Estate of Beadle , 2023 S.D. 26 ( 2023 )

#30086, #30094-r-SPM
2023 S.D. 26IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
IN THE MATTER OF THE
ESTATE OF ROSE BEADLE,
DECEASED.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
ROBERTS COUNTY, SOUTH DAKOTA
****
THE HONORABLE GREGORY MAGERA
Judge
****
PAMELA R. REITER of
Reiter Law Firm, LLC
Sioux Falls, South Dakota
RONALD A. PARSONS JR. of
Johnson, Janklow & Abdallah, LLP
Sioux Falls, South Dakota Attorneys for appellant Truman
Raguse.
CHRIS A. NIPE
Mitchell, South Dakota Attorney for appellant Travis
Raguse.
****
ARGUED
MARCH 22, 2023
OPINION FILED 06/14/23
****
GORDON P. NIELSEN of
Delaney, Nielsen & Sannes, P.C.
Sisseton, South Dakota Attorneys for appellee Allen
Riess.
#30086, #30094
MYREN, Justice
[¶1.] Rose Beadle’s temporary guardian and conservator changed Rose’s
investment accounts to eliminate Travis Raguse and Truman Raguse as her
beneficiaries. Although a court order authorized the guardian/conservator’s actions,
the court issued that order without a hearing and without notice to the
beneficiaries. After Rose died, the circuit court approved a final accounting and
terminated her guardianship/conservatorship. Travis and Truman appealed, but
this Court dismissed their appeals as moot. During the probate of Rose’s estate,
Travis and Truman filed petitions to determine title to Rose’s investment accounts.
The Estate’s personal representative moved for summary judgment on their
petitions to determine title. The circuit court granted summary judgment to the
Estate, and Travis and Truman filed timely appeals. We reverse and remand.
Facts and Procedural History
[¶2.] Rose Beadle was in her 90s and living in assisted living when the
events surrounding this case began. Her husband, Lloyd, died in 2010 after over
sixty years of marriage. They had no children. Following Lloyd’s death, Rose had a
spouse-like relationship with Darryl Raguse until he died in 2019. Darryl had four
grandchildren, including Travis and Truman. In 2012, through a durable power of
attorney for financial account matters, Rose designated Travis as her attorney-in-
fact.
[¶3.] Rose owned investment accounts at Edward Jones. The beneficiary
acknowledgment form associated with these accounts listed six of her nieces and
nephews as primary beneficiaries of the accounts to receive equal portions of the
-1-
#30086, #30094
assets transferable on death (TOD). After Travis became Rose’s attorney-in-fact,
the TOD beneficiaries of these accounts were changed to Travis and his brother,
Truman. 1 0F
[¶4.] In February 2019, Travis was charged with embezzling from Rose from
2013 through 2018. In January 2020, he pled no contest to grand theft by
embezzlement, was granted a suspended imposition of sentence, and ordered to pay
$172,857.85 in restitution to Rose.
[¶5.] In August 2019, the circuit court entered an order appointing G. Todd
Garry as a temporary guardian and conservator for Rose. The order gave him “all
of the powers as set forth in SDCL 29A-5-411.” Neither Travis nor Truman received
notice of this appointment. In September 2019, Garry petitioned the circuit court
for permission to establish conservator checking and investment accounts.
Specifically, he sought to close Rose’s Edward Jones investment accounts that were
TOD to Travis and Truman and create new accounts that did not include those TOD
designations. No hearing was held on the petition, yet the circuit court entered an
order granting the petition on October 23, 2019. Pursuant to the circuit court’s
order, Garry removed Truman and Travis as TOD beneficiaries on these accounts.
[¶6.] In November 2019, Allen Riess (Rose’s nephew) and Garry filed a
petition requesting the circuit court to appoint Riess as guardian and co-conservator
and Garry as co-conservator. Truman and Travis did not receive notice of this
1. There are unresolved allegations that Travis accomplished these changes
through undue influence or through a self-dealing exercise of his authority as
attorney-in-fact.
