial court also appointed an attorney ad litem for Logan.

On May 22, 2001, Barbara Rahe, Logan’s niece, who lives in California, contested the temporary guardianship and Bailey’s appointment. Rahe claimed that Bailey had sequestered Logan so that Rahe was unable to determine if a guardian was necessary, but, if one was required, Bailey should not be the guardian. Rahe averred that, on September 22, 2000, Logan named Rahe executrix of her will and bequeathed only $1.00 to Bailey.

On May 31, 2001, a hearing was held before a special judge who later approved a final order continuing Bailey as guardian. Because Rahe had voiced concerns about Bailey’s handling of Logan’s estate, the judge, instead of requiring a bond, imposed a number of additional obligations on Bailey as guardian, other than those prescribed by statute. For example, Bailey was required to account for all spending of Logan’s money every sixty days and provide a copy of the accounting to the parties’ attorneys. The order also required all monies be placed in a guardianship secured by FDIC insurance and to provide proof of having done so to the attorneys. In the judge’s order, Bailey was to prepare an inventory showing the ward’s assets, from where those assets or properties were derived, and the location of each.

The trial judge further directed that all expenditures within ninety days from the order were to be approved by the attorney ad litem, Patricia James, who was instructed to determine the reasonable amount of monthly expenditures for Logan’s expected needs. Any expenditures over that amount established by Ms. James required the court’s approval. In this respect, the court’s order emphasized that every item required an accounting, receipts, and accurate recordings, and the ward’s estate was directed to pay the ad litem’s costs and her attorney’s fee, which was authorized at the hourly rate of $145.00.

In November 2001, Logan was admitted into a nursing home, and Bailey sought permission to transfer money from Logan’s certificates of deposit to pay for Logan’s nursing home care. Although Rahe and the ad litem did not object, the trial court set a hearing on May 6, 2002, to consider Bailey’s request. At that hearing, Bailey withdrew as guardian of the estate, and the trial court appointed the Bank of the Ozarks to handle the estate. Bailey remained Logan’s personal guardian. The court directed Bailey to file a final accounting and transfer Logan’s estate assets to the Bank for management.

Bailey submitted a final accounting on June 7, 2002, and, on June 10, 2002, she sought an order authorizing payment of $10,924.35 to her attorney, Theresa Caldwell. Caldwell submitted an itemized bill, covering the period from April 17, 20.01, when she was first employed, through June 7, 2002, when she filed Bailey’s final accounting. The trial court approved only $6,200 in fees and provided that Bailey was responsible for the difference. The trial judge specifically disallowed all fees and costs that were incurred from April 17, 2001, to the May 31, 2001, hearing when Bailey was appointed temporary and permanent guardian of Logan’s person and estate. Bailey brings this appeal, contending the trial court acted arbitrarily in reducing Caldwell’s fees.

When addressing a trial court’s award of attorney’s fees, this court has often observed that there is no fixed formula in determining what is reasonable. See South Beach Beverage Co., Inc. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d 102 (2003); Phi Kappa Tau Housing Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002); see also Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). This court has, however, held that a trial court should be guided in that determination by the following long-recognized factors:

(1) the experience and ability of counsel; (2) the time and labor required to perform the legal service properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

South Beach Beverage Co., Inc., supra, 355 Ark. at 356; see also Wengert, 350 Ark. at 341. In the context of guardianship cases, this court held in Jones v. Barnett, 236 Ark. 117, 365 S.W.2d 241 (1963), that there are “many factors, in addition to that of hours spent, to be considered in the problem of fixing a just and adequate fee for an attorney in any specific case.” Jones, 236 Ark. at 123. These factors which, it shouldbe noted, are consistent with the Chrisco factors, are as follows:

the amount and character of the services rendered, the labor, time, and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.

Id.; see also Johnson v. Guardianship of Ratcliff, 72 Ark. App. 85, 34 S.W.3d 749 (2000) (guardianship case reciting and applying factors set out in Jones). Although the Jones case clearly predates our holding in Chrisco, the factors enumerated are substantially similar. Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we recognize the superior perspective of the trial judge in assessing the applicable factors. Id. Accordingly, the amount of the award will be reversed only if the appellant can demonstrate that the trial court abused its discretion.1 Id.

In the present case, the guardian, Bailey, was authorized to employ an attorney in connection with the discharge of her duties, and the court was to fix the attorney’s fees, which would be allowed as an item of the expense of administration. See Ark. Code Ann.

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Bailey v. Rahe
142 S.W.3d 634 (Supreme Court of Arkansas, 2004)

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Bluebook (online)
142 S.W.3d 634, 355 Ark. 560, 2004 Ark. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-rahe-ark-2004.