C.G. v. K.P. (In re Conservatorship of R.G.)

• Decision Date: 26 May 2016
• Docket Number: No. 20150184.,20150184.
• Citation: 879 N.W.2d 416
• Parties: In the Matter of the GUARDIANSHIP and Conservatorship of R.G., an Incapacitated Person C.G., Petitioner v. K.P.; S.P.; R.G.; K.N., co-guardian; S.S., co-guardian; Audrey Ulrich, co-guardian; GAPS; American State Bank & Trust, conservator ; Jeff Nehring, guardian ad litem; and Christopher Carlson, guardian ad litem, Respondents K.P., Appellant C.G.; American State Bank & Trust, conservator, Appellees.
• Court: North Dakota Supreme Court

879 N.W.2d 416

In the Matter of the GUARDIANSHIP and Conservatorship of R.G., an Incapacitated PersonC.G., Petitioner

v. K.P.; S.P.; R.G.; K.N., co-guardian; S.S., co-guardian; Audrey Ulrich, co-guardian; GAPS; American State Bank & Trust, conservator ; Jeff Nehring, guardian ad litem; and Christopher Carlson, guardian ad litem, RespondentsK.P., AppellantC.G.; American State Bank & Trust, conservator, Appellees.

No. 20150184.

Supreme Court of North Dakota.

May 26, 2016.

Taylor D. Olson, Williston, N.D., for petitioner and appellee C.G.

Lisa M. Six (argued) and Garth H. Sjue (on brief), Williston, N.D., for respondent and appellee American State Bank & Trust.

William C. Black, Bismarck, N.D., for respondent and appellant K.P.

SANDSTROM

, Justice.

[¶ 1] K.P. appeals from an order appointing a conservator and co-guardians for his adult uncle, R.G. We conclude the district court did not clearly err in finding good cause not to appoint K.P. as guardian and conservator for R.G. and did not abuse its discretion in appointing other individuals and entities as conservator and co-guardians for R.G. We affirm.

I

[¶ 2] In September 2014, R.G. lived in one of several mobile homes on land in rural McKenzie County owned by him and members of his family. R.G.'s brother helped care for him until that brother died in May 2014. According to R.G., his niece, S.P., became his caregiver after his brother's death, and she lived near Billings and usually saw him once or twice a month. In September 2014, law enforcement officers raided the property where R.G.'s mobile home was located as part of an investigation of others. According to a McKenzie County Deputy Sheriff, R.G.'s mobile home had dog feces throughout and did not have running water, a sewer or septic system, a furnace, a working refrigerator, or an adequate food supply.

[¶ 3] After the law enforcement raid, C.G., a niece of R.G.'s, petitioned for appointment of an emergency conservator and guardian for her uncle, alleging he was between 86 and 87 years old and was being unduly influenced by S.P., who was nominated as his attorney-in-fact under a July 2014 durable power of attorney. C.G.'s petition sought to have R.G. declared an incapacitated person and to establish protective proceedings for his residential, medical, and financial affairs. The district court appointed Guardian and Protective Services, Inc. (“GAPS”) as an emergency conservator and co-guardian and K.N., a relative of R.G.'s by marriage, as a co-guardian. The court also appointed a guardian ad litem for R.G. At a hearing on the emergency order, R.G. testified he executed a power of attorney in July 2014, appointing S.P. as his attorney-in-fact and he had recently transferred some property to her. According to the guardian ad litem, R.G. had recently transferred property, including an oil well, to S.P. and the condition of “the trailer house was very, very poor.” The guardian ad litem testified he believed a conservatorship and guardianship was necessary. After that hearing, the court determined the emergency order was appropriate for a period not to exceed 60 days and invalidated R.G.'s power of attorney pending further proceedings.

[¶ 4] C.G. thereafter petitioned for appointment of a conservator and a guardian for R.G. The district court appointed a visitor, a physician, and a guardian ad litem to examine R.G., and those entities made written reports to the court. At a hearing on that petition, R.G., K.P., C.G., and the guardian ad litem agreed R.G. needed a conservator and a guardian, and the court considered the appropriate entity or entities for appointment. At the hearing, K.P. testified his sister, S.P., was willing to waive her appointment as her uncle's designated attorney-in-fact and healthcare agent under the July 2014 power of attorney and K.P. sought to be appointed as his uncle's conservator and guardian as the named alternate under that document. The district court said reports by the physician, the visitor, and the guardian ad litem had been submitted to the court for review and found R.G. was an incapacitated person in need of the continuing care and supervision of a conservator and guardian. The court appointed GAPS, K.N., and S.S., a granddaughter of R.G.'s brother, as co-guardians and appointed American State Bank & Trust as conservator for R.G.

