Fiduciary Foundation, LLC v. Brown
2013 Minn. App. LEXIS 63
| Minn. Ct. App. | 2013Background
- Fiduciary Foundation petitioned for a two-year harassment-restraining order (HRO) for ward Lois Rothfusz against her daughter Kathy Brown; a district court referee issued an ex parte temporary HRO (THRO) dated May 15, 2012.
- The THRO stated respondent could request a hearing within 45 days of the order; Brown received service via the Minnesota Secretary of State on May 29, 2012 (she participates in Safe at Home).
- Brown did not request a hearing within 45 days; she later moved to vacate the ex parte HRO and requested a hearing in August 2012, which the district court denied as untimely.
- Brown appealed the ex parte HRO, the denial of her motion to vacate, and the denial of her hearing request.
- The court considered whether a THRO becomes an ex parte HRO when no timely hearing is requested, whether the denial of the motion to vacate is appealable, and whether the district court abused its discretion in denying relief.
Issues
| Issue | Plaintiff's Argument (Brown) | Defendant's Argument (Fiduciary / Court) | Held |
|---|---|---|---|
| Does a THRO become an ex parte HRO if no hearing is requested within 45 days? | "Issued" should be construed to mean the 45-day period runs from personal service/receipt, not from signing. | The statute starts the 45-day period when the THRO is issued; if no hearing is requested the THRO becomes an ex parte HRO by operation of law. | The THRO became an ex parte HRO when no timely hearing was requested. |
| Is the order denying vacatur of the ex parte HRO appealable? | (Implicit) The underlying ex parte order is not appealable; challenge should be limited. | The denial of a motion to vacate an ex parte restraining order is a final order affecting substantial rights in a special proceeding and is appealable. | The order denying vacatur is appealable under Minn. R. Civ. App. P. 103.03(g). |
| Did the court abuse its discretion by denying Brown’s motion to vacate the ex parte HRO for untimeliness? | Denial violated due process and equitable tolling should apply because Brown lacked actual notice until service via Secretary of State. | Brown received notice via Secretary of State and the THRO itself informed about the 45‑day deadline; no reasonable excuse for delay. | No abuse of discretion; district court rightly denied vacatur for failure to timely request a hearing. |
| Should the court construe “issued” to require personal service to protect due process? | Yes — starting the clock at issuance (signing) can deprive respondents of notice and hearing; statute should be read to require notice. | Legislative use of “issued” elsewhere and statutory scheme show “issued” does not mean personal service; receiving via Secretary of State satisfies notice for Safe at Home participants. | Court rejected construing “issued” to mean personal service; even under Brown’s receipt date the denial was not an abuse of discretion. |
Key Cases Cited
- Chapman v. Dorsey, 280 Minn. 279 (1950) (ex parte orders generally not appealable; denial of vacatur may be appealable in special proceedings)
- In re GlaxoSmithKline PLC, 699 N.W.2d 749 (Minn. 2005) (definition of final order and substantial-rights analysis)
- Steeves v. Campbell, 508 N.W.2d 817 (Minn. App. 1993) (domestic-abuse proceedings are special proceedings)
- State v. Ness, 819 N.W.2d 219 (Minn. App. 2012) (HROs are civil orders appealable under appellate rules)
- Sawh v. City of Lino Lakes, 823 N.W.2d 627 (Minn. 2012) (due process requires notice and opportunity to be heard)
- Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988) (issues not raised below generally waived on appeal)
- In re Welfare of J.J.P., 831 N.W.2d 260 (Minn. 2013) (statutory interpretation principles)
- Smith v. Illinois Cent. R.R., 244 Minn. 52 (1955) (discussion of appealability of orders refusing to vacate nonappealable orders)