This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
The Irvin O Buschkowsky
dated April 26, 2000,
Gary P. Busch, individually and in
his capacity as trustee,
Filed October 3, 2006
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.*
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.
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.”
first challenges the district court’s finding that he owed a fiduciary duty to
his uncle. “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 (
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.’”).
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
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
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 (
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).