In re Crocker
| Decision Date | 20 July 2021 |
| Docket Number | No. ED 109179,ED 109179 |
| Citation | 629 S.W.3d 846 |
| Parties | In the MATTER OF: Lily Ann CROCKER |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Jelani Logan, Missouri Protection & Advocacy Services, 319 N. Main Ave., Ste. 120A, Springfield, MO 65806.
FOR RESPONDENT: Tina N. Babel, Tyler C. Schaeffer, Lauren G. Gamel, 120 South Central Ave., Ste. 1800, St. Louis, MO 63105.
Lily Ann Crocker ("Crocker") appeals the judgment of the Probate Division of the Circuit Court of the City of St. Louis ("the trial court"), entered after two hearings on June 5 and July 21, 2020, finding Crocker to be totally incapacitated, finding Crocker to be totally disabled, and appointing Crocker's daughter Vickie Lynn Owings ("Crocker's Daughter" or "Daughter") as guardian for Crocker.1 On appeal, Crocker argues the trial court's judgment is erroneous because, inter alia , she was improperly served with Daughter's petition to appoint a guardian and conservator; and there is insufficient evidence to support the trial court's findings that Crocker is totally incapacitated and totally disabled.2 Although we find Crocker's argument that she was improperly served with Daughter's petition has no merit, we reverse the trial court's judgment and remand for a new hearing because we find, (1) it is through no fault or negligence of Crocker that a transcript of the June 5, 2020 hearing was unable to be prepared; (2) it is impossible to conduct meaningful review of Crocker's sufficiency-of-the-evidence argument on appeal without the ability to review the missing portions of testimony from the June 5 hearing; and (3) Crocker could be prejudiced by the missing testimony.
On May 28, 2020, Crocker's Daughter filed a petition requesting the court to appoint her as full guardian of Crocker and as full conservator of Crocker's estate. The petition alleges Crocker was unable by reason of "bipolar disorder
, personality disorder, untreated diabetes [,] high blood pressure, and [an] undiagnosed heart condition" "[t]o receive and evaluate information or to communicate decisions to such an extent that [Crocker] lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur"; "[t]o receive and evaluate information to communicate decisions to such an extent that [Crocker] lacks the ability to manage [ ] her financial resources"; and "[t]o meet [Crocker's] essential daily needs of living and/or to manage [her] financial resources without supervision and that there are no less intrusive alternatives to a full ... guardianship and ... a full ... conservatorship available to provide for [Crocker's] care and financial needs."
On May 28, 2020, Crocker's Daughter also filed an emergency motion for appointment of a guardian for Crocker, requesting emergency letters of guardianship be granted to Daughter "in order to make sure [Crocker] receives necessary medical and other care" "given her advanced age and multiple physical and mental health conditions."
On June 2, 2020, the trial court entered an order appointing an attorney for Crocker. On that same date, the trial court entered an order setting the emergency motion for appointment of a guardian for a hearing on June 5, 2020 at 11:00 a.m.
A return of service and accompanying notice of hearing shows that on June 2, 2020, Crocker was served, in person, at "Barnes-Jewish Hospital, 1 Barnes Jewish Plaza, St. Louis, MO 63110" with a notice of the June 5, 2020 hearing, along with "[a] copy of the petition and a list of prospective witnesses ... pursuant to [s]ection 475.075[.2] [RSMo. Cum. Supp. 20193 ]." The completed return of service document is on letterhead of the Office of Vernon Betts, Sheriff of the City of St. Louis. Above a line on the form that states, "[p]rint name of [s]heriff or [s]erver" is the name "Aric Samm," and above a line on the form that states, "[s]ignature of [s]heriff or [s]erver" is Aric Samm's signature.
On June 5, 2020, a hearing was held on the emergency motion for appointment of a guardian. At the hearing, Probate Commissioner Patrick J. Connaghan ("the Probate Commissioner" or "the Commissioner") appeared, Crocker's Daughter appeared in person and by attorney, Crocker appeared in person and by attorney, and evidence was heard. All parties appeared by video due to the Covid-19 protocols in place at the time, and the WebEx video platform was used for the hearing. Ultimately, a transcript of the June 5, 2020 hearing was unable to be produced for this appeal because of a computer malfunction; a December 27, 2020 memorandum issued by the Probate Commissioner provides "[the Commissioner's] voice is the only one that can be heard" on the original recording of the hearing, and "[t]he computer had not recorded any of the testimony from any of the other participants."
Following the June 5, 2020 hearing, the trial court entered a judgment in favor of Crocker's Daughter and against Crocker on the emergency motion for appointment of a guardian. The trial court's judgment found in relevant part:
On July 2, 2020, the trial court entered an order, on its own motion, continuing the July 6 hearing on Daughter's petition to appoint a guardian and conservator. The hearing was subsequently reset for July 21, 2020.
On July 20, 2020, a report authored by Meredith Throop, M.D. and accompanying affidavit (collectively "Dr. Throop's report") was filed in support of Daughter's petition to appoint a guardian and conservator; however, Dr. Throop's report was not introduced or received into evidence at the July 21 hearing.
On July 21, 2020, the trial court held a hearing on Daughter's petition to appoint a guardian and conservator. A transcript of this July 21 hearing was produced for this appeal. Only two witnesses testified at the hearing – Crocker's Daughter and Crocker – and their testimony totals approximately ten pages of the sixteen-page transcript.4 No other evidence was introduced or admitted at the hearing.
The trial court subsequently entered a judgment finding Crocker to be totally incapacitated, finding Crocker to be totally disabled, and appointing Crocker's Daughter as Crocker's guardian. Additionally, letters of guardianship were issued consistent with the trial court's judgment. The trial court's judgment found in relevant part:
This appeal followed.
Crocker raises a total of four points on appeal claiming the trial court's judgment finding Crocker to be totally incapacitated, finding Crocker to be totally disabled, and appointing Crocker's Daughter as guardian for Crocker is erroneous; however, we will only consider the following two arguments. In sub-part one of Crocker's first point on appeal, she asserts the trial court's judgment is erroneous because she was improperly served with Daughter's petition to appoint a guardian and conservator. And in Crocker's second point on appeal, she claims the trial court's judgment is erroneous because there is insufficient evidence to support the trial court's findings that Crocker is totally incapacitated and totally disabled.5
Our Court reviews a trial court's judgment involving a probate matter the same as any court-tried case. Matter of Mitchell , 914 S.W.2d 844, 846 (Mo. App. S.D. 1996). Accordingly, we will affirm the trial court's decision unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. ; see also Matter of Barnard , 484 S.W.3d 833, 837 (Mo. App. E.D. 2016) ; In re Banks , 285 S.W.3d 389, 391 (Mo. App. E.D. 2009).
We first address sub-point one of Crocker's first point on appeal in which Crocker argues she was improperly served with Daughter's petition to appoint a guardian and...
To continue reading
Request your trial