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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 19-PR-0634, 20-PR-0329, 20-PR-0385, 20-PR-0511 & 21-PR-0552
IN RE PEARL ROBINSON;
BRUCE E. GARDNER, APPELLANT.
Appeal from the Superior Court of the District of Columbia (2014-INT-000358)
(Hon. Gerald I. Fisher & Hon. Jonathan H. Pittman, Trial Judges)
(Submitted April 26, 2023 Decided October 19, 2023)
Bruce E. Gardner, pro se.
Before BECKWITH and DEAHL, Associate Judges, and GLICKMAN, Senior Judge.
DEAHL, Associate Judge: Bruce Gardner, a court-appointed guardian and
conservator, asked the probate court to approve compensation for work he performed
on behalf of his ward, Pearl Robinson, who died during the pendency of this appeal.
This consolidated appeal concerns five different fee petitions spanning different
periods of time: three for guardianship services and two for conservatorship services.
In four of those, the probate court reduced or denied some of Gardner’s fees. In the 2
fifth, the court rejected his petition in its entirety after Gardner disobeyed a court
order and continued billing practices that the court had disallowed in a prior decision.
We affirm except in one very discrete respect, detailed below, on which we remand.
I.
This appeal is the latest in a string of fee disputes concerning Gardner’s
guardianship and conservatorship of Robinson. We provided some background in
previous appeals from the same underlying proceedings. See In re Pearl Robinson,
216 A.3d 887 (D.C. 2019) (Robinson I); In re Pearl Robinson, 280 A.3d 194 (D.C.
2022) (Robinson II). We summarize the pertinent details here before addressing
Gardner’s arguments.
Gardner was appointed Robinson’s guardian and conservator in 2014 after
briefly serving as her court-appointed counsel. 1 Robinson II, 280 A.3d at 196. At
the time, Robinson was an 85-year-old widow who lived with and cared for her adult
daughter, Karen. The D.C. Office of Adult Protective Services filed separate
1 We have acknowledged “grave concerns” about the circumstances surrounding Gardner’s appointment as guardian/conservator. Robinson II, 280 A.3d at 196. While serving as Robinson’s court-appointed attorney, Gardner failed to disclose to the court an alleged contract he made with Robinson in which she supposedly promised to pay him $300 an hour if he were to take on guardianship and conservatorship duties. Id. Robinson initially opposed his appointment as guardian/conservator but withdrew her objection; she was deemed incapacitated around the same time. Id. We held that the guardianship statute governed over any purported side agreement. Id. 3
petitions to appoint guardians and conservators for both the mother and daughter. A
court-appointed examiner who interviewed Robinson found that she was unable to
take care of her own basic necessities such as food, clothing, and personal hygiene.
The court approved the petitions, noting Robinson’s memory and health problems
(including her bedridden state) as well as her inability to manage her finances,
maintain the upkeep of her home, or look after her daughter, who previously relied
on Robinson for care. See D.C. Code § 21-2011(11). Gardner served as Robinson’s
guardian and conservator from 2014 until her death in 2022.
A. Robinson I and revised order on remand 2
Gardner’s fee petitions in this matter have been through the judicial wringer
both at the trial court and before this court. Robinson I concerned a guardianship
petition that Gardner filed for the period of November 2015 to November 2016. 3 He
had sought $56,832.50 in compensation for 187.7 hours of work at $300 an hour and
20.9 hours of work at $25 an hour. Robinson I, 216 A.3d at 889. Judge Richard
Levie approved $21,943—less than half of what Gardner requested—because many
2 This section concerns case numbers 20-PR-0329 and 20-PR-0385, which both relate to the amended “second guardianship petition” and the trial court’s revised order on remand following our instructions in Robinson I. 3 Robinson II, which the court recently decided, concerned Gardner’s “third conservatorship petition” (covering the period of November 2016 to November 2017), among other issues. That fee petition is not relevant to this appeal. 4
of Gardner’s billed activities, such as driving Robinson to appointments and writing
checks, did not require any special expertise to justify the $300 hourly rate. Id. The
court approved the $300 rate for legal services but determined that other services for
which Gardner could have hired lower-cost aides would be compensated at $90 per
hour. Id. Judge Levie selected the $90 hourly rate because it “more appropriately
reflect[ed] the value of [Gardner’s] services,” and because that is the rate at which
guardians are paid using public funds when a ward’s estate is depleted. Id. at 891;
see also D.C. Code § 21-2060.
