K.S. v. S.M.H. (In re S.M.H.)

• Decision Date: 03 June 2021
• Docket Number: No. 20200239,20200239
• Citation: 960 N.W.2d 811
• Parties: In the MATTER OF the GUARDIANSHIP and Conservatorship OF S.M.H., an incapacitated person K.S., Petitioner and Appellant and B.J.S., Petitioner v. S.M.H., ward, Respondent Lutheran Social Services of Minnesota, Respondent and Appellee and M.M.H., P.E.H., and P.S., Interested Parties
• Court: North Dakota Supreme Court

960 N.W.2d 811

In the MATTER OF the GUARDIANSHIP and Conservatorship OF S.M.H., an incapacitated personK.S., Petitioner and AppellantandB.J.S., Petitioner

v. S.M.H., ward, RespondentLutheran Social Services of Minnesota, Respondent and AppelleeandM.M.H., P.E.H., and P.S., Interested Parties

No. 20200239

Supreme Court of North Dakota.

FILED JUNE 3, 2021

K.S., Gilbert, AZ, petitioner and appellant.

Scott J. Landa, Grand Forks, ND, for respondent and appellee.

Jensen, Chief Justice.

[¶1] K.S. appeals from a district court order approving the sale of S.M.H.’s interest in real property and striking from the court record an affidavit filed by K.S. K.S. argues the court erred by determining that a document K.S. claimed transferred a majority of S.M.H.’s interest in the real property to K.S. failed to meet the statutory requirements for a valid conveyance under N.D.C.C. §§ 47-10-01 and 47-10-05 ; the court erred in striking her affidavit from the record; and the court erred in awarding attorney's fees to Lutheran Social Services. We affirm.

I

[¶2] S.M.H. is an 84-year-old incapacitated person. In April 2019, Lutheran Social Services was appointed S.M.H.’s permanent guardian and conservator. In October 2019, Lutheran Social Services filed with the district court a petition to sell S.M.H.’s interest in various parcels of real property to cover expenses incurred for S.M.H.’s care at an assisted living facility. The district court granted Lutheran Social Services’ petition, provided that S.M.H.’s family members were given notice of sale and the first option to purchase the property at appraised value.

[¶3] On May 13, 2020, subsequent to the district court's approval of Lutheran Social Services’ petition to sell the real property, K.S., an adult child of S.M.H., filed an affidavit with the court alleging Lutheran Social Services was failing to uphold its fiduciary duties owed to S.M.H. and was attempting to sell K.S.’s interest in real property. Attached as an exhibit to the affidavit was a typewritten document entitled "Warranty Deed." The document purportedly conveyed ninety percent (90%) of S.M.H.’s interest in all her real property to K.S. and purported to grant to K.S. a right of first refusal. Incorporated into the document was a separate hand-written document that purported to convey to K.S. a portion of S.M.H.’s one-third interest in undescribed real property in Pierce County, North Dakota. When the affidavit was filed, there were no pending motions before the court.

[¶4] On June 3, 2020, after receiving purchase offers and inquiring with K.S. whether she sought to enter into a purchase agreement under the same terms as the other offers, Lutheran Social Services filed a motion to approve of the sale of S.M.H.’s interest in the real property and to strike K.S.’s affidavit. In its motion, Lutheran Social Services argued the "Warranty Deed" document was not a valid conveyance and did not prevent the sale of S.M.H.’s interest in the real property because the document had not been signed by S.M.H. and had not been properly witnessed. Lutheran Social Services further argued K.S. waived any purported right of first refusal by not entering into a purchase agreement under the same terms as the other offers. Lutheran Social Services also sought to have the district court strike K.S.’s affidavit from the record as an unauthorized court filing. Finally, Lutheran Social Services sought an award of attorney's fees. K.S. opposed the motion.

[¶5] After both parties had filed their briefs on the June 3, 2020 motion, Lutheran Social Services filed a proposed order including proposed findings of fact, conclusions of law, and order for judgment. K.S. objected to the proposed order arguing, in part, that the "Warranty Deed" document was a valid conveyance without S.M.H.’s signature because K.S. was designated as S.M.H.’s power of attorney and an agent authorized to sign the document on behalf of S.M.H. K.S. included an exhibit purporting to designate K.S. as S.M.H.’s power of attorney. K.S. did not, at any point, request an evidentiary hearing on Lutheran Social Services’ motion.

