In re the Guardianship and/or Conservatorship of Adeline v. Dorosh.

• Court: Court of Appeals of Minnesota
• Decided: August 18, 2014
• Docket: A13-2181
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA IN COURT OF APPEALS A13-2181

In re the Guardianship and/or Conservatorship of Adeline V. Dorosh.

Filed August 18, 2014 Affirmed Reyes, Judge

Todd County District Court File No. 77PR13226

Deanna Dorosh, Coon Rapids, Minnesota (appellant pro se)

John E. Lindemann, Brown & Krueger, P.A., Long Prairie, Minnesota (for respondent Pamela Dorosh-Walther)

Thomas P. Klecker, Thornton, Reif, Dolan, Bowen & Klecker, P.A., Alexandria, Minnesota (for respondent Payee Central Diversified, Inc.)

Timothy M. Churchwell, Peters & Churchwell, P.A., Long Prairie, Minnesota (for respondent Adeline V. Dorosh)

Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and

Stoneburner, Judge.

UNPUBLISHED OPINION

REYES, Judge

On appeal from an order appointing a guardian and conservator, appellant asserts

that (1) the order is void for lack of personal jurisdiction over the ward because service of

 Retired judge of the Minnesota Court of Appeals, serving by appointment under Minn. Const. art. VI, § 10. the amended petition was statutorily deficient; (2) lack of timely notice violated the

ward’s due-process rights; (3) the district court erred by denying appellant’s motion for a

change of venue; (4) the district court erred by excusing certain parties from appearing

and by declining to re-open the record upon notification that the ward wished to attend

the hearing; and (5) the district court erred by summarily denying her petition to vacate

the order. We affirm.

FACTS

This case arises from a dispute between two sisters over who should direct the care

of their mother, Adeline Dorosh (the ward). In February 2013, the ward was admitted to

a hospital after she fell at her home in Browerville. She was 83 years old at that time.

The ward’s daughter, appellant Deanna Dorosh (appellant), objected to diagnostic testing

proposed by the hospital staff and tried to have the ward discharged into her care, but the

ward refused to sign an acknowledgment that discharge was against medical advice.

Hospital staff told appellant that she could not decide to have the ward discharged unless

the ward had given her power of attorney.1 Medical tests completed over appellant’s

objection showed that the ward had suffered a sacral fracture, and hospital staff noted that

the ward was chronically confused and disoriented throughout her subsequent four-week

hospital stay.

1 Appellant later asserted that the ward had granted her power of attorney, but she never produced documents to support that claim. On March 13, while still in the hospital, the ward signed a revocation of powers of attorney running to appellant. The revocation documents were drafted by respondent’s counsel and identify two powers of attorney by date, but the powers themselves are not in the record. Appellant later moved for reinstatement of the alleged powers of attorney, and the district court denied the motion.

2 Appellant repeatedly told hospital staff that she was going to remove the ward

from the hospital and objected to staff sharing information with her sister, respondent

Pamela Dorosh-Walther (respondent). Although staff continued to note symptoms of

dementia, appellant insisted that dementia was not an issue. On March 8, appellant

walked the ward to an exit, prompting staff to call police; police intervened, and the ward

remained in the hospital. As her condition improved, the ward began to get out of bed on

her own, against medical advice, and suffered additional falls, but sustained only

superficial injuries. On March 20, the ward’s doctors discharged her from the hospital,

and she was transported by ambulance to a skilled-nursing facility in New Brighton, in

Ramsey County.

On March 15, respondent filed an emergency petition in Todd County District

Court requesting that she be appointed as the ward’s emergency guardian. The ward’s

physician filed a statement supporting guardianship, indicating that the ward was

experiencing severe memory impairment and dementia and was “very confused.” The

district court granted respondent’s petition, scheduled an emergency hearing for March

19, and appointed an attorney to represent the ward. On the day of the hearing, appellant

moved for a continuance and requested that she be appointed as the ward’s emergency

guardian instead of respondent. The district court continued the hearing to March 28 and

declined to appoint appellant as the ward’s guardian.

On March 26, respondent and Daryl Dorosh (the ward’s son) notified the district

court of their intent to seek appointment of a neutral third party as the ward’s guardian

instead of respondent. On March 28, respondent formally petitioned for appointment of

3 respondent Payee Central Diversified (Payee Central) as the ward’s guardian, and the

emergency hearing occurred as scheduled. Respondent and appellant appeared, each

represented by counsel. The ward’s attorney and Daryl Dorosh were also present. From

the bench, the district court ordered continuation of the March 15 emergency-

guardianship order, excused respondent as emergency guardian and appointed Payee

Central in her place, and scheduled a full evidentiary hearing for May 9. The district

court later issued a written order to the same effect.

