In the Matter of Dory

In the Matter of Gerald S. Dory No. 1084, Sept. Term, 2018 Opinion by Leahy, J. Estates and Trusts > Guardianship > Compensation The statute directs that a guardian of property is compensated as a trustee of a trust. The allowance of a commission is expressly provided for and guided by ET § 13-218(a), which sets forth the compensation and reimbursement of expenses. Estates and Trusts > Trusts > Trustee > Right to Commission Pursuant to ET § 14.5-708, a trustee is entitled to a commission for services in administering a trust with two potential limitations. First, the amount and the source of payment of the statutorily permitted commissions are subject to the provisions of any valid agreement.

ET § 14.5-708(a)(1)(ii). Second, under (a)(1)(iii), a court may “increase or diminish commissions for sufficient cause”; alternatively, the court “may allow special commissions or compensation for services of an unusual nature.” Estates and Trusts > Trusts > Trustee > Right to Commission The commissions permitted under ET § 14.5-708(b)-(d) may only be limited by the provisions of a valid agreement or by the court “for sufficient cause.” Estates and Trusts > Trusts > Trustee > Right to Commission > Sale of Real or Leasehold Property Section 14.5-708(d) of the Estates and Trusts Article sets out the commissions for trustees on the sale of real or leasehold property. Estates and Trusts > Trusts > Trustee > Right to Commission > Sale of Real or Leasehold Property Because a commission on the sale of real or leasehold property is one form of compensation to which a trustee is statutorily entitled, a court may increase or diminish a commission on the sale of real or leasehold property only “for sufficient cause.” ET § 14.5-708(a)(1)(iii). Estates and Trusts > Trusts > Trustee > Right to Commission > Sale of Real or Leasehold Property By its terms, Local Rule BR7 specifies the compensation allowed a trustee or other fiduciary when the sale instrument does not fix the trustee’s or other fiduciary’s compensation.

Estates and Trusts > Trusts > Trustee > Right to Commission The first step in determining the proper commission for a guardian of the property is to look to agreements between the guardian and the court—including the letters of guardianship—for any provisions limiting the guardian’s compensation or defining the court’s scope of review. If such agreements do not delineate the rate for commissions or establish the scope of the court’s review, we look to the statute and local rule to determine the rates and types of commissions available. Estates and Trusts > Trusts > Trustee > Right to Commission > Sale of Real or Leasehold Property Under ET § 14.5-708(d)(1), a trustee’s commission on the sale of real or leasehold property is payable from the proceeds of the sale at the rate allowed by rule of court or statute. Estates and Trusts > Trusts > Trustee > Right to Commission > Sale of Real or Leasehold Property A court has discretion to diminish a trustee’s commission under ET § 14.5-708 (a)(1)(iii) “for sufficient cause,” or as allowed by rule of court or statute.

Nothing in the statutory scheme authorizes a trial court to deny a commission because it was “in the best interest of the ward,” or because the trustee did not provide “unusual services,” or because no “unusual circumstance exist[ed] to allow a special commission outside of that to which the guardian is entitled.” Estates and Trusts > Trusts > Trustee > Right to Commission > Sale of Real or Leasehold Property> Local Rule BR7 Reading ET §§ 13-218 (a), 14.5-708, and Local Rule BR7 together and harmonizing their provisions to the greatest extent possible, see Whiting-Turner Constr. Co. v. Fitzpatrick, 366 Md. 295, 303 (2001), we hold that a guardian of property is entitled to a commission for the sale of real property approved by the court, and, absent an agreement or petition of an interested person, that commission may not be diminished except in the narrow circumstances articulated ET § 14.5-708(a)(1)(iii) and Rule BR7. Circuit Court for Prince George’s County Case No. CAE13-06687 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1084 September Term, 2018 IN THE MATTER OF GERALD S. DORY __________________________________________ Leahy, Shaw Geter, Gould, JJ. Opinion by Leahy, J. Filed: December 23, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-12-31 15:25-05:00 Suzanne C. Johnson, Clerk In this appeal, we examine the statutory right of a guardian of property to a commission for the sale of real property and the scope of a trial court’s authority to deny or alter a guardian’s commission.

