IN RE AYO GROOMS CHRISTINA C. FORBES ( 2015 )

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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.