On April 9, a visitor met with the ward.2 The visitor reported to the district court

that the ward did not want to attend the hearing scheduled for May 9, did want a court-

appointed attorney, and did want respondent to be appointed as her guardian. The visitor

served the ward with a copy of the petition, notice of the hearing, and notice of the

court’s appointment of an attorney to represent her. On April 29, appellant, through

counsel, moved to dismiss the petition or, in the alternative, to transfer venue to Ramsey

County. Appellant’s attorney then withdrew. On May 7, respondent amended the

guardianship petition to request the appointment of Payee Central as both guardian and

conservator for the ward. The need for both a guardian and a conservator had been

discussed at the emergency hearing.

Respondent appeared with counsel at the May 9 evidentiary hearing. The ward’s

counsel appeared, but the ward did not. Daryl Dorosh and a representative of Payee

Central were also present. Appellant did not appear, but faxed a letter to the district court

2 “Visitor” is a statutory term in this context, referring to a court-appointed person who meets with the subject of a guardianship petition in an effort to determine that person’s wishes. Minn. Stat. § 524.5–420(g) (2012).

4 explaining that her absence was due to the withdrawal of her counsel and other factors.

Appellant’s fax included two handwritten letters, purportedly written and signed by the

ward, asserting that the ward wanted appellant, not respondent, to be in charge of her

affairs, wanted to use her own funds to hire an attorney to replace her court-appointed

counsel, and wanted to leave the New Brighton facility. The district court did not discuss

the letters during the hearing and later returned them to appellant, explaining that they

would not be accepted for filing because they were not copied to all parties.

During the hearing, the ward’s counsel told the court that the ward did not wish to

be present and moved that her presence be waived. Hearing no objection, the district

court granted the motion. The district court told those present that appellant’s counsel

had withdrawn. The district court denied appellant’s motion for a change of venue,

stating that appellant had defaulted on the motion by failing to appear. The parties

present stipulated to the admission of the ward’s medical records. A doctor then testified

that the ward has “significant dementia” and would not be safe in a home setting, that

full-time nursing care is the least-restrictive alternative that would serve her needs, and

that it is highly unlikely that her condition will improve. The doctor also testified that the

ward “definitely cannot” make decisions about conserving her own assets and income, or

about her care. On May 21, the district court issued a written order appointing Payee

Central as the ward’s guardian and conservator.

On October 3, appellant, acting pro se, filed a “petition” asking the district court to

vacate the May 21 order or hold an additional evidentiary hearing, order the ward

discharged into her care, issue a temporary restraining order against Payee Central, and

5 reinstate the powers of attorney. On October 21, the district court summarily denied the

petition, concluding that it sought the same relief as the April 29 motion to dismiss, on

which appellant had defaulted by failing to appear at the May 9 hearing, and stating that

appellant “has not identified any new, non-frivolous ground that would allow this Court

to consider her request for relief.”

Appellant retained new counsel and, on November 19, appealed the district court’s

May 21 order. On November 20, she moved the district court for amended findings, a

new trial, and relief from the October 21 dismissal of the pro se petition. The district

court stayed consideration of the November 20 motion, concluding that the filing of the

appeal deprived it of authority to consider the posttrial motion.

DECISION

Appellant asserts arguments based on personal jurisdiction and due process. She

also argues that the district court erred by denying her motion for a change of venue, by

excusing the appearances of the ward and the visitor rather than reopening the record

despite appellant’s evidence that the ward wanted to attend the hearing, and by

summarily dismissing appellant’s October petition. We address these five issues in turn.

I. Personal jurisdiction

Appellant argues that the district court’s appointment of Payee Central as the

ward’s guardian and conservator is void for lack of personal jurisdiction over the ward

because, although the ward was validly served with the original guardianship petition,

she was not served with the amended petition. Appellant asserts, in effect, that service of

6 the amended petition on the ward is a statutory prerequisite to personal jurisdiction over

the ward.

Appellate courts generally do not consider issues not raised to and considered by

the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Additionally,

while a defense based on lack of subject-matter jurisdiction may be raised at any time by

any party or by the court, a defense of lack of personal jurisdiction is waived if a party

omits it from a motion consolidating defenses, or fails to assert it by motion or include it

in a responsive pleading or an amendment of a responsive pleading. Minn. R. Civ. P.

12.08.