[¶6] On July 13, 2020, the district court entered an order approving the sale of S.M.H.’s interest in any real property owned by S.M.H. The court found the "Warranty Deed" document lacked the signature of S.M.H. and was not properly witnessed. The court concluded the document failed to meet the statutory requirements necessary to convey S.M.H.’s interest in the described properties or grant K.S. a right of first refusal. The court also struck K.S.’s affidavit from the record and ordered K.S. to pay Lutheran Social Services’ attorney's fees. K.S. appeals.

II

[¶7] Lutheran Social Services asserts this Court lacks jurisdiction over K.S.’s appeal. It argues the July 13, 2020 order is interlocutory, and K.S. was required to obtain certification under N.D.R.Civ.P. 54(b).

[¶8] "The right to appeal is statutory." Wilkinson v. Board of Univ. , 2020 ND 179, ¶ 11, 947 N.W.2d 910. If there is no statutory basis for appeal, this Court lacks jurisdiction and must dismiss the appeal. Id. "Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable." Holverson v. Lundberg , 2015 ND 225, ¶ 6, 869 N.W.2d 146. This Court's two-step analysis for evaluating jurisdiction has been explained as follows:

First, the order appealed from must meet one of the statutory criteria of appealability set forth in [ N.D.C.C. §] 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), N.D.R.Civ.P., [if applicable,] must be complied with. If it is not, we are without jurisdiction.

Id. at ¶ 9 (quoting Matter of Estate of Stensland , 1998 ND 37, ¶ 10, 574 N.W.2d 203 ) (quotation marks omitted).

[¶9] K.S. appeals from the district court's July 13, 2020 order which approved the sale of S.M.H.’s interest in real property. An order approving a sale of interest in real property is a final order for purposes of appeal under N.D.C.C. § 28-27-02. See Farm Credit Bank of St. Paul v. Rub , 478 N.W.2d 279, 280 (N.D. 1991) (citing N.D.C.C. § 28-27-02(2) which provides a "final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment" is appealable); Geigle v. Geigle , 261 N.W.2d 399, 400 (N.D. 1977) (citing N.D.C.C. § 28-27-02(2) and (5) which provide a "final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment" and "an order which involves the merits of an action or some part thereof" are appealable); Fettig v. Fettig , 176 N.W.2d 523, 525 (N.D. 1970) (citing N.D.C.C. § 28-27-02(5) which provides "an order which involves the merits of an action or some part thereof" is appealable). The first step of the jurisdiction analysis is satisfied.

[¶10] Since the order from which this appeal was taken is appealable, the next inquiry is whether N.D.R.Civ.P. 54(b) applies. Rule 54(b), N.D.R.Civ.P., preserves our long-standing policy against piecemeal appeals and states:

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.

See Matter of Curtiss A. Hogen Tr. B , 2018 ND 117, ¶ 10, 911 N.W.2d 305 ; see also N.D.R.Civ.P. 54, Explanatory Note ("A party seeking to appeal must wait until the end of the case, when all claims have been resolved and final judgment has been entered, before filing an appeal.").

[¶11] This Court has adopted a flexible case-by-case approach to determine whether a Rule 54(b) certification is required to confer jurisdiction on this Court. Gissel v. Kenmare Twp. , 463 N.W.2d 668, 671 (N.D. 1990). In In re Guardianship of R.G. , 2016 ND 96, 879 N.W.2d 416, we considered an appeal from an order appointing a conservator and co-guardians of an incapacitated person. We concluded the appeal was authorized under N.D.C.C. § 28-27-02 without a certification of finality under N.D.R.Civ.P. 54(b) because the court's order settled all existing claims in the petition and did not "necessarily contemplate further proceedings about the appointment." Id. at ¶ 13 ; cf. Snider v. Dickinson Elks Bldg., LLC , 2016 ND 162, ¶¶ 11-12, 883 N.W.2d 475 (concluding an order was not appealable without a Rule 54(b) certification where a claim remained unresolved after the order was entered and the court anticipated further proceedings on the unresolved claim).

[¶12] The order entered on July 13, 2020, is appealable without a certification under N.D.R.Civ.P. 54(b). At the time the order was entered, there were no other pending or unadjudicated claims remaining to be resolved by the district court. Moreover, the order was not dependent on potential future proceedings brought by Lutheran Social Services on behalf of S.M.H., the protected person. See R.G. , 2016 ND 96, ¶ 13, 879 N.W.2d 416 (speculation of future claims did not affect appealability of an order appointing a guardian and conservator); In re Estate of Eggl , 2010 ND 104, ¶ 9, 783 N.W.2d 36 (speculation of future claims did not affect appealability of order interpreting will). The order approving the sale of S.M.H.’s interest in real property and striking K.S.’s affidavit settled all existing claims and did not contemplate further proceedings. As such, we have jurisdiction...