-2-
#30086, #30094
petition. The circuit court entered an order appointing Riess and Garry on
November 25, 2019.
[¶7.] Rose died in February 2020. In March 2020, Riess petitioned for
formal probate of Rose’s will. Following a contested hearing, the circuit court
appointed Riess as personal representative and admitted Rose’s will to formal
probate.
[¶8.] In April 2020, Riess and Garry petitioned for termination of the
guardianship and conservatorship and requested approval of their final accounting.
Travis and Truman were not given notice of these requests. On June 16, 2020, the
circuit court entered an order approving the final accounting and terminated the
guardianship and conservatorship. On October 20, 2020, the guardian/conservators
gave notice of entry of the October 23, 2019 order and the June 16, 2020 order to
Travis through an attorney who was assisting him on another matter. This notice
of entry was not provided to Truman or his attorney.
[¶9.] On November 18, 2020, Travis filed a timely appeal of the October 23,
2019 order. This notice of appeal did not include the June 16, 2020 order. Although
he had received no notice of entry, Truman filed his appeal on February 24, 2021.
He appealed the October 23, 2019 order and the June 16, 2020 order. Truman and
Travis both filed a notice of intention to file a statement of the proceedings under
SDCL 15-26A-54. On March 31, 2021, the circuit court entered two statements of
the proceedings in which it found that Travis and Truman had not received any
notice before or after the court entered its order approving the change in
-3-
#30086, #30094
beneficiaries. 2 It also found that no hearing had been held before the entry of that
1F
order.
[¶10.] On May 20, 2021, counsel for Riess, Attorney Gordon Nielsen, issued a
notice of entry to Travis and Truman that included all orders in the
guardianship/conservatorship file. On June 18, 2021, Travis filed an amended
notice of appeal in which he attempted to add the June 16, 2020 order to the orders
he was appealing.
[¶11.] This Court issued orders to show cause in Travis’ appeal and Truman’s
appeal, asking the parties to address jurisdiction and mootness. In his response to
the order to show cause in each file, Riess asked this Court to dismiss both appeals
and asserted the probate court was the appropriate place for Travis and Truman to
assert their claims. 32F
[¶12.] This Court ruled that Travis’ November 18, 2020 appeal was timely
but he only appealed the order dated October 23, 2019. His subsequent attempt on
2. Statements of proceedings are authorized by SDCL 15-26A-54 and allow the
appellant, in certain instances, to prepare a “statement of the proceedings
from the best available means” and submit it to the trial court for approval.
3. Specifically, Riess stated:
In addition, the conservatorship has been closed and the assets
transferred to the Rose Beadle Probate estate which is not a
party to this action. It is not possible for the Conservators to be
directed to distribute assets that they don’t have especially
when the actions of the Conservators and the accounting of the
Conservators have been approved by Court Order and their
letters of guardianship and conservatorship have been revoked.
As argued in Appellee’s brief, Appellants should seek a remedy
in the Probate Estate, which is open. Not in the
Conservatorship Estate, which has been closed by Court order
and by operation of law.
-4-
#30086, #30094
June 18, 2021 to expand his appeal to include the June 16, 2020 order was
ineffectual because it was not timely. Although Travis’ appeal of the October 23,
2019 order was timely, this Court dismissed the appeal as moot. Truman’s timely
appeal was dismissed on the same grounds. In each order, this Court indicated
those appeals were moot because “this Court can no longer grant effectual relief of
the challenged orders” because of Rose’s death and the termination of the
guardianship and conservatorship.
[¶13.] On November 2, 2020, before the dismissal of the appeals in the
guardianship/conservatorship proceedings, Riess petitioned the probate court to
determine title to the Edward Jones accounts. However, after this Court dismissed
the appeals of the guardianship/conservatorship orders, Riess withdrew that
petition. On January 5, 2022, Truman filed a petition to determine the title to the
funds from the Edward Jones accounts. On January 24, 2022, Travis filed the same
petition.
