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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX

IN THE MATTER OF THE ESTATE OF: )

) PROBATE NO. SX-07-PB-20

ZEPHANIAH O. WALCOTT, )

Deceased. )

)



ORDER

THIS MATTER is before this Court on the Guardian ad litem’s appeal of the

Magistrate’s December 30, 2010 Order. This Court will also review the Magistrate’s



accompanying February 17, 2011 Order issued in response to the Guardian ad litem’s Motion



to Vacate Order of December 30, 2010 and/or Motion for Reconsideration. For the reasons

which follow, this Court vacates the December 30, 2010 Order, reverses the February 17, 2011

Order in part, and remands the matter to the Magistrate Division for further determination in

accordance with this Order.



Factual and Procedural Background



On February 27, 2007, a petition for the administration of this intestate Estate was filed

with the Court. It was later determined that the original parties failed to include Nicole

Walcott, an heir to the Estate. Upon submission of the fourth amended petition for

administration, Ms. Walcott’s 20% share was properly included.



The Magistrate was concerned that Ms. Walcott might not have been competent to

protect her legal interests with respect to the Estate, and on November 5, 2009, appointed a

Guardian ad litem, Attorney Felice M. Quigley, to ensure that Ms. Walcott received her share

of the Estate. On November 23, 2010, Attorney Quigley’s appointment as Guardian ad litem to



Ms. Walcott was vacated.

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Probate No. SX-0;-rB-20

Order

Page 2



On December 7, 2010, Attorney Quigley submitted an invoice for services performed as

Guardian ad litem. Attorney Quigley’s fees were based on her private practice rates. On

December 21, 2010, Attorney Mark L. Milligan, counsel for heir Nilda Walcott, submitted his

opposition to Attorney Quigley’s invoice. On December 30, 2010, the Magistrate ordered

Attorney Quigley to amend her invoice to reflect the customary rate for court appointed counsel

of $45.00 per hour for out of court services, and $65.00 per hour for services before the court.



On January 19, 2011, Attorney Quigley filed a Motion to Vacate Order of December

30, 2010 and/or Motion for Reconsideration. On the same date, Attorney Quigley also filed a

petition for review by a Superior Court Judge. On February 17, 2011, the Magistrate denied

Attorney Quigley’s Motion for Reconsideration and directed her to resubmit her invoice at the

customary rates for court appointed counsel.



Standard of Review

The standard of review of the Magistrate's application of law is plenary, while the



Magistrate's findings of fact are reviewed for clear error. St. Thomas-St. John Bd. of Elections



v. Daniel, 49 V.1. 322, 329 (V.I. 2007).



Discussion

Title 5 V.L.C. § 73 provides:

A guardian ad litem appointed for an infant or incompetent person under Rule 17(c) of

the Federal Rules of Civil Procedure shall not be liable to pay costs of action; and he

shall be allowed a reasonable sum for his charges as such guardian, to be fixed by the

court, and taxed in the bill of costs.

Simply stated, 5 V.I.C. § 73 allows reasonable fees for the services rendered and gives the

Court the statutory right to fix such fees. Nothing in 5 V.LC. § 73 suggests that said fees are



inextricably tethered to the customary fees allowed for court appointed counsel for indigent



clients or minors and allows the Superior Court to promulgate rules that fixes the fees for such

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Probate No. SX-07-PB-20

Order

Page 3

non-indigent appointments to the customary fees for indigent appointments, or to fix a fee at

the time of appointment.



In the case at bar, the Magistrate appointed Attorney Quigley to protect Ms. Walcott’s

legal interests in a private matter. The basis of the appointment was not made by dint of

indigency. As stated in the Motion to Vacate Order of December 30, 2010 and/or Motion for

Reconsideration, Attorney Quigley does not take issue with the customary fees for indigent

clients or “clients in juvenile and neglect and abuse cases....” She further has stated that she

has practiced law in the Virgin Islands for almost twenty years and “has accepted appointments

well in excess of fifty (50) cases and has done so freely and gladly.”