By order of the Circuit Court for Prince George’s County, Terry Sullivan was appointed guardian of the property of Mr. Gerald S. Dory, an elderly widower, who was admitted to Prince George’s County Hospital Center in 2013. There, he was diagnosed with dementia and an altered mental state after he was found living in a house in Capitol Heights without electricity, heat, or running water. Sullivan’s authority as guardian was limited by the Letters of Guardianship of Property (the “Letters”), which required her to obtain a court order before selling or otherwise encumbering Mr. Dory’s real property. Accordingly, when Mr. Dory’s property located at 1520 Monroe Street, N.W., Washington, D.C. 20010 (the “Property”) went into foreclosure in 2016, Sullivan filed a petition requesting the court’s permission to conduct a private sale.

The court authorized Sullivan to list the Property and subsequently ratified the contract of sale at a price above the Property’s appraised value. Sullivan then petitioned the court for a commission on the sale pursuant to the rate of commissions authorized under the Seventh Judicial Circuit,1 Local Rule BR7. On June 25, 2018, the court denied the petition, without a hearing, after determining that the commission was not in Mr. Dory’s best interest and that it was wholly inequitable when considering the time and labor expended by Sullivan. 1 Prince George’s County Circuit Court is within the Seventh Judicial Circuit. Sullivan timely noted her appeal from the court’s denial of her petition and presents two questions for our review,2 from which we extract one question that is dispositive: Did the circuit court apply an incorrect legal standard in denying Sullivan a commission on the sale of Mr. Dory’s real property?

For the reasons that follow, we hold that the circuit court applied the wrong standard. Accordingly, we remand to the circuit court with instruction to consider Sullivan’s entitlement to her commission applying the correct legal standard. BACKGROUND On February 21, 2013, Dimensions Healthcare System (“Dimensions”), doing business as Prince George’s Hospital Center, filed a petition seeking the appointment of guardians of the person and property of Gerald S. Dory in the Circuit Court for Prince George’s County. As set forth in the petition, Mr. Dory, a widower with two children, had been a patient of Prince George’s Hospital Center in Cheverly, Maryland since his admission on January 25, 2013.

An Adult Protective Services investigation was ongoing because Mr. Dory had been found in his Capitol Heights home without utilities or running 2 Sullivan’s questions presented, as stated in her brief, are as follows: I. Whether the circuit court erred when it denied Sullivan’s petition for approval of a commission in connection with the sale of Mr. Dory’s real property in the absence of evidence that Sullivan acted negligently or in default of her duties as guardian of the property, and where no interested person objected to Sullivan’s petition and no unusual circumstances were present.

II

Alternatively, whether the circuit court applied an improper legal standard—namely, whether awarding a commission was in the best interest of the ward—and therefore abused any discretion it had to reduce the amount of the commission to which Sullivan was entitled. 2 water. Physician’s certificates attached to the petition indicated that Mr. Dory, then 80 years of age, suffered from dementia and was unable to manage his property and affairs. The petition stated that Mr. Dory was a disabled person as defined within the Maryland Code (1974, 2017 Repl. Vol.), Estates and Trusts Article (“ET”), §§ 13-201(c) and 13- 705(b),3 and requested that the court appoint (1) a Guardian of the Person of Mr. Dory, (2) a Guardian of the Property of Mr. Dory, and (3) an attorney to represent Mr. Dory.

Along with the petition, Dimensions filed a motion requesting an expedited hearing on the basis that Mr. Dory was ready to be discharged from the hospital but unable to consent to discharge and placement. A hearing for the appointment of temporary guardians and counsel for Mr. Dory took place in the circuit court on March 5, 2013. The court, on March 7, 2013, entered orders: (1) appointing Theresa Grant, Director for the Prince George’s County Office of Aging, as temporary guardian of the person of Mr. Dory; 4 (2) appointing Sullivan as temporary guardian of the property of Mr. Dory; and (3) appointing Shelton Skolnick to represent Mr. Dory in the guardianship proceedings. That same day, Mr. Dory was moved to Cherry Lane Nursing Center in Laurel and became a resident there. 3 Throughout this opinion, we cite to the version of the Estates and Trust Article in effect at the time Sullivan filed her petition for a commission in 2017.

