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Bellino v. Bellino

Court of Appeals of Minnesota

August 12, 2013

Muriel Jean Bellino by her conservator and guardian, Annette C. Bellino, Respondent,
v.
Gregory J. Bellino, individually and in his capacity as executor of the Estate of Eugene Bellino, Appellant, Joann Bellino, Defendant.

UNPUBLISHED OPINION

Beltrami County District Court File No. 04-CV-11-43

James C. Fischer, Fischer Law Office, PLLC, Bagley, Minnesota (for respondent)

John Remington Graham, St-Agapit, Quebec G0S 1Z0, Canada (for appellant)

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Willis, Judge. [*]

LARKIN, Judge

Appellant challenges the district court's denial of his pretrial motion for summary judgment and its posttrial award of judgment for respondent. Appellant argues that the district court erred by refusing to dismiss respondent's lawsuit based on the doctrine of unclean hands and that the district court's findings of fact are clearly erroneous. We affirm.

FACTS

Respondent Muriel Jean Bellino is an 85-year-old vulnerable adult who is restricted to a wheelchair and unable to speak. She and her husband Eugene Bellino, who died in 2007, are the biological parents of ten children, including appellant Gregory Bellino; respondent's conservator and guardian, Annette Bellino; and defendant Joann Bellino. Appellant had a good relationship with his parents and has lived at his parents' residence in Bemidji for most of his life.[1] In March 2007, appellant, Eugene, and Annette became respondent's co-guardians and co-conservators. In November 2007, Annette became respondent's temporary guardian and conservator, and in March 2008, Annette became respondent's permanent guardian and conservator. Annette has lived with and cared for respondent since October 2007.

Annette commenced the underlying equitable action on respondent's behalf. The complaint alleges that appellant used an invalid power of attorney to convert respondent's property to his own use, including approximately $900, 000 in stocks, bonds, CDs and cash; respondent's house in Texas, as well as its contents; and the contents of respondent's Bemidji home. The complaint was amended to allege that Joann Bellino assisted appellant in having the power of attorney notarized. The requests for relief include an accounting and imposition of a constructive trust. Appellant and Joann moved for summary judgment, arguing that the doctrine of unclean hands barred respondent's request for equitable relief. The district court denied the motion.

The district court held a two-day bench trial, which addressed the validity of a power of attorney purportedly signed by respondent on December 9, 2004, and appellant's transfer of a significant number of respondent's assets to himself under that power of attorney. The power of attorney is acknowledged by notary public Michelle Boreen and grants broad powers to appellant and Eugene to act as attorneys-in-fact for respondent, including the power to transfer respondent's assets to themselves.

Counsel for respondent introduced respondent's 2004 medical records as proof of respondent's mental and physical health shortly before execution of the power of attorney. According to the medical records, respondent was admitted to a hospital on June 23, 2004, based on her primary physician's concerns about her deteriorating cognitive abilities. Upon admission, respondent was unable to answer questions, to identify the type of building she was in, or to eat without assistance. She also had difficulty forming words, including her own name, and she demonstrated obvious problems with attention, concentration, memory, and language. Respondent was diagnosed with severe Alzheimer's dementia.

On July 6, 2004, respondent underwent a psychological evaluation, which describes her as "severely cognitively impaired as a result of late stage Alzheimer's Disease." The evaluator noted that she exhibited confusion, disjointed thoughts, and a lack of short-term memory; her verbal communication was impaired; and she was unable to care for or identify herself. Respondent was discharged from the hospital on July 7. A psychiatric assessment and progress notes from four follow-up outpatient appointments between September 1 and October 12, 2004, indicate that respondent's insight and judgment were poor, her speech was impaired, and her thought processes were unorganized.

Appellant testified that respondent's cognitive functioning improved after October 2004 because she was less medicated. Similarly, Joann testified that respondent was "acting just fine" at home between September and early December 2004 and that she voted in November 2004. Joann also testified that Eugene and respondent asked her to notarize a power-of-attorney document for respondent during this period of time. Joann provided them with a list of her coworkers who were notaries and suggested that it would be more appropriate to use one of them since she was a relative. Boreen was one of the people on Joann's list.

Boreen testified that as a county employee, she notarized documents for both coworkers and strangers. Boreen explained that it was her regular practice to have the signatory sign in her presence but that a coworker occasionally provided her a stack of previously executed documents to notarize. Boreen testified that she did not recall meeting respondent or appellant, but she acknowledged that her notary signature and stamp were on the power of attorney.

Beltrami County Sheriff's Investigator Scott Hinners investigated the events surrounding the notarization of the power of attorney. He interviewed Boreen in August 2008 and prepared a report stating that Boreen said she had reason to believe that the power of attorney had been presented to her in a stack of papers to be signed and stamped by a notary public.

Two witnesses opined that the signature on the power of attorney was not respondent's. Brenda Anderson, a forensic document examiner, testified that, in her expert opinion, the signature on the power of attorney was not genuine. For reasons explained in its order, the district court did not credit Anderson's opinion. Annette also testified that, in her opinion, the signature on the power ...


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