In the EState B. Downs v. Bugg

• Decision Date: 27 September 2011
• Docket Number: No. WD 73316.,WD 73316.
• Citation: 348 S.W.3d 848
• Parties: In The ESTATE OF Laura B. DOWNS, Deceased; James L. Rutter, Personal Representative, Respondent,v.Eldon BUGG, Appellant.
• Court: Missouri Court of Appeals

348 S.W.3d 848

In The ESTATE OF Laura B. DOWNS, Deceased; James L. Rutter, Personal Representative, Respondent,

v.Eldon BUGG, Appellant.

No. WD 73316.

Missouri Court of Appeals, Western District.

Sept. 27, 2011.

Eldon Bugg, Appellantpro se.Jean E. Goldstein, Columbia, MO, for respondent.Before Division Two: THOMAS H. NEWTON, Presiding Judge, CYNTHIA L. MARTIN, Judge and GARY D. WITT, Judge.CYNTHIA L. MARTIN, Judge.

Eldon Bugg(“Bugg”) appeals from the trial court's judgment approving a Statement of Account, entering an Order of Complete Settlement, and discharging the Personal Representative.Bugg contends that the trial court erred in: (1) not disqualifying trial court judge, Deborah Daniels(“Judge Daniels”), because Bugg timely filed an application for disqualification; and (2) overruling Bugg's objections to the attorney's fees reflected in the Statement of Account because the fees were injurious to the estate of Laura Downs(“Estate”).We affirm.

Factual and Procedural History

This matter involves the administration and closure of the Estate.The Estate has evolved through a lengthy, litigious history, which we summarize here.¹In 1991, Bugg, although not an attorney, drafted a durable power of attorney for Laura Downs(“Downs”), an elderly woman he met through church.During that same year, Bugg borrowed $42,000 from Downs and executed a promissory note (“Note”) agreeing to repay Downs.In 1997, Bugg drafted a revocable trust (“Trust”) for Downs, naming himself and Downs as co-trustees.Downs's living expenses were to be paid from the Trust.Upon Downs's death, the remainder of the Trust was to go to Bugg and his wife.

In April 2000, Bugg used the durable power of attorney to purportedly assign all proceeds from the Note to the Trust.Approximately one year later, Bugg drafted a receipt which claimed that the $42,000 Note and $4,200.00 in interest accrued on the Note had been fully paid to the Trust.

In November 2000, the Boone County Public Administrator(the “Public Administrator”) was appointed guardian and conservator for Downs, who suffered from dementia and was adjudged incapable of managing her financial resources and daily needs.A month later, the Public Administrator filed a petition for discovery of Downs's assets, referencing the Note.The trial court in that case found that the proceeds of the Note had not been lawfully transferred to the Trust and belonged instead in Downs's conservatorship.We affirmed this judgment on appeal.Rutter v. Bugg(Estate of Downs),75 S.W.3d 853(Mo.App. W.D.2002)(“ Downs I ”).

In September 2001, Downs died.In July 2004, the Estate filed a petition for discovery of assets alleging that Bugg improperly retained possession of the Note.The trial court rendered summary judgment in favor of the Estate awarding it $17,573.71, (the balance due on the Note ²), plus interest and other costs.We affirmed this judgment on appeal and ordered Bugg to reimburse the Estate for $1,500.00 in attorney's fees for filing a frivolous appeal.Rutter v. Bugg(Estate of Downs),242 S.W.3d 729(Mo.App. W.D.2007)( “ Downs II ”).

In 2007, the Estate unsuccessfully sought to garnish Bugg's assets to pay the Downs II judgment.In March 2008, the Estate filed a motion for contempt and for an examination of Bugg's assets.Judge Daniels was assigned as the trial judge in connection with the Estate on March 14, 2008.Following a hearing, Judge Daniels issued a judgment on June 20, 2008, finding Bugg in contempt of court for failing to comply with the Downs II judgment, and ordering Bugg confined to the county jail until he satisfied the Downs II judgment.On April 13, 2009, Bugg posted a $40,000.00 bond set by Judge Daniels as the means by which Bugg could stay the order of confinement.On appeal, we reversed and vacated the judgment of contempt and the order of confinement.Rutter v. Bugg(Estate of Downs),300 S.W.3d 242(Mo.App. W.D.2009)(“ Downs III ”).

Following our decision in Downs III, and following an evidentiary hearing on the Estate's subsequent Motion for Order to Pay Over Funds, Judge Daniels entered a judgment on May 18, 2010 ordering that $35,248.84 of the bond Bugg had posted to avoid confinement be paid to the Estate, with the balance to be paid to Bugg.On appeal, we held that Judge Daniels exceeded her authority by sequestering Bugg's bond for purposes of satisfying the Downs II judgment.Rutter v. Bugg(Estate of Downs),347 S.W.3d 487(Mo.App. W.D.2011)(“ Downs IV ”).

