Opinion
No. 108,222.
2013-07-5
In the Matter of the Guardianship and Conservatorship of Ashley PETERS, an Adult with an Impairment.
Appeal from Saline District Court; Jared B. Johnson, Judge. Carolyn S. Peters, appellant pro se. Tish Morrical, of Hampton & Royce, L.C., of Salina, for appellee Sara Olmstead.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Carolyn S. Peters, appellant pro se. Tish Morrical, of Hampton & Royce, L.C., of Salina, for appellee Sara Olmstead.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Carolyn S. Peters appeals the district court's grant of summary judgment in a case where her petition to become her adult daughter's successor guardian and conservator was denied. The district court held Carolyn was unfit to serve and the current guardian was fit to serve. We affirm the summary judgment granted by the court holding Carolyn unfit, but we reverse that portion of the summary judgment order holding the current guardian to be fit because the holding exceeded the scope of the motion for summary judgment. The fitness of the current guardian was not the subject of the motion for summary judgment, either in the claims of uncontroverted facts or in the legal arguments contained in the motion.
Carolyn Peters wanted a change of guardians for her daughter.
David Peters and Carolyn Peters are the parents of Ashley Peters, a developmentally disabled adult person who functions at the age of a 4–or 5–year–old child. When Ashley was nearing her 18th birthday, the district court appointed a guardian and conservator to represent Ashley's interests—as Ashley was the subject of a custody and residency dispute between David and Carolyn, who were in the process of divorcing at the time. In March 2005, the court appointed Sara Olmstead as guardian and conservator for Ashley.
Upon the recommendation of Ashley's physician, Olmstead asked the court to grant her the authority to admit Ashley to the Larned State Hospital in April 2011. Olmstead noted that Ashley had not slept for 5 days, she was becoming more and more agitated, and she was in imminent medical danger if she was not stabilized. Olmstead asked the court for an emergency order that would allow her to consent to Ashley's admission and treatment at Larned until a hearing could be held on the matter. The court granted an ex parte emergency order allowing Olmstead temporary authority to place Ashley at Larned in order to regulate her medication. Later, the court granted Olmstead continuing authority to consent to the treatment of Ashley at appropriate treatment facilities.
After that, in June 2011 Ashley's mother, Carolyn, asked the court to remove Olmstead as Ashley's guardian and conservator and asked that the court appoint herself and Michelle Newell (Ashley's adult cousin) as successor coguardians and coconservators. Carolyn alleged Ashley was not receiving proper care and supervision and Olmstead was not fulfilling her duties and responsibilities as guardian. The court eventually set the matter over for trial.
Eventually, guardian and conservator Olmstead and Janice Norlin, Ashley's court-appointed guardian ad litem, filed a joint motion for summary judgment claiming that Carolyn was not a fit and proper person to be Ashley's guardian.
Carolyn responded to the motion but did not controvert any of the statement of facts made in the summary judgment motion.
After a hearing on the motion, the district court:
• granted summary judgment to Olmstead;
• denied Carolyn's request that Olmstead be removed as guardian; and
• denied Carolyn's request that she be appointed guardian.
In this pro se appeal, Carolyn claims the district judge, Jared B. Johnson, had no authority to act in this matter. She further claims that summary judgment motions are inappropriate in probate cases. Carolyn also argues that the court erred when it granted summary judgment. And, finally, Carolyn contends that ex parte communications between the judge and the witnesses rendered the court's judgment void due to judicial misconduct.
Carolyn misconstrues a statute dealing with case assignments.
Carolyn says that under the district court administrative rules of Saline County, care and treatment cases such as Ashley's must be assigned to Judge Jerome P. Hellmer. Thus, since Judge Johnson presided over Ashley's case instead, the court lacked jurisdiction to enter orders and grant summary judgment. Carolyn claims the grant of summary judgment must therefore be reversed. We review this question of law with an unlimited scope of review. See Back–Wenzel v. Williams, 279 Kan. 346, 347, 109 P.3d 1194(2005).
The assignment of cases in the district court is the task of the chief judge. See K.S.A. 20–329. Citing this statute, Carolyn notes that the 2011 assignment order found within the Saline County District Court administrative rules provides that all care and treatment cases shall be assigned to Judge Hellmer. From this, Carolyn goes on to conclude that because Judge Johnson presided over Ashley's care and treatment case—apparently in violation of the assignment order—the court lacked jurisdiction to consider her case.
