This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re Conservatorship of Ruth Hopkins, Protected Person


Filed June 28, 2005


Peterson, Judge


Hennepin County District Court

File No. P8-97-001381


Jennie M. Brown, 17905 Cascade Drive, Eden Prairie, MN 55347 (for appellant Ruth Hopkins)


Mary R. Watson, Suite 100, 7500 Olson Memorial Highway, Minneapolis, MN  55427; and


Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, Chartered, 2500 West County Road 42, Suite 190, Burnsville, MN 55337 (for respondent conservator)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N




Appellant-conservatee, Ruth Hopkins, challenges the district court’s denial of her motion to vacate an order directing the sale of her life interest in real estate.  We affirm.



            In 1997, the district court appointed respondent Carol S. Giuliani as co-guardian[1] of the person and sole conservator of the estate of appellant Ruth Hopkins.  Appellant is in her late 70’s and has resided in a nursing or care facility for the last five years.

Appellant has a history of mental illness that manifests in a fixed false belief that she can communicate with other species, particularly mice and fruit flies.  As a result of her mental illness, appellant focuses her life and resources on the care and feeding of a variety of creatures that she considers to be her pets.  Appellant has fostered their breeding in her home by preparing habitats for them out of tissue boxes and resisting the removal of her garbage.  Despite appellant’s illness, recent mental-health assessments demonstrate that her cognitive abilities are excellent for a person of her age, and her capacity to make medical decisions for herself was restored in June 2003.  Appellant declines medication.

Appellant owned a life estate in a house previously owned by her mother.  Appellant’s nephew, Robert Lundstrom, was the fee owner of the house.  In October 2003, respondent-conservator filed a petition to sell this real estate, claiming that appellant’s personal property was insufficient to pay debts and other charges against the estate, or to provide for appellant’s support and maintenance.  Respondent alleged that it was in the best interests of appellant to sell the real estate because appellant was no longer able to live independently at home and had no assets to pay for services that might allow her to live at home.

Respondent presented a budget for appellant showing monthly income of $645 and monthly expenses of $516.31.  If appellant returned home to live, her income would exceed her basic living expenses by approximately $128.  But respondent testified that the budget does not take into account needed house repairs, tree-removal costs, and unanticipated expenses.  According to respondent, the available $128 per month would cover only 8-9 hours of household help (at $15 per hour) per month, which respondent asserted was insufficient to meet appellant’s needs.  Respondent also testified that appellant’s income and available assets were insufficient to cover her currently known debts of $7,198.  The largest portion of that debt, $6,314, is for conservatorship fees based on the open-market value of respondent’s services. The district court declined to consider that portion of the debt because respondent accepted other arrangements when she took on the conservatorship.  Thus, appellant has debts of $884.  Respondent acknowledged that without taking into account the $884, appellant has “enough money to live without any extraordinary expenses.”

Respondent testified that appellant is eligible for Elderly Waiver, a government program, but that the program would not pay for the extent of services that appellant requires.  Respondent believes appellant requires 24-hour supervision.  Respondent testified that she had no success in finding other programs that would permit appellant to live at home and that in her opinion, it is in appellant’s best interest to sell her home because appellant is benefiting from living in a nursing-care facility.   

In 1997, appellant entered into an agreement with her conservators, her social worker, and a Project Connection services employee to abide by certain rules in order to keep her home free of insects and rodents.  Appellant did not comply with the agreement and left food out and refused to permit service providers to remove her garbage.  Project Connection declined to provide further services due to appellant’s refusal to permit garbage removal.

In 1999, after appellant was admitted to a hospital, respondent and Robert Lundstrom removed thirty bags of garbage from her house, including numerous tissue boxes filled with mouse urine and fecal matter.  They also removed a bag of earthworms hanging from the shower curtain in the bathroom and found mice in the bathtub and wiener bags left on a counter for the fruit flies.  Also, the bathroom sink was clogged by a mouse carcass.

Appellant has hoarded food for her “pets” at the nursing facility where she currently lives.  A social worker at the facility testified that appellant takes food out of the dining room and places it inside the radiator in her room or in the back of her dresser drawer, and staff remove scraps of food from appellant’s room on a daily basis.

Dr. Seymour Gross, the chief clinical psychologist at the Hennepin County Mental Health Center, conducted psychological evaluations of appellant.  Gross diagnosed appellant with chronic, undifferentiated schizophrenia, which he testified is “relatively benign compared to the other subtypes,” and particularly in appellant’s case, because her delusion is confined to the area of interspecies communication.  In his report, Gross described appellant as “an energetic and enthusiastic person with a single focused delusion of having the capacity for having a relationship and communication with animals, birds and insects.  No other delusional thinking was found.  There is no significant deficit in her cognitive functioning including no discernible memory deficits.”  Gross testified that appellant could safely live at home if community services were provided.  During cross-examination, Gross admitted that he was not aware that appellant previously claimed that she could uncover subliminal messages from the radio.

