Black v. Black

• Court: Vermont Superior Court
• Decided: April 20, 2020
• Docket: 636-11-18 Wncv
• Status: Published

Opinion

Black v. Black, No. 636-11-18 Wncv (Tomasi, J., Apr. 20, 2020).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 636-11-18 Wncv

Elizabeth Black, Jonathan Black, Appellants

v.

Deborah Black, Appellee

Opinion and Order on Motion to Dismiss

This case concerns certain fees associated with the Probate guardianship of

Virginia Black. Virginia Black’s children, principally Elizabeth Black (and

Jonathan Black), filed an appeal from an October 3, 2018 Order of the Probate

Court appointing a successor guardian and approving the attorneys’ fees of

Attorneys’ Andrea Gallitano, John Page, and David Otterman. Ms. Black failed to

file the appeal in a timely manner. For various equitable reasons, the Court agreed

to accept the late filing. The case proceeded in the Civil Division. Eventually, the

Court held a Pretrial Conference in November 2019. Ms. Black asked the Court to

delay resolution of the issues presented. The Court agreed to delay resolution of the

successor guardian issue but proceeded with a trial as to the attorneys’ fees. It set

those issues for a one-day trial in February 2020.

Days before the trial was to begin, Attorney Otterman filed a motion to

dismiss indicating that neither he nor his client, former guardian Richard Knowles, had received notice of the 2018 appeal and had not been receiving copies of court

filings in the interim. As the parties had not had a chance to consider the motion at

that time, the Court ordered that the trial go forward, but solely as to the fees of

Attorneys Page and Gallitano that had been approved by guardian Deborah Black.

The trial was completed as to those fees, and the Court has issued a ruling.

The Court ordered the parties to file briefs in connection with Attorney

Otterman’s motion to dismiss. Ms. Black objected to dismissal; the other parties did

not. The Court concluded that it required additional evidence regarding the

question. It issued an Order requiring the parties to submit sworn affidavits

regarding the history of events so that the Court would have a factual background

upon which to determine whether a hearing was required. That briefing has been

completed. The Court makes the following determinations with regard to the

appeal of the fees approved by guardian Knowles.

I. The Record and the Written Submissions

The record establishes that Richard Knowles was appointed guardian of

Virginia Black in November 2017. He requested to be and was removed as

guardian in October 2018. While he was guardian, he employed Attorney Otterman

as his counsel. He approved payments to Attorney Otterman and approved limited

payments to Attorney Gallitano from the period when Attorney Gallitano

represented former guardian Deborah Black and limited payments to Attorney Page

for his work in representing Virginia Black (collectively, the “Knowles Fees”).

2 The Knowles Fees were approved in the October 3, 3018 Probate Order.

Specifically, the Probate Court sanctioned guardian Knowles’ approval of the

following fees: Attorney Otterman ($14,647.21); Page ($4,845.55); and Gallitano

($1,157.49.)

Ms. Black filed an appeal from that Order.

In support of her contention that she properly appealed the Knowles Fees,

Ms. Black filed a copy of a July 2019 filing with the Court describing the matters

from which she had appealed. While the letter indicates Ms. Black was contesting

the Knowles Fees, the certificate of service does not include Attorney Otterman or

Mr. Knowles.

Attorney Otterman has filed an affidavit attesting to the fact that neither he,

nor his client Mr. Knowles, received notice from Ms. Black of the filing of the

appeal. He also attested that he had not been copied on numerous other filings

made during the course of the appeal from the Probate Court and did not receive

another filing from Ms. Black until less than a month before the trial in this action.

Ms. Black responded with what is labelled a “Counter Affidavit.” It is not,

however, an affidavit and has not been properly notarized. Ms. Black does not

dispute that she did not send any notices or filings directly to Mr. Knowles. Ms.

Black candidly admitted that she could not recall whether she had sent Attorney

Otterman the July 2019 letter describing the issues she was appealing. And, she

acknowledged a subsequent lapse in time where she did not serve Attorney

3 Otterman with court filings. She maintained, though, that she did serve him with

later court filings.

Ms. Black does not address the actual Notice of Appeal filed in November

2018. It is part of the Court’s record, however, and attached to the Notice is a

certificate indicating that it was served upon Attorney Otterman. Attorney

Otterman, however, has averred that he did not actually receive the Notice. Ms.

Black has filed no statement under oath contesting that, nor has she even disputed

the point in her “Counter-Affidavit.” She also admitted to having limited memories

of what she did and did not serve on Attorney Otterman. The Court finds

persuasive the evidence offered by Attorney Otterman under oath that he did not

receive service of the Notice of Appeal.

If considered, the “Counter-Affidavit” also supports Attorney Otterman’s

averments. In that filing, Ms. Black described her standard practice with regard to

sending copies of court filings and completing certificates of service. She stated that

she would normally write out her certificates of service at the courthouse based on

the list of Interested Parties listed on notices sent from the Court. A review of the

Court notices in this appeal show that Attorney Otterman has not been listed on the

Court’s notices. Ms. Black’s practice as to certificates of service lends additional

support to Attorney Otterman’s averments that he did not receive service of court

filings.

