In re Duvall

Citation178 S.W.3d 617
Decision Date27 September 2005
Docket NumberNo. WD 64464.,WD 64464.
PartiesIn the Matter of Mildred Ruth DUVALL, Respondent, Missouri Department of Health and Senior Services, Respondent, Glenda L. Winkler, Public Administrator of Randolph County, Missouri, Respondent, v. D. Lynn Duvall and Norman Staley, Appellants.
CourtUnited States State Supreme Court of Missouri

Daniel R. Dunham, Columbia, MO, for appellants.

Yvette Hipskind, St. Louis, Patricia Watkins, James M. McCoy, Co-Counsels, Jefferson City, MO, for respondents Department of Health and Human Services.

Phillip C. Brown, Moberly, Dale L. Linneman, Co-Counsel, Keyetesville, MO, for respondent Duvall.

Glenda L. Winkler, Moberly, MO, pro se.

Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.

JOSEPH M. ELLIS, Judge.

This is an appeal from an August 4, 2004 final judgment and order of the Probate Division of the Circuit Court of Randolph County granting a petition declaring Mildred Ruth Duvall ("Ruth") totally incapacitated and legally disabled and appointing the Public Administrator of Randolph County as the guardian of her person and the conservator of her estate.1 We affirm.

On October 9, 2002, the Department of Health and Senior Services received a hotline call regarding Ruth with allegations that she was being financially exploited by a nephew. The Department initiated an investigation and Cindy Smith ("Smith"), a Department employee, was assigned by the Director of the Department to conduct it. By the conclusion of her investigation, Smith reported numerous concerns about Ruth's care and welfare, not the least of which was that Ruth would be discharged from her skilled care facility because of accumulated unpaid charges for her care, and consequently would suffer serious physical harm. Among other things, Smith was also concerned: (1) that Ruth would lose her eligibility for Medicaid, which paid for much of her care, because of various property transfers arranged by Ruth's deceased husband's nephew, D. Lynn Duvall; (2) that Ruth was being financially exploited and her estate subjected to waste; (3) that Ruth would suffer possible physical harm because she was not receiving the prescription drug Exelon as recommended by her doctor; and (4) that Ruth's assets were not being used to pay for her needs and expenses.

As a result of the investigation, on July 11, 2003, Smith filed a Petition for Appointment of Guardian and/or Conservator, seeking appointment of the Randolph County Public Administrator as Ruth's guardian and conservator. On August 28, 2003, the probate court appointed Attorney Phillip Brown ("Attorney Brown") to represent Ruth in the proceedings on the petition.

On October 20, 2003, the court ordered that Ruth undergo a physical and mental examination and authorized Dr. Syid Rashid to conduct it. On October 22, 2003, Dr. Rashid performed the examination, and, in an affidavit filed on October 24, 2003, opined that, to a reasonable degree of medical certainty, Ruth suffered from dementia and was unable to receive and evaluate information or communicate decisions to such an extent that she lacked the capacity to meet essential requirements for food, clothing, shelter, safety, and other care such that serious physical injury, illness, or disease was likely to occur. Dr. Rashid's affidavit also stated that Ruth lacked the capacity or ability to manage her financial resources, could understand neither her rights nor the nature or consequences of the proceedings, would not be able to effectively participate in a hearing, and that her mental and physical condition would continue to deteriorate in the future. In particular, Dr. Rashid opined that Ruth was incapable of understanding and making an informed decision concerning her rights to be represented by an attorney of her choice as opposed to a court-appointed attorney, to a jury trial, to present evidence on her behalf or to remain silent, to cross-examine the witnesses against her, to have the hearing open or closed at her election, or to be present at a hearing.

On November 7, 2003, interested persons D. Lynn Duvall ("Lynn") and Norman Staley, collectively referred to as "Appellants," filed objections to the petition, followed by a flurry of other pretrial motions including a Motion to Dismiss and alternative Motion to Strike (November 7, 2003), Supplemental Objections to Petition and Second Motion to Dismiss (January 16, 2004),2 and a Third Motion to Dismiss (June 29, 2004, overruled on July 6, 2004). On December 12, 2003, Appellants also filed their own Petition for Appointment of Guardian and Conservator with the probate court, which they subsequently voluntarily dismissed without prejudice on January 21, 2004, after service on Ruth by the Randolph County Sheriff's office on January 6, 2004.

On July 9, 2004, Attorney Brown filed a Waiver with the probate court in which he waived Ruth's rights to a jury trial and to attend any hearings inasmuch as he concurred with Dr. Rashid's assessment that, due to her physical and mental condition, Ruth would be unable to understand and assist with the proceedings in any meaningful way. Thereafter, on July 23, 2004, the court conducted an evidentiary hearing, during which Attorney Brown explained to the court that although he had met with her several times, Ruth "could not communicate with [him] in any manner, including identifying Lynn Duvall or where she was at." At the conclusion of the hearing, the probate court issued its Judgment of Incapacity and Disability and Order Appointing Guardian and Conservator, finding Ruth to be totally incapacitated and legally disabled. The court also found that Smith and Attorney Brown had established "good cause shown" under section 475.0503 not to appoint Lynn as the guardian of Ruth's person and the conservator of her estate, so the court appointed the Public Administrator of Randolph County instead, as requested in the petition. Finally, the probate court ordered that costs and $5,459 in attorney's fees were to be paid from the conservatorship estate. This timely appeal followed. Any additional facts necessary to disposition of the appeal will be supplied as needed later in this opinion.

