Naito v. Naito

783 P.2d 1012 (1989)

In the matter of the Guardian/Conservatorship of Hide NAITO, an Incapacitated Person. Midori Naito, Appellant-Cross-Respondent,
v.
Samuel T. NAITO, William S. Naito, Respondents-Cross-Appellants, and Herbert M. Schwab, Respondent.

8705-91003; CA A49882.

Court of Appeals of Oregon.

Argued and Submitted November 9, 1989. Decided December 13, 1989.

Hollis McMilan, Portland, argued the cause for appellant-cross-respondent. With him on the briefs, were G. Kenneth Shiroishi, Marsha Murray-Lusby and Dunn, Carney, Allen, Higgins & Tongue and David B. Markowitz, Lisa A. Kaner and Markowitz, Herbold, Stafford & Glade, P.C., Portland.

Colleen O'Shea Clarke, Portland, argued the cause for respondent and respondents-cross-appellants. With her on the briefs, was Weiss, DesCamp & Botteri, Portland.

Before RICHARDSON, P.J., and ROSSMAN and EDMONDS, JJ.

ROSSMAN, Judge.

In 1987, Midori Naito (wife) was appointed conservator of the estate of Hide Naito, her husband. Hide's sons from a prior marriage, Samuel and William Naito (sons), opposed wife's appointment and, in January, 1988, filed a petition seeking her removal. They alleged that she had engaged in acts of self dealing whereby she had removed substantial assets from the estate. They also requested attorney fees payable from the estate.

The trial court granted sons' petition, removed wife and appointed Samuel and respondent Schwab to serve as co-conservators. The court, however, denied them attorney fees. In reaching his decision to remove wife, the trial judge made no findings of improper conduct, but removed her "because I find that the arrangement I have ordered is more preferable." Wife appeals, contending that preference for another person is not a sufficient cause for her removal. Sons cross-appeal the denial of attorney fees and have moved to dismiss wife's appeal as moot after the death of Hide on August 9, 1989.

We must address two preliminary issues. The first is whether the order removing wife as conservator is final for the purposes of appeal. The order provides, in pertinent part:

"6. The removal of Midori Naito as conservator of the estate of Hide Naito is effective the date of this order;

"7. That within 30 days of the date of this order, Midori Naito shall render her final account, which shall cover the entire duration of her having been conservator of the estate of Hide Naito."

Citing McEwen v. McEwen, 203 Or. 460, 280 P.2d 402 (1955), sons argue that the order is not final, because it requires wife to account. According to sons, the order cannot be appealed until her accounting is made and is settled by the court. However, sons' reliance on McEwen is misplaced. As the Court explained in Hall v. Pierce, Bone, 210 Or. 98, 151, 307 P.2d 292, 309 P.2d 997 (1957), the accounting sought in McEwen was the main objective of the lawsuit. "If the decree fixes the rights and liabilities of the parties upon [sic] the subject of the controversy and refers the matter for accounting purposes only, the decree is deemed final for the purposes of appeal." Hall, 210 Or. at 154, 307 P.2d 292.

Here, sons' main objective was the removal of wife as conservator. The court ordered her removal and, incidentally ordered an accounting. Because the order resolved the removal issue between sons and wife, it is final for appeal. See also Murphy v. Royce, 214 Or. 626, 628, 310 P.2d 623 (1957); Woodley v. Allstead, 49 Or. App. 875, 883 n. 5, 621 P.2d 612 (1980).

The second preliminary issue is whether Hide's death renders wife's appeal moot. After the death of a protected person, ORS 126.337 requires the conservator to retain the estate of the deceased only for delivery to a personal representative. On August 15, 1989, the court, pursuant to Hide's will, appointed Samuel as personal representative. Because the conservatorship was terminated, wife has no legal basis for continuing her appeal.

Wife argues that we should nevertheless retain jurisdiction, because her appeal presents an issue "capable of repetition, yet evading review." Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 712-13, 35 L. Ed. 2d 147 (1973), cited with approval in OSAA v. Stout, 71 Or. App. 405, 407 n. 1, 692 P.2d 633 (1984). Although an appellate court may reject a mootness challenge when a party is seeking protection against future repetitions of a challenged governmental act, Kay v. David Douglas Sch. Dist. No. 40, 303 Or. 574, 577, 738 P.2d 1389 (1987), cert den. 484 U.S. 1032, 108 S. Ct. 740, 98 L. Ed. 2d 775 (1988), wife seeks no such relief in this case. Her challenge concerns only the validity of her removal. Accordingly, we dismiss her appeal as moot.

The only issue remaining in this case is whether the trial court erred when it denied sons' request for attorney fees. They alleged that wife engaged in acts of self dealing. The acts essentially involve wife's transfer of two parcels of real estate from Hide's sole ownership to joint ownership with her and her use of jointly-held assets to establish an investment account and a certificate of deposit in her sole name. Sons argue that those assets were subsequently returned to the estate because of their efforts and, therefore, they are entitled to an award of attorney fees. They rely on Jones v. Kuhn, 59 Or. App. 135, 140, 650 P.2d 999 (1982), where we held that attorney fees "may be awarded to a party who, at his own expense and not for his sole benefit, successfully brings suit to benefit an estate or trust as a whole."

The alleged acts of self-dealing all occurred before wife's appointment as conservator. There is no evidence that the assets would not have been returned to the estate but for sons' actions. To the contrary, the evidence is that, after her appointment, wife and her counsel gathered and inventoried the assets of the estate and that wife voluntarily returned the transferred property. Accordingly, the trial court properly denied sons' request for attorney fees.

Appeal dismissed as moot; affirmed on cross-appeal.