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STATE OF MINNESOTA IN COURT OF APPEALS A10-716 Peggy Greer, Appellant, vs. Professional Fiduciary, Inc., Respondent, Wells Fargo Bank, N. A., et al., Respondents, Ruth Ostrom, Respondent. Filed January 4, 2011 Affirmed Hudson, Judge Hennepin County District Court File No. 27-CV-09-11079 David E. Bland, Andrew J. Pieper, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota (for appellant) Mark Solheim, Paula Duggan Vraa, Troy F. Tatting, Larson King, LLP, St. Paul, Minnesota (for respondent Professional Fiduciary, Inc.) Thomas H. Boyd, Erin A. Oglesbay, Winthrop & Weinstine, P.A., Minneapolis, Minnesota; and Robert A. McLeod, Lindquist & Vennum, P.L.L.P., Minneapolis, Minnesota (for respondents Wells Fargo Bank, N.A. and Wells Fargo Investments, LLC) Kelly A. Putney, Charles E. Lundberg, Bassford Remele A Professional Association, Minneapolis, Minnesota (for respondent Ruth Ostrom) Diane B. Bratvold, Andrew M. Baese, Briggs & Morgan, P.A., Minneapolis, Minnesota (for amicus curiae Probate and Trust Law Section of the Minnesota State Bar Association)

Mary R. Watson, William M. Hansen Associates, PLLC, Minneapolis, Minnesota (for amicus curiae Minnesota Association of Guardianship and Conservatorship) Considered and decided by Hudson, Presiding Judge; Johnson, Chief Judge; and Larkin, Judge. SYLLABUS A formerly incapacitated person's claims against her former conservator and former guardian constitute improper collateral attacks on the probate court's final orders when the claims challenge actions taken during the conservatorship and guardianship that are addressed in the probate court's final orders. OPINION HUDSON, Judge Appellant, a formerly incapacitated person, challenges the actions taken by respondents, who are her former conservator, her former guardian, and her former guardian's counsel, while she was under the jurisdiction of the probate court. The district court dismissed appellant's claims against respondent-conservator and respondentguardian to the extent they were based on actions taken during the probate-court proceedings. The district court also entered judgment on the pleadings in favor of respondent-guardian's counsel because appellant failed to articulate a viable theory of liability. For the reasons stated below, we affirm. FACTS From March 2005 to July 2007, appellant Peggy Greer, who is now 87 years old, was under a conservatorship and a guardianship. Respondent Wells Fargo (WF) was

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Greer's conservator,1 and respondent Professional Fiduciary, Inc. (PFI), was Greer's guardian. Respondent Ruth Ostrom became PFI's attorney in April 2006 and represented PFI during and after the guardianship. On July 6, 2007, the probate court determined that Greer's capacity was restored and granted Greer's petition to terminate the conservatorship and guardianship. In April 2009, Greer brought this civil action against WF, PFI, and Ostrom. She contended that WF and PFI were liable in tort for conduct that occurred during and after the conservatorship and guardianship and that Ostrom was liable in tort for conduct that occurred after the guardianship. Specifically, Greer sought compensatory damages

against WF and PFI for breach of fiduciary duties, negligence, and intentional and negligent infliction of emotional distress. Greer also sought compensatory damages against Ostrom for breach of fiduciary duty in her capacity as PFI's attorney. WF and PFI moved to dismiss the complaint, and Ostrom moved for judgment on the pleadings. The district court granted the motions of WF and Ostrom in full and granted PFI's motion in part. Greer agreed to dismiss the remaining claims against PFI without prejudice, and the district court entered judgment in favor of WF, PFI, and Ostrom. This appeal follows.

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Greer contends that two Wells Fargo entities--Wells Fargo Bank (WFB) and Wells Fargo Investments (WFI)--served as her conservators. WF counters that Greer has not pleaded facts sufficient to establish that WFI was her conservator. The district court agreed and dismissed WFI from this action. Greer appeals this decision here. But it is irrelevant to our decision whether Greer has stated a claim against WFB, WFI, or both. For these reasons, we use the collective term WF to refer to Greer's conservator. 3

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Conduct of WF and PFI during the conservatorship and guardianship

In July 2004, Greer's daughter Judith Wyrk filed a petition for appointment of a conservator and a guardian for her mother. In January 2005, the probate court heard Judith's petition. Both Greer and Judith2 appeared with counsel and reached a settlement whereby the probate court was to appoint WF as conservator and PFI as guardian. In March 2005, the probate court issued an order finding that Greer was incapacitated and that she was unable to understand and acknowledge her condition fully. The probate court noted that she had been hospitalized twice and needed assistance with activities of daily living. The probate court found that Greer was unable to manage her personal or financial affairs. The probate court stated that Greer was unable to manage her finances, that she would be receiving a significant inheritance, and that her estate needed to be protected to ensure its availability for her long-term care. The probate court appointed WF as conservator of Greer's estate and granted WF a number of conservatorship powers, including the powers to pay reasonable charges for Greer's support, to pay debts out of her estate, to manage her estate, to approve or withhold approval of any contract made by Greer, except for necessities, and to apply for any public benefits on her behalf. The probate court also appointed PFI as guardian of Greer's person and granted PFI a number of powers, including the powers to establish Greer's place of abode; to provide for food, clothing, and shelter; to consent to medical treatment; and to exercise supervisory authority over Greer. The order informed Greer of

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To avoid confusion, Greer's children are referred to by their first names. 4

her right to appeal the appointment of a conservator and a guardian pursuant to Minn. Stat.

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