At the outset, we note that on May 2, 2005, before this case was submitted, Appellants notified this court that Ruth died at Loma Linda Health Care in Moberly on April 26, 2005, attaching a certified copy of her death certificate to their "Suggestion of Death of Mildred Ruth Duvall and Motion for Review, Remand and Mandate to Vacate and Dismiss Proceedings for Lack of Jurisdiction." The same day, opposing counsel filed a "Motion to Dismiss Appeal as Moot." We took both motions with the case.

"A threshold question in any appellate review of a controversy is the mootness of the controversy." State ex inf. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001) (internal quotation marks omitted). Appellants bring six points on appeal. Four of them (Points I, II, III, and V) purport to advance claims that the probate court lacked jurisdiction to enter the judgment and order, while the other two (Points IV and VI) raise substantive challenges to the court's actions. Although they request a full review of all six points on appeal, in their motion, Appellants further suggest that, at a minimum, this court should review those points raising jurisdictional issues and subsequently issue an order of vacatur to the extent we were to hold the probate court's final judgment and order to be void for lack of jurisdiction. In contrast, Smith's motion requests that we dismiss the appeal in its entirety, citing authority from foreign jurisdictions holding that in general, when a ward or protectee dies during the pendency of an appeal, reversal or affirmance of the probate court's judgment of incapacity or disability becomes merely advisory and the appeal presents only moot questions.

We agree with Appellants that Ruth's death during the pendency of this appeal does not render moot the purported jurisdictional issues raised in Points I, II, III, and V of their brief, because if any of them were found to have merit, the probate court's judgment and order would both be void ab initio and vacatur would be appropriate. See, e.g., State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669, 673 (banc 1946) (noting that where a court renders judgment without jurisdiction of the parties or the subject matter, the judgment is null and void ab initio and a motion to vacate is a proper remedy).

Points IV and VI are a different story, however. In Point IV, Appellants claim that Ruth received substandard representation throughout the guardianship and conservatorship proceedings from her court-appointed counsel, Attorney Brown. They also argue that the probate court erred in appointing Brown to represent Ruth since he had a conflict of interest. In Point VI, Appellants contend the probate court erred in appointing the Public Administrator of Randolph County as the guardian of Ruth's person and the conservator of her estate because the court should have appointed one of them as guardian and conservator instead.

With regard to Point IV, since any statutory or constitutional right Ruth may have had to effective assistance of counsel during the guardianship and conservatorship proceedings died with her, any decision by this court on that claim would not have any practical effect upon any now-existing controversy. Moreover, Ruth's death made any decision by this court as to the quality of representation she received during those proceedings, or whether Attorney Brown should have been appointed as her attorney, wholly unnecessary. Likewise, as to Point VI, it is now also unnecessary for us to decide whether the probate court erred in failing to appoint either of the Appellants...

To continue reading

Request your trial
7 cases
  • State Ex rel. Praxair, Inc. v. Pub. Serv. Com'n of the State of Mo.
    • United States
    • Missouri Court of Appeals
    • January 25, 2011
    ...Pub. Serv. Comm'n v. Mo. Interstate Gas,LLC, 266 S.W.3d 881, 885 (Mo.App. W.D.2008) (quoting Mo. Dep't of Health & Senior Serv. v. Winkler (In re: Duvall), 178 S.W.3d 617, 621 (Mo.App. W.D.2005)). " 'A case is moot when the question presented for decision seeks a judgment upon some matter w......
  • State Of Mo. Ex Rel. Praxair Inc v. Pub. Serv. Comm'n Of The State Of Mo.
    • United States
    • Missouri Court of Appeals
    • October 26, 2010
    ...Serv. Comm'n v. Mo. Interstate Gas, LLC, 266 S.W.3d 881, 885 (Mo. App. W.D. 2008) (quoting Mo. Dep't of Health & Senior Serv. v. Winkler (In re: Duvall), 178 S.W.3d 617, 621 (Mo. App. W.D. 2005)). "'A case is moot when the question presented for decision seeks a judgment upon some matter wh......
  • Duvall v. Yungwirth
    • United States
    • Missouri Court of Appeals
    • November 10, 2020
    ...court's judgment appointing the Public Administrator as Ruth's guardian and conservator was affirmed by this Court, In re Duvall , 178 S.W.3d 617 (Mo. App. W.D. 2005), Missouri Lawyers Weekly published an article in October 2005 entitled "Nephew Exploits Aunt's Assets, Loses Chance to Admin......
  • Election Board v. City of Lee's Summit
    • United States
    • Missouri Court of Appeals
    • December 23, 2008
    ...at some other time." Henning v. Bd. of Election Comm'rs of St. Louis County, 787 S.W.2d 742, 744 (Mo.App. E.D.1989); In re Duvall, 178 S.W.3d 617, 622 (Mo.App. W.D.2005) ("we `do not decide questions of law disconnected from the granting of actual relief'")(quoting State ex rel. Chastain v.......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT