#28130-r-SLZ

2018 S.D. 10

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

                             In The Matter of
                         The Conservatorship of
                   MARTIN A. BACHAND, a Person Alleged
                           to Need Protection.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                    THE HONORABLE HEIDI LINNGREN
                               Judge

                                   ****

JENNIFER L. TOMAC of
Tomac & Tomac, PLLC                         Attorneys for Appellant,
Rapid City, South Dakota                    Beverly Sears, Guardian.

KAREN PAIGE HUNT
Sturgis, South Dakota                       Attorney for Appellee, Michael
                                            Bachand, Interested Party.

ERIKA S. OLSON of
Lynn Jackson Shultz & Lebrun, PC            Attorneys for Appellee, Lyndell
Rapid City, South Dakota                    Petersen, Conservator.

                                   ****

                                            CONSIDERED ON BRIEFS ON
                                            NOVEMBER 6, 2017

                                            OPINION FILED 01/24/18
#28130

ZINTER, Justice

[¶1.]        The question on appeal is whether a guardian’s attorney fees should be

paid from a protected person’s estate when the fees were incurred in responding to

pleadings to remove the guardian and to move the protected person to an assisted

living facility. We reverse the circuit court’s denial of fees and remand to determine

whether the fees were reasonable in amount and necessarily incurred in the

administration of the guardianship.

                            Facts and Procedural History

[¶2.]        Martin Bachand suffered a head injury in 2006. His son Michael

Bachand was appointed guardian in 2007 and conservator in 2008.

Notwithstanding the guardianship, Martin continued to live with his significant

other and caregiver, Beverly Sears.

[¶3.]        Michael and Martin began having disagreements, and Michael

suffered a stroke in 2010, which required him to resign. A settlement agreement

was reached under which Sears replaced Michael as guardian and Lyndell Petersen

became Martin’s conservator.

[¶4.]        Martin continued to live with Sears. The court preauthorized

budgeted, monthly guardianship expenses associated with Martin living in Sears’s

home. For example, in 2014, the approved budgeted expenses included $250 for

adult daycare providers, $900 for in-home-care providers, and $829.50 for Sears’s

household expenses. However, Martin was occasionally placed in facilities outside

Sears’s home, which required expense approvals from Petersen or the court. In

2016, Sears suffered from health issues that required her hospitalization and


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limited her ability to care for Martin. This also required Petersen to request

additional care for Martin.

[¶5.]        Michael became dissatisfied with Sears as Martin’s guardian. In

August 2016, he filed a motion to have Martin placed in an assisted living facility.

He also petitioned to have Sears removed as guardian, alleging that she was unfit.

Michael alleged that she had limited ability to care for Martin, that her acts

frequently required expenditures exceeding what the court had authorized, and that

she failed to file annual guardianship reports for several years. Michael also

alleged that Sears benefitted personally from the guardianship arrangement

because it provided both Sears and Martin with financial resources, house cleaning,

and meal preparation. Sears retained attorneys from Tomac & Tomac to respond to

the petition and motion. Sears’s attorney fees and some of the related expenses are

the subjects of this appeal.

[¶6.]        The attorney services included matters such as reviewing the entire

nine-year-old case file, having property appraised, having Martin and his living

conditions evaluated, conducting depositions, researching issues, and drafting court

documents in response to Michael’s motion and petition. Following extensive

preparation, a two-day hearing was scheduled. Although the parties and counsel

appeared at the courthouse prepared to try the matter, the court urged the parties

to confer and consider a settlement. The parties conferred and settled both disputes

at the courthouse. Sears agreed to step down as guardian but Martin would not be

moved to a facility. He would remain in Sears’s care in her home.




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[¶7.]         At the conclusion of the hearing, Sears orally moved for her attorney

fees incurred in this dispute ($19,102.86). The circuit court took the matter under

advisement and held an additional hearing on the matter.1 After considering

arguments of counsel, the court denied the motion. Sears appeals.

                                        Decision

[¶8.]         Sears argues her attorney fees should be paid from the estate under

SDCL 29A-5-116. That statute provides: “Any . . . attorney for any guardian or

conservator . . . [is] entitled to reasonable compensation from the estate, including

reimbursement for costs advanced.” Id. “Thus, when attorneys for guardians or

conservators are entitled to reasonable compensation for their services, the fees are

to be paid ‘from the estate.’” In re Guardianship of G.T.C., 2014 S.D. 65, ¶ 7,

854 N.W.2d 343, 345 (quoting SDCL 29A-5-116). The question in this case is

whether Sears’s attorneys were “attorney[s] for any guardian,” and if so, whether

their fees were “reasonable.” See SDCL 29A-5-116.

