Kolocotronis, Matter of
| Decision Date | 16 January 1996 |
| Docket Number | No. 67980,67980 |
| Citation | 919 S.W.2d 4 |
| Parties | In the Matter of Cyril A. KOLOCOTRONIS, an incapacitated and disabled person, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis; Hon. Michael B. Calvin, Judge.
Thomas Mitchell Dunlap, Fulton, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.
RHODES RUSSELL, Judge.
Cyril A. Kolocotronis ("Ward") appeals the denial of his request for a jury trial in a hearing to determine whether the public administrator should be appointed as his successor guardian and conservator. We affirm.
Ward was found incompetent in a non-jury trial held on March 7, 1960. His mother, Mary Kolocotronis, was appointed the guardian of his person and estate. 1 On December 23, 1992, the probate division of the St. Louis Circuit Court ordered the transfer of the record of the ward's guardianship to the Probate Division of the Circuit Court of Callaway County. Stephen Reeves, Superintendent of Fulton State Hospital, filed a petition on May 17, 1993, requesting the removal of the ward's mother as guardian and conservator, the appointment of a successor guardian and conservator and for authorization for the ward to be admitted to a mental health facility. After a hearing held on February 8, 1994, the Callaway Court found that Mary Kolocotronis was confined to a nursing home and was suffering from the early stages of alzheimer's disease. Therefore, the court entered an order removing her as guardian and conservator.
The Callaway Court granted ward's request for a jury trial. However, the ward filed a motion for change of venue and the case was transferred back to the probate division of the St. Louis Probate Court. The ward again filed a motion for a jury trial with the new court. The St. Louis Probate Court denied the motion. 2 The Fulton State Hospital Superintendent thereafter filed an amended petition to appoint Mark Ostenfeld, the St. Louis Public Administrator, the successor guardian and conservator and to authorize the public administrator to admit the ward to a mental health facility on October 25, 1994. A hearing on the amended petition was held without a jury on January 24, 1995. The court found that the ward remained incapacitated 3 3 and entered an order appointing Mark Ostenfeld, St. Louis Public Administrator, the ward's guardian and authorized him to admit the ward to a mental health facility. In light of the ward's minimal assets and his past experience in handling his money with the assistance of social workers at the Fulton State Hospital, the court declined to appoint a successor conservator.
In his only point on appeal, the ward argues that the trial court erred in denying his request for a jury trial on the issue of the appointment of the public administrator as the successor guardian and conservator. 4 This appears to be an issue of first impression under the 1983 Probate Code.
The ward relies on the language of § 475.115 RSMo 1994 which states:
When a guardian or conservator dies, is removed by order of the court, or resigns and his resignation is accepted by the court, the court shall have the same authority as it has in like cases over personal representatives and their sureties and may appoint another guardian or conservator in the same manner and subject to the same requirements as are herein provided for an original appointment of a guardian or conservator.
The ward contends that this statute incorporates requirements of § 475.075.8 RSMo 1994 which sets out the "bill of rights" for alleged incapacitated persons in capacity or disability adjudications. Section 475.075.8(2) states:
8. The respondent shall have the following rights in addition to those elsewhere specified: ....
(2) The right to have a jury trial.
Therefore, it is the ward's position that every time a guardian or conservator dies, resigns, or is removed by the court, the incapacitated party is entitled to a jury trial in the determination of the appointment of successor guardians and conservators. We disagree with his broad interpretation.
The primary object of statutory interpretation is to ascertain the intent of the legislature and to give effect to that intent. Blaine v. J.E. Jones Const. Co., 841 S.W.2d 703, 711 (Mo.App.1992). In doing so, the court assumes the words are used in their plain and ordinary meaning. Id. A different meaning and effect to a statute cannot be given when its meaning is clear and unambiguous. Northland Ins. Co. v. Bess, 869 S.W.2d 157, 159 (Mo.App.1993).
Section 475.075 sets out the procedures for hearings on the issue of capacity or disability and the rights of the alleged incapacitated person in those hearings. One of the rights a respondent has in capacity or disability hearings is the right to a jury trial. The legislature clearly intended to protect this right as a finding of incapacity entails the deprivation of a fundamental liberty. In re Korman, 913 S.W.2d 416, 418-419 (Mo.App.E.D.1996). The Missouri Supreme Court has further protected that right by requiring that the waiver of the jury trial be explicit and on the record. In re Link, 713 S.W.2d 487, 495 (Mo. banc 1986).
The present case, however, does not involve a determination of capacity or disability. That issue was resolved in 1960 and the court herein can take judicial notice of the previous findings and order of the court in 1960. Matter of Estate of Voegele, 838 S.W.2d...
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