On May 25, 2010, the Estate filed a Petition to Pay Attorney's Fees in the amount of $41,933.87.Bugg filed objections to the petition.Following a hearing, the trial court overruled Bugg's objections and granted the Estate's petition on June 18, 2010.

On June 18, 2010, the Estate filed a Statement of Account and Petition for Order of Complete Settlement.The Statement of Account reflected as “paid” the attorney's fees authorized by the trial court's June 18, 2010 order approving the Estate's Petition to Pay Attorney's Fees.On July 6, 2010, Bugg filed objections to the Statement of Account.Bugg's objections once again complained about the amount of the attorney's fees.Bugg also filed a motion to disqualify Judge Daniels claiming she was biased and prejudiced against him as a result of the proceedings giving rise to Downs III.

On July 13, 2010, the trial court denied Bugg's motion to disqualify as untimely.On August 20, 2010, the trial court conducted a hearing on the Estate's Petition for an Order of Complete Settlement and on Bugg's objections to the Statement of Account.On September 23, 2010, the trial court overruled Bugg's objections, approved the Statement of Account, and entered an Order of Complete Settlement (“Judgment”).Bugg filed a motion to vacate or modify the Judgment and to stay the payment of attorney's fees,³ which motion was denied after a hearing.

Bugg filed this timely appeal.

Rule 84.04 violations

“ ‘Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.’ ”Patrick v. Monte Owens Agency, Inc.,332 S.W.3d 917, 920(Mo.App. W.D.2011)(citation omitted).Bugg fails to comply with Rule 84.04 in several respects.Bugg fails to comply with Rule 84.04(h)(1) in that the Judgment appealed from, although listed on the appendix table of contents, is not included in the appendix.Bugg's brief fails to comply with Rule 84.04(b) in that there is no jurisdictional statement.Bugg's brief fails to comply with Rule 84.04(c) in that his statement of facts is argumentative instead of “a fair and concise statement of the facts relevant to the questions presented for determination without argument.”Moreover, Bugg's brief fails to adequately cite to the record as required by Rule 84.04(i) which states, “All statements of fact and argument shall have specific page references to the legal file or the transcript.”SeeColeman v. Mo. Secretary of State,313 S.W.3d 148, 152(Mo.App. W.D.2010).

Pro se claimants are held to the same standards as attorneys.Kuenz v. Walker,244 S.W.3d 191, 193(Mo.App. E.D.2007).“ ‘It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.’ ”Id.(citation omitted).“Whether to dismiss an appeal for briefing deficiencies is discretionary.That discretion is generally not exercised unless the deficiency impedes disposition on the merits.It is always our preference to resolve an appeal on the merits of the case rather than to dismiss an appeal for deficiencies in the brief.”Lanham v. Div. of Emp't Sec.,340 S.W.3d 324, 327(Mo.App. W.D.2011)(citations omitted).Therefore, we offer our analysis, ex gratia, to the extent that we may do so without advocating for Bugg.Rainey v. Express Medical Transporters, Inc.,254 S.W.3d 905, 908(Mo.App. E.D.2008)(holding that court of appeals is prohibited from acting as an advocate).

Analysis

Bugg raises two points on appeal.In his first point, Bugg claims that Judge Daniels erred by denying Bugg's motion that she be disqualified because Bugg's application for disqualification pursuant to section 472.060⁴ was timely filed.In his second point, Bugg claims that the trial court erred in overruling his objections to attorney's fees reflected as payable by the Estate in the Statement of Account because the attorney's fees were wrong, improper, and injurious to the Estate as expressly prohibited by section 473.153.6.

Standard of Review

“Appellate review of a decision on a motion to disqualify is limited to deciding whether the trial court's ruling on the claim of prejudice amounted to an abuse of discretion.”Elnicki v. Caracci,255 S.W.3d 44, 48(Mo.App. E.D.2008)(citingBerry v. Berry,654 S.W.2d 155, 159(Mo.App. W.D.1983)).Appellate review of an award of attorney's fees will be reversed “only if the court abused its discretion ... or lacked the authority to award them.”K.M.D. v. Alosi,324 S.W.3d 477, 479(Mo.App. W.D.2010)(internal citations omitted).“ ‘To demonstrate an abuse of discretion, the complaining party must show the trial court's decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice.’ ”Russell v. Russell,210 S.W.3d 191, 199(Mo. banc 2007)(citation omitted).

Point I

For his first point, Bugg contends that the trial court erred in not disqualifying Judge Daniels because Bugg timely filed an application for disqualification pursuant to section 472.060.We disagree.

Section 472.060 provides,

No judge of probate shall sit in a case in which the judge is interested, or in which the judge is biased or prejudiced against any interested party, or in which the judge has been counsel or a material witness, or when the judge is related to either party, or in the determination of any cause or proceeding in...