In re Washington

• Decision Date: 16 June 2020
• Docket Number: No. ED 108357,ED 108357
• Citation: 603 S.W.3d 705
• Parties: In the ESTATE OF: James Larry WASHINGTON
• Court: Missouri Court of Appeals

603 S.W.3d 705

In the ESTATE OF: James Larry WASHINGTON,

No. ED 108357

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: June 16, 2020

FOR APPELLANT: David B. Washington PRO SE, 8618 Spoon Drive, St. Louis, MO 63132-3809.

For Respondent- Delisa Richardson: Paul Gantner, 10733 Sunset Office Drive, Suite 425, St. Louis, MO 63127.

Respondent Acting Pro Se: Marcherie K. Washington, 546 N. Elm Ave, Apt. 302, St. Louis, MO 63119.

Respondent Acting Pro Se: Mar-Kim L. Washington, 546 N. Elm Ave., Apt. 302, St. Louis, MO 63119.

Respondent Acting Pro Se: Pantha D. Martinez, 674 Chateau Circle, Vacaville, CA 95687.

Respondent Acting Pro Se: Marcus G. Washington, 6961 Middle Valley Walk, Affton, MO 63123.

Respondent Acting Pro Se: Glen A. Washington, 517 Rosebush Lane, Oswego, IL 60543.

ROY L. RICHTER, Judge

David B. Washington, a pro se litigant, ("Appellant") appeals from the circuit court's October 11, 2019 judgment granting partial fees to Appellant for his role as guardian and conservator of his brother, James L. Washington ("Protectee"). We affirm.

I. Background

On February 2, 2013, Protectee was found unconscious in his home, where he had lived for more than forty years. In March 2013, his brother, Appellant, filed a Petition for Appointment of Guardian and/or Conservator, which was granted. The letters of guardianship and conservatorship were issued on May 9, 2013. A history of court filings and litigation ensued, both during Protectee's life and after he passed away on April 15, 2018.

Throughout his time as guardian and conservator, Appellant filed several petitions for compensation, which itemized his time and expenses and requested an hourly pay rate of $107. His first three petitions were filed on April 28, 2016, September 14, 2016, and July 12, 2017. On August 8, 2017, the probate division of the Circuit Court of St. Louis County issued an order for compensation to Appellant of $500 for each of four annual periods for a total of $2000. Appellant appealed from that order, and on its own motion, this Court dismissed the appeal, ED105884, without prejudice because the order was not properly signed. In re the Estate of James Larry Washington, Cause No. 13SL-PR00622, St. Louis County Circuit Court (October 17, 2017). The Court noted, "If an order is entered by a judge on the motion to modify or vacate [its August 8, 2017 order], then Appellant may refile his appeal." On October 5, 2017, the probate judge ordered that the August 8 order be reconsidered because it had not been signed by a judge or commissioner. The deputy commissioner took the request to modify or vacate the August 8 order under submission on October 6, 2017. However, no subsequent order is on the record.

On September 30, 2019, the probate division for the Circuit Court of St. Louis County issued an order dismissing Appellant's claims for compensation filed on May 13, 2019, and August 28, 2019, for the entire period of February 2013 through April 2018. Appellant filed his Notice of Appeal on October 7, 2019, in ED108336, which is the subject of a separate appeal decided simultaneously with this one.

Finally, the current appeal stems from the circuit court's October 11, 2019 order granting fees to Appellant as guardian and conservator in an amount less than requested, based on Appellant's petitions for compensation filed on July 9, 2018, and September 26, 2019. Appellant filed his Notice of Appeal on October 21, 2019, and this appeal follows. Additional facts are discussed as they relate to Appellant's points on appeal.

II. Discussion

Appellant raises three points on appeal. His first two points similarly allege the circuit court erred in entering orders allowing guardian/conservator fees, although Appellant does not specify to which orders he is referring. Appellant alleges the allowances for guardian/conservator fees by the circuit court were error in that they paid Appellant only a small percentage of the amount he claimed, 7.419% of more than $19,000 requested in his first point on appeal, and 5.633% of more than $38,000 requested in his second point on appeal. Appellant argues the circuit court orders were errors because his claims complied with the requirements of Sections 475.265, 475.120, and 475.130, RSMo.