In her brief, appellant admits that the district court did not address the

jurisdictional argument she now asserts. More importantly, the record shows that she did

not raise this issue before the district court. There are exceptions to the Thiele rule, see

Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (noting that the Thiele rule is not

“ironclad”), but appellant does not raise any recognized exception or claim that any might

apply here. Appellant also did not raise this issue by motion or include it in any of her

pleadings or other filings. We therefore conclude that appellant has waived her personal-

jurisdiction argument under both the Thiele rule and Minn. R. Civ. P. 12.08, and we

decline to consider it.

II. Due process

Appellant argues that “proceeding on a petition to appoint both a guardian and a

conservator with the petition having been filed only two days before the hearing violated

the ward’s constitutional right to due process.” The United States and Minnesota

7 constitutions prohibit government from depriving individuals of life, liberty, or property

without due process of law. U.S. Const. amend. XIV § 1; Minn. Const. art 1, § 7. “Due

process is a fairness doctrine which requires that a person have notice and an opportunity

to be heard.” In re Conservatorship of Edwards, 390 N.W.2d 300, 304 (Minn. App.

1986).

Our consideration of this issue is hampered by the fact that appellant does not

clearly apply the legal rules she states to the facts of the case; her argument consists of

citations to authority and assertions that the district court’s order deprived the ward of

liberty and property.3 Appellant seems to suggest that the evidentiary hearing was

conducted based on the filing of the amended petition alone. If that were true, the

argument might have some merit because the evidentiary hearing occurred on May 9, just

two days after the amended petition was filed. The Uniform Guardianship and Protective

Proceedings Act (the act) requires petitioners to notify “all interested persons” of the time

and place of the hearing at least 14 days before the hearing. Minn. Stat. § 524.5-113(a)

(2012). “Interested person” includes, among others, the proposed ward. Minn. Stat.

§ 524.5-102, subd. 7 (2012). But the evidentiary hearing was not conducted based only

on the filing of the amended petition, and appellant’s argument ignores the notice-giving

effect of the events that occurred before the petition was amended. The district court

3 We note that this argument could be considered waived because issues not briefed on appeal are waived, Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982), including issues alluded to, but not argued, McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998), and “[a]n assignment of error based on mere assertion and not supported by argument or authority” is waived “unless prejudicial error is obvious on mere inspection,” State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted). We address it nonetheless.

8 scheduled the evidentiary hearing during the March 28 emergency hearing, and the

original petition was filed on the day of the emergency hearing. The amended petition

was filed weeks later. The ward was personally served with the original petition and

notice of the evidentiary hearing on April 9, a month before the evidentiary hearing. The

visitor read the notice and petition to the ward in the presence of a third party, and the

ward indicated that she understood the purpose and effect of the proceedings and did not

wish to attend. The attorney appointed to represent the ward was present at every

proceeding. The possibility that the petition for guardianship would be amended to

include conservatorship was discussed—in the presence of the ward’s attorney, appellant,

and appellant’s then-counsel—during the emergency hearing. The amended petition was

personally served on the ward’s attorney three days before the evidentiary hearing, and

filed with the district court two days before the evidentiary hearing. The transcript of the

evidentiary hearing shows that the ward’s attorney was aware of the amendment prior to

the hearing.

We conclude that there is no basis in the record for appellant’s implied assertion

that the evidentiary hearing was conducted based only on the filing of the amended

petition. We also conclude that the ward did not lack notice of the proceedings. We

accordingly reject appellant’s due-process argument.

III. Change of venue

Appellant argues that the district court erred by denying her motion for a change

of venue. As a threshold matter, we note that we could decline to consider this issue for

two reasons. First, when parties fail to fully litigate an issue before the district court we

9 generally do not decide it on appeal. In re Estate of McCue, 449 N.W.2d 509, 512

(Minn. App. 1990) (citing Fryhling v. Acrometal Prods., Inc., 269 N.W.2d 744, 747

(Minn. 1978)). Appellant’s motion stated her arguments in conclusory terms, clearly

contemplating that the motion would be supported by arguments presented later during an

appearance before the district court. Appellant failed to fully litigate the issue by failing

to appear and support the motion. Second, alleged defects in venue may be waived by

seeking affirmative relief in the allegedly improper venue. In re Guardianship of

Kowalke, 232 Minn. 292, 306–07, 46 N.W.2d 275, 284 (1950). After appellant sought

the change in venue, she invoked the district court’s authority by asking it to order that

the ward be immediately discharged into her care. We choose to address the issue

nonetheless, and conclude that appellant’s argument lacks merit.

