In re Korman

913 S.W.2d 416, 1996 Mo. App. LEXIS 77, 1996 WL 13102
CourtMissouri Court of Appeals
DecidedJanuary 16, 1996
DocketNo. 66947
StatusPublished
Cited by2 cases

This text of 913 S.W.2d 416 (In re Korman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Korman, 913 S.W.2d 416, 1996 Mo. App. LEXIS 77, 1996 WL 13102 (Mo. Ct. App. 1996).

Opinion

DOWD, Judge.

Joseph W. Korman appeals on behalf of his brother, George F. Korman, from the circuit court’s judgment notwithstanding the jury’s verdict finding George incapacitated and disabled. We reverse and remand.

On May 14,1993, George’s nephew, Gerald Korman, initiated proceedings to have a conservator and guardian appointed for George asserting George was incapacitated and disabled. Counsel was appointed to George by the court, but private counsel was subsequently retained. George filed a motion requesting a jury trial. On February 17 and 18, 1994, a jury trial was held on the matter before the probate division of the circuit court of Gasconade County. George was present at the hearing and also testified. Following deliberation, the jury returned verdicts finding George partially incapacitated and partially disabled. The jury’s findings included: “George has problems processing mathematical calculations, such as maintaining a checkbook log, to a great extent. George has difficulty analyzing financial transactions to a great extent. George has moderate short term memory loss. George has questionable judgement in his ability to care for himself unsupervised.”

The court accepted and entered the verdicts. The court, however, did not enter judgment at that time. Rather, the court entered an interlocutory order naming William J. Korman (a nephew of George) temporary conservator and guardian. The interlocutory order included a required medical evaluation by doctors at the Harry S. Truman Veterans Hospital on which “the Court shall hold a review hearing concerning the status of [George].” The court stated: “This interlocutory order contemplates a 110 day period in order that suitability be determined for living arrangements & appointment of Guardian & Conservator.”

Following the 110-day period of the interlocutory order, the court held a hearing. At the beginning of the hearing, the court stated [418]*418the purpose of the hearing: “This matter is before the Court today for a review of the temporary orders and the experience under those orders_” Joseph W. Korman had been permitted by the court to intervene, and all parties were represented by counsel. Witnesses, including George, were presented and testified. After the hearing, the court entered a judgment notwithstanding the verdict finding George totally incapacitated and disabled. The court appointed William J. Korman permanent conservator and guardian and further ordered George be placed in a supervised living situation such that his activities could be monitored on a 24-hour basis.

On appeal, Joseph W. Korman challenges the court’s authority to enter a judgment notwithstanding the verdict in a competency proceeding. Respondent does not argue Joseph W. Korman lacks standing to challenge the competency determination of his brother. “Sections 472.160 and 472.170[, RSMo,] address appeals from probate division. In § 472.170, an appeal may be taken by a petitioner for adjudication, the person alleged to be disabled or a relative, any reputable citizen in the county of hearing, or attorneys for all those described persons.” Couch v. Couch, 824 S.W.2d 66, 70 (Mo.App.1991) (emphasis added).

Competency proceedings are governed by Chapter 476, RSMo 1994. The authority supporting the statutory guardianship provisions of Chapter 476 is the state’s parens patriae power. In In re Link, 713 S.W.2d 487 (Mo. banc 1986), our Supreme Court recognized a growing body of cases attaching due process considerations to proceedings, without regard to whether the proceedings were denominated “criminal” or “civil,” stemming from the state’s parens pat-riae power. Id. at 493-94. Even though the intent of guardianship is the benevolent protection of individuals who are not able to care for themselves, “guardianship necessarily entails a deprivation of the fundamental liberty to go unimpeded about one’s ordinary affairs.” Id. at 493. Link held the legislature revised Chapter 475 in 1983 with the intent “to provide greater protection for the rights of alleged incompetents” and to fulfill the state’s duty to vouchsafe due process in the course of the state’s exercise of the parens patriae guardianship power. Id. at 494. Our Supreme Court emphasized the necessity of construing Chapter 476 to effectuate “the spirit and force” of this legislative intent. Id. at 493,496.

The 1983 revision of Chapter 475 included the “bill of rights” of individuals alleged to be incompetent:

(1) The right to be represented by an attorney;
(2) The right to have a jury trial;
(3) The right to present evidence in his behalf;
(4) The right to cross-examine witnesses who testify against him;
(5) The right to remain silent;
(6) The right to have the hearing opened or closed to the public as he elects;
(7) The right to a hearing conducted in accordance with the rules of evidence in civil proceedings, except as modified by this chapter;
(8) The right to be present at the hearing.

§ 475.075.8, RSMo 1994.

In Link, our Supreme Court held that the constitution and legislative intent required effective waiver of the Chapter 475 right to a jury trial be in accordance with the procedures of a criminal case rather than the procedures for waiver in a civil case. Link, 713 S.W.2d at 495. Similarly, we hold it is contrary to the spirit and force of the legislative intent to allow the court to circumvent the right to a jury trial by the civil procedure of entering a judgment notwithstanding the verdict against the alleged incompetent. The rights conferred by § 475.075.8 were intended to be substantive protections to an alleged incompetent’s “fundamental liberty” threatened by a competency proceeding. As noted in Link, “The most formidable abridgment of due process guarantees however, occurs where ‘lip service’ is paid to certain rights of the accused as a mere formality, with the consequence that any substantive protection is woefully lacking.” Id. at 494 n. 8 (quoting Quesnell v. State, 83 Wash.2d 224, 517 P.2d 568, 574-75 (1973)). To allow the court to substitute its own judgment where [419]*419such fundamental rights are at risk would render the right to a jury determination hollow. No doubt exists as to a court’s lack of authority to enter a judgment of guilt against a criminal defendant notwithstanding the jury’s verdict of not guilty. In competency proceedings, “similar rights are involved [as] in criminal proceedings.” Link, 713 S.W.2d at 493. A meaningful right to a jury trial similarly forecloses the court’s authority to enter a judgment notwithstanding the verdict against the alleged incompetent.

Importantly, the legislature did not leave the courts powerless where just cause exists to believe the judgment is unsuitable. Section 475.077 grants the courts special jurisdiction to remedy the judgment in a prescribed manner.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Estate of Korman
945 S.W.2d 10 (Missouri Court of Appeals, 1997)
In re Kolocotronis
919 S.W.2d 4 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
913 S.W.2d 416, 1996 Mo. App. LEXIS 77, 1996 WL 13102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-korman-moctapp-1996.