Maines v. City of McDonough, Georgia et al

Filing 96

OPINION AND ORDER DENYING 86 Motion for Proof ofSettlement Proceeds Invested; DENYING 91 Motion: Petition To Resolve the Irrevocable Trust and Change in Trust Name To: the Maines Group, LLC, Remic; Rosemary Maines, TTEE; 3461 Jessica Run, Decatur, Ga 30034; DENYING 92 Motion : Petition to Demand Payment on a Judgment Account That Was Submitted in 2011 in Civil Action File Number: 1:09- CV-3559-WSD. Signed by Judge Charles A. Pannell, Jr. on 6/16/2015. (adg)

I.

BACKGROUND
Plaintiff filed her Complaint [1] on December 17, 2009. Then represented

by counsel, Plaintiff sought damages, attorney’s fees and litigation expenses
pursuant to 42 U.S.C. §§ 1983, 1988, for injuries caused by the Defendants’
alleged violations of the Fourth and Fourteenth Amendments. Plaintiff’s claims
arose from an April 23, 2006, encounter with officers employed by the City of
McDonough Police Department. Plaintiff alleged that the officers used excessive
force during the encounter, causing a severe fracture of Plaintiff’s right humerus.
During the course of the litigation, counsel for Plaintiff (“Counsel”) became
concerned that Plaintiff was not able to manage her own affairs after she ceased
taking her medication, which in turn resulted in her not communicating with
Counsel.2 On April 28, 2010, Counsel moved [17] the Court to appoint a guardian
ad litem for Plaintiff pursuant to Rule 17(c)(2) of the Federal Rules of Civil
Procedure. The Court held two hearings on the motion, ultimately appointing
Thomas F. Wamsley, Jr., an experienced, seasoned Atlanta lawyer, to serve as
Plaintiff’s guardian ad litem (the “Guardian ad litem”).3

2

Plaintiff has been diagnosed with schizophrenia since at least December

1990.
3

The Court found that “Plaintiff’s ability to comprehend and assimilate
information is transient and that it is in the Plaintiff’s best interest for a guardian ad
litem to be appointed.” (June 18, 2010, Order [25] at 4).
2

Throughout the discovery period, Counsel was largely unable to
communicate with Plaintiff. In late August 2010, Plaintiff finally contacted
Counsel, who put her back in touch with her family members. Soon after, Plaintiff
again ceased communication with Counsel, and her location became unknown.
(Petition for Court Approval of Compromise Settlement (“Settlement Petition”)
[72] at 3-4). In November 2010, Counsel learned that Plaintiff was a patient at
Anchor Hospital in Southwest Atlanta. While hospitalized, Plaintiff would not
speak directly with Counsel. (Id. at 4).
On or about February 1, 2011, the parties, with the assistance of the
Guardian ad litem, agreed to settle the litigation for $325,000 (the “Settlement”).
The parties and the Court were concerned that arrangements needed to be made to
ensure that the settlement proceeds would be used to address Plaintiff’s long-term
medical and other life needs. Ms. Ruthann P. Lacey (“Lacey” or “Trustee”), an
attorney specializing in representing the elderly with special needs, was retained by
Counsel to create a Special Needs Trust for Plaintiff and to serve as trustee of the
trust. The Special Needs Trust was, among other reasons, necessary to protect
Plaintiff’s eligibility for public benefits. (Settlement Petition at 5-6).
On June 2, 2011, Counsel filed the Settlement Petition. On June 9, 2011, the
Court approved the creation of the Special Needs Trust [73], and, on

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June 13, 2011, the Court issued its Order [74] approving the Settlement.
On February 4, 2013, one and a half years after the Settlement Petition was
approved, Plaintiff filed her First Motion for Reconsideration [75], seeking the
withdrawal of the Order creating the Special Needs Trust, and her Second Motion
for Reconsideration [76], seeking the withdrawal of the Order approving the
Settlement Petition.4 In both Motions for Reconsideration, Plaintiff
argued: (1) She was “not given the correct and proper counsel or advise [sic] when
[Plaintiff] signed the settlement papers in July 2011,” (2) she is “not mentally ill”
and is capable of being her “own trustee,” (3) she needs the settlement funds so she
“can provide for [herself]” and to “finance [her] way of life,” and (4) she is not
satisfied with Ms. Lacey as her trustee because of “lack of communications,
dishonesty, and too many fees.” (First Motion for Reconsideration at 1-3; see also
Second Motion for Reconsideration at 1-3). Plaintiff’s Motions for
Reconsideration focused on Plaintiff’s objections to the trust arrangement and the
appointment of Lacey as trustee to manage the settlement funds.
On June 26, 2013, the Court denied [77] Plaintiff’s Motions for
Reconsideration, noting that it had carefully considered the record in finding that
Plaintiff suffers from schizophrenia and is incapable of handling her own financial
4