We are not convinced. Carolyn has cited no caselaw to support her argument. K.S.A. 20–329 does indeed establish a chief judge's authority to assign cases to the various judges within the district. It does not confer or deny jurisdiction upon the various judges. In McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002), the court noted that a litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, or in the face of contrary authority, forfeits the point. Carolyn has not demonstrated the district judge lacked jurisdiction to hear this case.
We find no authority preventing summary judgment in probate cases.
Carolyn next argues that summary judgment does not apply in a care and treatment case or in a case involving the removal of a guardian. Carolyn points out that the district court struggled with this issue—and says the question whether Olmstead was a fit and proper guardian “should have been handled at trial.”
Because summary judgment was granted in this case, we will employ our usual standards of review on such judgments. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the appellate court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871–72, 974 P.2d 531 (1999).
Despite the district court's recommendation to challenge the issue of granting summary judgment in probate cases by filing a motion to reconsider, Carolyn did not raise the summary judgment issue to the district court. And now, on appeal, Carolyn cites no authority to support the idea that summary judgment should not have been applied in this probate case. Instead, Carolyn simply asks, “Can a case of care and treatment of the mentally ill, with indications of neglect, and abuse be ruled on with summary judgment?” And, “Isn't the determination of whether or not a person is a fit and proper person something that needs to be handled at trial?”
Her open-ended questions constitute a failure to brief this issue. The job of an appellant is to explain to this court why the district court erred, not to ask this court whether there was error. Despite that, our research has discovered some authority touching on this issue.
Indeed, in In re Estate of Brodbeck, 22 Kan.App.2d 229, 234, 915 P.2d 145,rev. denied 260 Kan. 993 (1996), the case cited by the district court, this court ruled summary judgment may be appropriate in probate matters when the proper findings are made by the district court. The court said: “[I]t is a well-established principle that summary judgment is available to plaintiffs and defendants in all forms and kinds of civil matters. K.S.A. 60–256 does not state any type of civil matter that is precluded from summary judgment.” 22 Kan.App.2d at 232. See also In re Estate of Harrison, 25 Kan.App.2d 661, 664, 967 P.2d 1091 (1998), rev. denied 267 Kan. 885 (1999), where the court did express some hesitation about whether summary judgment is appropriate in a probate case but ultimately affirmed the grant of summary judgment based on the lower court's legal conclusions.
In our view, in the absence of any authority indicating summary judgment may not be applied in a probate case, we reject Carolyn's claim to that end.
The district court exceeded the limits of the summary judgment motion.
Carolyn next argues summary judgment should not have been granted in this case. Carolyn says that although there were “some undisputed facts” in this case, it is possible that a reasonable person could have arrived at different conclusions had the case went to trial. She frames three arguments about this subject.
Carolyn first argues the district court “may not” have read her response to Olmstead's motion for summary judgment and may not have considered the evidence she presented at the motion hearing. Because Carolyn fails to support this claim with actual evidence, this court rejects her claim.
Carolyn next argues the transcript from the motion hearing demonstrates she was unable to address Olmstead's errors and neglect because the court constantly interrupted her and prevented her from doing so. Suffice it to say, a thorough review of the transcript fails to support Carolyn's claim in this regard.
But Carolyn's third argument has merit. Carolyn correctly points out that Olmstead's motion for summary judgment did not ask the court to find Olmstead was a fit and proper guardian. Instead, the motion simply asked the court to find Carolyn was not a proper successor guardian. Indeed, at the motion hearing, Carolyn confirmed that she believed the hearing was about whether she would be a fit and proper guardian. Yet the district court granted summary judgment that held Olmstead was a fit guardian.
As we have previously pointed out, on summary judgment the district court is required to resolve all facts and any inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Bergstrom, 266 Kan. at 871–72. But here, the district court resolved factual questions regarding Olmstead's fitness in favor of the guardian—Olmstead— the party who brought the summary judgment motion.
To us, the guardian Olmstead responds to Carolyn's claim by simply saying Carolyn failed to controvert the facts set forth in Olmstead's motion for summary judgment. But the facts set forth in Olmstead's motion pertained only to Carolyn's fitness as a guardian—not Olmstead's fitness. Carolyn did not fail to controvert Olmstead's facts regarding Olmstead's fitness to serve as a guardian; she only failed to controvert Olmstead's statement of facts regarding her own fitness. From those facts, the district court certainly could have found that Carolyn was not a fit successor guardian. But those statement of facts do not show that Olmstead was fit to be guardian.
