Calhoun County Department of Human Resources v. Frye

74 So. 3d 958, 2011 WL 2508243
CourtCourt of Civil Appeals of Alabama
DecidedJune 24, 2011
Docket2100403 and 2100404
StatusPublished
Cited by1 cases

This text of 74 So. 3d 958 (Calhoun County Department of Human Resources v. Frye) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calhoun County Department of Human Resources v. Frye, 74 So. 3d 958, 2011 WL 2508243 (Ala. Ct. App. 2011).

Opinions

MOORE, Judge.

In case no. 2100403, the Calhoun County Department of Human Resources (“DHR”) appeals from a judgment of the Calhoun Circuit Court (“the trial court”) awarding Wesley Frye, a lawyer who had been appointed as the guardian and conservator of Dorothy Ann Wilkinson, an incapacitated person, payment for his “time, effort, and expenses” in civil action number CV-10-37; the trial court taxed the amount as “costs” to DHR. In case no. 2100404, DHR appeals from a judgment of the trial court awarding Frye, who had been appointed as the guardian and conservator of Velma Harris, an incapacitated person, payment for services and expenses provided by him to Harris; the trial court taxed those fees and expenses as “costs” to DHR.

Case no. 2100⅛03

On February 3, 2010, DHR petitioned the trial court to initiate a guardianship and conservatorship of Wilkinson. DHR asserted that, because of mental and physical infirmities, Wilkinson was in need of protection and that she had no guardian, relative, or other appropriate person available to protect and supervise her. The trial court appointed a guardian ad litem to represent Wilkinson’s interest during the proceedings. After a hearing, the trial court granted DHR’s petition and, on April 13, 2010, appointed Frye as Wilkinson’s guardian and conservator. In its order, the trial court indicated that the costs of the proceeding would be taxed against Wilkinson’s estate. The trial court further indicated that the previously appointed guardian ad litem was entitled to a fee of $202.50 for services rendered, to be taxed against Wilkinson’s estate.

On September 29, 2010, Frye moved the trial court to approve payment to him of $6,706 in fees and expenses, which, he asserted, he had incurred in his role as Wilkinson’s guardian and conservator. He submitted billing statements indicating that he was seeking payment for the time he had spent engaged in, among others, telephone discussions with employees at Wilkinson’s nursing home and the routine handling of her bills and other day-to-day matters involving Wilkinson’s affairs.

On that same date, the trial court granted Frye’s motion, taxing costs to DHR in the amount of $6,706. On October 14, 2010, Frye submitted a request to the trial court for an award of additional funds with which he could pay the guardian ad litem’s bill for $202.50 for services rendered; Frye represented to the trial court that he had been “informed there are insufficient assets in Miss Wilkinson’s estate to pay the fee of $202.50 ordered by this Court.” As a result, Frye requested that the trial court order payment of those fees by DHR. On October 20, 2010, “for good cause shown,” the trial court ordered DHR to pay the guardian ad litem’s fee of $202.50.

On October 25, 2010, DHR moved the trial court to alter, amend, or vacate its [960]*960orders requiring DHR to pay Frye’s fees and expenses and the $202.50 to the guardian ad litem. That motion was deemed denied by operation of law. DHR timely filed its notice of appeal with this court.

Case no. 2100WU

On March 28, 2010, DHR petitioned the trial court to initiate a guardianship and conservatorship of Velma Harris. After appointing a guardian ad litem to represent the interests of Harris during the proceedings, the trial court ultimately granted DHR’s petition and appointed Frye as Harris’s guardian and conservator. In its order, the trial court awarded the guardian ad litem a fee of $793.75 and the court representative a fee of $1,062.50 for the services they had rendered; the trial court also indicated that “the costs of this proceeding shall be taxed against [DHR]” but that, “[a]t such time as [Harris’s estate] is able to pay the expenses hereby taxed against [DHR], then said Estate shall reimburse [DHR] for such costs.” Letters of guardianship/conserva-torship were issued to Frye on April 20, 2010.

On June 10, 2010, the trial court entered another order awarding the guardian ad litem an additional fee of $943.75 and the court representative an additional fee of $1,300. In that order, the trial court stated: “The costs of these continued proceedings shall be taxed against [DHR]. At such time as [Harris’s estate] is able to pay the expenses hereby taxed against [DHR], then said Estate shall reimburse [DHR] for such costs.” The trial court also reissued letters of guardianship/conservator to Frye on June 18, 2010.

On September 29, 2010, Frye sought to obtain $5,740 as payment for the time and effort he had expended in his role as Harris’s guardian and conservator. He submitted itemized billing statements indicating that he was seeking payment for time he had spent addressing, among others, issues regarding Harris’s living facility and family visitation, the medical care to be provided to Harris, and Harris’s finances. On October 26, 2010, the trial court granted Frye’s motion for payment, taxing $5,740 to DHR as costs. DHR timely moved to alter, amend, or vacate that order; that motion was deemed denied by operation of law. DHR timely filed its notice of appeal.1

Analysis

DHR asserts that the trial court erred in taxing the fees of the guardian and conservator against DHR. Payment of fees and expenses for conservators and guardians in protective proceedings is governed by Ala.Code 1975, § 26-2A-142, which provides as follows:

“(a) If not otherwise reasonably compensated for services rendered, any court representative, attorney, physician, conservator, or special conservator appointed in a protective proceeding and any attorney whose services resulted in a protective order or in an order that was beneficial to a protected person’s estate is entitled to reasonable compensation from the estate. The conservator shall be allowed from the estate of the protective person all reasonable premiums paid on his or her bond and reimbursement of any court costs paid.
“(b) If not otherwise reasonably compensated for services rendered, any court representative, attorney, physician appointed in a guardianship, and any attorney whose services resulted in a guardianship order or in an order that was beneficial to a ward is entitled to reasonable compensation from the es[961]*961tate. The guardian may be reimbursed from the estate of the ward for any court costs paid.
“(c) Except when the petitioner is related by blood or marriage to the individual who is the subject of the proceeding, if the assets of the estate in a protective proceeding or in a guardianship proceeding are not sufficient to provide reasonable compensation and pay court costs as permitted in subsections (a) and (b), the compensation of any guardian ad litem, court representative, or physician appointed by the court and court costs associated with the petition or motion may be taxed by the court with regard to any particular petition or motion presented to the court to the petitioner as additional costs to the petitioner.”

In State Department of Human Resources v. Estate of Harris, 857 So.2d 818 (Ala.Civ.App.2002), this court addressed the method by which conservators and guardians in protective proceedings may obtain payment of their fees. In Estate of Harris, the probate court ordered the State Department of Human Resources (“the State DHR”) to pay attorney fees and overhead expenses for the conservator and to pay the guardian ad litem’s attorney fees. 857 So.2d at 819-20. The State DHR appealed.

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Related

Calhoun County Department of Human Resources v. Frye
74 So. 3d 958 (Court of Civil Appeals of Alabama, 2011)

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Bluebook (online)
74 So. 3d 958, 2011 WL 2508243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calhoun-county-department-of-human-resources-v-frye-alacivapp-2011.