Gardner appealed, and we concluded that “further explanation [was] required”
on why the court picked those rates. Robinson I, 216 A.3d at 891. Our case remand
was a generic one, vacating “the trial court’s order and remand[ing] for further
proceedings” in light of what we described as inadequate explanation supporting the
trial court’s assigned rates. Id at 892.
Judge Jonathan Pittman, assigned the case on remand, held that $90 was not,
in fact, a reasonable rate, but too high a rate for the services Gardner provided. Judge
Pittman further reduced Gardner’s compensation from $21,943 to $15,765. The
hours that were previously compensated at the $90 rate were divided into “core”
guardianship services, which the court compensated at the $300 rate, and “non-core”
services, such as caregiving, which the court downgraded to a $25 hourly rate. In
the “core” $300 category, in addition to the legal tasks counted in the initial order, 5
the court included “time spent meeting with Ms. Robinson to learn or discuss her
condition or needs” and “time talking with healthcare providers about Ms.
Robinson’s medical needs and consenting to medical treatment and procedures.”
For the periods during which Gardner discussed these subjects with Robinson while
he drove her to appointments, the court compensated his travel time at half the
regular hourly billing rate, or $150.
The court based the lower caregiver rate on the fact that “a home care aide
could readily have been hired at $25.00 per hour to perform the caretaking tasks that
Mr. Gardner took it upon himself to perform at $300.00 per hour.” Tasks in this
category included addressing pest issues in Robinson’s home, shopping for food,
and taking care of other personal needs. The court arrived at $25 because that was
the rate that Gardner had previously come up with for some of his shopping activities
and because the average wage for home health care aides in the District at the time
was around $14 per hour (and Robinson’s health care aides were themselves paid
between $15 and $25 per hour). The court viewed this rate as reasonable because
Gardner could have outsourced those chores to a competent housekeeper.
In reducing Gardner’s rate from $300 to $25, the court noted that his billing
practices were “antithetical to his fiduciary obligations” to Robinson and were
“contributing to the depletion of her estate.” Gardner had sought a total of
$478,946.06—more than half of Robinson’s liquid assets—in the first five years of 6
his appointment as guardian/conservator. The estate was rapidly shrinking, not just
due to Gardner’s billing (various judges had reduced or denied Gardner’s invoiced
fees) but also due to the cost of home health care aides, medical treatment, and other
services. Her liquid assets had gone from $864,759.63 when Gardner was first
appointed to $156,944.12 some three years later. Her assets were expected to be
depleted within a year if spending continued at the same rate, meaning there would
be no funds left to pay for her private home health care aides. When the court asked
what Gardner planned to do about the estate’s imminent depletion, Gardner had no
answer.
As we elaborate on below, Gardner argues that the trial court exceeded the
scope of this court’s remand order in Robinson I by reducing his rate from $90 to
$25 for some of his services. He also attacks this order (and others described below)
on the grounds that the court arbitrarily decided the rates for caregiving and travel
time and that all of his billed services fell within the guardianship statute’s ambit
and therefore should have been compensated at his $300 rate.
B. Other fee petitions
In addition to the second guardianship petition, at issue in Robinson I, Gardner
also challenges the trial court’s reductions and denials of fees in: (1) the third
guardianship petition (November 2016 to November 2017); (2) the fourth
guardianship and conservatorship petitions (both November 2017 to November 7
2018); and (3) the sixth conservatorship petition (November 2019 to November
2020).
1. The Third Guardianship Petition
In ruling on the third guardianship petition, Judge Gerald Fisher incorporated
the reasoning of Judge Levie’s decision on the second guardianship petition. Judge
Fisher issued his order and denied Gardner’s motion for reconsideration before we
issued Robinson I, in which we vacated in part and remanded Judge Levie’s decision.
