This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In re:

The Special Guardianship of:


Thomas J. Kinney.


Filed May 28, 2002


Harten, Judge


Waseca County District Court

File No. P4-00-655


Robert M. Greising, Greising Law Offices, P.A., 414 East Main Street, Waterville, MN 56096 (for appellant Judith Claffey)


Brenda L. Miller, Waseca Assistant County Attorney, 307 North State Street, Waseca, MN 56093 (for guardian Betti Walter)


            Considered and decided by Shumaker, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant refused to obey a subpoena compelling her to testify and produce records about the assets of a decedent for whom she had held power of attorney.  The district court issued an order finding appellant in contempt, but stayed the order during the pendency of this appeal.  It appears that the decedent’s former special guardian had the right to request the subpoena; but because the appropriate procedure for appellant would have been a motion to quash the subpoena, we remand for a hearing on a motion to quash.


            Appellant Judith Claffey held power of attorney for the late Thomas Kinney, a disabled adult.  When Kinney was threatened with eviction from a nursing home because his bill had not been paid, a county social worker petitioned for appointment of an emergency special guardian for him.  The district court appointed respondent Betti Walter, a county social work supervisor, to be Kinney’s special guardian.

            Following Kinney’s death three months later, respondent moved the district court to compel appellant to produce documents concerning Kinney’s finances and assets.  The district court scheduled a hearing for appellant’s examination and issued a subpoena.  Appellant did not move to quash the subpoena, and she did not attend the hearing.  Her failure to attend led the district court to issue an order to show cause commanding her to appear for a rescheduled hearing and a subpoena duces tecum commanding her to produce documents.  Again, appellant did not move to quash the subpoena.  She appeared for the rescheduled hearing, but she refused to testify or to produce documents. 

The district court then issued an order finding appellant in contempt.  She challenges that order.



            A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  No facts are disputed here, but appellant provides two legal arguments for her noncompliance with the subpoena.

First, appellant contends that respondent did not have authority to conduct discovery after Kinney’s death.  However, Minn. Stat. § 525.60, subd. 1 (2000), provides that termination of a guardianship because of the death of the ward “does not affect a guardian’s * * * obligation to account for funds and assets of the ward * * * .”  Therefore, respondent has a statutory obligation to account for Kinney’s funds and assets, and she cannot meet that obligation without appellant’s evidence.  Respondent had authority to request the subpoena.

Appellant’s second argument is that she was not paid the appropriate attendance fees.  Minn. R. Civ. P. 45.03 provides that attendance fees need not be tendered “[w]hen the subpoena is issued on behalf of the state of Minnesota or an officer or agency thereof.”  The subpoena was requested by an assistant county attorney for Waseca County; she was representing respondent, a member of the Waseca County Human Services Department.  Fees were not required because the subpoena was issued on behalf of the state. 

The arguments appellant raises in support of her failure to comply with the subpoena would be appropriate to a motion to quash.  See Minn. R. Civ. P. 45.02, providing that a district court may, “upon motion made promptly, * * * quash or modify the subpoena if it is unreasonable or oppressive.”).  We remand with instructions that this proceeding be recast as a motion to quash, that a hearing be scheduled forthwith on that motion, that the contempt order be stayed until the hearing and that the order be reviewed in light of the evidence produced at the hearing.