O'Brien v. Kline et al

Filing 39

ORDER granting 35 Motion to Appoint Guardian ad litem ad Litem. Appointed Thomas J. Pappas for Glenna F. Lougee. Payment as outlined. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Wendy Lougee O’Brien, Individually
and as Trustee of the
Lougee I Realty Trust
v.

Civil No. 12-cv-443-JD

Loreen Lougee Kline, et al.
O R D E R
Wendy Lougee O’Brien brought suit alleging claims that arose
from an alleged error in a property description in the Lougee I
Realty Trust (“Trust”).

O’Brien previously moved for the

appointment of a guardian ad litem for her mother, Glenna F.
Lougee, who is a defendant in this action.

Because of

deficiencies in the prior motion, the court directed O’Brien to
file a new motion with certain supporting information.

O’Brien

has now filed a partially assented-to motion for appointment of a
guardian ad litem for Glenna F. Lougee, and the defendants have
filed a joint partial objection.

Discussion
O’Brien moves for the appointment of a guardian ad litem for
Glenna and proposes three attorneys who could serve as guardian
ad litem.

O’Brien also asks that she be authorized to pay the

fees and costs billed by the guardian ad litem from Glenna’s

personal funds.1

The defendants object to the motion only to the

extent that they oppose appointment of one of the proposed
attorneys.

The defendants also ask as part of their objection

that the court authorize the guardian ad litem to take certain
actions on behalf of Glenna.
Federal Rule of Civil Procedure 17(c) “governs a minor or
incompetent’s access to federal court.”

Sam M. ex rel. Elliott

v. Carcieri, 608 F.3d 77, 85 (1st Cir. 2010).

“The court must

appoint a guardian ad litem--or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in
an action.”

Fed. R. Civ. P. 17(c)(2).

The determination that a

person is incompetent, for purposes of Rule 17(c), is left to the
discretion of the court.
(3d Cir. 2012).

Powell v. Symons, 680 F. 3d 301, 303

Evidence from a health care professional

demonstrating that the person is incompetent due to mental
illness or disability is sufficient to support a determination of
incompetence.

Id. at 307.

O’Brien represents that Glenna is suffering from dementia
which makes her unable to perform many important physical and
mental functions.

This assertion is supported by the affidavit

of Edwin Charle, M.D., Glenna’s treating physician.

1

Because of

O’Brien serves as trustee of Glenna’s trust, which holds
her personal funds.
2

Glenna’s dementia, she is unable to make and communicate
decisions about her personal and financial matters.

Glenna is

not represented by counsel in this action nor has a guardian been
appointed for her.2

In light of the evidence provided and in the

absence of an objection by the defendants, the court concludes
that Glenna is incompetent for purposes of Rule 17(c).
In response to the court’s prior order, O’Brien suggested
three attorneys who have experience in the area of real estate
and probate law and litigation as potential guardians ad litem:
David Eby, Pamela Newkirk, and Thomas M. Pappas.

The defendants

assent to the appointment of either Newkirk or Pappas as guardian
ad litem but object to the appointment of David Eby.

Eby is

currently representing O’Brien in her capacity as trustee of
Glenna’s trust.

The defendants assert that Eby would have a

potential conflict of interest in representing Glenna as guardian
ad litem in this case while also representing O’Brien for
purposes of Glenna’s trust.
Because the defendants assent to the appointment of either
Newkirk or Pappas, the court need not determine whether Eby also
could be appointed.

The defendants also assent to O’Brien’s

request that she be authorized to pay the fees and costs of the

2

Default has been entered against Glenna in this action.
3

guardian ad litem from Glenna’s personal funds.

Therefore, a

guardian ad litem will be appointed to protect Glenna’s interests
in this litigation, and O’Brien is authorized to pay the fees and
costs for the guardian ad litem from Glenna’s personal funds in a
manner that is consistent with her fiduciary duties as a trustee.
As part of their partial objection to O’Brien’s motion, the
defendants ask the court to authorize the guardian ad litem “to
assert or waive claims of attorney-client privilege” and “to
execute deeds, trust documents, wills, or agreements on Glenna’s
behalf.”

In this district, parties cannot assert affirmative

requests for relief within an objection to a motion.
7.1(a)(1).

LR

In addition, the defendants do not provide any legal

support for their requests to show that the authorizations they
seek are properly within the scope of the powers of a guardian ad
litem.3

Therefore, those requests are not addressed here.

3

An appointment of a guardian ad litem, pursuant to Rule
17(c)(2), is not an appointment of a general guardian, which is a
matter for the state probate court. See In re Whatley, 396 F.
Supp. 2d 50, 56-57 (D. Mass. 2005).
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Conclusion
For the foregoing reasons, the plaintiff’s motion for the
appointment of a guardian ad litem for Glenna F. Lougee (document
no. 35) is granted.
Thomas M. Pappas of the law firm Primmer Piper Eggleston &
Cramer PC, 900 Elm St., Manchester, New Hampshire, is appointed
to serve as guardian ad litem for Glenna F. Lougee in this
action.

Mr. Pappas shall keep a log of his time and costs

incurred in serving as guardian ad litem for Glenna F. Lougee in
this action and shall submit his invoice for payment to Wendy
Lougee O’Brien, in her capacity as trustee of Glenna F. Lougee’s
trust.
Wendy Lougee O’Brien is authorized to pay reasonable fees
and costs from the Glenna F. Lougee’s trust for the services of
Thomas M. Pappas as the guardian ad litem for Glenna F. Lougee in
this action, in a manner that is consistent with her fiduciary
duties as a trustee.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 22, 2013
cc:

Christopher D. Hawkins, Esquire
Edward K. O’Brien, Esquire
Thomas R. Walker, Esquire
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