The third guardianship petition featured the same billing practices as others
Gardner had filed in this and other cases, which had drawn rebukes from various
judges. As one illustration of his typical practice, Gardner sought to charge
Robinson $420 for picking up her prescriptions at a CVS on one particular day (a
nearly 1.5 hour trip billed at the $300 rate), reminiscent of his $540 charge for
picking up adult diapers for one of his wards in another case. See In re Goodwin,
275 A.3d 283, 285 (D.C. 2022). The court denied just over half of Gardner’s total
requested fees. In line with Judge Levie’s reasoning, Judge Fisher reduced the rate
of compensation to $90 per hour for services that could have been handled by a
caregiver, secretary, or paralegal, and he assigned a $25 hourly rate of compensation
for tasks that “require no specialized skills whatsoever,” such as shopping. The court
approved the $300 rate only for services requiring legal or fiduciary skills. Gardner
filed a motion for reconsideration, which was denied. 8
2. The Fourth Petitions
In the fourth fee petitions, Gardner sought $79,930.44 for his guardianship
services and $41,354.54 for his conservatorship services, totaling $121,284.98 for
one year. As with his order on remand in Robinson I, Judge Pittman found $300 too
high a rate for the administrative and caretaking services that Gardner had billed for
in his fourth guardianship and conservatorship petitions. The court again approved
only $25 per hour for tasks that could have been performed by a caretaker at a lower
rate. The court rejected some of Gardner’s billed time altogether, including “almost
$16,000” invoiced “simply for writing checks to pay [Robinson’s] bills and
preparing related documents,” which Gardner spread out over the course of about
500 entries for 0.1 hours of time—six minutes per check written—billed at $300 per
hour. Gardner received no compensation for reviewing Robinson’s blood pressure
readings, a task he had billed nearly $4,000 for. He also received no compensation
for recording his own time, for which he had billed about $3,500. The court also
disallowed charges for some, but not all, of the time that Gardner spent preparing
motions for reconsideration and appellate briefs concerning his denied fees.
3. The Sixth Conservatorship Petition
Following his decision on the fourth petitions, Judge Pittman issued an order
finding that Robinson’s estate was depleted within the meaning of D.C. Code
§ 21-2060. That order denied another set of fee petitions (not relevant here) without 9
prejudice so that Gardner could file renewed petitions seeking fees from the public
guardianship fund. But the court also instructed that “any renewed fee petition shall
not include billing entries or requests for fees for any of the category of fees that
were disallowed” in the court’s decision concerning the fourth petitions (writing
checks, reviewing blood pressure, and so forth). The court warned that “any
amended fee petition that does not comply with the foregoing is subject to summary
denial.” Gardner nonetheless filed his sixth conservatorship petition, which
continued to bill for the same activities that the court had disallowed. Gardner
provided additional arguments for why he should be compensated, but did not seek
leave to defy the court’s order. Because Gardner refused to comply with the court’s
order, his petition was denied in its entirety.
II.
Court-appointed conservators and guardians are entitled to reasonable
compensation for their services. They are generally compensated from their ward’s
funds, with the court’s approval, provided the ward has sufficient assets for that.
D.C. Code § 21-2060(a). If the ward’s estate is depleted, the fiduciary may obtain
compensation from the public guardianship fund. Id. § 21-2060(b). The guardian
must file petitions detailing the services provided, the amount of time spent on each 10
service, and the applicable rate for their services. Super. Ct. Prob. R. 322(b). 4 In
ruling on fee petitions, the trial court considers the nature of the work performed and
whether that work was necessary or appropriate. In re Orshansky, 952 A.2d 199,
211 (D.C. 2008). In addition to being compensated for their court-appointed work,
guardians may sometimes be compensated—at the discretion of the trial court—for
work they do to defend their right to compensation. In re Smith, 138 A.3d 1181,
1185–86 (D.C. 2016) (holding that “compensation for services . . . in connection
with a guardianship” in D.C. Code § 21-2060(a) is broad enough to permit “the
Superior Court, in its discretion, to approve compensation for a conservator or
guardian’s work on an appeal in pursuit of a claim for compensation”).
