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In re Smith

Court of Appeals of Missouri, Eastern District, Second Division

May 1, 2018


          Appeal from the Circuit Court of St. Louis County Honorable Carolyn C. Whittington

          ROY L. RICHTER, Judge.

         Casper Machino ("Appellant"), the conservator of the Estate of Sharren K. Smith ("Ms. Smith"), an incapacitated, disabled person, appeals from the trial court's order entered on June 12, 2017, which denied Appellant's motion to vacate various interlocutory orders from the probate court: orders for waste of March 31, 2016, and March 31, 2017, as well as orders for attorney's fees of March 29, 2013, and March 31, 2017. We dismiss the appeal.

         I. Background[1]

         Appellant was appointed as conservator of the estate of Sharren K. Smith on October 19, 2010. He was removed by the probate court on March 31, 2016, for failing to correct annual settlements as required by law, and failing to correct his settlements after being notified of deficiencies, which was the trial court's stated grounds for removal. Show cause orders were issued to Appellant to provide an opportunity to rectify accounting prior to his removal.

         During Appellant's time as conservator, the court entered an Order to Expend Funds for Support on September 24, 2012, at which time it explained the court's approach to Appellant's mileage reimbursements and the limitations imposed, and that Appellant received reimbursements for mileage and other expenses in excess of those authorized by the court. That order was vacated and set aside by the court's May 17, 2013 order regarding Appellant's authorized expenditures for support for Ms. Smith, including amounts for rent, groceries, utilities, medical and dental charges, clothing, laundry, and furniture and bedding allowances.

         On March 13, 2013, the court granted, in part, Appellant's petition for extra mileage reimbursement filed on February 19, 2013, allowing an additional, one-time mileage reimbursement for medical necessity in the amount of $840, applied to a balance due to the estate in the amount of $3, 485, for excess compensation received by Appellant during the first annual settlement period of administration, leaving a balance of $2, 645.

         Following Appellant's removal as conservator, the Public Administrator was appointed successor conservator for the estate. A Petition to Determine Liability was filed on April 15, 2016, against Appellant as the prior fiduciary, now removed, as well as the bonding company. The matter was submitted by agreement of the parties to the trial court for its summary determination pursuant to Section 473.207 (RSMo. 2000), based upon all of the settlements, amendments, vouchers, exhibits, records of the court, and argument of counsel, to which and at which time Appellant's counsel was present and consented, on August 25, 2016.

         The allowance of attorney's fees has been the subject of three orders throughout Appellant's time as conservator: one on February 25, 2013; one on January 26, 2016, addressing reconsideration of the 2013 compensation order; and one on March 31, 2017. First, the February 2013 order granted, in part, Appellant's petition to allow $10, 000 as reasonable compensation for services rendered to Appellant from August 20, 2010, to September 30, 2011; it was ordered reduced by payments of $6, 000 already received by Appellant's attorney; the request for an additional allowance of fees of $2, 210 for services related to family court proceedings relating to Ms. Smith's modification of maintenance would be reconsidered upon the family court's disposition; and denied all fees sought in the petition exceeding $12, 210, namely $7, 243.75.

         Next, the January 26, 2016 order addressed, inter alia, the pending petitions seeking allowances of attorney's fees sought by Appellant and commented that "[t]he greatest difficulty that this court ha[d] experienced in the supervision of this estate ha[d] been the supervision of compensation to [Appellant] and his attorney." The court noted that the administration expenses furthered the personal interest of the fiduciary and his attorney without furthering the best interests of the ward-protectee, Ms. Smith. The court "thoroughly reviewed counsel's 29-page motion for reconsideration and [found] nothing in the motion that would alter disposition contained in its Order and Judgment of February 22." Although Appellant had argued that this estate involved greater financial complexity than is customarily encountered in the administration of a typical matter, the court found nothing in the record to indicate that the estate involved extraordinary financial complexity. The court also found many expenses were a direct result of the conservator engaging counsel for the purpose of performing his administrative duties despite the court's caution that the attorney's fees for services representing a conservator must be fixed by order of the court. Denying Appellant's petitions for an allowance of attorney's fees, the court noted that the charges being sought for Appellant's attorney's fees represented 40 percent of the cash under administration and found no justification in the record of administration of the estate to make an exception for the excessive charges for expenses here.

         Additionally, the March 31, 2017 Order on First Amended Petition for Attorney's Fees acknowledged that the court already discussed the application of legal principles to the case regarding attorney's fees, but it would do so again. The court found the time charges of administration were excessive in light of the condition of this estate and that Appellant's attorney and his paralegal were fully aware of the unauthorized nature of the expenditures and other administrative deficiencies that resulted in the removal of Appellant as conservator, but they actively participated in making those expenditures and failed to advise Appellant of the impropriety of them. The probate court ruled that Appellant's attorney should be allowed only the compensation he has already taken, $35, 000 for his representation of Appellant in August 2010 through January 2016, "in full and complete satisfaction of his claim for fees for services rendered to [Appellant] in the administration of this estate and is entitled to nothing more."

