Meggitt v. Stross

488 P.3d 1220

In the Interest of Therese M. MEGGITT, a Protected Person, Appellant,

v.Gregory R. STROSS and Marcie M. McMinimee, former Special Conservator for Therese M. Meggitt, Appellees.

Court of Appeals No. 19CA1803

Colorado Court of Appeals, Division III.

Announced April 15, 2021

The Lee Law Firm, LLC, Linda Lee, Denver, Colorado, for Appellant

Gregory R. Stross, Pro Se

Steenrod, Schwartz & McMinimee, LLP, Marcie McMinimee, Denver, Colorado, for Appellee McMinimee

Opinion by JUDGE FURMAN

¶ 1 A probate court ordered Therese M. Meggitt, a protected person, to pay the costs and fees incurred by a special conservator who had been appointed over a year earlier. On appeal, Meggitt primarily contends that the probate court lacked jurisdiction to enter such an order because the petitioner (her attorney) did not serve her with notice of the original petition to appoint a conservator or notify her of the hearing on the petition. She also contends the court made procedural errors in the appointment proceedings. Because Meggitt's challenges to the appointment proceedings are not timely, we dismiss this portion of her appeal.

¶ 2 Meggitt also contends that a lack of notice of the fee rate and costs incurred by the special conservator precludes compensation. Because Meggitt concedes that she "is not seeking review of the court's determination that the fees were reasonable," any error in not disclosing the special conservator's fee rate was harmless. She last requests, based on various statutes, that we should award her attorney fees. We deny her request.

¶ 3 We therefore affirm the order.

I. The Need for a Special Conservator

¶ 4 This probate case arose out of a pending dissolution of marriage case. Appellee Gregory R. Stross represented Meggitt in the dissolution case. The dissolution court appointed a guardian ad litem for Meggitt.

A. The Special Conservator Appointment Proceedings

¶ 5 On December 7, 2017, Stross filed a petition to appoint a conservator for an adult, initiating this probate case. He expressed concern for Meggitt's welfare, explaining that her "judgment and decision-making ability concerning financial affairs" were substantially impaired and that this had resulted in the "dissipation of assets in the marital estate." The next day, he moved for a forthwith hearing on the petition.

¶ 6 On December 8, 2017, the probate court granted the motion for a forthwith hearing. After a telephone hearing, the court entered a protective order appointing Melissa R. Schwartz as special conservator and appellee Marcie R. McMinimee as alternate special conservator under section 15-14-412(3), C.R.S. 2020. See § 15-14-412(3)(a) ("The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section. The special conservator has the authority conferred by the order and shall serve until discharged by order after report to the court.").

¶ 7 This order of appointment gave the special conservator the following authority:

To assist dissolution counsel with completing a dissolution of marriage in Denver District Court.... The [s]pecial [c]onservator is authorized to file a petition for the appointment of a full or limited conservator should such a petition be determined to be necessary and appropriate. The [s]pecial [c]onservator is authorized to apply to the probate court for an expansion of authority as may be determined to be necessary.

¶ 8 (Stross testified at the attorney fees hearing that Meggitt received the details of the appointment order by the next day.)

¶ 9 The following month, McMinimee accepted the appointment as special conservator and, on January 16, 2018, the probate court issued letters granting her authority "to assist dissolution counsel with completing [the] dissolution of marriage." The probate court's order of appointment again authorized the special conservator to "file a petition for the appointment of a full or limited conservator should such a petition be determined to be necessary and appropriate." The special conservator sent formal notice of the appointment to Meggitt by first class mail.

B. The Special Conservator's Authority

¶ 10 The special conservator made a forthwith motion to freeze and investigate some of Meggitt's accounts. On January 17, 2018, the probate court granted the special conservator's motion, ordering Meggitt's stock account and three credit card accounts "frozen until further Order of this Court." The court also authorized the special conservator to investigate Meggitt's accounts and freeze any other accounts she discovered.

¶ 11 A different attorney, Colleen McCoy, then entered her appearance as counsel for Meggitt.

