Court: North Dakota Supreme Court; May 23, 2008; North Dakota; State Supreme Court
E.O. appeals district court orders that denied her petition to remove M.O. and J.O. as guardians for their mother, D.M.O., and appoint herself as guardian, denied her motion to require D.M.O.’s trustee to reconvey D.M.O.’s house, and did not grant additional attorney’s fees. The court dismissed all issues regarding D.M.O.’s guardianship and conservatorship as moot and affirmed the denial of extra attorney’s fees. Following a remand in a prior case, the district court ordered M.O. and J.O. to remain co-guardians and replaced them as conservators with State Bank and Trust of Fargo, also ordering the sale of D.M.O.’s house. E.O. was reimbursed only for attorney’s fees from her prior successful appeal. After D.M.O. died in December 2006 during the appeal, E.O. became the personal representative of D.M.O.’s estate. E.O. argues that the issues are not moot despite D.M.O.'s death, claims the district court’s findings are erroneous, and contends D.M.O.’s house should be conveyed to her. The court typically dismisses appeals when issues become moot, but may decide moot issues of public interest or those capable of repetition that evade review. E.O. acknowledges the issues are related to guardianship and conservatorship but argues they remain significant regarding Medicaid laws and allegations of misconduct by M.O. and J.O. However, the court notes that guardianship terminates upon the ward's death, transitioning the matter to probate.
M.O. and J.O. contend that continuing the appeal regarding E.O.'s potential guardianship and conservatorship roles is futile since the Court cannot provide effective relief due to D.M.O.'s death in December 2006. They assert that the issues at hand are not likely to recur and evade review. E.O. raises a concern about a specific paragraph in the district court’s order that she believes could absolve State Bank of liability, arguing that the court indicated she could sue State Bank for its misconduct. E.O. worries that failing to challenge this paragraph could affect her in future legal proceedings due to res judicata or collateral estoppel. As the guardianship and conservatorship issues are deemed moot, E.O. is permitted to contest this paragraph in a separate case. The Court dismisses E.O.'s appeal regarding guardianship and conservatorship matters but retains the issue of her attorney’s fees. E.O. claims the district court erred by not awarding her additional fees, noting that the court had previously ordered State Bank to cover her reasonable attorney’s fees only for a prior appeal. The district court also ordered State Bank to pay the reasonable fees for J.O. and M.O.'s attorney, pending approval. Under the 'American Rule,' parties generally bear their own attorney’s fees unless specified by statute or agreement. The Court reviews such decisions for abuse of discretion. E.O. references the Matter of Estate of Hass, where the Court allowed fees for services benefiting the estate, despite a lack of statutory basis, suggesting her situation warrants similar equitable considerations.
The Court has established that while attorney’s fees can be awarded in equity to third parties in the context of wills and decedent’s estates, this principle does not extend to third parties contesting the appointment and actions of guardians and conservators. E.O. argued for the recovery of litigation costs based on the financial benefit to the estate and sound administration of the guardianship; however, the Court declined to apply the precedent from Estate of Hass to this situation. E.O. failed to show that additional attorney’s fees were authorized by statute or agreement, leading the Court to conclude that the district court acted within its discretion by not awarding these fees. Furthermore, E.O.’s request to remand the case for State Bank to recover attorney’s fees from previous appeals and estate mismanagement was rejected, as statutory provisions exist for the attorney’s fees of guardians and conservators, but the Court found no abuse of discretion by the district court in awarding those fees. The Court dismissed E.O.'s appeal regarding the guardianship and conservatorship as moot and affirmed the denial of additional attorney’s fees. The decision was concurred by multiple justices, with some disqualified from participation.