“We review the denial of a compensation request for abuse of discretion and
review the underlying legal principles de novo.” Robinson I, 216 A.3d at 890. “In
reviewing a decision for abuse of discretion, we must assess whether the trial court
failed to consider a relevant factor or relied upon an improper factor, and whether
the reasons given reasonably support the conclusion.” In re Orshansky, 804 A.2d
1077, 1093 (D.C. 2002) (cleaned up).
4 The Superior Court’s Probate Rules were revamped in August 2022. D.C. Super. Ct., Rule Promulgation Order 22-03 at 1 & n.1 (2022), https://www.dccourts. gov/sites/default/files/2022-03/Promulgation-Order-22-03-Amending-Super-Ct- Prob-R.pdf; https://perma.cc/8E8Q-EBLX. We cite to the current version of the rules. While a variety of different rules were in effect at the times relevant to the trial court proceedings, none of the differences are material to our consideration here. 11
III.
Gardner argues that the probate court (1) exceeded the scope of this court’s
remand instructions in Robinson I; (2) abused its discretion in precluding
compensation for certain administrative tasks, cutting his rates for caretaker and
travel-related tasks, and denying one petition in its entirety; and (3) erred in denying
compensation for some of his work on fee litigation matters. We address each
argument in turn.
A.
Gardner first argues that the court exceeded the “limited scope” of our remand
order in Robinson I when it concluded that $90 was too high a rate for some of the
non-legal services he provided. We disagree.
Gardner is invoking what we sometimes refer to as the “mandate rule,” which
is “related to the doctrine of ‘law of the case.’” See Streater v. United States, 478
A.2d 1055, 1057 n.3 (D.C. 1984) (quotation omitted). The mandate rule provides
that a trial court is not free to reconsider issues that have already been resolved by
the appellate court in the same case, but the flipside is also true: “[A] trial court
‘retains discretion under the mandate rule to reconsider, on remand, issues that were
not “expressly or implicitly” decided’ by the appellate court.” Robinson v. United
States, 878 A.2d 1273, 1277 n.2 (D.C. 2005) (quoting United States v. Stanley, 54
F.3d 103, 107 (2d Cir. 1995)). So when Gardner now argues that the trial court was 12
not free to revisit the previously determined $90 rate for some of his services and
reduce it to $25 per hour, the question becomes whether we decided in Robinson I
that $90 was a reasonable rate so as to preclude the trial court from revisiting that
judgment. We did not.
In Robinson I, we noted that the trial court did not adequately explain why it
had reduced some of Gardner’s billed rates from $300 to $90, but a reader of that
opinion will search in vain for any conclusion that the $90 rate itself was reasonable.
We said nothing of the sort. And Robinson I was not a record remand, where “this
court retains jurisdiction over the case, and the trial court may take no action, with
respect to the case, other than that specified in the record remand order.” Bell v.
United States, 676 A.2d 37, 41 (D.C. 1996). It was an open-ended case remand.
Robinson I, 216 A.3d at 889 (“We vacate the trial court’s order and remand the
case.”) (emphasis added); id. at 892 (“[W]e vacate the trial court’s order and remand
for further proceedings.”). A case remand, unlike a record remand, “allows the trial
court to amend the ruling that was reviewed and found wanting on appeal.” Jung v.
Jung, 844 A.2d 1099, 1106 n.7 (D.C. 2004).
For his contrary review, Gardner relies on a single statement from Robinson
I in which this court said that “the trial court has not yet adequately explained . . .
why $90 is a reasonable hourly rate,” 216 A.3d at 892, contending that this statement 13
restricted the trial court to offering an explanation in support of its previously
determined rate, rather than permitting revisitation of it. That is wrong. Our
previous holding that the trial court failed to explain why $90 was a reasonable
hourly rate clearly does not express the view that the rate was, in fact, reasonable
(much less the view that it was the only reasonable rate). Plus (1) we remanded the
case, rather than the record, and (2) we did so in the fairly typical sweeping manner,
“remand[ing] for further proceedings,” id. at 892; both of these aspects of our prior
opinion evince no intention to restrict the trial court to merely offering an
explanation in support of its previous determination. The trial court was free to
revisit the appropriate rate.