[¶14.] On May 3, 2022, Riess moved for summary judgment on the petitions
filed by Travis and Truman. In contrast to the argument he made to this Court on
appeal regarding the guardianship/conservatorship orders, Riess argued that the
final order approving the termination and final accounting “extinguishe[d] any and
all legal claims by Travis and Truman Raguse to the Edward Jones investment
accounts.” Riess further argued that because this Court dismissed the appeals in
the guardianship and conservatorship case, “there is no legal claim to be brought by
the Raguses in the probate file.” Travis and Truman opposed the Estate’s request
-5-
#30086, #30094
for summary judgment. The circuit court issued an order granting the Estate’s
motion for summary judgment, and Truman and Travis filed timely appeals.
Standard of Review
[¶15.] “‘We review a circuit court’s entry of summary judgment under the de
novo standard of review.’ We will affirm a circuit court’s ‘grant of a motion for
summary judgment when no genuine issues of material fact exist, and the legal
questions have been correctly decided.’” Harvieux v. Progressive N. Ins. Co., 2018
S.D. 52, ¶ 9, 915 N.W.2d 697, 700 (citation omitted) (quoting Wyman v. Bruckner,
2018 S.D. 17, ¶ 9, 908 N.W.2d 170, 174).
Whether this Court’s dismissal of the guardianship/
conservatorship appeals as moot precluded the probate
court from determining issues related to the title of the
Edward Jones accounts.
[¶16.] “[A]n appeal will be dismissed as moot where, before the appellate
decision, there has been a change of circumstances or the occurrence of an event by
which the actual controversy ceases and it becomes impossible for the appellate
court to grant effectual relief.” Larson v. Krebs, 2017 S.D. 39, ¶ 13, 898 N.W.2d 10,
15–16 (alteration in original) (quoting Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11, 764
N.W.2d 895, 899). The Estate contends that this Court’s dismissal of the
guardianship/conservatorship appeals effectively affirmed the circuit court’s
decisions and precluded the probate court from addressing any claims regarding the
title to the Edward Jones accounts. The Estate misunderstands the meaning of our
orders of dismissal. We dismissed the appeals in the guardianship/conservatorship
proceeding because they were “rendered moot by Rose Beadle’s death on February
8, 2020, and by entry of the circuit court’s final order of June 16, 2020, approving
-6-
#30086, #30094
termination of the guardianship and conservatorship and the final accounting, as
this Court can no longer grant effectual relief of the challenged orders.” There was
no longer a guardianship or conservatorship because the circuit court’s order had
terminated it. The probate court has the authority to resolve any disputes
regarding the ownership of Rose’s investment accounts. SDCL 29A-3-105. 4 3F
Whether the October 23, 2019 order entered in the
guardianship/conservatorship was valid.
[¶17.] Travis and Truman asked the probate court to determine whether the
prior order authorizing the conservator to change the investment accounts was void
because it was issued without notice to the beneficiaries and without a hearing.
Garry was a temporary guardian and conservator when he requested court
authorization to make these changes to the Edward Jones accounts. “A temporary
guardian or conservator shall have only those powers and duties which are
specifically set forth in the order of appointment.” SDCL 29A-5-315. The order
appointing him as temporary guardian and conservator gave him all the powers
4. SDCL 29A-3-105 provides in part:
Persons interested in decedents’ estates . . . may petition the
court for orders in formal proceedings within the court’s
jurisdiction including but not limited to those described in this
article. . . . The court has jurisdiction of any other action or
proceeding concerning a succession or to which an estate,
through a personal representative, may be a party, including
actions to determine title to property, and of any action or
proceeding in which property distributed by a personal
representative or its value is sought to be subjected to rights of
creditors or successors of the decedent.
(Emphasis added.)
