IN RE AYO GROOMS CHRISTINA C. FORBES

• Court: District of Columbia Court of Appeals
• Decided: September 2, 2015
• Docket: 13-PR-1513
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-PR-1513

IN RE AYO GROOMS; CHRISTINA C. FORBES, APPELLANT.

Appeal from the Superior Court of the District of Columbia (INT-308-01)

(Hon. Peter H. Wolf, Trial Judge)

(Submitted January 22, 2015 Decided September 3, 2015)

Christina C. Forbes, pro se.

Louis L. Jenkins, Auditor-Master, Superior Court of the District of Columbia, filed a memorandum amicus curiae on behalf of the Office of Auditor- Master.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Stacy L. Anderson, Senior Assistant Attorney General, filed a memorandum amicus curiae on behalf of the District of Columbia.

Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior Judge.

FARRELL, Senior Judge: Christina C. Forbes, the permanent guardian for

ward Ayo Grooms, appeals from the trial court’s order granting in part her motion 2

for enlargement of time1 to file an untimely petition for compensation under D.C.

Code § 21-2060 (a) (2012 Repl.). Appellant contends that the trial judge, in

allowing only a portion of her compensation claims, abused his discretion by

basing his conclusion largely, if not entirely, on appellant’s delay in filing her

compensation request, thereby minimizing (or ignoring) other factors relevant to

whether her untimeliness stemmed from “excusable neglect.” We affirm.

I.

Appellant became Ms. Grooms’ general permanent guardian on August 4,

2005, replacing Ms. Grooms’ mother. As guardian, one of appellant’s statutorily

imposed duties was to file a semi-annual report on the “condition of the ward and

the ward’s estate.” D.C. Code § 21-2047 (a)(5). After becoming guardian,

appellant failed to file the report timely on twelve occasions. Because Ms. Grooms

has no assets or estate, appellant’s compensation for services provided is drawn

from the Guardianship Fund, a taxpayer-funded source established by D.C. Code

§ 21-2060 (a). From 2005 to 2008, appellant filed three separate petitions for

compensation; her third petition, filed in November 2008, covered a three-year

1 See Super. Ct. Civ. R. 6 (b)(2). 3

period and was untimely,2 but the trial court granted the motion to late-file and

awarded 100% of the requested compensation.

On October 6, 2013, appellant again filed a motion for enlargement of time

in which to petition for compensation. The accompanying petition sought $13,029

for services rendered and expenses incurred from August 20, 2008, to August 23,

2013. In support of her motion, appellant asserted “what she generally always says

in defense of delays in filing compensation petitions,” i.e., that “the day to day

work of serving the needs of her wards and clients takes priority over preparing

and filing petitions for compensation.” Appellant attested to having carried a

“large caseload,” but noted that she “was working mightily to reduce the delay in

filing.”

The trial court granted appellant’s petition “only in part,” ruling that it would

“consider one year of counsel’s petition for five years,” but not more. The judge

found that appellant’s reasons for delay “[were] nothing more than her services to

many clients, commendable though that may be”; they did not justify “a delay

2 Pursuant to Super. Ct. Prob. R. 308 (c)(1), “A guardian’s petition for compensation shall be filed no later than 30 days from the anniversary date of the guardian’s appointment, except that a guardian’s final petition for compensation shall be filed no later than 60 days after termination of the guardianship.” 4

of . . . [five years]” in requesting compensation. Indeed, appellant had previously

filed an untimely petition that “cited only the same reasons for delay as the current

petition.” Moreover, this was “not counsel’s only rule violation: [h]er filing of

guardianship reports ha[d] been the subject of delinquency notices TWELVE times

in this case,” as late as 2011.3 Thus, in the trial court’s view, appellant’s cited

“reasons [did] not constitute good cause or excusable neglect for the amount of

time involved,” and “[i]f counsel has too many cases to comply with the court’s

rules, she should start declining requested appointments.”4 Ultimately the court

approved $2,603.00 in compensation, explaining that while “[t]he sanction here is

stiff,” it “appears necessary to get counsel’s attention, preserve the court’s

integrity, and provide ongoing – and continuous – supervision of incapacitated

persons.”

II.