Third and finally, Appellant alleges the circuit court erred in the judgment against Appellant resulting from the hearing of September 26, 2019, because Appellant complied with the circuit court's order of July 12, 2019, to retain an attorney for the hearing or to be fined, and that Appellant was denied due process under law by being denied entry in the courtroom, to testify and to object under the requirements of both the U.S. Constitution and Missouri Constitution, which provide that "no person shall be deprived of life, liberty, or property without due process of law." U.S. Const. Amend. V ; Mo. Const. Art. I Sect. 10.

A. Standard of Review

"A court-tried probate case is reviewed under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under that standard, the probate court judgment will be sustained ‘unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’ " In re Estate of Schooler, 204 S.W.3d 338, 342 (Mo. App. W.D. 2006) (quoting Murphy, 536 S.W.2d at 32 ). "Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary to sustain the circuit court's judgment." Ivie v. Smith, 439 S.W.3d 189, 199 (Mo. banc 2014). "The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong." Id. at 206.

In determining whether the judgment is supported by substantial competent evidence, "we view the evidence and reasonable inferences from the evidence in the light most favorable to the judgment, disregard all evidence and inferences contrary to the judgment, and defer to the trial court's credibility determinations." Estate of Briggs, 449 S.W.3d 421, 425 (Mo. App. S.D. 2014). "A claim that the trial court erroneously declared or applied the law is reviewed de novo. " Id.

Section 475.265 assigns to the court the determination of a guardian and conservator's compensation. The allowance of fees falls within the court's administrative authority and is within the court's discretion. In re Estate of Walker, 16 S.W.3d 672, 676 (Mo. App. E.D. 2000). Accordingly, we review the court's award of compensation under this statute solely for abuse of discretion. Id., citing In re Switzer, 201 Mo. 66, 98 S.W. 461, 465 (1906).

B. Analysis

Points I and II: Circuit court did not abuse its discretion in awarding fees

Appellant's first point alleges the circuit court erred in entering an order allowing the guardian/conservator fees of 13.15 hours, $1,407.05, or 7.419% of his requested 177.25 hours, totaling $19,005.64, for services rendered by Appellant, both guardian and conservator, as a result of his "Petition V Claim" filed for guardian/conservator compensation. His second point alleges the circuit court erred in entering an order allowing guardian/conservator fees of 18.75 hours, $2,006.25, or 5.633% of his requested 332.87 hours, and compensation of $38,630.21, for services rendered by Appellant, as a result of his "Petition VI Claim" filed for guardian/conservator compensation. Appellant argues these two "claims" complied with the requirements of Sections 475.265, 475.120, and 475.130, RSMo., in that Appellant's claims for services rendered, for protection/benefit of the assets of the estate were for fees as a direct charge of costs and expense of administration to the estate.

Our review of the Legal File reveals that Appellant's petition for guardian/conservator compensation for the period of April 28, 2017 to April 24, 2018, which Appellant filed on July 9, 2018, was considered and the court entered an order granting a fee on October 11, 2019. The same October 11, 2019 order granted a fee for Appellant's petition for guardian/conservator compensation for the period of April 24, 2018, to August 23, 2019, which Appellant filed on September 26, 2019.

The circuit court awarded a total of $3,468.53 and its order states, "the Court notes that Guardian/Conservator was the Protectee's Brother. Where there is a familial relationship between the parties there is the presumption that services are rendered gratuitously," citing Section 475.265 to consider ties of blood in making allowances of compensation to the guardian/conservator, and that "Guardian/Conservator has provided no documentation or evidence to rebut this presumption." The court took judicial notice that Appellant is an accountant by trade, and found "some services rendered to the estate were of a professional nature." In making its award, the circuit court found that no documentation was provided as to the request for reimbursement of expenses for the September 2019 expenses. The circuit court denied the mileage request because Protectee was deceased at the time period for which Appellant was claiming it. The court denied the "filing, process service" expenses because Appellant provided no documentation for such. The court awarded parking and postage expenses from April 2018 through September 2019.

Appellant further argues the circuit court abused its discretion, lacks legal reasoning, and that Appellant and the Protectee do not have a family relationship as a matter of law. Appellant argues that the family relationship is not defined by blood, but is a matter for a jury to determine based on the circumstances, citing Sturgeon v. Estate of Wideman, 608 S.W.2d 140, 142 (Mo. App. E.D. 1980). Appellant claims that his evidence was six years of filing claims for reimbursement, which demonstrate that the circuit court...