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In re Gurgel

Court of Appeals of Missouri, Southern District, Second Division

April 5, 2018

In the Matter of: RONALD W. GURGEL, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable Lynette Veenstra, Associate Circuit Judge

          NANCY STEFFEN RAHMEYER, P.J.

         June Anteski ("Daughter") filed a petition in the probate division seeking to be appointed guardian and conservator for her father, Ronald W. Gurgel ("Father"). The probate court appointed an attorney to represent Father. Father's wife filed a counter petition seeking to be appointed guardian and conservator for Father. The day before a trial was scheduled to begin, Daughter, through her attorney, filed a document signed by all attorneys of record that stated the parties dismissed all claims and counter-claims without prejudice. The next day, June 30, 2017, the probate court entered an order dismissing all petitions filed in the case. The court ordered the payment of costs in the amount of $1, 118.73, on August 22, 2017, against Daughter.

         Daughter appeals the award of costs, which included attorney fees, in three points. In her first point, Daughter asserts that the probate court erred in awarding attorney fees to Father's court-appointed attorney after the parties had entered into a joint dismissal because the court lost jurisdiction. Daughter's second point asserts error in awarding attorney fees under section 475.085[1] as there was no finding of competency nor incompetency because the case was dismissed before an adjudication. Her third point claims error in awarding attorney fees that are nondischargeable in bankruptcy without any basis to do so under the U.S. Bankruptcy Code. We deny all three points.[2]

         Facts and Procedural Background

         On April 5, 2017, Daughter filed a petition in the probate division of the circuit court of Wright County seeking to be appointed guardian and conservator for Father.[3]On that date, Daughter's attorney also filed a motion and proposed order for the appointment of a guardian ad litem. Neither the motion nor the proposed order is included in the record provided to us; there is no indication in the record that the probate court acted on Daughter's motion and proposed order.

         On April 6, 2017, the probate court entered an order appointing an attorney for Father.[4] It appears this order was entered pursuant to section 475.075.3, which requires:

Upon the filing of a petition under the provisions of subsection 1 of this section . . . the court shall immediately appoint an attorney to represent the respondent in the proceeding. The attorney shall visit his client prior to the hearing. . . . The court shall allow a reasonable attorney's fee for the services rendered, to be taxed as costs of the proceeding.

         On April 13, 2017, the appointed attorney entered an appearance on behalf of Father, and filed an answer and a motion for a protective order. The probate court entered a protective order on April 14, 2017. On April 20, 2017, Father's wife filed a counter-petition seeking to be appointed guardian and conservator for Father.

         The cause was set for trial on June 30, 2017. On June 29, 2017, Daughter, through her attorney, filed a:

Joint Dismissal Without Prejudice
COMES NOW, Petitioner, Counter-Petitioner and Guardian ad Litem, by and through their respective counsel, and jointly dismiss all claims and counter-claims currently pending in the above-referenced matter without prejudice.

         The joint dismissal was signed by all attorneys of record. At the same time, Daughter's attorney filed a motion to withdraw. That motion was never ruled on.[5]

         On June 30, 2017, the probate court entered a docket Order stating: "Judgment of dismissal entered as to all Petitions filed in this case. Respondent's attorney fees will be assessed to Petitioner June Anteski. Atty. Faust to submit invoice to the Court. Lynette Veenstra, Judge[.]"

         Seven weeks later, on August 18, 2017, Father's court-appointed attorney filed a request for the fees set forth in an invoice attached to the request. The request for fees was served on Daughter's trial attorney. On August 22, 2017, the probate court entered a Judgment awarding Father's court-appointed attorney the requested fees in the amount of $1, 118.73 against Daughter. The judgment also stated "[t]hese fees are not ...


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