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In re Norton

Court of Appeals of Missouri, Western District, Second Division

January 7, 2020

IN THE MATTER OF SELMA MCDONALD NORTON, A PERSON ALLEGEDLY INCAPACITATED AND DISABLED, Respondent,
v.
RICHARD C. MCDONALD AND LOUISE PICCARD DORR, Appellants.

          Appeal from the Circuit Court of Pettis County, Missouri The Honorable Keith Michael Bail, Judge.

          Before: Thomas H. Newton, P.J., Mark D. Pfeiffer, and Thomas N. Chapman, JJ.

          OPINION

          Thomas N. Chapman, Judge.

         Richard C. McDonald and Louise Piccard Dorr ("Children") appeal the summary judgment entered in favor of their mother, Selma McDonald Norton, by the probate division of the Circuit Court of Pettis County ("probate court"). Children sought appointment of a guardian and conservator for Ms. Norton. In their sole point on appeal, Children contend that the probate court erred in granting Ms. Norton summary judgment because her motion for summary judgment was filed two months before the probate court ordered all Missouri rules of civil procedure applicable to this guardianship and conservatorship matter, the probate court did not cure the improper filing of the motion, and the motion was not filed or refiled after that order. Ms. Norton passed away during this appeal. Because the appeal is now moot, the appeal is dismissed.

         Background

         In March 2018, Children filed a petition for appointment of a guardian of the person and conservator of the estate alleging that their eighty-eight year old mother, Ms. Norton, was incapacitated and disabled. They alleged that Ms. Norton suffered from chronic atrial arrhythmias, COPD, excessive alcohol use, and Alzheimer's type dementia and requested that letters of guardianship and letters of conservatorship be issued to petitioner Richard C. McDonald. The probate court appointed an attorney for Ms. Norton.

         Ms. Norton filed a motion for summary judgment on September 19, 2018, arguing that she was not incapacitated or disabled. She asserted that she was able to meet her daily essential living needs and that she did not suffer from any mental or physical condition that prevented her from managing her financial resources.

         On October 30, 2018, Children filed suggestions in opposition to the motion for summary judgment. They argued that the motion should be denied because Rule 74.04, which governs summary judgment, was not applicable to the proceedings absent an order by the probate court pursuant to Rule 41.01(b) and the probate court had not made such order. They did not address the merits of the motion.

         On November 28, 2018, the probate court ordered all Missouri rules of civil procedure applicable to the proceeding and continued the matter to December 14, 2018, for case review. On December 14, 2018, the probate court ordered Children to reply to the motion for summary judgment by December 28, 2018, and set the motion for hearing on January 18, 2019.

         Children did not, however, respond to the motion by December 28, 2018, and instead filed further suggestions in opposition to the motion on January 14, 2019. They argued that none of the probate court's orders gave "a time for compliance with the order," including whether the November 28 order was to be given retroactive effect or whether the original motion for summary judgment was to be considered refiled as of November 28 or December 14, 2018, and that Ms. Norton had not refiled her motion by duplicate filing or an abbreviated filing referring to the original motion. Children again did not address the merits of Ms. Norton's motion for summary judgment.

         On January 18, 2019, the probate heard argument on the motion for summary judgment and took the case under advisement. It sustained Ms. Norton's motion for summary judgment on January 23, 2019. This appeal by Children followed.

         Mootness

         Before argument and submission in this case, the attorney for Ms. Norton filed a suggestion of death advising this court that Ms. Norton died on November 27, 2019. As a result, this court must examine whether this appeal is now moot.[1]

         Mootness is a threshold question to appellate review because it implicates the justiciability of a controversy. D.C.M. v. Pemiscot Co. Juvenile Office, 578 S.W.3d 776, 780 (Mo. banc 2019). Thus, an appellate court must consider, either on a party's motion or acting sua sponte, whether an appeal is moot. Id. "When an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed." Id. (internal quotes and citation omitted). An appeal is moot when a decision on the merits would not have any practical effect upon any then existing controversy. Id.; In re Smith, 351 S.W.3d 25, 26 (Mo. App. S.D. 2011). The appellate court may consider facts outside the record in determining mootness. State ex rel. Mo. Gas Energy v. Public Serv. Comm'n, 224 S.W.3d 20, 25 (Mo. App. W.D. 2007). If a case is moot, the appellate court can exercise its discretion to decide the case on the merits if one of two narrow exceptions to the mootness doctrine exists: (1) the case ...


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