C. Meggitt's Objections

¶ 12 On January 19, 2018, McCoy moved to terminate the special conservator (she did not move for reconsideration of the appointment order), arguing:

The Protected Person's inability to manage property and business affairs has been resolved as follows:

The Protected Person never required a [s]pecial [c]onservator nor ever requested one. The former attorney for the Protected Person in the Protected Person [sic] requested a [s]pecial [c]onservator be appointed against the protests of the Protected Person. The former attorney had his acquaintance appointed as the [s]pecial [c]onservator who then refused to remove the former attorney from the case. The Protected Person did not require at any point someone to manage her finances or business affairs for her and does not require it now. The Protected Person was not even informed of the previous hearing appointing a [s]pecial [c]onservator until after it had been completed.

¶ 13 The special conservator responded and recommended that a guardian ad litem be appointed and that Meggitt be independently evaluated by a third party. Meggitt disagreed with the appointment of the guardian ad litem in this case but agreed to an independent psychological evaluation.

¶ 14 On February 25, 2018, the court appointed the guardian ad litem from the dissolution of marriage case to "make recommendations regarding the appointment of the [s]pecial [c]onservator" and ordered an independent evaluation "to determine if the [s]pecial [c]onservatorship is warranted and whether the [guardian ad litem] appointment should continue."

¶ 15 On March 23, 2018, the parties moved to suspend the special conservator's authority. This was because the parties determined that Meggitt did not need the services of both a guardian ad litem and a special conservator.

¶ 16 On June 25, 2018, Meggitt's guardian ad litem requested that the probate court terminate the special conservator because Meggitt's thought process and judgment had returned to normal following the "winding down of the contentious dissolution proceeding."

¶ 17 On July 13, 2018, the special conservator took no position on termination and moved the probate court for payment of fees and costs.

¶ 18 On October 12, 2018, the court noted that "termination of the [s]pecial [c]onservator's appointment is not at issue." The court then ruled that "Meggitt may pay the fees and costs" of the special conservator or "may attend mediation as ordered if she continues to object to payment." But apparently Meggitt did not cooperate with mediation.

¶ 19 Some months later — on March 13, 2019 — new counsel for Meggitt moved to dismiss the case, objecting for the first time to the probate court's jurisdiction to appoint the special conservator. Citing, among other statutes, sections 15-14-404(1) and 15-14-406(6), C.R.S. 2020, the motion claimed that the court did not comply with service and notice provisions and that the court made procedural errors in the appointment proceedings.

¶ 20 The probate court denied the motion to dismiss, ruling that section 15-14-406(6) authorizes the probate court to "issue orders to preserve and apply the property of the respondent for support of the respondent after preliminary hearing and without notice to others."

D. The Special Conservator's Fees and Costs

¶ 21 The probate court later found the special conservator's fees and costs reasonable and entered an order for their payment.

¶ 22 Meggitt then moved for reconsideration of the reasonableness of the special conservator's fees. The court granted this motion. After a hearing, the court again found the special conservator's fees and costs reasonable and ordered Meggitt to pay $21,963.87 to the special conservator.

¶ 23 In Meggitt's appeal of the order to pay costs and fees, she raises an untimely collateral challenge to the earlier appointment order. We first address this challenge.

II. Appeal of Earlier Appointment Order is Untimely

¶ 24 Meggitt contends that the probate court lacked jurisdiction to order her to pay the costs and fees incurred by the special conservator because the court did not substantially comply with the service and notice provisions of section 15-14-404(1) before appointing the special conservator. While we agree that Meggitt did not timely receive a copy of the petition or notice of the hearing on the petition, we disagree with her contention because we conclude that the probate court's January 2018 order was a final order that Meggitt did not appeal. We therefore conclude Meggitt is too late to collaterally attack the lack of service and notice she received for the appointment hearing through this appeal of the 2019 order awarding the special conservator's fees and costs. So, we dismiss this portion of her appeal.

A. The January 2018 Order Was a Final, Appealable Order

¶ 25 C.A.R. 4(a) requires "the notice of appeal ... [to] be filed ... within 49 days of the ... [final] order from which the party appeals."

¶ 26 In probate cases, as in other civil cases, an order "is final if it ends the particular action in which it is entered and leaves nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that proceeding." Scott v. Scott , 136 P.3d 892, 896 (Colo. 2006).

¶ 27 In Scott , our...