Estate of Rogers v. Battista
| Decision Date | 13 January 2004 |
| Docket Number | No. ED 82155.,ED 82155. |
| Citation | 125 S.W.3d 334 |
| Parties | In the ESTATE OF Elliott Scott ROGERS, Protectee, Donna Gardner, Conservator, Appellant, v. Lynne BATTISTA and Christine Rogers, Respondents. |
| Court | Missouri Court of Appeals |
Daniel H. Legear, St. Louis, MO, for appellant.
Frederick W. Drakesmith, Richard B. Fosher, St. Charles, MO, for respondent.
Donna Gardner appeals the judgment holding her liable for improper purchases and transfers from the bank account of her deceased stepfather, Elliott Scott Rogers, and for failing to fulfill her duties as conservator of his estate. We reverse and remand with directions.
In February 2000, Ms. Gardner applied for and was appointed as emergency guardian and conservator for Mr. Rogers after he suffered a stroke. In early March, Mr. Rogers' two natural daughters, Lynne Battista and Christine Rogers ("Respondents"), filed a petition to remove Ms. Gardner and Ms. Gardner filed a petition for a permanent appointment as guardian and conservator and a petition to extend the emergency guardianship pending disposition of the pending matters.
By this time Mr. Rogers had sufficiently recovered from his stroke to testify at a hearing held on March 17, 2000 and at a second hearing held on May 11, 2000. At the conclusion of the second hearing, the trial court completed a docket entry/worksheet which contained the following findings by clear, cogent and convincing evidence:
Respondent is INCAPACITATED, and his/her capacity to receive and evaluate information or to communicate decisions is impaired to such an extent as to render Respondent incapable of meeting (some) essential requirements for food, clothing, shelter, safety or other care so that serious physical injury, illness or disease is likely to occur.
The extent of Respondent's physical and mental INCAPACITY to care for his/her person is (PARTIAL, to wit): See attached sheet.
On the attached sheet, the trial court specified the following: INCAPACITY:
Respondent needs assistance in transportation to physicians, hospitals and other medical care providers, in housekeeping & laundry and shopping for food, clothing and other necessaries.
The trial court further found:
Respondent is DISABLED, and his/her ability to receive and evaluate information or to communicate decisions is impaired to such an extent as to render Respondent unable to manage (some) of his/her financial resources.
The extent of Respondent's physical and mental DISABILITY to manage his/her financial resources is (PARTIAL, to wit:) See attached sheet.
On the attached sheet, the trial court specified the following:
DISABILITY:
Respondent needs assistance in paying bills, writing checks and otherwise managing his financial resources.
The trial court further found:
Respondent is (PARTIALLY) INCAPACITATED, and appointment of a (LIMITED) GUARDIAN is required, who should have and exercise all powers and duties provided by law, except as otherwise ordered below; Donna Gardner is suitable and qualified to serve in such capacity, and has consented to act.
* * * *
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED—
That Donna Gardner be appointed (LIMITED) GUARDIAN of the person of Respondent by issuance of Letters of Guardianship (and said Letters of Guardianship shall limit the powers and duties of the Guardian to) See attached sheet.
That Donna Gardner be appointed (LIMITED) Conservator of the estate of Respondent by issuance of Letters of Conservatorship upon the filing of a bond, conditioned and approved according to law, in the amount of $5,000.00 (said Letters of Conservatorship shall limit the powers and duties of the Conservator to:) See attached sheet.
On the attached sheet, the trial court specified the following:
POWERS—GUARDIAN
Transporting Respondent to all medical care providers and facilities including admitting him to hospitals, shopping for food, clothing and other necessaries, assisting with laundry and housekeeping.
No mention is made of any powers or duties of Ms. Gardner as conservator.
The letters of limited guardianship of the person and limited conservator of the estate provided, in pertinent part:
KNOW YE THAT on the 11th day of May, 2000, Donna Gardner was appointed and has qualified as (guardian of the person) (and) (conservator of the estate) of Elliott Scott Rogers a (partially) (incapacitated) (and) (partially) (disabled) person.
By reason thereof, the above named (guardian) (and) (conservator) is authorized and empowered to assume and have (the care and custody of the person) (and) (charge of the estate) of the aboved-named (partially) (incapacitated) (and) (partially) (disabled) person, and to exercise the powers and perform the duties of such position under the supervision of the Court (as provided by law) (which are as follows:)
To assist the ward and protectee in paying bills, writing checks and help in managing other financial resources. Also to arrange for transportation to physicians, hospitals and other medical care providers, in housekeeping, laundry, shopping for food, clothing and other necessaries.