Appellant testified that she wants to live in her home and that she would accept community support services in order to do so, “provided they [were] reasonable.” Appellant testified that she would keep only two mice in the house and that these two mice “have promised that the babies will move out.”  Appellant stated that she feels safer with a couple of mice in the house because they warn her if a burglar is in the house. When asked if she was still feeding animals when she returns to her house for periodic visits, appellant testified that “the great grandma squirrel” was living in the basement and was “being fed down there . . . [as] a necessity because [she] lost [her] home.”  Appellant also testified about her ability to discern subliminal messages from the radio and newspaper.

The district court found that appellant’s

testimony and behavior demonstrates that she is unable to safely live at home, even when provided with regular supervision.  As a result of her delusions, she is unable to take direction from caregivers regarding the appropriate handling of food and she is simply not educable regarding the health hazards of living with insects and rodents.  Evidence was presented regarding [appellant’s] available income and a number of programs, governmental and charitable, that may be available to provide various support services to her in her home.  However, these types of services, even if available, have limited value in the face of [appellant’s] intractable delusions.

The court concluded that there was clear and convincing evidence that the requirements of Minn. Stat. § 524.5-418 (2004) had been met and that it was in the best interests of appellant that her life interest in the real property be sold.  In a May 2004 order, the court granted respondent’s petition to sell real estate.

Appellant moved to vacate the district court’s May 2004 order on the basis that the findings of fact were erroneous because the cotton-filled tissue boxes found in appellant’s home did not contain mouse urine and fecal matter.  Appellant also sought a rehearing, contending that respondent misrepresented the facts and committed perjury.

Following a hearing, the district court denied appellant’s motion after concluding that even without the presence of mouse urine and fecal matter in the tissue boxes, the evidence at trial was clear and convincing that the statutory requirements were met and that it was in appellant’s best interests that her life estate in the property be sold.  In August 2004, the house was appraised, and the district court issued an order of confirmation of sale of the real estate on September 23, 2004.  The closing occurred on September 28, 2004.  This appeal is from the district court’s order denying appellant’s motion to vacate the May 2004 order.


1.         Respondent argues that this appeal should be dismissed as moot because appellant’s house has been sold and the sale proceeds have been disbursed.

An appeal is moot if an appellate court cannot provide effectual relief.  Chaney v. Minneapolis Comty. Dev. Agency, 641 N.W.2d 328, 332 (Minn. App. 2002) (citing In re Schmidt, 443, N.W.2d 824, 826 (Minn. 1989)), review denied (Minn. May 28, 2002).  “If a party to an appeal suggests that the controversy has, since the rendering of judgment below, become moot, that party bears the burden of coming forward with the subsequent events that have produced that alleged result.”  Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98, 113 S. Ct. 1967, 1976 (1993).

Respondent argues that appellant did not obtain a stay of the order granting the sale of the house, and that the sale of the house to third parties and the disbursement of the sale proceeds render it impossible for this court to grant any effectual relief to appellant.  But respondent fails to recognize that an appeal under Minn. Stat. § 525.71(a)(3) (2004) from a probate court order authorizing or confirming the sale of real estate 

suspend[s] the operation of the order . . . appealed from until the appeal is determined or the Court of Appeals orders otherwise.  The Court of Appeals may require the appellant to give additional bond for the payment of damages which may be awarded against the appellant in consequence of the suspension, on the appellant’s failure to obtain a reversal of the order . . . appealed from.


Minn. Stat. § 525.714 (2004).  Respondent has not shown that the appeal did not suspend the operation of the district court’s order directing the sale of appellant’s life interest in the home.[2]   

2.         Appellant argues that the district court abused its discretion in denying her motion to vacate because the court (1) disregarded the testimony of witnesses favorable to appellant; and (2) failed to consider what was in appellant’s best interests.  Appellant also argues that she was denied due process of law because no assessment of her need for home care was made before the court granted respondent’s petition to sell real estate.

The district court has discretion to decide a motion to vacate a judgment, and this court’s “inquiry is limited to whether the [district] court abused that discretion.”  Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988).  In reviewing findings of fact, an appellate court will not set aside a district court’s findings unless they are clearly erroneous, giving due regard to the court’s credibility determinations.  Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn. App. 1990).

Although this appeal is taken under Minn. Stat. § 525.71(a)(11) (2004) from the order denying appellant’s motion to vacate the May 2004 order that grants respondent’s petition to sell real estate, portions of appellant’s arguments relate to the May 2004 order.  “[A]ppellate courts may review any order affecting the order from which the appeal is taken.”  Minn. R. Civ. App. P. 103.04.  

