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In re Estate of Phillips

Court of Appeals of Georgia, Fourth Division

June 25, 2019

IN RE ESTATE OF MARY ELIZABETH PHILLIPS. CO-004

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Coomer, Judge.

         This case asks us to determine whether, under the statutes governing adult conservatorship and guardianship proceedings, a probate court has the authority to award attorney fees to privately retained counsel from the estate of a ward. In so doing, we are also asked to determine whether this Court's prior holdings in In re Olliff, 184 Ga.App. 846 (363 S.E.2d 158) (1987) and In re Connell, 217 Ga.App. 523 (457 S.E.2d 832) (1995) still apply with respect to attorney fees, in light of revisions to the code section governing court proceedings involving guardians and wards. For the reasons discussed below, we find that the probate court did not err in finding that OCGA § 29-9-15 does not authorize the payment of attorney fees from the estate of a ward to privately retained counsel, and that our prior holdings in Olliff and Connell remain sound.

         "Statutory interpretation presents a question of law and is subject to de novo review." Cavalier Convenience, Inc. v. Sarvis, 305 Ga.App. 141, 142 (699 S.E.2d 104) (2010) (footnote and citation omitted). So viewed, the record shows that Mary Susan Phillips (Susan) and Nan Jones (Nan) (collectively, Petitioners) filed a petition for guardianship and several motions for orders of protection concerning their mother Mary Elizabeth Phillips (Mary). A licensed clinical psychologist appointed by the probate court to perform an evaluation of Mary concluded that Mary suffered from "mild to moderate dementia affecting memory" and that she was "in need of the appointment of a conservator." The probate court appointed Mary a Guardian-ad-litem on September 29, 2016 and Mary privately retained the services of Attorney Jennifer Haskins on October 5, 2016. Linda-Lea Phillips (Linda) and Julia Phillips Manard (Julia) (collectively, Appellees) by and through their attorney filed an entry of appearance as Interested Persons named in the petition on October 5, 2016. Evidence was taken at hearings before the probate court on October 5 and October 11, 2016. The parties requested the probate court order mediation which was held on December 22, 2016. A settlement agreement was reached and presented to the probate court at a hearing on January 17, 2017. At the mediation the parties were able to reach a mutual settlement agreement and the probate court incorporated the provisions of the settlement agreement into its final order following a hearing.

         In the order, Linda was appointed Mary's guardian and the probate court also appointed a conservator on Mary's behalf. The order further stated that:

It is agreed that the Guardian Ad Litem shall file a Motion for Attorney's fees, costs, and expenses, with such award as might be granted by the court being paid from [Mary's] funds. It is agreed that all parties' counsel reserves the right to file a petition with the court for payments of attorney's fees and costs permitted by law.

         On February 16, 2017, counsel for Petitioners, William Self, (Petitioner's Counsel) filed a motion for attorney fees, expenses, and reimbursement. On February 20, 2017, Mary's privately retained counsel Jennifer Haskins (Mary's Private Counsel) filed a motion for attorney fees and expenses in connection with the services rendered on Mary's behalf.[1] On May 12, 2017, Appellees filed a motion to deny the claims for payment of attorney fees from the conservatorship estate arguing, inter alia, that the payment of attorney fees were prohibited under the applicable statutes. The probate court, upon consideration of the motion and arguments of counsel for the parties, granted Appellees' motion and held that under OCGA § 29-9-15 there was "no authority to award the payment of attorney fees from the estate of a ward, except for those fees incurred by court appointed counsel and a guardian ad litem." This appeal followed.

         1. Petitioners first argue that the probate court erred in granting the motion to deny claims for payment of attorney fees from the conservatorship estate. In support of their argument, Petitioners contend that this Court's holdings in Olliff and Connell are inapplicable because the statutory scheme enacted at the time those cases were resolved substantially differs from the statutory scheme applicable in this case. We disagree.

         Title 29 of the Official Code of Georgia governs guardians and wards, and Chapter 9 of that Title guides the court proceedings involving guardians and wards. See OCGA §§ 29-9-1 et seq. OCGA § 29-9-15 provides that

Any legal counsel or guardian ad litem who is appointed by the court in a guardianship or conservatorship proceeding shall be awarded reasonable fees commensurate with the tasks performed and time devoted to the proceeding, including any appeals.

         Keeping in mind that in general attorney fees cannot be awarded unless supported by statute or contract, we must look to the plain and ordinary meaning of OCGA § 29-9-15 and, in considering its meaning, must presume that the General Assembly said what it meant and meant what it said. See Cason v. Cason, 281 Ga. 296, 299 (3) (637 S.E.2d 716) (2006) ("Generally an award of attorney fees is not available unless supported by statute or contract." (citation omitted)); see also Kemp v. Kemp, 337 Ga.App. 627, 632-633 (788 S.E.2d 517) (2016) ("In considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage." (footnotes and punctuation omitted)).

         Under the plain language of OCGA § 29-9-15, only those "appointed by the court in a guardianship or conservatorship proceeding shall be awarded reasonable fees." It is undisputed from the record that neither Petitioners' Counsel nor Mary's Private Counsel were appointed by the probate court in this case. OCGA § 29-9-15 makes no mention of an award for fees for those not appointed by the court, and as this Court has recently noted, "we construe a statute's silence as exactly that: silence." In re Wertzer, 826 S.E.2d 168, 172 (Ga.Ct.App. 2019) citing E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2033 (II) (192 L.Ed.2d 35) (2015). Moreover, "since any statute that provides for the award of attorney fees is in derogation of common law, it must be strictly construed against the award of such damages." Horton v. Dennis, 325 Ga.App. 212, 216 (750 S.E.2d 493) (2013) (citation and punctuation omitted). Thus, we find no statutory authority to support a claim for attorney fees from the estate of a ward under OCGA § 29-9-15, except for those fees incurred by court appointed legal counsel or a guardian ad litem.

         Additionally, we are unpersuaded by Petitioners' argument that the broad authority granted to the probate courts in areas where it has been given exclusive, original subject matter jurisdiction pursuant to OCGA § 15-9-30 (a) authorizes probate courts to award fees and expenses to privately retained counsel. "The Supreme Court of Georgia has instructed that the best indicator of the General Assembly's intent is the statutory text it actually adopted, and that as long as the statutory language is clear and does not lead to an unreasonable or absurd result, it is the sole evidence of the ultimate legislative intent." Cavalier Convenience, 305 Ga.App. at 142 (footnotes and punctuation omitted). While we appreciate the concerns expressed by Appellants in the hypothetical scenarios presented in their appellate brief regarding the potential disparate results that may come from ruling that probate courts lack statutory authority to grant awards of attorney fees for privately retained counsel, this Court must interpret the law as it is, not as it wishes the law to be. See Cavalier Convenience, 305 Ga.App. at 144 ("But courts are not authorized to disregard any of the words used therein unless the failure to do so would lead to an absurdity manifestly not intended by the legislature."(footnote and punctuation omitted)).

         We are equally unconvinced that our holdings in Olliff and Connell no longer hold binding authority in light of the revisions to the statutory scheme governing guardianship and conservatorship proceedings. OCGA ยง 29-5-13 (a), ...


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