-7-
#30086, #30094
under SDCL 29A-5-411. While that statute contains a broad authorization of
powers, it does not include the power to make changes to a protected person’s estate
plan. Instead, SDCL 29A-5-420 provides that, upon petition, a court may authorize
a conservator to make such changes. 5 That statute requires that “[n]o order may be
4F
5. SDCL 29A-5-420 provides in part:
Upon petition therefor, the court may authorize a conservator to
exercise any of the powers over the estate or financial affairs of a
protected person which the protected person could have
exercised if present and not under conservatorship, including
the powers:
...
(7) To withdraw funds from a multiple-party bank account as
defined in § 29A-6-101, to change the beneficiary on or
dispose of any payable or transfer on death arrangement as
defined in § 29A-6-113, or to dispose of any property
specifically given under the protected person’s will; or
(8) To make, amend, or revoke a will.
The court, in authorizing the conservator to exercise any of the
above powers, shall primarily consider the decision which the
protected person would have made, to the extent that the
decision can be ascertained. The court shall also consider the
financial needs of the protected person and the needs of legal
dependents for support, possible reduction of income, estate,
inheritance or other tax liabilities, eligibility for governmental
assistance, the protected person’s prior pattern of giving or level
of support, the existing estate plan, the protected person’s
probable life expectancy, the probability that the
conservatorship will terminate prior to the protected person’s
death, and any other factors which the court believes pertinent.
No order may be entered under this section unless notice of
hearing is first given to the protected person, to the beneficiaries
of the protected person’s estate plan, and to the individuals who
would succeed to the protected person’s estate by intestate
succession and, if known, to any attorney or financial advisor
who advised the protected person within the last five years. No
trust or will may be amended or revoked without prior notice of
(continued . . .)
-8-
#30086, #30094
entered under this section unless notice of hearing is first given to . . . the
beneficiaries of the protected person’s estate plan[.]” SDCL 29A-5-420. The Estate
contends that SDCL 29A-5-419 6 allows the circuit court to authorize any action by
5F
the conservator, even when that action would violate the express requirements of
another statute governing the authority of conservators. In SDCL 29A-5-420, the
Legislature established the authority and required procedure for a court to
authorize a conservator to alter a protected person’s estate plan. The suggestion
that SDCL 29A-5-419 allows the circuit court to ignore that required procedure is
misguided. SDCL 29A-5-420 requires notice to the beneficiaries and a hearing
before a circuit court can authorize a conservator to change a protected person’s
TOD designation.
[¶18.] At oral argument, all parties acknowledged that the October 23, 2019
order authorizing the conservator to remove the TOD beneficiaries on Rose’s
Edward Jones accounts was entered without notice to the beneficiaries and without
________________________
(. . . continued)
hearing to the trustee or nominated personal representative
thereof.
(Emphasis added.)
6. SDCL 29A-5-419 provides:
Nothing in this chapter prohibits the court from limiting the
powers which may otherwise be exercised by a guardian or
conservator without prior court authorization, from authorizing
transactions which might otherwise be prohibited, nor from
granting additional powers to a guardian or conservator.
Nothing in this chapter prohibits a guardian or conservator from
seeking court authorization, instructions, or ratification for any
actions, proposed actions, or omissions to act.
-9-
#30086, #30094
hearing. 7 Consequently, the order is void as a matter of law. See Lessert v. Lessert,
6F
64 S.D. 3, 263 N.W. 559, 561 (1935) (judgment was void when “it was beyond the
power and authority of the court which rendered it.”). On remand, the probate
court retains full authority to resolve any and all claims regarding the ownership of
those accounts.
[¶19.] We reverse and remand for further proceedings consistent with this
opinion.
[¶20.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,
Justices, concur.
7. The parties’ acknowledgements that Truman and Travis were not provided a
full and fair opportunity to litigate in the guardianship/conservatorship
proceedings also precludes the Estate’s contention that Truman and Travis
are barred by res judicata with respect to any determinations in that
proceeding.
-10-