The content of both Motions for Reconsideration were nearly identical.
4

affairs. (June 26, 2013, Order, at 7). The Court concluded that it correctly entered
its June 9, 2011, Order, establishing the Special Needs Trust. The Court concluded
also that nothing in Plaintiff’s Motions for Reconsideration supported Plaintiff’s
contention that the Trustee had been derelict in her duties as trustee. (Id. at 8).
On April 25, 2014, Plaintiff filed her Motion to Reopen Case [78]. While
filed as a “Motion to Reopen Case,” Plaintiff’s Motion raised identical arguments
to those previously rejected by this Court in its June 26, 2013, Order, denying
Plaintiff’s Motions for Reconsideration. Plaintiff essentially sought
reconsideration of the Court’s June 9, 2011, Order, establishing the Special Needs
Trust, and again asserts that the Trustee has been derelict in her duties as trustee.
On April 28, 2014, Plaintiff filed her Motion for Issuance of Subpoena [79],
seeking to subpoena Lacey “and/or Patsy Evans.” ([79] at 2). On
December 5, 2014, the Court denied [80] Plaintiff’s Motion to Reopen Case and
Motion for Issuance of Subpoena.5

5

On November 20, 2015, Plaintiff filed her Notice of Appeal [84] of the
Court’s December 5, 2014, Order. On February 26, 2015, Plaintiff filed her
Amended Notice of Appeal [87] of the Court’s December 5, 2014, Order. On
April 8, 2015, the Eleventh Circuit dismissed Plaintiff’s appeal for lack of
jurisdiction.
5

On February 20, 2015, Plaintiff filed her Motion for Proof, and, on February
26, 2015, Plaintiff filed her Motion to Resolve Irrevocable Trust and Motion to
Demand Payment.
II.

DISCUSSION
In her Motion for Proof, Plaintiff appears to be requesting copies of

cancelled checks for certain debts paid. (Motion for Proof at 1). Plaintiff does not
specify from whom she seeks copies of these checks, and she does not cite any
authority to suggest that the Court is authorized to grant Plaintiff’s request.6
In her Motion to Resolve Irrevocable Trust, Plaintiff does not appear to ask
for any specific relief. Liberally construed, Plaintiff may be requesting that the
Court authorize a change in the name of the Special Needs Trust to allow Plaintiff
to have personal control over the funds in the trust. (See Motion to Resolve
Irrevocable Trust at 1). In her Motion to Demand Payment, Plaintiff appears to be
6

To the extent that Plaintiff seeks to challenge the payments made by the
Trustee as part of the Trustee’s administration of the trust, Plaintiff is required to
bring a separate action against the Trustee. Cf. O.C.G.A. § 53-12-6(b) (“Actions
concerning the construction, administration, or internal affairs of a trust shall be
maintained in superior court . . . .”); O.C.G.A. § 53-12-6(c) (“Any action by or
against the trustee or to which the trustee is a party may be maintained in any court
having jurisdiction over the parties and the subject matter except as provided in
subsection (b) of this Code section.”); O.C.G.A. § 53-12-300 (“The trustee shall
be accountable to the beneficiary for the trust property. A violation by the trustee
of any duty that the trustee owes the beneficiary shall be a breach of trust.”);
O.C.G.A. § 53-12-301 (establishing remedies for an action against a trustee for
breach of trust).
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demanding that the judgment awarded in this action be paid directly to her. (See
Motion to Demand Payment at 1, 3-4). The Court, for the same reasons explained
in its June 26, 2013, Order, concludes that Plaintiff is incapable of handling her
own financial affairs and concludes that a Special Needs Trust is necessary to
administer the trust assets, and concludes that Plaintiff has failed to provide the
Court with a sufficient basis to justify changing the name of the Special Needs
Trust or to authorize the judgment awarded in this action to be withdrawn from the
Special Needs Trust and paid directly to her.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that that Plaintiff’s Motion for Proof of

Settlement Proceeds Invested [86], “Motion: Petition To Resolve the Irrevocable
Trust and Change in Trust Name To: the Maines Group, LLC, Remic; Rosemary
Maines, TTEE; 3461 Jessica Run, Decatur, Ga 30034” [91], and “Motion: Petition
to Demand Payment on a Judgment Account That Was Submitted in 2011 in Civil
Action File Number: 1:09- CV-3559-WSD” [92] are DENIED.

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SO ORDERED this 16th day of June, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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