ESTATE OF DOWNS v. Bugg
2011 Mo. App. LEXIS 1267
| Mo. Ct. App. | 2011Background
- Estate of Laura Downs is administered by James L. Rutter as personal representative; Eldon Bugg appeals the probate court’s judgment approving a Statement of Account, the Complete Settlement Order, and discharge of the personal representative.
- Bugg drafted a durable power of attorney for Downs in 1991 and loaned Downs $42,000, signing a promissory note to be repaid.
- Bugg drafted a revocable trust in 1997 naming himself and Downs as co-trustees, with trust assets to pay Downs’s living expenses and remaining assets to Bugg and his wife upon Downs’s death.
- In 2000, Bugg allegedly assigned note proceeds to the Trust and later prepared a receipt claiming the note and interest were paid to the Trust.
- The Boone County Public Administrator was appointed guardian for Downs in 2000 due to dementia; later proceedings found the note proceeds belonged to Downs’s conservatorship, not the Trust, a ruling that was affirmed on appeal (Downs I).
- After Downs’s death in 2001, the Estate sought discovery and obtained a 2004 summary judgment for $17,573.71 plus interest; Downs II awarded $1,500 in attorney’s fees for a frivolous appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the motion to disqualify the judge | Bugg timely filed under §472.060 | Estate argues untimely after delay | Motion untimely; no abuse of discretion in denial |
| Attorney's fees in the Statement of Account | Fees were wrong, improper, injurious to the Estate under §473.153.6 | Fees were properly documented and reasonable | Fees approved; no abuse of discretion due to lack of transcript on appeal |
Key Cases Cited
- Rutter v. Bugg (Estate of Downs), 347 S.W.3d 487, 347 S.W.3d 487 (Mo.App. W.D. 2011) (jurisdictional limits on bond sequestration; later affirmed")
- Rutter v. Bugg (Estate of Downs), 300 S.W.3d 242, 300 S.W.3d 242 (Mo.App. W.D. 2009) (reversal of contempt and confinement order; authority questioned)
- Rutter v. Bugg (Estate of Downs), 242 S.W.3d 729, 242 S.W.3d 729 (Mo.App. W.D. 2007) (attorney’s fees for frivolous appeal awarded)
- Rutter v. Bugg (Estate of Downs), 75 S.W.3d 853, 75 S.W.3d 853 (Mo.App. W.D. 2002) (Downs I; conservatorship asset disposition affirmed)
- Rutter v. Bugg (Estate of Downs), 75 S.W.3d 853, 75 S.W.3d 853 (Mo.App. W.D. 2002) (Downs I; conservatorship asset disposition affirmed)
- Fischer v. Kranitz, 168 S.W.3d 84 (Mo.App. W.D. 2005) (timeliness of disqualification motions; automatic disqualification not curtailed by delay)
- Nassau v. Kohn, 731 S.W.2d 840 (Mo. banc 1987) (timeliness and waiver of §472.060 disqualification)
- Elnicki v. Caracci, 255 S.W.3d 44 (Mo.App. E.D. 2008) (standard for abuse of discretion in change-of-judge rulings)
- Howard v. City of Kansas City, 332 S.W.3d 772 (Mo. banc 2011) (attorney’s fees as purely discretionary)
- State ex rel. York v. Kays, 916 S.W.2d 859 (Mo.App. S.D. 1996) (automatic disqualification under §472.060)