The new version of the Estates and Trusts Article took effect on October 1, 2019; the Article was amended without substantive change as part of a code revision from the 2019 Legislative Session. 2019 Md. Laws, ch. 197 (S.B. 398). 4 Mr. Dory executed a Power of Attorney naming his daughter, Deborah Dory, as his Attorney-in-Fact on March 15, 2006. The court’s order appointing Ms. Grant temporary guardian of the person of Mr. Dory superseded the Power of Attorney. 3 A full guardianship hearing was held on May 17, 2013. Mr. Skolnick represented Mr. Dory. The court found that Mr. Dory was disabled and unable to care for his person and property, and that guardianship was appropriate because “no less restrictive form of intervention [was] available consistent with [Mr. Dory’s] welfare and safety.” The court appointed Ms. Grant as guardian of the person of Mr. Dory and Sullivan as guardian of the property of Mr. Dory.

The Letters of Guardianship of Property, entered on May 21, 2013, required Sullivan to seek the court’s permission to sell any real property or pay any commissions or attorney’s fees. The Letters ordered: [T]hat Terry K. Sullivan, Esq. be and hereby is appointed guardian of the property of GERALD S. DORY, with all the rights, duties, and powers as set forth in Estates and Trusts Article, Section 13, Subtitle 2, of the Annotated Code of Maryland, EXCEPT: (1) The guardian may not sell, invest in, mortgage or otherwise encumber any real property without further order of this Court; (2) All investments shall be federal insured investments, unless otherwise ordered by the Court; and (3) The guardian may not pay commissions or attorney’s fees without order of court[.] On November 14, 2016, Sullivan filed a petition requesting permission to sell real property owned by Mr. Dory located at 1520 Monroe Street, N.W., Washington, D.C. 20010. Sullivan noted that the Property was in foreclosure after the D.C. Superior Court entered an order granting a default judgment and decree of sale against Mr. Dory. 5 In 5 Mr. Dory, by Deborah Dory as his Attorney-in-Fact, executed a Note and Deed of Trust in connection with the purchase of the Property in 2006. One West Bank N.A. filed a complaint for foreclosure against Mr. Dory on January 29, 2015, alleging that Mr. Dory defaulted under the terms of the Note and Deed of Trust “by no longer occupying the Property as his primary residence.” The D.C. Superior Court, on October 20, 2016, entered a default judgment against Mr. Dory and ordered foreclosure and sale of the Property.

The Superior Court noted that Sullivan was timely served with the complaint and summons yet 4 further support of the petition to sell the Property through a private sale, Sullivan indicated: (a) Mr. Dory’s “medical condition [was] anticipated to be life long and require[] care in a long term care facility[;]”(b) the Property was “vacant and in poor condition[;]” and (c) Mr. Dory “lack[ed] sufficient monthly income to adequately maintain the [P]roperty . . . and meet his personal and medical needs.” Sullivan had already contacted a licensed realtor and attached to the petition a proposed listing agreement that included an initial listing price of $700,000.6 The court entered an order on December 12, 2016, authorizing Sullivan to list the Property for sale for at least the appraised value and instructing Sullivan to present to the court for ratification any contract that she intended to accept. Sullivan presented an appraisal of the Property and an offer from Dilan Investment LLC (“Purchaser”) to the court for ratification on January 25, 2017. Though the Property was appraised at $575,000, the sales price in the offer from the Purchaser had a cap of $706,100. The court entered an order ratifying the contract of sale between the Purchaser and Sullivan (as Guardian of the Property of Mr. Dory), finding that the sale price was “fair and equitable” based on the appraisal.

As a result of the sale, the guardianship estate satisfied the outstanding mortgage on the Property and realized net proceeds of failed to respond, and that a default was entered against Mr. Dory but there was no response. Further, the judgment stated that Mr. Dory, or Sullivan as his guardian of the property, “failed to appear at hearings held on July 24 and November 20, 2015 and March 18 and June 24, 2016.” 6 Sullivan had obtained consent from Mr. Dory’s granddaughter, Regina Dory, and his daughter, Deborah Dory, to engage a realtor to sell the Property. 5 $180,510.87. Sullivan resolved the pending foreclosure action, which was dismissed by the lender on May 23, 2017. On July 5, 2017, Sullivan filed a “Petition for Approval of Commissions on Sale of Real Property.” Citing to ET § 13-218, Sullivan averred “a guardian of the property is entitled to the same compensation as the trustee of a trust.” As required by ET § 14.5- 708(d), which governs commissions available to trustees, Sullivan calculated the total commission—amounting to $9,331—pursuant to the rate of commissions specified in Local Rule BR7.7 Sullivan sent notice of the petition to all interested parties, including Theresa Grant, guardian of the person of Mr. Dory.

