326 Ga. App. 702
Ga. Ct. App.2014Background
- Ward Lorraine McKitrick, incapacitated, appeals two probate orders via her retained counsel; transcript of the hearing on the conservator’s conflict of interest missing from record; conservator Thomas Richardson and guardian Mary Mellom appointed February 2013; Richardson filed petition to maintain estate plan and continuing powers in March 2013; April 29, 2013 hearing addressed counsel’s authority and fees; May 17, 2013 orders challenged; probate court held no harm from conflict despite potential death benefit conflict; court vacated and remanded regarding hourly-rate evidence; record lacks hearing transcript, relying on probate findings; OCGA 29-5-24(b) governs disclosure and potential removal/forfeiture for conflicts; appeal decided with partial affirmation, partial vacation, and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conservator conflict of interest harmed ward | McKitrick asserts conflict of interest harmed her | Richardson argues no harm shown; conflict not substantial | Affirmed the ruling; no transcript to rebut; no harm proven |
| Fee agreement ambiguity and hourly rate | Agreement intended hourly rate for services | Evidence insufficient; ambiguity unresolved | Vacated and remanded for parol evidence; determine intended fee structure |
Key Cases Cited
- Dorsey v. Kennedy, 284 Ga. 464 (Ga. 2008) (abuse of discretion standard for probate evidentiary rulings)
- Gordon v. Cotton, 285 Ga. 826 (Ga. 2009) (presumes evidence in absence of transcript; indications on review)
- Reichman v. Southern Ear, Nose & Throat Surgeons, 266 Ga. App. 696 (Ga. App. 2004) (contract interpretation when ambiguous; de novo review)
- Pruitt Corp., 295 Ga. App. 629 (Ga. App. 2009) (parol evidence cannot vary unambiguous contract terms)
- Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814 (Ga. App. 2005) (contract construction to reconcile entire instrument)