Court of Appeals of Missouri, Western District, Second Division
IN THE MATTER OF SELMA MCDONALD NORTON, A PERSON ALLEGEDLY INCAPACITATED AND DISABLED, Respondent,
RICHARD C. MCDONALD AND LOUISE PICCARD DORR, Appellants.
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.
N. Chapman, Judge.
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
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.
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
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.
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.
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
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.
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.
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 ...