Erskine v. Guin

384 So.3d 583

Tamera ERSKINE, as personal representative of the Estate of Joann Bashinsky, deceased

v.J. Kenneth GUIN, Jr., and Gregory H. Hawley

John P. McKleroy, Jr., and Patty Townsend

v.Landon E. Ash and Tamera Erskine, as personal representative of the Estate of Joann Bashinsky, deceased

1200401, 1210153

Supreme Court of Alabama.

January 6, 2023

* Note from the reporter of decisions: Judge Tucker, probate judge, Walker County, was appointed to preside over this case.

Susan Walker, Birmingham, for appellant/cross-appellee Tamera K. Erskine, as personal representative of the Estate of Joann Bashinsky, deceased.

Thomas A. Woodall, Robert R. Baugh, and Peter M. Wright of Dentons Sirote PC, Birmingham,for appellee Gregory H. Hawley.

J. Kenneth Guin, Jr., of Guin & Cook, L.L.C., Jasper.

Marc James Ayers, E. Mabry Rogers, Ralph H. Yeilding, Jeffrey D. Dyess, and Sarah Baldwin of Bradley Arant Boult Cummings LLP, Birmingham; C. Burton Dunn of 5 Points Law Group, LLC, Birmingham; and Edward R. Jackson, Jr., of Jackson, Fikes & Brakefield, Jasper, for appellants John P. McKleroy, Jr., and Patty Townsend.

Ronnie O. Rice, Birmingham; and Lisa C. Solbakken of Arkin Solbakken LLP, New York, New York, for appellee Landon E. Ash.

PER CURIAM.

Tamera Erskine, as the personal representative of the estate of Joann Bashinsky ("Ms. Bashinsky"), deceased, appeals from: (1) an order of the Jefferson Probate Court awarding fees to the temporary guardian and conservator for Ms. Bashinsky previously appointed by the probate court and (2) an order awarding fees to a guardian ad litem appointed to represent Ms. Bashinsky in a proceeding seeking the appointment of a permanent guardian and conservator commenced by John P. McKleroy, Jr., and Patty Townsend. McKleroy and Townsend separately appeal from the probate court’s order of dismissal with prejudice of all remaining pending matters following Ms. Bashinsky’s death.¹

I. Facts

This is the second time this case has come before us. In Ex parte Bashinsky, 319 So. 3d 1240 (Ala. 2020), we dealt with Erskine’s challenges to the probate court’s handling of McKleroy and Townsend’s "Emergency Petition for a Temporary Guardian and Conservator" ("the emergency petition") concerning Ms. Bashinsky. In the present appeals, we deal with the aftermath of our decision in Ex parte Bashinsky. Because our analysis in Ex parte Bashinsky is integral to our disposition of appeal number 1200401, we must reiterate some of the facts recounted in that opinion. We then describe in detail the procedural history in this case that unfolded after we issued our decision in Ex parte Bashinsky.

This case was commenced on October 1, 2019, when McKleroy and Townsend simultaneously filed the emergency petition and a petition seeking the appointment of a permanent guardian and conservator for Ms. Bashinsky. Ms. Bashinsky was the widow of Sloan Y. Bashinsky, who owned the majority stock in Golden Enterprises, Inc., and who was the founder, chairman, and chief executive officer of Golden Flake Foods ("Golden Flake"). McKleroy and Townsend, two former Golden Flake employees who had professional relationships with Ms. Bashinsky, alleged that Ms. Bashinsky was incapable of caring for herself and for her assets, which were then valued at approximately $218 million. McKleroy and Townsend’s allegations of Ms. Bashinsky’s incompetence centered on her request that Level Four Advisory Services LLC, which held approximately $35 million of Ms. Bashinsky’s personal assets, transfer $17.5 million to David Heath at the investment firm Morgan Stanley. McKleroy and Townsend further alleged that the transferred assets would end up being controlled by Ms. Bashinsky’s grandson, Landon E. Ash, whom they al- leged had already accumulated $23.5 million in total indebtedness to Ms. Bashinsky and whom they alleged exerted undue influence upon Ms. Bashinsky.