We review a district court’s denial of a motion for a change of venue for abuse of

discretion. In re Cont’l Cas. Co., 749 N.W.2d 797, 799 (Minn. 2008) (stating and

applying this standard for general civil cases); Toughill v. Toughill, 609 N.W.2d 634, 642

(Minn. App. 2000) (stating this standard for family law cases).

Venue for a guardianship proceeding for an incapacitated person is in the county

where the proposed ward resides. Minn. Stat. § 524.5-108(b) (2012). Venue may be

transferred to another county if the change would be in the best interest of the proposed

ward, but the burden is on the party seeking the transfer to show that the transfer is in the

best interest of the proposed ward. Id., (e) (2012). When the proposed ward’s domicile

changes during the proceedings, whether to change venue is in the district court’s

discretion. See Grier v. Estate of Grier, 252 Minn. 143, 149, 89 N.W.2d 398, 403 (1958)

10 (applying the then-current version of the guardianship-venue statute and concluding that

“there is no requirement that the guardianship venue be transferred whenever there is a

subsequent change of the ward’s domicile”).

Appellant argues that her motion was denied “merely because [she] failed to

appear at the May 9th hearing.” We reject this argument because the record shows that

appellant also failed to demonstrate that the change would be in the ward’s best interest.

The only “argument” supporting her motion is the bare assertion, in the motion, that the

transfer would be in the ward’s best interest. The motion also asserts that “it is

imperative that [the ward] have a right to attend the hearing,” and that “venue in Ramsey

County will be more convenient” for her. But appellant produced no evidence that venue

in Todd County would interfere with the ward’s right or ability to attend the hearing.

We conclude that the district court did not abuse its discretion with regard to

appellant’s change-of-venue motion, and we affirm its denial of the motion.

IV. Excused appearances

Appellant argues that the district court “had a responsibility to re-open the record

and schedule a properly noticed hearing once it became aware that the ward wanted to

appear at the May 9th hearing . . . and . . . use her own funds to hire her own attorney.”

She asserts that the district court should not have excused the ward from appearing and

that the court-appointed visitor should have been required to appear as well. We have

already addressed the notice issue. We now address the district court’s decision to

excuse the ward’s appearance without reopening the record, and the visitor’s absence

from the evidentiary hearing.

11 Decisions relating to appointment of guardians and conservators are within the

discretion of the district court. In re Conservatorship of Foster, 547 N.W.2d 81, 84

(Minn. 1996). Reviewing courts shall not interfere with this exercise of discretion absent

a clear abuse of it. In re Guardianship of Stanger, 299 Minn. 213, 215, 217 N.W.2d 754,

755 (1974). This court has limited itself to determining whether the district court’s

findings are clearly erroneous, giving due regard to the district court’s credibility

determinations. In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60–61 (Minn.

App. 1990). We have also deferred to the discretion of the district court to resolve a

proposed ward’s inconsistent expressions of preference. In re Guardianship of Kowalski,

382 N.W.2d 861, 867 (Minn. App. 1986), cert. denied, 106 S. Ct. 1467, review denied

(Minn. Apr. 18, 1986). Additionally, to prevail on appeal an appellant must show both

error and prejudice resulting from the error. Midway Ctr. Assocs. V. Midway Ctr. Inc.,

306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975). Harmless error is to be disregarded.

Minn. R. Civ. P. 61.

The act provides that a proposed ward “shall attend” the hearing unless “excused

by the court for good cause.” Minn. Stat. § 524.5–307(a) (2012). The district court

expressly excused the ward’s attendance after her counsel reported that she did not want

to attend. Although the district court did not refer to the visitor’s report (in which the

visitor also stated that the ward did not want to attend) that report had been in the record

for several weeks at that point. Appellant’s argument is that the letters she faxed to the

district court on the day of the hearing show that the ward did want to attend. Those

letters were returned to appellant because they were not copied to the other parties, and

12 the district court did not consider them. The letters are not part of the record. See Minn.

R. Civ. App. P. 110.01 (stating that “[t]he documents filed in the trial court, the exhibits,

and the transcript of the proceedings, if any, shall constitute the record on appeal in all

cases”). The record shows that several neutral parties noted that the ward did not want to

attend the evidentiary hearing; in addition to the visitor’s report and the statement of the

ward’s counsel, medical records admitted at the evidentiary hearing include a progress

note in which a licensed social worker documented the ward’s statement that she did not

want to go to the hearing. To the extent that the letters appellant relies on express an

inconsistent desire, the district court resolved the inconsistency and excused the ward’s

attendance at the hearing. We defer to that determination, see Kowalski, 382 N.W.2d at

867 (stating that we defer to the district court’s resolution of inconsistent expressions of a

ward’s preferences), and affirm the district court’s decision to excuse the ward from

appearing.