B.
Gardner next argues that the trial court abused its discretion in various ways
by reducing or denying his claimed fees for non-legal services. We disagree in all
but one limited respect regarding the third guardianship petition. The trial court’s
order pertaining to the third guardianship petition pre-dated our opinions in
Robinson I and Robinson II and, like the orders at issue in those cases, assigned a
$90 hourly rate of compensation for “non-legal tasks.” The trial court used that rate
because attorneys compensated under the guardianship fund receive $90 per hour.
See In re Goodwin, 275 A.3d at 285. This court previously demanded more
reasoning than that, and so we do the same. See Robinson I, 216 A.3d at 891-92; 14
Robinson II, 280 A.3d at 197-98. Of course, the trial court is free to decide on
remand that $90 is in fact too high an hourly rate for activities in which Gardner
“[r]eviewed blood pressure and pulse readings,” “[m]et with [r]oofing guy,” or
“[i]nspected installation of the toilet,” similar to the trial court’s conclusion after the
Robinson I remand.
The other orders that Gardner attacks post-dated our opinion in Robinson I
and adequately responded to our instruction in that case to provide more reasoning
supportive of various rates of compensation. The trial court explained at length why
it was disallowing certain fees in Gardner’s remanded second guardianship petition,
fourth guardianship petition, and fourth conservatorship petition. We explained in
Robinson I that it was proper for the court to consider “(1) how granting the request
in full would diminish the assets of Ms. Robinson’s estate and (2) Mr. Gardner’s
obligation to conserve those assets.” 216 A.3d at 890-91. The court provided further
reasoning for why it was compensating guardianship tasks at $300, caretaker and
housekeeper tasks at $25, and certain overhead and administrative tasks at $0.
The orders show that all relevant factors were considered and no improper
factors were considered. Gardner counters that the trial court failed to consider,
among other things, that some of his rejected fees were previously awarded (in this
case and others) for the same activities. See In re Wilson, 277 A.3d 940, 944-45
(D.C. 2022) (remanding for court to clarify why it awarded certain fees for travel in 15
one case but not another). We have twice rejected a species of this argument in the
two prior appeals in this case. Robinson II, 280 A.3d at 197 (a trial court may make
“an independent determination as to the reasonableness of the hourly rate claimed in
a given compensation application”). While prior awards are certainly relevant—and
the orders challenged here all recounted Gardner’s history of fee awards in this
case—they are not dispositive. The trial court also appropriately considered changed
circumstances, including the rapid depletion of Robinson’s estate.
In a recent opinion that post-dated the orders at issue here, we explained that
blanket denials of compensation for administrative tasks would be “at odds with our
‘expansive view of the kind of duties that are compensable under the Act.’” In re
Wilson, 277 A.3d at 946 (quoting In re Weaks, 224 A.3d 1028, 1034 (D.C. 2020)).
Gardner was also the appointed guardian in that case. But the administrative tasks
that he performed there, for which the trial court denied compensation, were
different from those here in both substance and scale. The trial court had disallowed
nine entries for “summaries of services he performed” and the time it took him to
electronically file two guardianship reports and a fee petition. Id. at 945. We
explained that the Guardianship Act did not mandate an automatic denial of all such
tasks. But we confirmed that “[t]he trial court has discretion, of course, to deny or
reduce a fee request it does not deem reasonable, and that includes a fee for time
spent on administrative tasks.” Id. at 947. We also suggested that it would be 16
appropriate for administrative tasks to be compensated at a rate lower than the
fiduciary’s standard rate. Id. at 946.
Here, the court did not deny compensation for administrative tasks just
because they were administrative. Rather, the court considered the fact that his
clerical tasks “reflect gross inefficiency, resulting in massive overcharging.” The
trial court had overwhelming evidence to support its view that Gardner was padding
his time, and doing so to an incredible degree: charging one-tenth of an hour, or $30,
for every check he wrote, and charging for his driving and waiting time at the bank
to deposit checks that could have been deposited electronically. He had billed nearly
$16,000 in one year merely for writing checks and preparing related documents. The
court did not abuse its discretion in denying compensation for such tasks given the
larger context of Gardner’s unreasonable billing practices in this case and their
deleterious effect on his ward’s estate.