In her memorandum and order denying Sullivan’s petition, the circuit court judge relied on Sokol v. Nattans, 26 Md. App. 65 (1975), for the proposition that “a trustee does not automatically get the commissions and allowances authorized by statutes.” The court opined that “[t]he statutes and the local rule make it clear that commissions are not automatic and that the Court has discretion in awarding them.” The court interpreted Bunn v. Kuta, 109 Md. App. 53 (1996), to support the trial court’s “discretion to diminish commissions for just cause” “notwithstanding the language in [Local Rule] BR7 limiting 7 The commission rate delineated in Local Rule BR7 is “(i) 10% on the first $3,000.00; (ii) 5% on the next $50,000.00; and (iii) 1% on the remainder.” Accordingly, Sullivan calculated her commission on the $706,100.00 proceeds of the sale to be: 10% on the first $3,000.00 10% * $3,000.00 = $300.00 5% on the next $50,000.00 5% * $50,000.00 = $2,500.00 1% on the remainder 1% * $653,100.00 = $6,531.00 Total = $9,331.00 6 the Court’s authority to diminish commissions in the event of neglect or other fault on the part of the trustee or other fiduciary[.]” The court looked “to the totality of the circumstances” and observed that Sullivan enlisted the services of a realtor who already received $21,183 in commissions for selling the Property. From the court’s perspective, Sullivan “[sought] a commission simply by virtue that she is the guardian.” According to the court, Sullivan did not earn any “special commission” as she “did not provide unusual services nor d[id] any unusual circumstance exist”; rather, in the court’s view, the sale of the Property was “consistent with the general duties and responsibilities of a guardian.” The court noted its role as “the ultimate guardian of the ward,” and found that “[a]ll of [Mr. Dory’s] income, with the exception of his personal needs allowance[,] is required for his care.” Consequently, the court found that the “commission requested based on the sale of the ward’s real property is not in the best interest of the ward and is wholly inequitable when considering the time and labor expended by the guardian.” Sullivan timely noted an appeal. DISCUSSION Sullivan argues, “[a]s a threshold matter,” that “the Circuit Court misconstrued applicable Maryland law regarding the compensation afforded to court-appointed guardians in connection with the sale of real property.” Sullivan contends that, reading together and harmonizing ET §§ 13-218(a), 14.5-708(a)(1)(i), 14.5-708(d)(1), and Local Rule BR7, a guardian is entitled to a commission “absent certain, narrow exceptions” and that the court must approve a commission “as a matter of law” where no exception applies. Because the circuit court did not find that an exception applied in this case, Sullivan asserts, 7 the circuit court “erred as a matter of law by denying the Guardian’s petition for a commission.” Sullivan submits that the judge was under the mistaken view that she had the discretion to deny the commission, as evidenced by her ruling that “the commission requested . . . [was] not in the best interest of the ward” and that the commission was “wholly inequitable when considering the time and labor expended by the guardian.” Sullivan adds that, even if the court had found that an exception applied and was then in a position to exercise her discretion to deviate from the statutory commission, the concerns articulated by the judge were not relevant, and “any reliance on a ‘best interests’ analysis to deny compensation would amount to a clear abuse of discretion.” Standard of Review The central question in this appeal concerns the trial court’s authority to review and determine the commission that a guardian of the property may receive for the sale of real property under ET §§ 13-218(a), 14.5-708(a)(1)(i), and 14.5-708(d)(1), and Local Rule BR7.

We accord no deference to the trial court’s interpretations of statutes and rules. Davis v. Slater, 383 Md. 599, 604 (2004). Although we yield to a trial court’s factual determinations, we do not defer to the court’s legal determinations. 100 Harborview Drive Condo. Council of Unit Owners v. Clark, 224 Md. App. 13, 38 (2015).

It is “well established that ‘[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature.’” Espina v. Prince George’s Cty., 215 Md. App. 611, 630 (2013) (quoting Lockshin v. Semsker, 412 Md. 257, 274 (2010), aff’d sub nom. Espina v. Jackson, 442 Md. 311 (2015). In construing statutes and rules of procedure, 8 [W]e begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction[.] We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.

Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. Williams v. Peninsula Reg’l Med. Ctr., 440 Md. 573, 580-81 (2014) (citation omitted). Where the language of the statute or rule is ambiguous, “we usually look beyond the statutory language to the statute’s legislative history, prior case law, the statutory purpose, and the statutory structure” to help discern the General Assembly’s intent.

Spangler v. McQuitty, 449 Md. 33, 49-50 (2016) (citation omitted); see also David A. v. Karen S., 242 Md. App. 1, 32 (2019), cert. denied, 446 Md. 219 (2019) (finding the statutory language to be ambiguous and, therefore, “turn[ing] our attention to our other tools of statutory analysis”). We “seek to harmonize statutes on the same subject,” Brendoff v. State, 242 Md. App. 90, 109 (2019), because we presume that the General Assembly intended to create “a consistent and harmonious body of law.” Battley v. Banks, 177 Md. App. 638, 650 (2007) (citation omitted). 9 I. Guardianship Compensation A. Statutory Scheme Title 13, Subtitle 2 of the Estates and Trusts Article addresses various aspects of guardianship of property, including the appointment of a guardian,8 the standard of care and skill required of a guardian,9 the court’s authority to impose limitations on a guardian’s authority, as well as the allowance of a guardian’s commissions. The activities of a guardian “are overseen by the circuit court, which has ‘exclusive jurisdiction over 8 Section 13-201 provides that “[u]pon petition, and after any notice or hearing prescribed by law or the Maryland Rules, the court may appoint a guardian of the property of … a disabled person.” The court must make two findings before appointing a guardian for a disabled person: (1) The person is unable to manage his property and affairs effectively because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; and (2) The person has or may be entitled to property or benefits which require proper management. ET § 13-201(c).

Any individual, trust company, or other corporation authorized by law to serve as a trustee is eligible to serve as a guardian, though entitlement to appointment is subject to certain priorities. ET §§ 13-206 and 13-207. 9 “The appointment and qualification of a guardian vests in the guardian title to all property of the . . . protected person that is held at the time of appointment or acquired later.” ET § 13-206(c)(1). A guardian must utilize his or her powers “to perform the services, exercise his [or her] discretion, and discharge his [or her] duties for the best interest of the . . . disabled person or [the disabled person’s] dependents.” ET § 13- 206(c)(1) (emphasis added). Once appointed, the standard of care and skill required of a guardian is that “of a man of ordinary prudence dealing with his own property.” ET § 13- 212.

When necessary, a guardian “may petition the appointing court for permission to act in any matter relating to the administration of the estate.” ET § 13-210(b). 10 protective proceedings for disabled persons,’ under ET § 13-105(b).” Battley, 177 Md. App. at 648 . Correspondingly, as the Court stated in Kicherer v. Kicherer, the court is “in reality” the ultimate guardian of the ward: a court of equity assumes jurisdiction in guardianship matters to protect those who, because of illness or other disability, are unable to care for themselves. In reality[,] the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility. 285 Md. 114, 118 (1979). The scope of a court’s discretion and authority under the statute is guided by the statute’s plain language.

See Barrett v. Barrett, 240 Md. App. 581, 591 (2019) (noting that trial courts do not have discretion to apply incorrect legal standards). The statutory scheme provides that: (1) a guardian is compensated as a trustee under ET § 13-218(a); (2) a guardian’s commission is further structured according to the specific instructions and limitations set out in ET § 14.5-708; and (3) commissions for the sale of real property are compensated at the rate allowed by rule of court or statute. 1. Compensation under the Guardian Statute The allowance of a commission is expressly provided for and guided by ET § 13- 218(a), which sets forth the compensation and reimbursement of expenses. The statute directs that a guardian of property is compensated as a trustee of a trust: Except in unusual circumstances and as provided in subsection (b) of this section,10 the guardian is entitled to the same compensation and reimbursement for actual and necessary expenses as the trustee of a trust. 10 Subsection (b) applies when a person is appointed as the guardian of a disabled person who is a recipient of long-term care services and supports under the Maryland Medical Assistance Program and whose income is subject to § 15-122.3 of the Health- General Article.

There is no indication in the record that subsection (b) applies to the guardianship of Mr. Dory. 11 No petition or hearing is required to entitle the guardian to compensation and expenses. Upon the petition of any interested person and upon a finding by the court that unusual circumstances exist, the court may increase or decrease compensation. ET § 13-218(a) (emphasis added). Although no petition or hearing is required to entitle the guardian to compensation and