Court of Appeals of Missouri, Southern District, Second Division
In the Matter of: RONALD W. GURGEL, Respondent.
FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable Lynette
Veenstra, Associate Circuit Judge
STEFFEN RAHMEYER, P.J.
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.
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 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.
and Procedural Background
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.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
April 6, 2017, the probate court entered an order appointing
an attorney for Father. 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.
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.
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.
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.
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[.]"
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 ...