THE CONSERVATOR AND THE STATUTE OF LIMITATIONS

March 20, 2013 § Leave a comment

Angela and Brian filed a joint complaint for divorce on the sole ground of irreconcilable differences. While the 60-day waiting period was running, Angela was involved in a car wreck, suffering a broken neck and brain damage. Because she was no longer able to handle her business, a conservator was appointed and authorized to proceed with the divorce action.

On January 10, 2000, the trial court entered the final judgment of divorce. It included a provision that Brian reimburse Angela for $5,500 she had paid toward purchase of an automobile. In a subsequent proceeding brought by the conservator for enforcement of the judgment, Brian was ordered to pay the money, and the court awarded a judgment with interest, entered January 9, 2001.

In January, 2011, nearly ten years after the 2001 judgment, Angela’s conservator sought and obtained a writ of garnishment. After back-and-forth series of rulings, the trial court cancelled the writ because the judgment had expired due to the statute of limitations in MCA 15-1-47. The court rejected the conservator’s claim that Angela’s incapacity had tolled the statute of limitations as provided in MCA 15-1-59 because the “conservator is fully authorized to employ attorneys and bring actions on the [ward’s] behalf,” citing USF&G v. Conservatorship of Melson, 809 So.2d 647, 654 (Miss. 2002).

Angela’s conservator appealed.

In the case of Conservatorship of Lewis v. Smith, rendered March 5, 2012, the opinion has some key observations about the duties of a conservator when it comes to enforcing and protecting the rights of the ward:

¶8. Lewis contends that the chancellor erred in finding that section 15-1-59 does not toll the statute of limitations in regard to the judgment’s expiration under section 15-1-47. Under section 15-1-47, a judgment lien expires after seven years from the entry of the judgment.

¶9. In her August 26, 2011 order, the chancellor found that section 15-1-59 was “inapplicable to the present matter as it concerns persons with disabilities and minor children; when a conservator was appointed to protect the legal rights of the mentally incapacitated Angela Ann Lewis, thus invoking the provisions of Miss[issippi] Code Ann[otated] [s]ection 15-1-53.” Mississippi Code Annotated section 15-1-53 (Rev. 2012) states:

When the legal title to property or a right in action is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially interested in such property or right in action, although such person may be under disability and within the saving of any statute of limitations; and may be availed of in any suit or actions by such person.

It is important to note that “the duties, responsibilities and powers of a guardian or conservator are the same.” Harvey v. Meador, 459 So. 2d 288, 292 (Miss. 1984). See also Miss. Code Ann. § 93-13-259 (Rev. 2004).

¶10. From the language of the order, the chancellor found that the right vested in the conservator and not in Lewis. Lewis contends that this contention is contrary to Weir v. Monahan, 67 Miss. 434, 7 So. 291 (1890). The Mississippi Supreme Court in Weir found that section 15-1-53 only applies “where the legal title to property or the right of action, at law or in equity[,] is in the guardian, and not the infants.” Weir, 67 Miss. at 455, 7 So. at 296. The court noted that “[w]hen the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law[,] . . . his right of action is barred . . . .” Id.

¶11. Under Mississippi Code Annotated section 93-13-38(1) (Rev. 2004), “All the provisions of the law on the subject of executors and administrators[] relating to settlement or disposition of property limitations . . . shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” Also, Mississippi Code Annotated section 93-13-38(2) (Rev. 2004) states: “The guardian is empowered to collect and sue for and recover all debts due his said ward . . . .”

¶12. From the language of section 93-13-38, the conservator had a fiduciary duty to pursue the $5,500 owed to Lewis. Therefore, the right of action was in the conservator and not Lewis. The conservator was appointed prior to the entry of the judgment of the divorce. The conservator brought the motion to hold Smith in contempt for failure to pay. It was the conservator’s fiduciary duty to file a writ of garnishment when Smith failed to pay. Under the plain language of section 15-1-53, if the right is in the guardian, in this case the conservator, the statute of limitations runs against the guardian and not the ward.

¶13. The right in action is in the conservator, therefore making the savings clause of 15-1-59 inapplicable, because “[t]he purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability.” Rockwell v. Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 391 (¶11) (Miss. 1998). Lewis has a court-appointed conservator who is able to assert rights on her behalf. Therefore, Lewis does not require, nor is subject to, the protections provided by the saving clause.

If you are representing a conservator — or a guardian, executor or administrator, for that matter — make sure that your client is doing what is necessary to protect the legal interests of the ward or beneficiary, and is not allowing statutes of limitation to run.

the burden of responsibility of a fiduciary is a heavy one, as I have emphasized here before. This case points up yet another way in which your fiduciary may make a “perilous mistake” in handling the ward’s business. It’s your job to steer your client in the right path, and to help avoid the common mistakes that fiduciaries commit.

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