         On or about March 30, 2017, the probate court commissioner issued an Order Determining Liability of Defaulting Fiduciary and Judgment, which found liability, individually against Appellant and jointly against the surety in the amount of $34, 210.34; the order was amended June 12, 2017, to modify the valuation of an automobile by stipulation of parties, pursuant to the trial court orders. That order of the trial court was conveyed for confirmation to the probate court judge, who remanded it to the commissioner to ultimately return and recommend a combined ruling and recommendation on it, and ultimately it was confirmed by the probate judge.

         At the end of April 2017, Appellant filed his First Amended Petition for Reconsideration and Petition to Amend the judgments of March 31, 2016 and March 31, 2017, with respect to Appellant's removal as conservator and determination of his liability to this estate, as well as the judgments of March 31, 2016 and March 31, 2017, with respect to attorney's fees and petition for a new trial of all the orders and judgments rendered by the deputy commissioner in this matter. Initially, on May 4, 2017, the court ordered the deputy commissioner "to take up for consideration [Appellant's] First Amended Petition and to thereafter make recommendations to the court in the matter of issues raised by [Appellant] in his First Amended Petition." However, the Public Administrator filed a reply to Appellant's post-trial motions and on June 12, 2017, the court issued an Order Amending Judgment Determining Liability of Defaulting Fiduciary as to Automobile, which had been issued on March 30, 2017. The court further issued an Order and Judgment on First Amended Petition for Reconsideration, to Amend Court's Judgments Petition for New Trial and Motion for Clarification, addressing Appellant's April 26, 2017 filing that raised issues with the March 31, 2016; March 31, 2017; and March 29, 2013 orders regarding removal and conservator and determination of liability, attorney's fees, and Petition for New Trial. The trial court denied Appellant's request for evidentiary hearing and reconsideration of the aforementioned orders.

         Appellant filed his notice of appeal on June 21, 2016. This appeal follows.

         II. Discussion

         Appellant alleges two multifarious points on appeal.[2] First, he contends the trial court erred as a violation of due process of law, in the following manner: (A) by compelling Appellant to waive any possible conservator's compensation in the future if he wanted to be reimbursed for automobile expenses to visit Ms. Smith at the Sunshine Home, to which Appellant contends he was entitled anyway; (B) by refusing to grant hearings on the record about numerous matters, including a refusal to grant an evidentiary hearing on the grounds for the removal of the Appellant; (C) by refusing to specify the exact dollar amount for each element that constituted the damages for waste assessed against the Appellant; and (D) by unreasonably delaying decisions of the court for sometimes years when such decisions substantially impacted decisions that the Appellant was required to make on an ongoing basis.

         In his second point, Appellant alleges the trial court erred in refusing to enter orders, the decisions for which were either against the weight of the evidence or without any credible, substantial evidence to support the order, in the following manner: (A) failure to approve a reimbursement to Appellant for his driving expenses for a second day each week he visited Ms. Smith at the Sunshine Home even after Ms. Smith's psychiatrist filed an affidavit with the court stating that Appellant's visits two times per week were therapeutic; (B) failure to ratify Ms. Smith's distributions to her two sons and requiring Appellant to reimburse the estate for these distributions when Appellant did not gain any benefit from the distributions, receiving no compensation for his services, which were almost 500 hours per year; (C) failure to accept vouchers for rent, utilities and food on the third, fourth, and fifth annual settlements when Appellant presented all of the vouchers for Ms. Smith's 50 percent share of rent and utilities and vouchered the food by presenting the court with statistics from the U.S. Department of Agriculture; and (D) the refusal of the court to order any conservator's compensation and to severely cut the requested attorney's fees was also, in the case of the conservator's fee, without any substantial evidence; and in the case of the attorney's fees, beyond the weight of the evidence.

         Even before reaching the merits of Appellant's appeal, this Court must first determine whether the appeal was timely filed under the appropriate statutory scheme and this Court's rules. Sanford v. CenturyTel of Missouri, LLC, 490 S.W.3d 717, 719 (Mo. banc 2016). Under Section 512.020, "[a]ny party to a suit aggrieved by any judgment of any trial court . . . may take his or her appeal to a court having appellate jurisdiction from any . . . [f]inal judgment in the case . . . ." "An appealable judgment resolves all issues in a case, leaving nothing for future determination." Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Generally, "[a] final judgment is a prerequisite to appellate review." Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). "If the trial court's judgments are not final, this Court lacks jurisdiction and the appeal[] must be dismissed." Gibson, 952 S.W.2d at 244.

         "'[A]ppeals are purely statutory, and must be taken within the time and in the manner provided by statute.'" In re Estate of Forhan, 149 S.W.3d 537, 541 (Mo. App. S.D. 2004) (quoting Lucitt v. Toohey's Estate, 89 S.W.2d 662, 664 (Mo. 1935)); Rule 81.01. "'Courts may not enlarge the statutory period within which an appeal may be taken ...

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