Gardner’s argument for why he should be compensated at $300 per hour for
caretaking tasks, rather than $25, is equally unpersuasive. Gardner offers a
smattering of explanations for taking on housekeeping-related tasks, but none is
persuasive. He first argues, with no apparent sense of irony, that “three female
Ethiopian homecare health aides” could not be trusted with cash to shop for
Robinson’s food, so he had no choice but to purchase the food himself and to charge
$300 per hour to do so. He next claims that he could not utilize food delivery 17
services because they required a credit card and Robinson did not have one. That
supposed hurdle was of Gardner’s own making. He could have hired workers who
he could trust to do the shopping, and he could have obtained a debit or credit card
for Robinson (he was her conservator in charge of her finances). He finally suggests
that the Guardianship Act and probate rules precluded him from delegating those
tasks, citing to D.C. Code § 21-2047(b)(6), but that provision says no such thing. It
is a grant of permission allowing the guardian to delegate “certain responsibilities”
to the ward, id., not a constraint precluding the guardian from delegating
rudimentary tasks to suitable individuals.
The trial court also noted that Gardner billed nearly five times as many hours
as Karen’s guardian had billed over the same four-year stretch (between 2014 and
2018), despite the fact that Robinson and her daughter were “similarly situated,”
“disabled, share[d] the same house, and utilize[d] in-home health care aides.” And
that does not account for Gardner’s conservatorship services; when those are added
into the mix, Gardner charged nearly eight times the hours of Karen’s guardian, in
total.
The court’s 50% reduction in Gardner’s travel-related tasks was also a proper
exercise of discretion. While we previously remanded a case for the court to provide
further explanation for its half-time travel rate, In re Wilson, 277 A.3d at 943-45, the
trial court here gave sufficient reasons in support of reducing Gardner’s $300 rate to 18
$150 for his travel time. The court persuasively analogized to fee-shifting cases in
which attorneys are compensated at half their rates for certain travel time. The court
authorized this hourly rate even for travel in which Gardner provided no fiduciary
services, reasoning that doing so “strikes an appropriate balance between
compensating a fiduciary for traveling to appointments . . . and preservation of a
ward’s assets.”
Finally, it was not an abuse of discretion for the trial court to deny Gardner’s
sixth conservatorship petition entirely, as Gardner violated an express order of the
court without seeking leave to do so. Gardner was specifically ordered to “not
include billing entries or requests for fees for any of the category of fees that were
disallowed.” The court admonished that “any amended fee petition that does not
comply with the foregoing is subject to summary denial.” Without leave of the court,
Gardner nonetheless submitted another fee petition containing the same billing
entries that the court had disallowed and repeatedly denied on multiple motions for
reconsideration.
C.
The trial court did not abuse its discretion in refusing to compensate Gardner
for some of his work on motions to reconsider and his various appeals. A trial court
may grant compensation to a fiduciary for the time spent protecting their rights to
compensation even if the fee-related litigation was of no benefit to the fiduciary’s 19
ward. In re Smith, 138 A.3d at 1188. Granting fees incurred in fee litigation is not
mandatory, however, and the trial court has discretion to award or deny those
additional fees. Id. at 1185-86.
The court properly exercised its discretion in denying Gardner’s fees for the
time he spent on motions for reconsideration that were largely without merit,
unsuccessful, and repetitive. As for Gardner’s work in a previous appeal, Robinson
I, the court permitted some fees and disallowed others. Because Gardner prevailed
in obtaining a remand order—albeit one that ultimately led to a reduced recovery for
Gardner—the court granted all of Gardner’s requested fees for preparing his opening
merits brief and reply brief. The trial court disallowed other parts, such as 20.1 hours
spent preparing an “amended/corrected” brief. Gardner’s motion for leave to file
the amended brief in that appeal stated that he had corrected “grammatical and
typographical errors,” “condense[d] the facts,” filled in missing page citations in the
table of contents, and “clarifie[d] points of law” but did not change substantively his
initial brief. The need to correct his own brief was of Gardner’s own making, and
the court properly exercised its discretion in denying compensation. See In re
Gardner, 268 A.3d 850, 861 (D.C. 2022) (“[T]he fact that a fiduciary creates work
for themselves in connection to obtaining compensation is a basis to deny or discount
an award of fees sought for that work.”). 20
D.