In light of the foregoing, the Court concludes that Ms. Black did not serve

Attorney Otterman or Mr. Knowles with the Notice of Appeal, the July 3, 3019

4 letter, or court filings up until approximately one month prior to trial. That

conclusion is supported by: (a) the affidavit of Attorney Otterman; (b) the lack of

any sworn affidavit in opposition, despite the Court’s Order requiring one; (c) Ms.

Black’s admission that she did not serve Mr. Knowles; (d) the lack of any definitive

statements from Ms. Black that she did serve the Notice or the July 2019 letter on

Attorney Otterman; (e) Ms. Black’s statement that she made out her certificates of

service based on the Court’s list of Interested Persons, which, in this case, did not

include Attorney Otterman; and (f) Ms. Black’s admission of a lack of memory as to

whether she, in fact, served early court filings in this appeal on Attorney Otterman.

The conclusion that Ms. Black did not and has not (until recently) been

serving Attorney Otterman with court filings does not resolve the issue. Vt. R. Civ.

P. 72(a) states that a person appealing from a Probate Court ruling: “shall serve a

copy of the notice upon each person who is considered a party at the time of the

commencement of the proceeding.” The Reporter’s notes underscore that

requirement. See Id. Reporter’s Notes – 2003 Amendment (amendment “make[s]

clear that the appellant serves a copy of the notice of appeal on each party and the

clerk”); Id. Reporter’s Notes – 2002 Amendment (“appellant is responsible for

serving copies of the notice of appeal upon the clerk of the superior court and the

appellees”). Rule 72 further incorporates the provisions of Vt. R. App. P. 3. Like

Rule 72, Rule 3 provides that an appellant “must serve a copy of the notice [of

appeal] on . . . counsel of record for each of the other represented parties to the

5 appeal.” Based on the above findings, Ms. Black failed to comply with her express

obligations with regard to service under Rule 72 and Appellate Rule 3.

A failure of the appellant to make such service does not affect the Court’s

jurisdiction, but it “is ground for the . . . Court to take any appropriate action,

including dismissal.” Vt. R. App. P. 3(b)(1)(B)(ii). In this instance, for a number of

reasons, the Court agrees that dismissal is appropriate. See In re Seward’s Estate,

139 Vt. 623, 625 (1981) (approving trial court’s decision to dismiss appeal for failing

to comply with Rule 72). First, Ms. Black did not serve copies of the Notice of

Appeal as required by the Rules. Second, she did not copy Attorney Otterman on

later filings.

Third, as a result, Attorney Otterman and Mr. Knowles have had no notice of

their interest in this proceeding since it began in the fall of 2018. Fourth, that lack

of notice is potentially prejudicial. Mr. Knowles was discharged from duties he

voluntarily undertook as guardian in October 2018. Attorney Otterman, likewise,

has had no involvement with the matter since that point in time. In the interim,

they were not charged with retaining all records, nor would they have had reason to

reflect upon the period and maintain active memories of events occurring during

Mr. Knowles tenure as guardian. Further, they have not had the opportunity to

participate in pretrial hearings and potential motion practice before the Court

regarding the appeal.

Fifth, the Court has now conducted a trial regarding attorneys’ fees that

could have included the claims concerning Attorney Otterman. It was unable to try

6 those issues in the same proceeding due to Ms. Black’s failure to serve Attorney

Otterman. Requiring additional hearing time devoted solely to the issues

concerning Attorney Otterman is inefficient and would result in a greater

expenditure of limited court resources. Such a concern is more acute in light of the

anticipated backlog of cases that will need to be addressed following the Covid

emergency.

Lastly, while Ms. Black has not exhaustively presented her claims regarding

Attorney Otterman’s fees, much of what she has put forth does not directly

challenge the reasonableness of the fees. Instead, Ms. Black’s filings suggest that

she wishes to expand this litigation concerning attorneys’ fees into an effort to

undermine other court orders. For example, she maintains that she would not have

agreed to the Order dismissing her earlier appeal had she known Mr. Knowles

would hire a lawyer. And she claims that Mr. Knowles’ breach of her trust has led

to the Court’s appointment of another guardian whose performance Ms. Black also

assails and whose subsequent fees Ms. Black is also now challenging in a separate

appeal. Like some issues that Ms. Black attempted to raise at trial in the earlier

proceeding concerning the fees of Attorneys Page and Gallitano, such matters are

not relevant to determining whether the Attorney Otterman’s fees were reasonable

and appropriate under the controlling principles of Vt. R. Prob. P. 66(c) and Rule

1.5(a) of the Vermont Rules of Professional Conduct.

In light of such considerations, the Court concludes that dismissal is

appropriate.

7 WHEREFORE, Richard Knowles’ motion to dismiss is granted. The appeal

concerning the Knowles Fees is dismissed.

Dated this __ day of April, 2020, in Montpelier, Vermont.

________________________ Timothy B. Tomasi Superior Court Judge