Minnesota Rule of General Practice 416(b) gives the district court discretion to

appoint a visitor in guardianship and conservatorship proceedings and provides that, if

appointed, “[t]he visitor shall . . . appear, testify and submit to cross-examination at the

hearing concerning his or her observations and recommendations, unless such appearance

is excused by the court.” The visitor was not present at the evidentiary hearing, and the

district court did not explicitly excuse his appearance. Appellant asserts, in effect, that

the absence of the visitor should be fatal to the district court’s decision, but cites no

authority supporting that assertion. Additionally, appellant points to no evidence

suggesting that the absence of the visitor was prejudicial to the ward. The burden is on

13 appellant to demonstrate both error and prejudice resulting from the error. See Midway,

306 Minn. at 356, 237 N.W.2d at 78 (stating the harmless-error rule). Nothing in the

record suggests that the visitor, if he had appeared, would have provided testimony to

contradict his report.

We reject appellant’s argument that the visitor’s absence from the hearing should

be fatal to the district court’s decision because no legal authority supports her argument,

and because she has not demonstrated prejudice resulting from the error. We affirm the

district court’s implicit decision to excuse the visitor from appearing.

V. Summary denial

Appellant argues that the district court erred by summarily denying her October 6,

2013 petition in its order dated October 21.4 The October 6 petition sought vacation of

the May 21 order establishing guardianship and conservatorship. By comparison,

appellant’s April 29 motion sought dismissal of the guardianship petition or change of

venue. The district court concluded that the October 6 petition requested the same relief

it had denied when appellant defaulted on her April 29 motion by failing to appear at the

May 9 hearing. We agree with the district court’s characterization and construe

appellant’s October 6 petition as a motion to vacate a default judgment based on a party’s

failure to appear. We construe appellant’s arguments to this court as an appeal from the

district court’s decision to deny relief from the default judgment.

4 We note that the October 21 order was not listed in appellant’s notice of appeal, which indicated that the appeal was taken solely from the May 21 order appointing Payee Central as guardian and conservator. Nonetheless, we address the October 21 summary dismissal in the interest of judicial efficiency.

14 District courts have discretion to grant relief from default judgments that were

granted as the result of mistake, inadvertence, surprise, excusable neglect, or other

reasons. In re Welfare of Children of Coats, 633 N.W.2d 505, 510 (Minn. 2001) (citing

Minn. R. Civ. P. 60.02). A party seeking relief from default judgment granted due to

failure to appear must demonstrate, among other things, a reasonable excuse for that

failure. Id. If the district court denies the request, we review that denial for abuse of

discretion. Id.

Appellant’s October 6 petition offered no explanation for her failure to appear.

But in the letter she faxed to the district court on the day of the hearing, appellant stated

that she had decided not to attend the hearing because her counsel had withdrawn, and

she was “advised not to attend until [her] new counsel team [was] in place and adequately

prepared.” The supreme court rejected a similar excuse in LaFond v. Sczepanski, 273

Minn. 293, 141 N.W.2d 485 (1966). There, the district court granted default judgment

after defense counsel withdrew and the defendant declined to participate in the trial. Id.

at 294–95, 141 N.W.2d at 486–87. The defendant moved to vacate the default judgment,

the district court denied the motion, and the defendant appealed. Id. at 295, 141 N.W.2d

at 487. The supreme court concluded that the district court did not abuse its discretion by

denying the motion. Id. at 296, 141 N.W.2d at 487. Similarly, the district court did not

abuse its discretion here.

VI. Posttrial motion

Appellant also appears to seek review of the district court’s stay of her November

posttrial motion. The district court concluded that the taking of this appeal, which

15 occurred on November 19, deprived it of authority to consider the posttrial motion filed

on November 20.

The record on appeal is limited to matters that were before the district court at the

time it made the decision from which the appeal is taken. See Minn. R. Civ. App. P.

110.01 (defining record on appeal). The district court’s handling of the November 20

motion is not within the scope of this appeal because that motion was not before the

district court when it issued the May 21 order from which this appeal was taken.

Moreover, as we have explained, we conclude that appellant is not entitled to relief from

the May 21 order appointing Payee Central or from the October 21 order summarily

denying the petition to vacate. Accordingly, although we perceive no error in the district

court deferring consideration of the posttrial motion while this appeal was pending, any

error could not have affected appellant’s substantial rights. Errors not affecting a party’s

substantial rights must be disregarded. Minn. R. Civ. P. 61.

Affirmed.