Under the probate code, the district court

may direct a sale . . . of any real estate of a protected person when the personal property is insufficient to pay debts and other charges against the estate, or to provide for the support, maintenance, and education of the protected person, a spouse, and dependent children, or when it shall determine the sale . . . to be for the best interest of the protected person.


Minn. Stat. § 524.5-418 (a) (2004) (emphasis added).  Whether the sale of a conservatee’s real estate is proper is a fact question subject to the discretion of the district court. In re Guardianship of Fingerholtz, 357 N.W.2d 423, 428 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985).

            Appellant argues that the district court disregarded the testimony of witnesses favorable to appellant.  This argument essentially challenges the district court’s credibility determinations.  But it is within the province of the district court, not the appellate courts, to resolve conflicting evidence.  See Lundgaard, 453 N.W.2d at 60-61.  Appellant has not shown that the district court’s findings of fact are clearly erroneous.

Appellant argues that the district court failed to consider what was in appellant’s best interests with respect to appellant’s financial situation.  Citing respondent’s testimony, appellant argues that the record shows that her income exceeds her expenses and that she qualifies for a government program that could conceivably allow her to live at home.  But appellant’s argument incorrectly assumes that the order granting respondent’s petition to sell real estate was based on financial considerations.  The district court found that appellant “is unable to safely live at home, even when provided with regular supervision” and that even if support services are available to appellant in her home, these services “have limited value in the face of [appellant’s] intractable delusions.”

Minn. Stat. § 524.5-418 (a) permits the district court to direct the sale of a conservatee’s real estate when the court determines the sale to be for the best interest of the conservatee.  The statute also permits the district court to direct a sale of real estate if the conservatee’s personal property is insufficient to pay the conservatee’s debts and other expenses.  But the statute does not require that both of these conditions be met before the district court orders a sale.  The district court’s findings indicate that appellant is no longer able to safely live at home and, therefore, support its conclusion that it is in appellant’s best interest that the house be sold.  Given this conclusion, it was not necessary for the district court to separately consider what was in appellant’s best interests with respect to her financial situation.

Appellant argues that the only testimony with respect to her best interests was respondent’s testimony that it is in appellant’s best interests to have social interaction with humans by living in a facility rather than living at home.  But there was also evidence of appellant’s intractable illness, and the district court found that appellant could not safely live at home even with regular supervision.  Such a finding goes directly to appellant’s best interests.  

Appellant contends that to fully determine what is in her best interests, an assessment of her home care needs should have been completed to determine whether it was feasible for her to return home.  But the district court found that appellant had not cooperated with prior efforts at in-home support services and that further efforts would “have limited value in the face of [appellant’s] intractable delusions.”  The record supports the district court’s finding.

Appellant also contends that in reaching its decision the district court failed to consider the standard of the least-restrictive alternative.  But the least-restrictive-alternative standard applies to civil-commitment proceedings.  See Minn. Stat. § 253B.12, subd. 7 (2004) (stating where continued commitment is ordered, findings must include that less-restrictive alternatives were considered and rejected by the court).  Minn. Stat. § 524.5-418, does not require the district court to explain why selling a conservatee’s real estate is the least-restrictive alternative.

Appellant also argues that “lack of due process has been implicated” because no assessment was made of her need for home care.  Due process requires that a party receive adequate “notice and an opportunity to be heard before [she] can be deprived of rights or possessions.”  Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723, 728 n.4 (Minn. 1996) (citing Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994 (1972)).  Appellant cites In re Conservatorship of Torres, 357 N.W.2d 332, 340 (Minn. 1984), but makes no argument that she was not provided with notice or an opportunity to be heard.  Assignment of error based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted).  In Torres, 357 N.W.2d at 340, the supreme court determined that the conservatee’s due process rights were not violated because a full and complete notice was provided to all concerned, a full evidentiary hearing was held, and all interests were represented at the hearing.  Id.  Because simply citing Torres does not make any prejudicial error obvious and appellant has not made any argument that supports her assertion that she was denied due process, appellant has waived this issue. 

Finally, appellant argues that the district court abused its discretion by unfairly selecting the facts it chose to support its conclusion.  In the presence of conflicting evidence, the district court must resolve the factual issues.  In re Martenies, 350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984).  In essence, this argument challenges the district court’s credibility determinations.  This court defers to the district court’s credibility determinations.  See Lundgaard, 453 N.W.2d at 60-61.    


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant’s nephew and his wife, Robert and Sherri Lundstrom, are the other co-guardians.

[2]Because we are sustaining the district court’s order, the district court “shall proceed as if no appeal had been taken.”  Minn. Stat. § 525.73 (2004).