Flynn v. Scott, 72965
| Decision Date | 12 May 1998 |
| Docket Number | No. 72965,72965 |
| Citation | 969 S.W.2d 260 |
| Parties | Michael W. FLYNN, Appellant, v. Stephen SCOTT, David Scott, and Abigail Scott, Respondents. |
| Court | Missouri Court of Appeals |
Robert E. Trame, St. Louis, for appellant.
Fairfax Jones, St. Louis, for respondents Stephen and David Scott.
Edward M. Roth, St. Louis, for respondent Abigail Scott.
RHODES RUSSELL, Presiding Judge.
Michael W. Flynn, purported guardian and conservator ("guardian"), appeals from a judgment of the trial court denying his motion to reopen a guardianship and conservatorship proceeding in order to tax his fees as costs against the relatives of Wilmot Harry Scott ("ward") who had initiated the proceeding. We affirm in that the appointment of guardian was void as the court lacked jurisdiction due to a failure to serve ward personally. No statutory authorization exists for compensation of an unauthorized guardian of a ward.
This is the third appeal by the parties over issues in this guardianship. The proceedings began in 1991 and 1992 when ward's two sons and wife filed two separate petitions requesting the appointment of a guardian and conservator for ward. The court found ward was incapacitated both physically and mentally, and because of dissension among family members, appointed guardian as ward's guardian, conservator, and attorney. Ward's wife and daughter moved the court to declare the guardianship proceeding void in that ward was never personally served and, therefore, the court never acquired jurisdiction over him. The trial court denied the motion, and wife and daughter appealed. This court reversed the judgment holding that the guardianship proceeding was void for lack of jurisdiction for failure to comply with section 475.075.2 RSMo 1986. Scott v. Scott, 882 S.W.2d 295 (Mo.App.1994) ("Scott I ").
While Scott I was pending, ward died. Guardian filed a claim against ward's estate for $30,941.50 for his services as guardian and conservator. Guardian's claim against the estate was allowed in the amount of $18,000. Guardian, wife, and daughter appealed. This court again reversed, holding that the judgment allowing guardian's claim was void for lack of jurisdiction. In re the Matter of the Estate of Scott, 932 S.W.2d 413 (Mo.App.1996) ("Scott II ").
Guardian thereafter filed a motion to reopen the guardianship proceeding in order to tax his fees as costs to the ward's family members, personally, who petitioned for the appointment of a guardian and conservator for ward. He asserts error in the denial of his motion.
No item is taxable as costs unless specifically so provided by statute. In re Estate of Dothage, 727 S.W.2d 925, 928 (Mo.App.1987). Guardian contends that section 475.075.3 RSMo 1994 1 provides authority for taxing his services as costs. Guardian's reliance on section 475.075.3, however, is misplaced. That section provides that an attorney appointed to represent an alleged incapacitated person during the guardianship proceeding shall be allowed a reasonable attorney's fee for services rendered to be taxed as costs of the proceeding. Guardian was not appointed by the trial court to represent ward during the pendency of the guardianship proceeding. Rather, following the guardianship hearing, during which ward was represented by a guardian ad litem, the trial court issued its ineffectual order finding ward incapacitated, and appointed guardian to serve as ward's guardian, conservator, and attorney.
Guardian also argues...
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Dowaliby v. Chambless, 3320.
...of the common law and therefore must be strictly construed to allow only the recovery of costs and not attorney's fees); Flynn v. Scott, 969 S.W.2d 260 (Mo.Ct.App.1998) (holding attorney was not entitled to recover fees absent statutory authorization); In re Guardianship of the Person & Est......
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