[¶9.]         To be an “attorney for any guardian” within the meaning of SDCL 29A-

5-116, the attorney’s services must be “necessarily incurred in the administration of

the [guardianship.]” See In re Guardianship & Conservatorship of Miles, 2003 S.D.

34, ¶ 30, 660 N.W.2d 233, 238-39. If the services were necessarily incurred in the

administration of the guardianship, then only those fees that are “reasonable” may

be paid “from the estate.” See SDCL 29A-5-116. Factors to consider when



1.      No evidence was taken at the hearing. Although Sears’s attorney prepared
        and sent to the parties an affidavit and itemized sheet listing the attorney
        fees, neither of those documents appear in the settled record. It is not clear
        whether those documents were formally filed with the circuit court.

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determining the reasonableness of fees include: “the time and skill required;

whether the case precluded the attorney from accepting other employment; the fee

customarily charged in the locality; the amount involved and the results obtained;

the time limitations imposed; the nature and length of the relationship; the

experience, reputation and ability of the attorney; and whether the fee was fixed or

contingent.” See In re Estate of Mathison, 468 N.W.2d 400, 406 (S.D. 1991).

[¶10.]       Sears argues the fees were reasonable in amount and necessary for

her, as Martin’s guardian, to respond to Michael’s petition and motion. She

contends that as the court-appointed guardian, she had a duty to respond with

particularity. In her view, she should not have to personally pay her attorneys

when the purpose of their services was to gather evidence and prepare for a hearing

that concerned the guardianship. She also contends that a number of attorney

services related to necessary guardianship administration such as reviewing the

file, preparing guardianship reports, obtaining evaluations of Martin and his living

conditions, participating in depositions, and responding to subpoenas.

[¶11.]       Appellees, however, argue that the services were not necessarily

incurred and that the fees were not reasonable in amount. With respect to

necessity, they contend these proceedings were necessary only because Sears failed

to fulfill her duties as Martin’s guardian. They also contend that Sears obtained the

services solely to preserve her status as guardian and personally benefit from

household-expense payments incidental to the guardianship. Michael separately




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contends Sears misused her authority and failed to follow court orders.2

[¶12.]         The circuit court did not address these specific contentions, each of

which is related to the necessity of the services in administering the guardianship

or the reasonableness of the fee amount. In its bench decision, the court denied the

fees, stating that they were not “appropriate” for Martin’s estate to pay. Although

the court suggested that the fees may have been reasonable in amount, it

specifically declined to make that determination.3 The court also indicated that its

decision was based on prior guardian acts and proceedings that had occurred before

Sears’s current attorneys performed their services in these proceedings.4




2.       Petersen also argues that fees should not be paid from the estate because he
         did not, as Martin’s conservator, employ Sears’s attorneys. He contends a
         guardian’s attorney fees may only be paid from the estate when the attorney
         is hired or authorized by the appointed conservator because the conservator
         has the power to employ attorneys. See SDCL 29A-5-411(18). However,
         SDCL 29A-5-116 does not condition payment of fees only upon authorization
         by the conservator, and we will not read such a requirement into the statute.
         See In re Estate of Flaws, 2016 S.D. 60, ¶ 44, 885 N.W.2d 336, 349.

3.       The court explained:
               So I don’t believe that . . . the fees are appropriate for Martin to
               be paying, but I don’t want that to be mistaken that there’s any
               finding that what was submitted I’m making a finding about
               reasonableness. That was your work and I believe in the work
               that both of you have done. It’s just getting to the point as to
               what Martin is responsible for and is not responsible for.

4.       The Court ruled:
               [M]y ruling isn’t because I don’t feel, Ms. Tomac, that you didn’t
               do the appropriate things because you had to represent [Sears]
               in the agreement that you had with her when she came to you,
               but it is whether or not Martin should pay for it. And I can’t
               make that finding based on Ms. Sears’[s] total past behavior.
               And a good share of the hearings were unnecessary but for the
                                                              (continued . . .)
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#28130

[¶13.]       The circuit court’s decision presents four problems for appellate review.