It is quite apparent from the transcript of the motion hearing that Carolyn was given ample opportunity to address why she believed Olmstead was not a fit guardian. Carolyn advised the court that under Olmstead's guardianship, Ashley had been hospitalized numerous times for choking and medication issues that were unnecessary and should not have happened. When the court asked Carolyn how her recitation of Ashley's various medical problems and treatments related to whether Olmstead was a fit and proper guardian, Carolyn agreed that medical needs would arise for Ashley regardless of who the guardian is.
But Carolyn maintained that Olmstead “should have proper communication with everyone involved in Ashley's caregiving” and Ashley should have been placed on a soft diet to prevent choking. Carolyn noted that Ashley was placed on a drug that caused a reaction—despite her warning to Olmstead about Ashley's history of reactions. Carolyn indicated that Olmstead failed to discuss Ashley's treatment options with her doctors, but rather left that to another person involved with Ashley's care. There is no evidence the court prevented Carolyn from making arguments about Olmstead's performance as the guardian.
Ultimately, the court reframed the issues by concluding that Olmstead's fitness and Carolyn's fitness were “one and the same.” The court said its concern was both (1) whether Ashley was being cared for and (2) whether Olmstead had breached a fiduciary duty to provide for Ashley. The court first found it was “uncontroverted” that Carolyn was not a fit and proper successor guardian. The court then found there was “no evidence” Olmstead was not a fit and proper guardian and that the court believed Olmstead reacted appropriately and provided care for Ashley in every instance.
The trouble with that approach is that Carolyn's initial petition raised the issue of whether Olmstead was a fit guardian. Yet Olmstead's motion for summary judgment (and each of Olmstead's uncontroverted facts) addressed whether Carolyn was a fit successor guardian. Although the court gave Carolyn ample opportunity at the motion hearing to argue why she believed Olmstead was not a fit guardian—and Carolyn took advantage of this opportunity-Carolyn was not given prior notice via the pleadings that the motion hearing would determine Olmstead's fitness. Thus, Carolyn may not have had the opportunity to fully prepare witnesses and evidence as she may have done had she known the court was determining that issue on the merits. The court essentially conducted a mini-trial when it considered and weighed the evidence regarding Olmstead's fitness. In doing so, the court ruled on an issue not identified in the motion for summary judgment. Fundamental fairness and due process rights of notice and time to prepare were thus abrogated by the court's actions.
Moreover, Olmstead fails to offer any response to Issue IV in Carolyn's brief—where she claims the district court erred in finding Olmstead was a fit and proper guardian. Carolyn sets forth numerous pieces of evidence suggesting Olmstead was not a fit guardian, but Olmstead ignores the argument entirely. While it is true that the majority of Carolyn's allegations are not supported with any citation to the record and may have no basis in fact, Olmstead has clearly chosen to not address them in any fashion.
In light of the district court's decision to grant summary judgment on an issue not set forth in the summary judgment motion—in addition to Olmstead's failure to offer any persuasive response on why this was proper under the circumstances—we must reverse the district court's grant of summary judgment on the issue of Olmstead's fitness and remand that matter for further action in the district court. We do not alter in any fashion the court's judgment that Carolyn is not fit to serve as a successor guardian for Ashley.
We see no evidence of ex parte communications between the judge and a witness.
Finally, Carolyn claims the district court engaged in judicial misconduct because it allowed ex parte communications without her participation. We reject this claim because it is completely unsupported in the record on appeal.
The only evidence Carolyn presents to support her argument is her claim that the court held an ex parte meeting with a family friend, attorney Robert Collins. Carolyn suggests that if the court was willing to conduct an ex parte meeting with Collins, it is possible that the court held ex parte meetings with other people.
We need more than mere suggestions of possible ex parte communications before we will set aside a judgment on the grounds of judicial misconduct. The record does contain a letter from the district judge to Robert Collins advising him he was not an attorney in the case and the court was prevented from having ex parte communications with him about the case. The district judge advised Collins to “cease and desist” sending ex parte communications to the court. Carolyn's allegation of improper ex parte communications is unsupported.
The portion of the summary judgment holding Olmstead is fit to be Ashley's guardian is reversed. The portion of the summary judgment holding Carolyn to be unfit to serve as Ashley's guardian is affirmed. The case is remanded to the district court for further proceedings.
Affirmed in part, reversed in part, and remanded.