In re Guardianship of the Estate of Lewis
| Docket Number: | 2009-CA-00956-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-05-2010 Opinion Author: Roberts, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Wills & estates - Standing - Waiver of issues - Service of process - Section 93-13-121 - Section 93-13-281 Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Ishee, Carlton and Maxwell, JJ. Non Participating Judge(s): King, C.J., and Barnes, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 05-06-2009 Appealed from: NEWTON COUNTY CHANCERY COURT Judge: H. David Clark Disposition: ESTABLISHED GUARDIANSHIP Case Number: 2009-N0095 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN THE MATTER OF THE GUARDIANSHIP OF
THE ESTATE OF FRANK LEWIS |
ORVIS A. SHIYOU JR. |
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| Appellee: | Unknown | JAMES B. EVERETT | ||
| Appellee #2: | ||||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Standing - Waiver of issues - Service of process - Section 93-13-121 - Section 93-13-281 |
| Summary of the Facts: | James Nelson filed a petition seeking to establish a conservatorship for Frank Lewis. The petition averred that Lewis needed a conservator because of his physical and mental weakness and requested Newton County Bank be enjoined from disbursing Lewis’s funds pending the issuance of a court order. Newton County Bank subsequently filed a complaint for interpleader in the pending conservatorship action in which it requested the court determine the final disposition of Lewis’s funds. Lewis’s assets at Newton County Bank consisted of several certificates of deposit, some of which were jointly held with Nelson. The chancellor found that Nelson was present with his attorney; an attorney for Newton County Bank was present; and Lewis was present with his attorney. All three attorneys signed an agreed judgment on behalf of their clients. He further found that Lewis had joined in the request that someone be appointed to manage his affairs. However, the chancellor found that a guardianship should be established, rather than a conservatorship, because Lewis had previously suffered from a stroke, was wheelchair bound, and needed regular kidney dialysis. The chancellor appointed Lewis’s attorney as guardian of his estate; appointed Lewis’s son, Franklin D. Lewis, as guardian of his person; and set aside any powers of attorney previously executed. Subsequent to the establishment of the guardianship, Lewis employed another attorney to effectuate an appeal of the chancellor’s order. Lewis’s attorney filed a motion to withdraw as guardian in which she recounted certain events that had transpired after the establishment of the guardianship. |
| Summary of Opinion Analysis: | Issue 1: Standing Lewis’s original attorney argues that Lewis lacks standing to appeal because as a result of her appointment as his guardian, Lewis no longer has the ability to bring a suit or appeal on his own behalf. While it is true that a ward is typically represented in court by their guardian or conservator, it is appropriate, in certain situations, to allow a ward to proceed under his own name. Lewis alleges that his attorney and subsequent guardian did not protect his interests at the hearing and that the guardianship should have never been established. Under such circumstances an individual, whether a ward or not, will not be prohibited from attempting to protect himself. Issue 2: Waiver of issues Lewis’s original attorney argues that Lewis is prohibited from raising his issues on appeal because he did not first present them to the chancellor. Although generally an appellate court will not entertain issues that have not been presented first to the trial court, jurisdictional issues may be raised for the first time on appeal. The deciding issue in this case is jurisdictional. Issue 3: Service of process Lewis argues that service of process was never accomplished on him for either the petition for conservatorship or complaint for interpleader. However, a voluntary appearance is an overt act by which, or as a result of which, a person against whom a suit has been commenced submits himself of the jurisdiction of the court in the particular suit. It is clear from the chancellor’s order that Lewis was present at the hearing with his retained attorney. Therefore, there is no merit to Lewis’s assertions that the chancery court did not have jurisdiction over him. With regard to establishing a guardianship, however, the petition for appointment of a guardian under section 93-13-121 must abide by the provisions of section 93-13-281. Section 93-13-281 generally provides that in all proceedings involving a ward, the proceedings shall join as defendants two of his adult kin within the third degree. When such petition shall be filed, the clerk shall issue process. Although Nelson did list two adult relatives within the third degree in his petition, the record neither contains any evidence that they were given notice of the pendent hearing nor that they were present at the hearing. Failure to comply with the notice requirement of section 93-13-281, without otherwise curing the defect, mandates that the chancellor’s establishment of the guardianship be reversed and remanded so that the statutory defects can be cured and another hearing conducted to determine if Lewis is in need of a guardian. |
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