This opinion will be unpublished and

may not be cited except as provided by

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







In re the Estate of Mary W. White.



Filed May 2, 2006


Halbrooks, Judge



Ramsey County District Court

File No. P4025867



Bruce L. Beck, 404 Executive Office Center, 2785 White Bear Avenue North, Maplewood, MN 55109 (for appellant Pamela Cecka)


Michael J. Burke, 176 North Snelling Avenue, Suite 200, St. Paul, MN 55104 (for respondent Dallas E. Woolman)




            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from an award of summary judgment and attorney fees, appellant argues that (1) the district court erred in granting summary judgment because there are genuine issues of material fact and (2) attorney fees are inappropriate because she acted in accordance with her responsibilities as a personal representative.  Because appellant has failed to show any genuine issue of material fact and because the district court did not abuse its discretion in awarding attorney fees, we affirm.


            In 1989, decedent Mary White executed a will devising her estate to her husband if he survived her and to her three children in equal shares if he did not.  Sometime after her husband’s death, White transferred title to her real and personal property to her son, respondent Dallas Woolman.  Respondent took care of his mother’s financial affairs and paid bills for her.  After White died, respondent sold the real property that she had transferred to him.  He distributed one-third of the proceeds to his sister Lynne Sullivan and held another third in stock to distribute to his deceased brother’s four children, according to the brother’s wishes. 

            In July 2003, appellant Pamela Cecka, ex-wife of the deceased brother and personal representative of White’s estate, moved for an order to compel respondent to deliver certain assets purportedly belonging to the estate.  Pointing to respondent’s involvement with White’s financial matters, appellant alleged that respondent acted with the intent to deprive certain family members of their inheritances or portions of the estate.  Respondent objected to the motion, and a trial on the issue was scheduled. 

            The issues to be determined at trial were (1) whether the decedent was competent, (2) whether respondent had committed fraud, and (3) whether the real estate and other property that White transferred to respondent are estate assets.  After the close of discovery, respondent moved for summary judgment.  Concluding that appellant had “utterly failed to produce any genuine issue as to any material fact,” the district court granted summary judgment in favor of respondent and also awarded respondent $6,095.10 in attorney fees.  The attorney-fees award covers all fees respondent incurred after the final discovery deadline, including those incurred in bringing the summary-judgment and fees motions.  The district court denied appellant’s subsequent motion for amended findings and an amended order and judgment.  This appeal follows.


            “On appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.

            Here, appellant insists on the existence of genuine issues of material fact that make summary judgment inappropriate.  But, as the district court noted, she has failed to show or develop any argument or evidence in support of her claim that goes beyond mere speculation and general averments of her own beliefs. 

            Appellant has failed to show any evidence of White’s alleged incompetence, relying solely on medical evidence of White’s macular degeneration, apparently inferring that White’s vision was compromised and that she may have signed documents that she had not read.  When specifically asked about the existence of any medical evidence supporting White’s alleged incompetence, counsel for appellant replied “[the medical records] suggest macular degeneration more than incompetence.”  When the court pressed counsel for appellant about the need for evidence that amounts to more than mere speculation, he conceded that “[t]here’s nothing specifically which holds her to be incompetent that I can see in here, except for the macular degeneration problem.”  But the record contains an affidavit from Susan Summerson, White’s sister, who stated:

With regard to her eyesight, she might have been diagnosed with macular degeneration, but that didn’t stop her from being able to see and do many things.  For instance, the last time I was with Mary was at Dallas and Belva’s home in Oregon, sometime in December, 1999.  I remember that we played a dice game and Mary could read the dice without any problem.


Similarly, appellant has failed to produce any evidence supporting the allegation of fraud or supporting appellant’s contention that certain of respondent’s assets actually belong to the estate.  In contrast, respondent has presented a body of evidence demonstrating that White was a competent, strong-willed individual during the period in question and that there was no fraud appurtenant to the transfer of her assets. 

            Arguing against summary judgment, counsel for appellant stated, “I think there are other things out there, but we haven’t been able to find anything else.”  Appellant’s evidence consists of little more than appellant’s affidavits attesting to her personal beliefs about the issues.  But “[m]ere speculation, without some concrete evidence, is not enough to avoid summary judgment” and the evidence “must have some foundation other than mere conjecture.”  Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993). 

            The evidence well supports the district court’s determination that appellant “has been unable to support her allegations by fact.”  The district court specifically noted that

[s]ince the death of her mother-in-law, [appellant] has had over four years to substantiate her allegations.  For two of those years she has had the assistance of an attorney conversant with the rules of discovery.  This Court has afforded more than ample time to complete such discovery and has even extended discovery deadlines in order to accommodate her.


Because there are no genuine issues of material fact, summary judgment was appropriately granted by the district court.   


            Appellant argues that the district court erred by awarding attorney fees under Minn. Stat. § 549.211 (2004) because appellant properly commenced the proceeding on behalf of and for the benefit of the estate.  The district court awarded attorney fees in the amount of $6,095.10, an amount representing all fees incurred after the discovery deadline. 

            We “will not reverse a [district] court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987).  Minnesota law permits a district court to award attorney fees as a sanction when, after notice to the offending party and an opportunity to respond, the district court determines that a party has acted in bad faith.  Minn. Stat. § 549.211, subd. 3.  The statute provides that an attorney who presents any document to the court must certify that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” and that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”  Id., subd. 2(2), (3).  When awarding attorney fees under this statute, the district court must describe the conduct that constitutes a violation of the section and explain the basis for the imposition of fees.  Id., subd. 5(c).   

            After outlining the utter futility of appellant’s underlying motion, the district court explained the basis for the fee award:

While [appellant], as personal representative, has a duty to shepherd the assets of the estate, this duty did not create a right to paint [respondent] with baseless charges. 


Because [appellant] persisted in this matter as far as she did, and did so armed with nothing more than her own beliefs, the court finds that her actions have resulted in an unreasonable hardship to [respondent] and that she shall be responsible for his attorney fees. 


Thus, the court awarded only those fees incurred after the completion of discovery, when appellant persisted with her claims despite her knowledge that they lacked evidentiary support.  While appellant has the duty to pursue the estate’s interests, e.g.,Minn. Stat. § 524.3-703(a) (2004), that obligation does not grant her the prerogative to persist in the pursuit of a claim that unequivocally lacks evidentiary support.  Under these circumstances, we conclude that the district court did not abuse its discretion.