First, the court denied the motion without determining that the fees were either

unreasonable in amount or not necessarily incurred in the administration of the

guardianship. See SDCL 29A-5-116; Miles, 2003 S.D. 34, ¶ 30, 660 N.W.2d at 238-

39. Although the court referenced these predicate tests governing the issue—and

although the court’s oral ruling suggests how it may have applied those tests to

some of the legal services—the court did not apply those tests to the legal services

that were actually provided. This is significant because even though Appellees

support the court’s decision, they do not argue that all the services were

unreasonable in amount and unnecessarily incurred.

[¶14.]       Second, the court’s ruling suggests that its determination was based in

part on Sears’s conduct in other disputes occurring before the proceedings at issue.

We acknowledge that prior misconduct could be relevant. But we were not privy to

the prior proceedings, and the circuit court did not explain how the prior

proceedings made these proceedings unnecessary in the administration of the

guardianship. This is significant because even if Sears was acting unnecessarily in

the earlier matters relating to other issues in this guardianship, attorney fees may

nevertheless be necessarily incurred in later matters regarding the guardianship.

See G.T.C., 2014 S.D. 65, ¶¶ 8-9, 854 N.W.2d at 345-46 (concluding that guardians’

prior misuse of estate assets was not relevant to a subsequent attorney-fee request

because the attorney fees were not related to misuse of estate assets and the

________________________
(. . . continued)
               actions that she took or didn’t take at my direction and those
               before me.

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#28130

attorney’s services were reasonably incurred in the administration of the

guardianship).

[¶15.]         Third, the circuit court’s written order suggests that the court denied

the fees under a provision that only applies to attorneys who have not been retained

by the guardian.5 When the attorney has not been retained by the guardian or

conservator, the services must “result[] in an order that [is] beneficial to the minor,

the protected person, or the estate.” SDCL 29A-5-116. But “if the fees for services

of an attorney employed by the guardian are necessarily incurred in the

administration of the [guardianship],” then it is not necessary to show a benefit to

the estate. Miles, 2003 S.D. 34, ¶ 30, 660 N.W.2d at 238-39.

[¶16.]         Finally, the fee request was subject to a number of specific objections

that were asserted below but not resolved by the circuit court. For example,

Appellees contended below (and now on appeal) that Sears’s attorneys spent too

much time on some things and billed for document preparation that was

unnecessary and never used. Appellees also contend that the cost of an appraisal

and related services were unnecessary.

[¶17.]         In other contexts, this Court “require[s] trial courts to enter findings of

fact and conclusions of law when ruling on a request for attorney fees. Without

findings of facts and conclusions of law there is nothing to review.” Streier v. Pike,

2016 S.D. 71, ¶ 26, 886 N.W.2d 573, 581. Findings of fact and conclusions of law are

also necessary in this kind of case. After all, Sears may be entitled to some fees.



5.       The court ruled in part that the “fees incurred for the representation of Mrs.
         Sears . . . did not benefit the person or the estate of Martin Bachand.”

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First, she appears to have prevailed on Michael’s motion to move Martin to an

assisted living facility. On appeal, Sears argues that this was a resolution that

Michael wanted and it was resolved in part upon an evaluation of a court-appointed

therapist that was obtained during these proceedings. Second, we find it difficult to

generally envision a situation in which the preparation of the guardianship report

would not be necessary in the administration of the guardianship. Third, even

Appellees concede that as guardian, Sears had a right to legal counsel. But we also

acknowledge Appellees’ contention that Sears was either unwilling or unable to

exercise her duties as a guardian. They also contend that Sears misused the

guardianship trust. These contentions highlight our appellate dilemma. Without a

resolution of factual matters relating to these conflicting claims, we are unable to

meaningfully review the circuit court’s decision. We reverse and remand for the

circuit court to address the parties’ conflicting claims and determine whether

Sears’s attorney services were necessarily incurred in the administration of the

guardianship and whether the fees were reasonable in amount.

[¶18.]       GILBERTSON, Chief Justice, and SEVERSON, Justice, SOGN,

Circuit Court Judge, and WILBUR, Retired Justice, concur.

[¶19.]       SOGN, Circuit Court Judge, sitting for KERN, Justice, disqualified.

[¶20.]       JENSEN, Justice, did not participate.




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