In re Smith, ED 105745

Citation550 S.W.3d 541
Decision Date01 May 2018
Docket NumberNo. ED 105745,ED 105745
Parties IN the MATTER OF: Sharren K. SMITH, Appellant
CourtCourt of Appeal of Missouri (US)

550 S.W.3d 541

IN the MATTER OF: Sharren K. SMITH, Appellant,

No. ED 105745

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: May 1, 2018


FOR APPELLANT: John T. Ahlquist, 7711 Bonhomme Ave., Ste. 850, Clayton, Missouri 63105.

For Respondent: Douglas L. Levine, Thomas S. Arras, 105 South Central Avenue, St. Louis MO 63105-1704.

ROY L. RICHTER, Judge

550 S.W.3d 543

Casper Machino ("Appellant"), the conservator of the Estate of Sharren K. Smith ("Ms. Smith"), an incapacitated, disabled person, appeals from the trial court's order entered on June 12, 2017, which denied Appellant's motion to vacate various interlocutory orders from the probate court: orders for waste of March 31, 2016, and March 31, 2017, as well as orders for attorney's fees of March 29, 2013, and March 31, 2017. We dismiss the appeal.

I. Background1

Appellant was appointed as conservator of the estate of Sharren K. Smith on October 19, 2010. He was removed by the probate court on March 31, 2016, for failing to correct annual settlements as required by law, and failing to correct his settlements after being notified of deficiencies, which was the trial court's stated grounds for removal. Show cause orders were issued to Appellant to provide an opportunity to rectify accounting prior to his removal.

During Appellant's time as conservator, the court entered an Order to Expend Funds for Support on September 24, 2012, at which time it explained the court's approach to Appellant's mileage reimbursements and the limitations imposed, and that Appellant received reimbursements for mileage and other expenses in excess of those authorized by the court. That order was vacated and set aside by the court's May 17, 2013 order regarding Appellant's authorized expenditures for support for Ms. Smith, including amounts for rent, groceries, utilities, medical and dental charges, clothing, laundry, and furniture and bedding allowances.

On March 13, 2013, the court granted, in part, Appellant's petition for extra mileage reimbursement filed on February 19, 2013, allowing an additional, one-time mileage reimbursement for medical necessity in the amount of $840, applied to a balance due to the estate in the amount of $3,485, for excess compensation received by Appellant during the first annual settlement period of administration, leaving a balance of $2,645.

Following Appellant's removal as conservator, the Public Administrator was appointed successor conservator for the estate. A Petition to Determine Liability was filed on April 15, 2016, against Appellant as the prior fiduciary, now removed, as well as the bonding company. The matter was submitted by agreement of the parties to the trial court for its summary determination pursuant to Section 473.207 (RSMo. 2000 ), based upon all of the settlements, amendments, vouchers, exhibits, records of the court, and argument of counsel, to which and at which time Appellant's counsel was present and consented, on August 25, 2016.

550 S.W.3d 544

The allowance of attorney's fees has been the subject of three orders throughout Appellant's time as conservator: one on February 25, 2013; one on January 26, 2016, addressing reconsideration of the 2013 compensation order; and one on March 31, 2017. First, the February 2013 order granted, in part, Appellant's petition to allow $10,000 as reasonable compensation for services rendered to Appellant from August 20, 2010, to September 30, 2011; it was ordered reduced by payments of $6,000 already received by Appellant's attorney; the request for an additional allowance of fees of $2,210 for services related to family court proceedings relating to Ms. Smith's modification of maintenance would be reconsidered upon the family court's disposition; and denied all fees sought in the petition exceeding $12,210, namely $7,243.75.

Next, the January 26, 2016 order addressed, inter alia , the pending petitions seeking allowances of attorney's fees sought by Appellant and commented that "[t]he greatest difficulty that this court ha[d] experienced in the supervision of this estate ha[d] been the supervision of compensation to [Appellant] and his attorney." The court noted that the administration expenses furthered the personal interest of the fiduciary and his attorney without furthering the best interests of the ward-protectee, Ms. Smith. The court "thoroughly reviewed counsel's 29-page motion for reconsideration and [found] nothing in the motion that would alter disposition contained in its Order and Judgment of February 22." Although Appellant had argued that this estate involved greater financial complexity than is customarily encountered in the administration of a typical matter, the court found nothing in the record to indicate that the estate involved extraordinary financial complexity. The court also found many expenses were a direct result of the conservator engaging counsel for the purpose of performing his administrative duties despite the court's caution that the attorney's fees for services representing a conservator must be fixed by order of the court. Denying Appellant's petitions for an allowance of attorney's fees, the court noted that the charges being sought for Appellant's attorney's fees represented 40 percent of the cash under administration and found no justification in the record of administration of the estate to make an exception for the excessive charges for expenses here.

