GUARDIANSHIP/CONSERVATORSHIP OF VAN SICKLE, No. 20040195

• Decision Date: 04 April 2005
• Docket Number: No. 20040195, No. 20040224.
• Parties: In Regard to the GUARDIANSHIP/CONSERVATORSHIP OF Bruce M. VAN SICKLE Craig B. Van Sickle, Susan Cooper, and John Van Sickle, Petitioners and Appellees, v. Bruce M. Van Sickle, Respondent, and David Van Sickle, Appellant, Guardian and Protective Services, Appellee. In Regard to the Guardianship/Conservatorship of Bruce M. Van Sickle Craig B. Van Sickle, Susan Cooper, and John Van Sickle, Petitioners and Appellees, v. Bruce M. Van Sickle, Respondent and Appellant, Guardian and Protective Services, Appellee.
• Court: North Dakota Supreme Court

694 N.W.2d 212

2005 ND 69

In Regard to the GUARDIANSHIP/CONSERVATORSHIP OF Bruce M. VAN SICKLE

Craig B. Van Sickle, Susan Cooper, and John Van Sickle, Petitioners and Appellees, v. Bruce M. Van Sickle, Respondent, and David Van Sickle, Appellant, Guardian and Protective Services, Appellee.

In Regard to the Guardianship/Conservatorship of Bruce M. Van Sickle

Craig B. Van Sickle, Susan Cooper, and John Van Sickle, Petitioners and Appellees, v. Bruce M. Van Sickle, Respondent and Appellant, Guardian and Protective Services, Appellee.

Nos. 20040195, 20040224.

Supreme Court of North Dakota.

April 4, 2005.

Melvin L. Webster, Webster & Engel, Bismarck, N.D., for petitioners and appellees.

Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for David Van Sickle.

David Boeck, Protection & Advocacy Project, Bismarck, N.D., for Bruce M. Van Sickle.

LaRoy Baird III, Bismarck, N.D., for Guardian and Protective Services.

Gary R. Wolberg, Fleck, Mather & Strutz, Bismarck, N.D., and Dorothy Siemon, AARP Foundation Litigation, Washington, DC, for amicus curiae AARP; submitted on brief.

MARING, Justice.

[¶ 1] David Van Sickle appealed from a July 30, 2003, order appointing a guardian and conservator for his father, Bruce Van Sickle ("ward"); a December 15, 2003, order dismissing an application for an order to show cause why a residential decision made for the ward by the guardian, Guardian and Protective Services, Inc. ("GPS"), should not be set aside and why GPS should not be removed as guardian; and a July 8, 2004, order denying David's motion for a new trial. The Protection & Advocacy Project ("P & A") also appealed from the December 15, 2003, and July 8, 2004, orders of the court. We conclude we lack jurisdiction to consider David's appeal from the July 30, 2003, order appointing a guardian and conservator, but we decline to dismiss the appeals from the other two orders as moot because the issues are capable of repetition, yet evading review. We further conclude the district court did not err in its December 15, 2003, order dismissing the application for an order to show cause or in its July 8, 2004, order denying the motion for a new trial. We dismiss in part and affirm in part.

I

[¶ 2] The ward is currently 88 years old and has been diagnosed with Alzheimer's disease. In March 2003, after learning that his spouse planned to place him in a residential care center, the ward left the marital home and began residing in the Bismarck home of his friend and former secretary, Helen Monteith, who is also in her mid 80s. In April 2003, two of the ward's children, Craig Van Sickle and Susan Cooper, filed a petition seeking appointment as guardian and conservator for their father. A guardian ad litem was appointed for the ward, and the ward retained his own attorney for representation. The court appointed a visitor and a neuropsychologist to examine the ward. The court also granted the guardian ad litem's request that access to the court file be restricted to the ward, his immediate family members, the visitor, psychologists, and others who required access. After the court granted a continuance to the ward's attorney, another of the ward's sons, David Van Sickle, filed an answer denying that the ward was incapacitated and counter-petitioned requesting that he be appointed guardian and conservator for his father. David, who is an attorney, represented himself.

[¶ 3] The ward was not present at the July 30, 2003, guardianship and conservatorship hearing. His retained attorney explained to the court that the ward preferred not to be present. The neuropsychologist concluded the ward's Alzheimer's disease was "moderate to severe." The guardian ad litem reported that the ward needed a guardian. The court-appointed visitor recommended that "a neutral third party guardian and conservator be appointed." Craig and Susan provided the court with a stipulation signed by their attorney, the guardian ad litem, and the ward's attorney agreeing that GPS should be appointed guardian and conservator for the ward. David did not sign the stipulation. When asked to respond to the stipulation, David said he agreed "it's probably appropriate to have an institution handling the ... conservatorship[,][b]ut as far as my father's personal well-being goes, I feel very strongly that a family member ought to be involved in that and that's why I filed my petition for appointment as a co-guardian." The court accepted the stipulation and appointed GPS the guardian and conservator. Before adjourning, the court also granted, without objection, the request of the ward's attorney that the case file remain sealed. Notice of entry of the findings and order appointing the guardian and conservator was given by mail to several persons, including David, on July 31, 2003.