Finally, we note our serious misgivings about Gardner’s practices in this case,
as admirably detailed in Judge Pittman’s July 23, 2020, order. Over the course of
five years, Gardner sought to collect nearly $500,000 of Pearl Robinson’s once
considerable, and now depleted, assets. He did so through thousands upon thousands
of 0.1 hour (or 6 minute) entries submitted to the court for approval at a rate of $300
per hour for everyday tasks requiring no specialization whatsoever. Only once his
blizzard of charges is totaled does one see the hundreds of thousands of dollars that
Gardner sought for rudimentary and largely automatable tasks such as check writing,
delivery services, checking blood pressure readings, and other chores that could have
been assigned to a home health aide paid closer to $25 an hour than the $300 Gardner
sought to charge. He also billed Robinson for other questionable tasks like an hour
of “listening to CNBC” for information on stocks, at a rate of $300. The trial court’s
conclusion that “Gardner is guilty of rampant overbilling” is substantiated by the
record.
To highlight just a few more specifics of Gardner’s practices in this case that
concerned Judge Pittman: Gardner sought $16,000 from Robinson for writing
checks over the course of a single year. He charged Robinson $420 for a single trip
to CVS to pick-up her prescriptions. Gardner billed Robinson for five times as many 21
hours as the guardian for Robinson’s daughter Karen over the same period of time,
even though Robinson and Karen were—in the trial court’s words—“similarly
situated” in terms of the care they needed. 5 And after moving Robinson into a
nursing home, Gardner petitioned the court to sell her home, valued at $650,000, at
least in part to pay his mounting fees. The court denied his petition because
Robinson’s daughter Karen was a co-owner and joint tenant of that home and
retained a right of survivorship in it, a fact that Gardner failed to disclose in his
petition to sell the home. While the trial court found that omission “inexplicabl[e],”
one possible explanation is that it was a deliberate omission: Gardner wanted to tap
into Robinson’s home equity and disclosing Karen’s ownership interest in the shared
home likely would have prevented him from doing that, so he wanted to conceal
Karen’s interests in the home.
We have previously detailed similar concerns about Gardner’s billing
practices over the course of several published opinions. See, e.g., In re Gardner,
268 A.3d at 853-54 (detailing how Gardner “bill[ed] for travel from a dummy
5 In his motion for reconsideration before the trial court, Gardner argued that his quintupled hours were justified largely by all of the motions and appeals he had filed in order to secure payment. But in fact those legal filings were only a tiny fraction of Gardner’s billed hours, and themselves were no doubt occasioned by the fact that Gardner’s overbilling required extensive court scrutiny, rather than redounding to Robinson’s benefit in any way. 22
location outside the District” that “was in fact an address for a UPS store,” possibly
to inflate his travel time); Robinson II, 280 A.3d at 196 (noting trial court’s “grave
concerns about Mr. Gardner’s conduct in connection with” his alleged side
agreement with Robinson and the court’s “‘profound[] disturb[ance]’ by the ethical
questions created by the alleged agreement,” which had it been disclosed, would
“have made it highly unlikely that Mr. Gardner would have been appointed” as her
guardian/conservator). For instance, and similar to the $420 Gardner sought to
charge Robinson for a single trip to pick up prescriptions, he sought to charge a
different ward $540 for a single trip to pick up diapers. In re Goodwin, 275 A.3d at
285 (recounting how Gardner billed that task as a 1.6 hour endeavor at $300 per
hour). This continued pattern of behavior raises serious concerns about Gardner’s
suitability to act as a guardian.
IV.
For the foregoing reasons, we affirm the trial court’s orders as to all but the
third guardianship petition and remand for further proceedings. The trial court on
remand should provide additional reasons for its award as to that petition, consistent
with the reasoning above. It is within the court’s discretion to decrease Gardner’s
compensation if there is a sufficient factual basis for doing so.
So ordered.