This court has jurisdiction to review the compensation order. See In re

3 In March 2009 the trial court had warned appellant that her failure to file timely reports could subject her to removal from the case. 4 The court “invoke[d] its discretion to impose a sanction for repeated violation – indeed, ignoring – of court rules which become meaningless unless enforced.” 5

Orshansky, 952 A.2d 199, 208 (D.C. 2008) (quoting Super. Ct. Prob. R. 8 (d)(4))

(holding that “[a]n ‘order granting or denying [guardianship] compensation’ is . . .

a final order for purposes of appeal”). Our review of the order is for abuse of

discretion. In re Al-Baseer, 19 A.3d 341, 345 (D.C. 2011); see In re Estate of

Yates, 988 A.2d 466, 468 (D.C. 2010) (quoting Super. Ct. Civ. R. 6 (b)(2)).

Appellant concedes that her petition in question was untimely, thus requiring her to

demonstrate that “excusable neglect” caused her delay, Al-Baseer, 19 A.3d at 345,

a standard that “permits a court, where appropriate, to accept late filings . . . .”

Yates, 988 A.2d at 468 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P’ship, 507 U.S. 380, 388 (1993)).

A “run of the mill situation[]” involving untimeliness, however, does not

give rise to excusable neglect. Admasu v. 7-11 Food Store # 11731G/21926D, 108

A.3d 357, 361 (D.C. 2015) (citation omitted). Rather, appellant had to show “lack

of knowledge of entry of a judgment, extraordinary circumstances such as physical

disability or unusual delay in transmission of the mail, or unique [extenuating]

circumstances.” In re AK. V., 747 A.2d 570, 574 (D.C. 2000) (internal quotation

marks omitted). In turn, before deciding whether that standard was met, the trial

court had to consider “the danger of prejudice to other parties, the length of delay

and its potential impact on judicial proceedings, the reason for the delay, including 6

whether it was within the reasonable control of the movant, and whether the

movant acted in good faith.” Yates, 988 A.2d at 468 (quoting Pioneer Inv. Servs.

Co., 507 U.S. at 395). Although the trial judge’s order here did not expressly

analyze each of the Pioneer factors, he nonetheless made “an informed choice in

denying appellant’s motion,” and because that “determination was based upon and

drawn from a firm factual foundation,” id. (citation and internal quotation marks

omitted), we find no abuse of discretion.

We consider first, as did Judge Wolf, the “danger of prejudice to other

parties.” Yates, 988 A.2d at 468 (citation omitted). Appellant argues that the harm

resulting from her untimeliness fell “virtually entirely on [her],” since it was she

who suffered the delay in receiving compensation. But the danger of prejudice

went well beyond appellant’s own circumstances and potential harm to herself.

The public at large has an interest in the timely filing and resolution of petitions for

compensation, since the compensation is drawn from a taxpayer-funded source

when the ward’s estate has been depleted. D.C. Code § 21-2060 (a). Thus, as the

District of Columbia points out in its helpful submission as amicus curiae,5 “a

delayed petition for compensation may unjustifiably shift the obligation to pay

5 Both the District and the Superior Court Auditor-Master have filed amicus memoranda at the court’s request, and for which we are indebted to them. 7

guardian compensation from the ward to the Guardianship Fund, in contravention

of the Guardianship Act” (Memorandum by the District of Columbia as Amicus

Curiae Supporting Affirmance at 17).6

Moreover, as Judge Wolf had explained in Waller, supra note 6, Super. Ct.

Prob. R. 308 (d) & (e) “afford[] ongoing supervision of fees and expenses rather

than passing upon huge requests that may come years later”; the rule permits “the

parties, and the court, [to] focus on [and question, if necessary,] fee requests that

are more contemporaneous with the events giving rise to them, and the parties

accordingly may be given guidance on future fees and expenditures.” See also

District of Columbia v. Jackson, 878 A.2d 489, 492 (D.C. 2005) (citation omitted)