Additionally, the March 31, 2017 Order on First Amended Petition for Attorney's Fees acknowledged that the court already discussed the application of legal principles to the case regarding attorney's fees, but it would do so again. The court found the time charges of administration were excessive in light of the condition of this estate and that Appellant's attorney and his paralegal were fully aware of the unauthorized nature of the expenditures and other administrative deficiencies that resulted in the removal of Appellant as conservator, but they actively participated in making those expenditures and failed to advise Appellant of the impropriety of them. The probate court ruled that Appellant's attorney should be allowed only the compensation he has already taken, $35,000 for his representation of Appellant in August 2010 through January 2016, "in full and complete satisfaction of his claim for fees for services rendered to [Appellant] in the administration of this estate and is entitled to nothing more."

On or about March 30, 2017, the probate court commissioner issued an Order Determining Liability of Defaulting Fiduciary and Judgment, which found liability, individually against Appellant and jointly against the surety in the amount of $34,210.34; the order was amended June 12, 2017, to modify the valuation of an

550 S.W.3d 545

automobile by stipulation of parties, pursuant to the trial court orders. That order of the trial court was conveyed for confirmation to the probate court judge, who remanded it to the commissioner to ultimately return and recommend a combined ruling and recommendation on it, and ultimately it was confirmed by the probate judge.

At the end of April 2017, Appellant filed his First Amended Petition for Reconsideration and Petition to Amend the judgments of March 31, 2016 and March 31, 2017, with respect to Appellant's removal as conservator and determination of his liability to this estate, as well as the judgments of March 31, 2016 and March 31, 2017, with respect to attorney's fees and petition for a new trial of all the orders and judgments rendered by the deputy commissioner in this matter. Initially, on May 4, 2017, the court ordered the deputy commissioner "to take up for consideration [Appellant's] First Amended Petition and to thereafter make recommendations to the court in the matter of issues raised by [Appellant] in his First Amended Petition." However, the Public Administrator filed a reply to Appellant's post-trial motions and on June 12, 2017, the court issued an Order Amending Judgment Determining Liability of Defaulting Fiduciary as to Automobile, which had been issued on March 30, 2017. The court further issued an Order and Judgment on First Amended Petition for Reconsideration, to Amend Court's Judgments Petition for New Trial and Motion for Clarification, addressing Appellant's April 26, 2017 filing that raised issues with the March 31, 2016; March 31, 2017; and March 29, 2013 orders regarding removal and conservator and determination of liability, attorney's fees, and Petition for New Trial. The trial court denied Appellant's request for evidentiary hearing and reconsideration of the aforementioned orders.

Appellant filed his notice of appeal on June 21, 2016. This appeal follows.

II. Discussion

Appellant alleges two multifarious points on appeal.2 First, he contends the trial court erred as a violation of due process of law, in the following manner: (A) by compelling Appellant to waive any possible conservator's compensation in the future if he wanted to be reimbursed for automobile expenses to visit Ms. Smith at the Sunshine Home, to which Appellant contends he was entitled anyway; (B) by refusing to grant hearings on the record about numerous matters, including a refusal to grant an evidentiary hearing on the grounds for the removal of the Appellant; (C) by refusing...

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2 cases
  • Harris v. Ralls Cnty., ED 107606
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 2019
    ...2012) (internal quotations omitted). Failure to comply with Rule 84.04 preserves nothing for appellate review. In Matter of Smith , 550 S.W.3d 541, 543 n.1 (Mo. App. E.D. 2018) (internal quotations omitted).Rule 84.04 specifically provides the appellant’s brief must contain "a fair and conc......
  • Naeter v. Treasurer of Mo., ED 106949
    • United States
    • Court of Appeal of Missouri (US)
    • March 12, 2019
    ...(internal quotations and citations omitted). Despite the violation, we choose to review the point, ex gratia. See In Matter of Smith , 550 S.W.3d 541, 545 (Mo. App. E.D. 2018) (citing Matter of Wilma G. James Trust , 487 S.W.3d 37, 52 (Mo. App. S.D. 2016) ).4 Neither Employee nor the SIF ra......

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