In re Estate of McKitrick

757 S.E.2d 295, 326 Ga. App. 702
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2014
DocketA13A2351
StatusPublished
Cited by6 cases

This text of 757 S.E.2d 295 (In re Estate of McKitrick) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of McKitrick, 757 S.E.2d 295, 326 Ga. App. 702 (Ga. Ct. App. 2014).

Opinions

McFADDEN, Judge.

This appeal, filed on behalf of Lorraine McKitrick, an incapacitated adult (“the Ward”),1 by attorneys she retained shortly before she was adjudged incompetent, seeks review of two orders entered by the probate court. Specifically, she first challenges the probate court’s finding that the conservator appointed for her estate did not have a conflict of interest that resulted in harm to the Ward. But because the Ward failed to include the transcript of the hearing at which this issue was addressed and evidence presented, we must affirm. The Ward also challenges the court’s order establishing the hourly rate that counsel for the Ward could bill for legal fees to be paid by the conservator. We vacate the probate court’s order establishing the hourly rate and remand for the court to consider evidence on the issue.

The record reveals that on January 4, 2013, prior to a determination that she was incapacitated, McKitrick retained counsel to represent her in “Cobb County Probate case #12-1853.” It is undisputed that on February 20,2013, however, the probate court appointed McKitrick’s son, Thomas Richardson, to serve as her conservator, and her daughter, Mary Mellom, to serve as her guardian.2 While it is not [703]*703included in the record here on appeal, the parties do not dispute that around March 11, 2013, Richardson, as conservator, filed a “Petition to Maintain Previously Established Estate Plan and for Continuing Powers to Invest.” The Ward objected that her son Richardson should be removed as conservator because his ownership interest in her assets created a substantial conflict of interest that caused her harm.

On April 29,2013, the probate court held a hearing on the matter during which the “question of counsel’s authority to serve as counsel for the Ward” was also raised.3 Two days following the hearing, counsel for the Ward filed a “Notice of Intent to Continue as Ward’s Attorney,” asserting that because the Ward hired counsel prior to the capacity hearing, he intended to continue to represent her interests. On May 17, 2013, the probate court entered orders addressing these issues, and it is from these rulings that the Ward appeals.

1. Conservator’s conflict of interest.

The Ward complains that her conservator, because of his conflict of interest, “should either step down or divest himself of the ownership of the assets of the Ward’s estate.” She complains that the conservator refused to “spend any of the corpus of the Estate on the items that the Ward desires,” and “has been dilatory in paying necessary items.” The conservator responds that the evidence presented at the hearing on this matter reveals that his judgment is not clouded, that he has sought authority for all necessary expenditures as well as items and services requested by the Ward, and that the evidence showed nothing other than that he has been carefully conserving the Ward’s assets and paying for her care. The probate court ruled that although the conservator had a conflict of interest as a result of his potential death benefit in the Ward’s accounts, there was no showing that the conflict had resulted in harm to the Ward.

OCGA § 29-5-24 (b) provides:

The conservator must disclose promptly any conflict of interest between the conservator and the ward when it arises or becomes known to the conservator. The conservator must seek the court’s determination as to whether the conflict is insubstantial or whether it is in the best interest of the ward for the conservator to continue to serve and not forfeit any property right. If the court finds that the conflict of interest is substantial or contrary to the best interest of the ward, the conservator may either resign or forfeit the property interest that is the source of the conflict.

[704]*704“We review a probate court’s evidentiary holdings under the familiar abuse of discretion standard of review.” (Citations and footnote omitted.) Dorsey v. Kennedy, 284 Ga. 464 (1) (668 SE2d 649) (2008). But because a transcript is necessary for a review of the evidence presented at the hearing on this matter, and the record here does not contain a transcript, we “must presume the evidence was as the probate court found and its judgment correct on all issues presented. [Cit.]” Gordon v. Cotton, 285 Ga. 826, 827 (684 SE2d 621) (2009). We therefore affirm the probate court’s ruling with regard to the conservator’s alleged conflict of interest.

2. Attorney fees.

The Ward complains that the probate court erred in setting an hourly rate at which her hired counsel could bill for his services.4 We vacate and remand for the probate court to consider parol evidence on this issue. But first we address whether the fee agreement contemplated a flat fee or an hourly rate, an issue raised by the dissent.

(a) The parties contemplated an hourly rate.

The dissent argues that application of the rules of contract construction leads to the conclusion that the Ward and her attorney intended a flat rate when they entered into the Fee Agreement and Contract for Representation. But the parties do not challenge on appeal the probate court’s ruling that the fee agreement “expressly contemplate[s] an hourly rate for services.” Nonetheless, given our de novo standard of review, see Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga. App. 696, 699 (1) (598 SE2d 12) (2004), and the dissent’s discussion of the issue, we address whether the fee agreement provided for a flat fee or an hourly rate.

The Fee Agreement and Contract for Representation provides in pertinent part:

Fee
The Client agrees to pay the Firm a retainer of $2,700.00 to try and cover the case through its completion. The Firm will provide the Client with periodic billing statements detailing the work performed during the billing period, the number of hours and fractions thereof expended in performing the work, the nature and amount of the expenses incurred during the billing period, the amount transferred out of the [705]*705escrow account in payment of the services performed, expenses incurred during the billing period, and the amount remaining in the escrow account.

The probate court remarked that she was “temptfed]... to limit the fees to a flat rate.” She acknowledged that the agreement between the Ward and her counsel “is obviously vague as to the billing rates to be charged,” but held that it “expressly contemplate [d] an hourly rate for services.” We agree.

“The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). “[Cjontracts must be construed in their entirety and in a manner that permits all of the terms contained therein to be consistent with one another.” Schwartz v. Schwartz, 275 Ga. 107, 108 (1) (561 SE2d 96) (2002) (citation omitted). “The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” Antonin Scalia and Bryan A.

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Cite This Page — Counsel Stack

Bluebook (online)
757 S.E.2d 295, 326 Ga. App. 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-mckitrick-gactapp-2014.