[¶ 5] The district court had jurisdiction to appoint a conservator and guardian under N.D. Const. art. VI, § 8

, and N.D.C.C. §§ 27–05–06 and 30.1–02–02. K.P.'s appeal from the order is timely under N.D.R.App.P. 4(a). Appeals from an order appointing a conservator and guardian are authorized under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28–27–01, 28–27–02, and 30.1–02–06.1. American State Bank argues, however, we lack jurisdiction to hear this appeal without a certification under N.D.R.Civ.P. 54(b), and we initially consider that argument.

II

[¶ 6] American State Bank argues an order appointing a conservator and guardian is not appealable without a certification under N.D.R.Civ.P. 54(b)

.

[¶ 7] Rule 54(b), N.D.R.Civ.P

., authorizes a district court to enter a final judgment as to one claim or party for purposes of appeal in actions involving multiple claims or multiple parties and provides:

If an action presents more than one claim for relief, whether as a claim, counterclaim, crossclaim, or third-party claim, or if multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

In appeals involving remaining unadjudicated claims, our appellate jurisdiction requires compliance with two criteria:

First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28–27–02

. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.

Gast Constr. Co., Inc. v. Brighton P'ship, 422 N.W.2d 389, 390 (N.D.1988)

(citations omitted).

[¶ 8] American State Bank, however, has cited no cases requiring a Rule 54(b)

certification for appeals from an order appointing a conservator and guardian. American State Bank nevertheless claims the lack of a Rule 54(b) certification precludes jurisdiction in this case because addressing and remedying S.P.'s improper influence over R.G. was at the heart of this case and proceedings to rescind R.G.'s conveyances to S.P. were pending when K.P. ultimately appealed from the order appointing a conservator and co-guardians.

[¶ 9] In In re Estate of Shubert, 2013 ND 215, ¶¶ 22–25, 839 N.W.2d 811

, this Court considered a similar issue in the context of an appeal from an order denying a petition to remove a personal representative. We explained:

In Matter of Estate of Starcher, 447 N.W.2d 293, 295–96 (N.D.1989)

, this Court discussed the applicability of N.D.R.Civ.P. 54(b) to supervised and unsupervised probates. We recognized each proceeding in an informal unsupervised probate was “independent of any other proceeding involving the same estate.” Starcher, at 295 (quoting N.D.C.C. § 30.1–12–07 ). We said “[f]inality in an unsupervised administration requires a concluding order on each petition,” and orders in an unsupervised probate are appealable without certification under N.D.R.Civ.P. 54(b), unless they determine some, but not all, of one creditor's claims against an estate. See

Starcher, 447 N.W.2d at 295–96.

In In re Estate of Eggl, 2010 ND 104, ¶¶ 6–9, 783 N.W.2d 36, we considered the appealability of an order interpreting a will in an unsupervised probate. We held the order was appealable without a certification under N.D.R.Civ.P. 54(b) because the order settled all the petitioner's existing claims and their speculation about future claims did not diminish the effect or appealability of the order. Eggl, at ¶ 9.

This is an informal unsupervised probate. The appellants' petition to remove Wikholm as personal representative is a proceeding separate from individual claims by creditors or heirs, and the court issued a concluding order on that petition. Finality in separate proceedings in an unsupervised administration requires a concluding order on each petition. Starcher, 447 N.W.2d at 295. Moreover, the resolution of a petition to remove a personal representative in an unsupervised administration has an impact similar to the interpretation of the will in Eggl, which may be impossible to remedy in future proceedings. See

Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 298 (N.D.1995) (noting difficulty in seeking remedy that would unring a bell). As in Eggl, 2010 ND 104, ¶¶ 6–9, 783 N.W.2d 36, we conclude the order denying the petition to remove Wikholm as personal representative of the estates is appealable under N.D.C.C. § 28–27–02 without a certification under N.D.R.Civ.P. 54(b).

Shubert, at ¶¶ 23–25.

[¶ 10] A conservator may be appointed to manage the estate and affairs of a person if the court determines the person is unable to manage the person's property and affairs because of mental illness, mental deficiency, or physical illness or disability and the person has property that will be wasted or dissipated unless proper management is provided, or protection is necessary to obtain or provide funds for the support, care, and welfare of the person. N.D.C.C. § 30.1–29–01(2)

. See

In re Guardianship of J.G.S., 2014 ND 239, ¶ 13, 857 N.W.2d 847. “The appointment of a conservator vests in the conservator title as trustee to all property of the protected...