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STATE OF MINNESOTA IN COURT OF APPEALS A09-452 In the Matter of the Guardianship and Conservatorship of: Harold F. Doyle, Ward. Filed February 2, 2010 Affirmed in part, reversed in part, and remanded Minge, Judge Aitkin County District Court File No. 01-P5-04-000284 Thomas C. Pearson, Gammello, Qualley & Pearson, PLLC, Baxter, MN (for appellants Peterson) Denise Fischer, Duluth, MN (pro se respondent) Considered and decided by Toussaint, Presiding Judge; Minge, Judge; and Larkin, Judge. SYLLABUS It is error for a district court to take judicial notice of non-record documents that the parties have not had an opportunity to challenge or address. OPINION MINGE, Judge Appellant guardians and conservators of ward Harold F. Doyle challenge the district court's order disallowing their accounts and certain fees and expenses paid to them out of the ward's estate. We affirm in part, reverse in part, and remand.

FACTS In July 2004, the district court in its capacity as the probate court1 appointed appellants Paul Peterson and H. Frances Peterson as guardians and conservators of Harold Doyle, a senior citizen who resides in a group home. Doyle was not indigent. Acting as conservators, appellants charged various expenses to and paid their claimed fees out of Doyle's estate. Between 2005 and 2008, appellants filed four annual accounts with the district court administrator, detailing their fees and expenses. The fees and expenses in the four accounts totaled $26,514.74. Initially, appellants did not move for approval of their accounts, and no action was taken. In April 2008, the district court ordered appellants to show cause as to why the fees and the annual accounts were not excessive. In October 2008, a hearing was held on the show-cause order. At the outset, the district court explained that the purpose of the hearing was to address the order to show cause. Appellants and their counsel were present. The ward was unrepresented. An attorney appeared at the hearing on behalf of the ward's nephew, apparently to facilitate the appointment of a relative of the ward to replace appellants as his conservator/guardian. This attorney raised no objections to appellants' accounts. Appellants testified, but were unable to answer many questions about their accounts, fees, and expenses, and reported that they did not have records that would enable them to reconstruct their work.

1

Because there is no longer a separate probate court system in Minnesota and district courts exercise all the functions of the probate court, the term "district court" will be used interchangeably for "probate court." 2

On December 30, 2008, the district court entered extensive findings of fact, conclusions of law, and a detailed order. In its findings, the district court summarized portions of the Service Fee Policy for Guardians and Conservators adopted by Aitkin County Health and Human Services (Service Fee Policy) and of the Standards of Practice adopted by the Minnesota Association for Guardianship and Conservatorship (Standards of Practice). The district court found that the billing records that appellants submitted were "extremely disorganized and inaccurate," refused to accept the four annual accounts, determined that the claimed fees and expenses were excessive and many specific items were not proper, required appellants to submit accurate and proper annual accounts, and directed appellants to repay $17,722.50. Although the district court

provided detailed reasons for most of its determinations, the district court disallowed a lump sum of $5,000 as "excessive, unreasonable, and unnecessary." The district court set March 15, 2009, as the date by which "accurate and proper" accounts had to be submitted and disallowed fees and expenses repaid. No judgment has been entered. Appellants have not requested reconsideration or amended findings, filed or submitted a petition for allowance of modified accounts, or requested that the district court allow comment on or reopen the record to address matters contained in its December 30, 2008 order. This appeal followed. ISSUES 1. 2. Is the district court's December 30, 2008 order appealable? Does the district court have authority to disallow fees and expenses of a

guardian/conservator on its own initiative? 3

3.

Did the district court err in relying on two documents that were not in the

record: the Service Fee Policy and the Standards of Practice? 4. Did the district court abuse its discretion in disallowing specific fees and in

disallowing $5,000 generally? ANALYSIS I. At the outset, we address on our own initiative the question of whether the district court's order is appealable. Generally, appeals may only be taken from a final judgment. Minn. R. Civ. App. P. 103.3(a). However, the rules also permit appeals from orders or decisions that by statute are appealable. Id. at 103.3(j). The probate code provides that appeals may be taken from (9) an order allowing, or refusing to allow, an account of a representative or any part of it when the amount in controversy exceeds $100; . . . [or] (15) an order made directing, or refusing to direct, the payment of representative's fees . . ., and in such case the representative . . . shall . . . be deemed an aggrieved party and entitled to appeal. Minn. Stat.

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