Attorney Quigley “takes issue with the fact that, now, after having been required to

represent a party’s interest in a private matter...the Court, without any justification or legal

support,...decides that it is more expedient to base compensation on the same scale as is paid

by the Government in a totally unrelated type of case where the case is being prosecuted by the

Government and involves a minor or insane person.”



On page 3 of the February 17, 2011 Order, the Magistrate counters that “Attorney

Quigley cites to no evidence indicating that the customary rate is limited to such cases, and the

Court has also been unable to locate such authority.” This Court, however, notes that the

Magistrate has failed to cite relevant evidence that inseparably links the customary rate to the

case at hand. The Magistrate has cited Jn re Renique Francis for the proposition that court-

appointed counsel is not compensated at the same rates as counsel’s private practice. 51 V.I.

947 (D.V.I. 2009). However, In re Renique Francis is distinguishable because counsel was



appointed as Guardian ad litem to a minor. In the present case, counsel was appointed to



represent an adult, who was not indigent.

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Probate No. SX-0,-PB-20

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Page 4



Although this Court finds certain portions of Attorney Quigley’s argument cogent, her

argument is not entirely correct. Pursuant to the provision of 5 V.LC. § 73, the Magistrate

clearly had the legal and statutory basis to fix or set the Guardian ad litem’s fees at the time of

her appointment. Given the plain meaning of 5 V.I.C. § 73, this Court is not able to conclude

that the court must fix fees at the amount currently charged by private practitioners, but the

Guardian ad litem “shall be allowed a reasonable sum for his charges.”



Because there currently is no Court rule that fixes the fee for a court appointed

Guardian ad litem for a non-indigent adult client, and the Magistrate did not fix the fees upon

appointing Attorney Quigley, it is necessary to review her invoice to determine whether the

fees charged are reasonable. As the Magistrate stated on page 4 of her February 17, 2011

Order, “A guardian who has faithfully and honestly discharged the duties of his or her trust is

usually entitled to reasonable compensation for executing the terms of his or her appointment.”

(internal citation omitted).



In order to determine reasonable compensation, the following criteria must be

employed: “the time and labor required, the uniqueness of the questions involved, the legal skill

demanded, the customary charges for such services, the amount involved in the dispute, the

benefits resulting to the client, and the contingency or certainty of payment.” Melendez v.

Rivera, 24 V.1. 63 (Terr. Ct. 1988)', citing Trailer Marine Trans. Corp. v. Charley’s Trucking,

Inc., 20 V.I. 286 (Terr. Ct. 1984). Guided by these criteria, the Magistrate is thus charged with



the duty of determining the reasonableness of the fees or any portion thereof charged by



Attorney Quigley.



' It should be noted that this Court uses Melendez v. Rivera, which establishes the standards for an award of and

reasonableness of attorney fees for prevailing parties in the context of 5 V.I-C. § 541. This Court adopts this

standard for determining the reasonableness of fees in the present case.

Probate No. SX-G, -PB-20

Order

Page 5

Conclusion



Upon review of the record, this Court finds that the Magistrate’s December 30, 2010

Order and February 17, 2011 Order are contrary to law. Attorney Quigley is entitled to

reasonable compensation to be determined by the Magistrate in accordance with the guidelines

established in Melendez v. Rivera, supra. Therefore, it is hereby



ORDERED that the Magistrate’s February 17, 2011 Order is reversed in part and

remanded to the Magistrate to determine the reasonableness of the fees charged by Attorney

Quigley for services rendered as Guardian ad litem; it is further



ORDERED that the Magistrate’s December 30, 2010 Order is vacated; and it is finally



ORDERED that a copy of this Order be served on the parties.



DONE SO AND ORDERED this30th day of Ma 11.



— , JUDGE



ATTEST:

VENETIA H. VELAZQUEZ, Esq.

Clerk of the Court



By)



“bf Court Clerk Supervisor

Vu