This opinion will be unpublished and

may not be cited except as provided by

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






Auburn Manor,





The Irvin O Buschkowsky

Revocable Trust

dated April 26, 2000,



Gary P. Busch, individually and in

his capacity as trustee,



Filed October 3, 2006

Klaphake, Judge


Carver County District Court

File No. 10-CV-03-375



Samuel D. Orbovich, Thomas L. Skorczeski, Orbovich & Gartner Chartered, 408 Saint Peter Street, Suite 417, St. Paul, MN  55102-1187 (for respondent)


Gary P. Busch, 3161 South Lake Miltona Drive, Miltona, MN  56354 (pro se appellant)


            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Gary Busch appeals pro se from an order requiring him to reimburse respondent Auburn Manor in the amount of $18,160.40 for expenses incurred in caring for his uncle, Irvin Buschkowsky, as well as $10,000 in attorney fees.  Appellant claims that the district court erred in concluding that he owed a fiduciary duty to his uncle and that respondent was a third-party beneficiary of a power of attorney he signed for his uncle, both of which he breached by fully expending $179,000 of his uncle’s assets between July 2000 and April 2002.  Because we conclude that the evidence supports the district court’s findings, we affirm.


            On appeal, this court may not set aside findings of fact “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  To the extent that facts are undisputed, an appellate court reviews conclusions of law, including the interpretation of statutes, de novo.  Kmart Corp. v. County of Stearns, 710 N.W.2d 761, 765 (Minn. 2006).

            Appellant first challenges the district court’s finding that he owed a fiduciary duty to his uncle.[1]  “A fiduciary relationship exists when confidence is reposed on one side and there is resulting superiority and influence on the other; and the relation and duties involved in it need not be legal, but may be moral, social, domestic, or merely personal.”  Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn. 1985) (quotation omitted).  There is substantial support in the record for the district court’s finding of a fiduciary relationship between appellant and his uncle.  Appellant was solely responsible for every aspect of his uncle’s finances and, by his own admission, he was also responsible for making important decisions with regard to his uncle’s care.  The record establishes that the uncle placed his full confidence in appellant to make decisions on his behalf.  Appellant also signed a power of attorney agreement that created a statutory duty requiring him to keep his uncle’s interests “utmost in mind.”  See Minn. Stat. § 523.21 (2004).  Further, appellant was the named trustee on an unfunded revocable trust signed by his uncle that required appellant to act impartially with regard to all persons interested in his uncle’s estate.  These agreements signified appellant’s status as his uncle’s fiduciary.  By diverting his uncle’s assets to himself and others and by leaving his uncle without sufficient funds to pay respondent, appellant breached a fiduciary duty to his uncle.  The district court thus did not err in concluding that appellant must disgorge those funds.  See Dan B. Dobbs, Law of Remedies § 10.4, at 720 (2d ed. 1993) (fiduciary must not make secret profits from position as fiduciary, must not put himself in conflict of interest when acting for beneficiary, and owes beneficiary duty of “administration, loyalty, care, and skill”).  While appellant’s position as fiduciary may not be as well-delineated as if he had been a trustee or guardian ad litem, he held a similar position in this case.  See Freundschuh v. Freundschuh, 559 N.W.2d 706, 711 (Minn. App. 1997) (“the fiduciary relationship in a strict sense is not a prerequisite [to imposition of a constructive trust], and any relationship giving rise to justifiable reliance or confidence is sufficient”), review denied (Minn. Apr. 24, 1997).

            Appellant claims that he made gifts to himself and others to reduce his uncle’s assets so that his uncle could gift as much as possible while preserving his eligibility to have his care funded by the medical assistance program.  Appellant claims that he was prevented from making proper application for medical assistance for his uncle because he did not know the amount of pension funds that were held in a joint account with Lillian Rumley, his uncle’s sister.  Appellant admitted, however, that he failed to seek an accounting on the joint account or to inquire about his uncle’s eligibility for medical assistance, even after he was notified by respondent as early as February 2002 that the account was past due.  Other conduct by appellant shows that he was negligent in regard to his uncle’s affairs:  (1) he failed to pay for storage of his uncle’s household property and relinquished ownership of that property to the storage company in lieu of paying storage fees; (2) he claimed that all of his uncle’s stock was valueless and that he checked with “every finance house” in the Twin Cities, but he could name only one institution to which he had made an inquiry; (3) with the exception of some storage receipts, he failed to keep any records of any of his financial dealings with regard to his uncle; and (4) he failed to produce any documents showing financial transactions made on behalf of his uncle.  On these facts, we find no error in the district court’s decision to order appellant to reimburse respondent for unpaid costs for his uncle’s care.  See Freundschuh, 559 N.W.2d at 711 (“A constructive trust may be imposed where the plaintiff shows ‘the existence of a fiduciary relation and the abuse by defendant of confidence and trust bestowed under it to plaintiff’s harm.’”).

            Second, appellant challenges the district court’s finding that respondent could recover as a third-party beneficiary of the power of attorney agreement between appellant and his uncle.  A third party can recover as a beneficiary of a contract if he can show that the promisor intended him to benefit under the contract.  Hickman v. SAFECO Ins. Co. of America, 695 N.W.2d 365, 369 (Minn. 2005).  Here, the power of attorney agreement stated that its purpose, in part, was “to disburse funds to pay for my care, support and maintenance.”  Appellant’s uncle’s conduct and the language of this agreement evinced his uncle’s intent that respondent be paid for providing care to him.  As a third-party beneficiary, respondent had the right to enforce the promise made by appellant for its benefit.  See Dufresne v. Am. Nat’l Bank & Trust Co., 374 N.W.2d 763, 765 (Minn. App. 1985), review denied (Minn. Dec. 13, 1985).  Application of this theory of law also supports the district court’s decision. 


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

[1] Appellant does not precisely define the issues or raise proper legal arguments that he wishes to have this court consider on appeal.  He submitted an informal brief, which under Minn. R. Civ. App. P. 128.01, subd. 1, must “contain a concise statement of the party’s arguments on appeal.”  Where a non-lawyer acting as his own attorney has submitted a non-compliant brief, this court may “review[] the entire file on appeal in an attempt to understand the issues raised in [the] brief and determine whether they have any merit.”  Thomale v. State, 261 N.W.2d 353, 353 (Minn. 1977); but see State on Behalf of Barrett v. Korbel, 300 Minn. 563, 563, 221 N.W.2d 125, 125 (1974) (dismissing appeal where non-attorney appellant failed to file brief that complied with rule 128 or provide adequate record); 3 Eric J. Magnuson & David F. Herr, Appellate Rules Annotated § 128.4, at 601 (2006) (informal briefs “should clearly reflect the issues to be resolved on appeal”).

            Generously construing appellant’s brief, it appears that he claims that the district court erred in concluding that he owed a fiduciary duty to his uncle and that he breached that duty by improperly diverting his uncle’s assets to himself.  Appellant argues that such conduct did not breach his duty to act impartially as to all persons interested in his uncle’s assets as required by the power of attorney agreement and did not evince a failure to keep his uncle’s interests in mind as required by Minn. Stat. § 523.21 (2004).