On October 17, 2019, Probate Judge Alan King held a hearing on the emergency petition, at which he granted a motion of McKleroy and Townsend to disqualify Ms. Bashinsky’s chosen attorneys without giving Ms. Bashinsky an opportunity to waive any alleged conflict. He further refused to grant a requested continuance so that Ms. Bashinsky could retain substitute counsel. The hearing then proceeded on the matter of the appointment of a temporary guardian and conservator. Judge King refused to allow Ms. Bashinsky to cross-examine witnesses during the hearing or to allow her to testify on her own behalf.² After concluding the hearing, Judge King, on the same day, entered a written order in which he purported to appoint Gregory H. Hawley, the general conservator for Jefferson County, as the temporary guardian and conservator for Ms. Bashinsky.³

Ms. Bashinsky petitioned this Court for a writ of mandamus directing the probate court to vacate its orders disqualifying her attorneys from representing her in the underlying proceedings and appointing a temporary guardian and conservator over her person and property. She also sought dismissal of the emergency petition and the petition for a permanent guardian and conservator. On July 2, 2020, this Court issued an opinion addressing Ms. Bashinsky’s mandamus petition. In Ex parte Bashinsky, we explained that the authority to establish a temporary guardiansnip/conservatorship is premised on the existence of an actual emergency that does not permit time to make an immediate competency determination; if no such emergency exists, we explained, then the statutory process for establishing a permanent guardianship/conservatorship applies. We concluded that, in this case, no such emergency existed — or was even alleged by McKleroy and Townsend — because there was no immediate threat to Ms. Bashinsky’s health, safety, and welfare or of the dissipation of her assets. Because there was no emergency, we held that the requirements for establishing a permanent guardianship/conservatorship applied. We noted that the probate court had violated the basic requirements of a hearing regarding whether to establish a permanent guardianship/conservatorship by: (1) failing to provide Ms. Bashinsky notice of the competency hearing; (2) not allowing Ms. Bashinsky to be represented by counsel; and (3) preventing Ms. Bashinsky from presenting testimony and evidence on her behalf and to cross-examine witnesses. Specifically, we stated:

"Because we have determined that no ‘emergency’ was presented in that hearing, the representation and case-presentation rights afforded to a respondent in §§ 26-2A-102 and 26-2A-135[, Ala. Code 1975,] were applicable. Those provisions, and Ms. Bashinsky’s basic due-process rights, were egregiously violated, as the probate court treated the proceedinglike an ex parte hearing even though Ms. Bashinsky was present.

"….

"… ‘A judgment is void … if the court rendering it … acted in a manner inconsistent with due process.’ Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991). Accordingly, we conclude that the probate court’s October 17, 2019, order appointing a temporary guardian and conservator must be set aside. Given that the hearing appointing a temporary guardian and conservator was a nullity, it follows that the determination to disqualify Ms. Bashinsky’s attorneys that occurred during that hearing, and which precipitated the aforementioned due-process violations, must also be set aside."

Ex parte Bashinsky, 319 So. 3d at 1262-63 (second emphasis added). At the conclusion of our opinion, we explained:

"[T]he October 17, 2019, order appointing a temporary guardian and conservator for Ms. Bashinsky is void, as is the order disqualifying Ms. Bashinsky’s counsel. We therefore grant the petition for the writ of mandamus as to those orders and direct the probate court to vacate its October 17, 2019, orders, to require the temporary guardian and conservator to account for all of Ms. Bashinsky’s funds and property, and to dismiss the emergency petition."⁴

Id. at 1263 (emphasis added).

On July 16, 2020, Chief Justice Parker appointed Walker County Probate Judge A. Lee Tucker as a special Jefferson Probate Judge to preside over the matters.⁵ On August 28, 2020, pursuant to Ex parte Bashinsky, Judge Tucker entered an order vacating Judge King’s October 17, 2019, order that had appointed Hawley temporary guardian and conservator and dismissing the emergency petition. The August 28, 2020, order also required Hawley to "file with the probate court an accounting for Mrs. Joann Bashinsky’s funds and property within Forty-Five (45) days from the date of this order." Finally, the order provided that the petition for a permanent guardian and conservator would be set for a hearing after the petition was served upon Ms. Bashinsky and Ash.

On August 6, 2020, Hawley filed what he styled a "Petition for Final Settlement of Conservatorship." On September 3, 2020, Ms. Bashinsky filed a "Response and Objection to Petition for Final Settlement of Conservatorship" in which she complained that Hawley had not "include[d] all supporting documents necessary for determination whether the payments were properly made on behalf of Ms. Bashinsky." She also more generally objected "to the credit or payment of any fees or expenses to Hawley as the Alabama Supreme Court held the October 17, 2019, order appointing [Hawley]" void and to "the payment of attorney fees and expenses to [various law firms] for their service as counsel to Hawley during the pendency of his appointment as Temporary Guardian and Conservator pursuant to the Probate Court’s October 17, 2019, order which the Alabama Supreme Court ruled void and a nullity." On September 30, 2020, Hawley filed a "Reply to Response and Objections to Petition for Final Settlement of Conservatorship" in which he stated that he was "ready to produce any documentation corroborating receipts and disbursements set forth in the Final Settlement Petition." Hawley further contended that he

"and his attorneys are fully entitled to

...