On the same date, the Court signed an additional notice of appointment of a limited conservator which specified, in pertinent part:
(The powers and duties of the conservator are limited to) transporting ward to all medical care providers and facilities including admitting him to hospitals, shopping for food, clothing and other necessaries, and in assisting with laundry and housekeeping.
Identical wording is included in the notice published in the Marthasville Record for four consecutive weeks in June, 2000.
On September 2, 2000, Elliott Scott Rogers died. In January, 2001, Respondents filed a petition for filing inventory and turnover settlement. In April, 2001, Ms. Gardner filed her verification as to status of assets and motion to discharge her as guardian/custodian and to cancel her bond. In that pleading, Ms. Gardner explained that she only exercised the limited duties specified by the Court and had never taken charge of or assumed any control over Mr. Rogers' assets. Thus, she had no income, expenses or assets to account for nor did she have any assets to turn over to the estate. Ms. Gardner attached a June 16, 2000 letter addressed to her from her attorney which stated that he had discussed the matter with Judge Sutherland, who issued the letters of guardianship and conservatorship, and that Judge Sutherland did not feel an inventory would be necessary unless further court proceedings were commenced. Ms. Gardner therefore requested to be released from her bond and discharged as limited guardian and conservator.
A hearing on Ms. Gardner's motion was scheduled for June 11, 2001. However, prior to any hearing Ms. Gardner agreed with Respondents to file a formal inventory and settlement to the date of death. In August, 2001, Ms. Gardner filed the agreed-upon inventory and settlement to death along with a petition for approval of the settlement and an order of discharge. Ms. Gardner filed copies of all checks that, to her knowledge, had been written on Mr. Rogers' accounts, along with copies of Mr. Rogers' bank statements. Ms. Gardner also reported the status and disposition of all of Mr. Rogers' assets that were known by her to have existed.
Respondents filed objections to the inventory and settlement and an answer to the petition. The trial court entered an order rejecting Ms. Gardner's settlement without a hearing and ordering that an amended settlement be filed forthwith. After Ms. Gardner filed an amended settlement, Respondents again filed objections and the trial court set the matter for hearing.
Ms. Gardner was the only witness at the hearing. Ms. Gardner explained that at the time she was appointed conservator, Mr. Rogers had four bank accounts at Allegiant Bank, a checking account jointly titled in Mr. Rogers' and Ms. Gardner's names, a savings account and two certificates of deposit. The savings account and the certificates of deposit were titled in Mr. Rogers' name with pay on death (POD) directions in favor of Ms. Gardner. The checking account had been jointly titled since September, 1999, several months before Mr. Rogers suffered the stroke that prompted Ms. Gardner to seek appointment as emergency guardian and conservator.
According to Ms. Gardner, she would usually ask Mr. Rogers' permission before writing checks on the joint checking account. Mr. Rogers repeatedly told her she should treat the account as her money. Ms. Gardner's only involvement in Mr. Rogers' financial affairs was to write checks whenever he directed her to do so. Mr. Rogers never instructed her about where to deposit any receipts and she never filled out any deposit slips for him or endorsed any checks.
Aside from interest, deposits made to Mr. Rogers' accounts consisted of payments from a John F. Rogers Trust that were payable to Mr. Rogers. Mr. Rogers endorsed these checks and deposited two payments into the joint checking account and one into his separate savings account. Mr. Rogers had also arranged for his social security and pension benefits to be deposited directly into the joint checking account.
Ms. Gardner identified and offered into evidence copies of approximately 300 checks she wrote on the joint checking account during the period of her conservatorship. The vast majority of the checks were for groceries, housekeeping, maintenance of Mr. Rogers' house and car, Mr. Rogers' utilities and attorney's fees. Some of the payments were for Ms. Gardner's personal expenses. She issued checks for getting her nails done and made payments on her mortgage and other household bills.1 She also wrote a check in payment for a will and trust for Mr. Rogers which he executed about two weeks before his death. Mr. Rogers transferred $35,000 from his savings account to the joint checking account to help pay for an $85,000 annuity Mr. Rogers purchased for her benefit....
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