[¶ 4] The ward continued to reside with Monteith. In September 2003, Monteith fell and fractured her pelvis, requiring that a home health care provider render assistance while she convalesced. The neuropsychologist re-evaluated the ward in October 2003 and concluded his Alzheimer's disease was in the "severe" category. GPS became concerned about Monteith's ability to continue to provide care for the ward and informed the parties of its intention to move the ward into a basic care facility. On November 3, 2003, GPS moved the ward from Monteith's home into the Family Living Center at Edgewood Vista, a basic care facility in Bismarck that accommodates persons with Alzheimer's disease.

[¶ 5] On November 18, 2003, P & A entered an appearance in the proceedings on behalf of the ward and was permitted access to the court file. P & A commenced an order to show cause proceeding against GPS, demanding that GPS be removed as guardian and conservator and that its decision to place the ward "in a locked, dementia unit of a nursing home" be set aside. A hearing was held on November 20, 2003, to determine whether the ward should be removed from Edgewood Vista immediately. Following the receipt of the visitor's report and further testimony, the court denied P & A's request for an interim order for the removal of the ward from Edgewood Vista and set the hearing on the order to show cause for December 9, 2003.

[¶ 6] At the December 9, 2003, hearing, P & A's attorney submitted a letter from David in which he stated he could not be present because a winter storm had impeded travel and requested that he be allowed to testify by telephone. The court refused to allow David to testify by telephone. After receiving testimony and exhibits, the court found that Edgewood Vista was the least restrictive alternative for placement of the ward and denied P & A's request to remove GPS as guardian in an order dated December 15, 2003.

[¶ 7] On February 23, 2004, David submitted a pro se "Brief and Motion for a New Trial" under N.D.R.Civ.P. 59(b)(6), alleging the court's December 2003 decision "is against the law." David argued the court abused its discretion in denying him an opportunity to testify by telephone and the court's "findings are inconsistent with the evidence." David later moved for an extension of time to file a brief in support of the motion, which was granted by the court. David retained an attorney who filed a 119-page brief on his behalf raising numerous issues. Following oral argument, the district court denied the motion for new trial on July 8, 2004. David and P & A filed separate notices of appeal.

II

[¶ 8] David has attempted to appeal from the district court's July 30, 2003, order appointing GPS as the guardian and conservator.

[¶ 9] This Court must have jurisdiction to consider the merits of an appeal. Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110. The right of appeal is governed solely by statute, and without any statutory basis to hear an appeal, we must dismiss the appeal. State v. Gohl, 477 N.W.2d 205, 207 (N.D.1991). In addition, "to call upon our power of appellate review, a timely notice of appeal must be filed." Morley v. Morley, 440 N.W.2d 493, 494 (N.D.1989). Under N.D.R.App.P. 4(a), a notice of appeal must be filed "within 60 days from service of notice of entry of the judgment or order being appealed." David's July 15, 2004, notice of appeal was filed almost one year after service of the notice of entry of the order appointing GPS as guardian and conservator and is, therefore, untimely. Although a timely motion for a new trial under N.D.R.Civ.P. 59 tolls the time for filing a notice of appeal, see Larson v. Larson, 2002 ND 196, ¶ 6, 653 N.W.2d 869, David's February 23, 2004, motion for a new trial was not timely under N.D.R.Civ.P. 59(c) to toll the time to appeal from the July 30, 2003, order. Moreover, David's motion for a new trial specified "the December 9, 2003 decision is against the law," not that the July 30, 2003, order was erroneous.

[¶ 10] There is no statutory exception in North Dakota guardianship and conservatorship law for the timely filing of a notice of appeal. We conclude we have no jurisdiction to consider David's appeal from the July 30, 2003, order appointing GPS guardian and conservator and his allegations of error relating to that proceeding.

III

[¶ 11] Under N.D.R.App.P. 42(c), Craig and Susan have informed us that the ward has been discharged from Edgewood Vista because "he now requires skilled nursing care" and "he is no longer in a secured unit." They argue the appeals from the December 15, 2003, and July 8, 2004, orders are, therefore, moot and should be dismissed.

[¶ 12] This Court can consider the issue of mootness in every appeal and will dismiss an appeal if the issues become moot. In re D.P.O., 2005 ND 39, ¶ 8, 692 N.W.2d 128. An appeal will be dismissed as moot if no actual controversy is left to be determined. In re E.T., 2000 ND 174, ¶ 5, 617 N.W.2d 470. No actual controversy exists if certain events have occurred which make it impossible for this Court to issue relief, or when the lapse of time has made the issue moot. In re W.O., 2004 ND 8, ¶...