(the trial court itself has an interest in resolving petitions for compensation in a

timely matter, as “prompt filing” permits resolution “while the services performed

are freshly in mind”). Thus, while appellant may have been the party most directly

affected by her untimeliness, she is not the only entity that suffered the “danger of

prejudice” from her delays. See Farmer v. Slotnick, No. 96-15666, 1997

6 Judge Wolf had pointed out the same danger in an earlier case, In re Waller, No. INT 221-02 (D.C. Super. Ct. Dec. 12, 2008), stating that “compensation one year may be payable from the subject’s estate, and another year from the Fund . . . . But if at the end of four years, for example, there are no longer funds available from the subject’s estate, the petition may be seeking payment from the Fund that could have been paid for earlier time periods from the . . . estate.” 8

WL257471, at *1 (9th Cir. 1997) (“[A] showing of actual prejudice is [not]

required. In reviewing for abuse of discretion, we need only consider whether

there was a danger of prejudice to the party suffering the delay.”); Mesa v. Unocal

Corp., No. 01-3438, 2003 WL943639, at *3 (E.D. La. Mar. 5, 2003) (same).

Second, the five-year delay prompting appellant’s motion for enlargement of

time was exceptional. When she filed the motion, the multiple requests for

compensation subsumed within it were all untimely but for one, some by as much

as several years. Appellant’s response to this delay is to point to multiple probate

“filings ruled on in 2013” in other cases, where compensation requests were

approved in the face of delays as long as six years and ten months. But those

instances elsewhere of the court tempering justice with mercy do not demonstrate

an abuse of discretion by Judge Wolf. The earlier delays in this case, as appellant

admitted, stemmed from her voluntary decision to carry a large number of cases,

an issue plainly within her “reasonable control.” Yates, 988 A.2d at 468 (citation

omitted). The pattern of untimely compensation requests over the better part of a

decade, resulting from appellant’s own choice, was not the kind of “extraordinary

circumstance” that compelled the trial judge to excuse her latest in the succession

of delinquent filings. 9

Finally, appellant argues that the judge failed to make a finding of bad faith

based on clear and convincing evidence, a finding she asserts is necessary under

Pioneer Inv. Servs. Co. and related cases. The test under our decisions, however,

is whether the party seeking to excuse a default “acted in good faith,” Admasu, 108

A.3d at 362 (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395), a determination to

be made objectively in light of the circumstances, including the party’s knowledge

of the obligations neglected. See, e.g., 1618 Twenty-First St. Tenants’ Ass’n v.

Phillips Collection, 829 A.2d 201, 205 (D.C. 2003) (citation omitted) (“[g]ood

faith . . . is not a purely subjective notion involving the proverbial actor with a pure

heart and empty head” but includes some objective, “reasonable basis”); Pierola v.

Moschonas, 687 A.2d 942, 949 (D.C. 1997) (when a debtor disputes a claim “in

good faith,” the “good faith requirement . . . is concerned not so much with the

subjective moral character of the debtor but rather the requirement of

consideration” and whether “there is an objective reasonable basis for the debtor’s

disputing his obligation to pay”); Hemmati v. United States, 564 A.2d 739, 745

(D.C. 1989) (a “bona fide belief” which is akin to a good faith belief must be

founded in some “reasonable basis”). Thus, for example, whether appellant acted

“wanton[ly]” or “deliberate[ly],” “for an improper motive,” in delaying her

compensation requests (Brief of Appellant at 9) are distinctly secondary inquiries,

if relevant at all. 10

Besides appellant’s repeated late-filing of compensation requests, she

disregarded court deadlines even more important in nature. Judge Wolf found that

her tardy filing of guardianship reports had resulted in delinquency notices twelve

times in this case, despite a warning he had issued that she faced possible removal

from the appointment as a result. Appellant’s insistence that her conscientious

service to her wards gave rise to these delays rings hollow in light of D.C. Code

§ 21-2043 (e)(2), which requires a guardian to “limit his or her caseload to a size

that allows the guardian . . . [to] maintain regular and reasonable contact with each

ward . . . .” It goes without saying that timely-filed guardianship reports are the

means by which the court ensures such “regular and reasonable contact.”

Appellant’s habitual delinquency in filing those reports thus went to the heart of

her obligations as guardian, and, together with her indifference to the deadline for

compensation claims, eroded any basis for a finding of good faith as the cases

define it.

III.

For these reasons, the trial judge did not abuse his discretion in granting

appellant $2,603.00 in compensation, but in otherwise denying her fee request.

Affirmed.