JAMES BRUGGEMAN, by BLACK HILLS ADVOCATE, LLC, Petitioner and Appellee, v. JENNIFER RAMOS, Respondent and Appellant.
#29308-a-PJD
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 03/23/22
2022 S.D. 16
ARGUED APRIL 27, 2021
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA
****
THE HONORABLE MICHELLE K. COMER Judge
****
CASSIDY M. STALLEY N. DREW SKJOLDAL of Lynn, Jackson, Shultz, & Lebrun, P.C. Rapid City, South Dakota Attorneys for petitioner and appellee.
STEPHEN J. WESOLICK of Aspen Legacy Planning/Wesolick Law Firm Rapid City, South Dakota
MARIAH C. BLOOM Rapid City, South Dakota Attorneys for respondent and appellant.
#29308
[¶1.] Black Hills Advocate, as James Bruggeman‘s guardian and conservator, petitioned for a protection order against Jennifer Ramos alleging Bruggeman is a vulnerable adult and was subject to vulnerable adult abuse by Ramos. After a hearing on the petition, the circuit court determined that Bruggeman is a vulnerable adult and found by a preponderance of the evidence that Ramos neglected and financially exploited Bruggeman while she was his caretaker and was entrusted with his property. Ramos appeals, asserting multiple issues. We affirm.
Factual and Procedural Background
[¶2.] Bruggeman and Ramos have known each other since Ramos was nine or ten years old. Ramos testified that she first met Bruggeman when he was trying to help her mother become sober. She also testified that when she was approximately twelve years old, Bruggeman became her temporary guardian because her mother was incarcerated. Ramos considered Bruggeman to be like family to her; however, there was a period of time when she did not have regular contact with him. According to Ramos, Bruggeman had raped her when she was approximately fourteen
#29308
[¶3.] In 2011, when Bruggeman was 66 years old, he was diagnosed with vascular dementia after going to the Veteran‘s Administration (VA) emergency department reporting confusion and disorientation. The VA note from the visit indicated that Bruggeman previously had a stroke and a coronary artery bypass. In 2011, he was living on his own, but his close friends, including Ramos, were helping him with administering medication, paying bills, preparing meals, shopping, etc. Bruggeman, a veteran, was recommended for a dementia clinic referral and a referral for home health services. By January 2012, Ramos took over as Bruggeman‘s primary caregiver.
[¶4.] In June 2012, Bruggeman appointed Ramos to be his attorney-in-fact upon his disability or incapacity under a power of attorney. In the same document, Bruggeman designated Ramos as his agent to make healthcare decisions for him if he became unable to speak for himself. Also in 2012, Bruggeman executed a new will naming Ramos as personal representative and leaving his entire estate to her. Bruggeman was not married and did not have any children of his own. Ramos testified that she did not know of the various appointments or the will until around 2013.
[¶5.] In October 2012, Bruggeman purchased a residential property (Union Street property) for Ramos and her children. Ramos was married at the time but claimed that she was getting a divorce and that Bruggeman wanted her and her children to have a place to live. She also asserted that although only Bruggeman‘s name was on the mortgage and deed, she paid the mortgage on the property. When asked from which account she made the mortgage payments, Ramos testified that the mortgage payments were automatically withdrawn from Bruggeman‘s account, but she claimed that she transferred her own money to his account for the mortgage payments. She further testified that she believed Bruggeman‘s bank account was hers as well because Bruggeman had put her name on this bank account and allowed her to spend money from the account for her needs. The bank records entered into evidence at the hearing by Black Hills Advocate do not reflect that transfers were made from an account owned by Ramos to cover the mortgage payments, and Ramos did not offer any bank records of her own.
[¶6.] In May 2014, the VA recommended to Ramos that Bruggeman receive a higher level of care because he had fallen, he had consistently forgotten to take his medications, and he was struggling to bathe himself. In response, Ramos decided to convert a small garage at the Union Street property into an apartment for Bruggeman. Ramos testified that she chose this option rather than move him into an assisted living center because Bruggeman wanted to continue to live independently. She explained that while Bruggeman lived in that apartment, she took care of everything for him—she helped him shower, made all his meals, paid his bills, and administered his medications. She also testified that she had placed a baby monitor in the apartment to hear if Bruggeman needed assistance.
[¶7.] To assist the VA in delivering medical care to Bruggeman, the VA had
[¶8.] In July 2015, Dr. Huxford performed a neuropsychology examination on Bruggeman. He observed that Bruggeman‘s current level of cognitive functioning was consistent with his neuropsychological results from his 2013 evaluation, but also observed a noticeable decline in his story recall. Dr. Huxford opined that consistent with the 2013 evaluation, Bruggeman demonstrated impaired cognitive functioning, specifically in the areas of attention and working memory. Dr. Huxford diagnosed him with mild vascular neurocognitive disorder.
[¶9.] In December 2016, Bruggeman underwent additional neurocognitive testing. The note following the examination indicated that the consultation was requested by his primary care provider because of potential worsening cognition and increased behavioral difficulties. The note also mentioned that his caregiver indicated that Bruggeman had been “financially exploited by a silver/gold collector” in excess of $10,000. Dr. Huxford noted that his examination of Bruggeman indicated that his cognitive abilities seemed to be worsening. Dr. Huxford diagnosed him with major neurocognitive disorder due to vascular etiology with behavioral disturbance. He also determined that because of Bruggeman‘s impaired abilities, recent poor financial judgment, disorientation and confusion, and increased impulsivity and inhibition, it was “clear that his capacities to function on some independent level are not possible.” Dr. Huxford recommended that he be referred to neurology rehabilitation services and that he remain “physically and mentally active and engage in social activities . . . shown to preserve and promote cognitive health . . . under the consultation of his primary health provider and supervision of his primary caregiver.”
[¶10.] Dr. Huxford discussed his findings with Ramos, and in April 2017, a VA social worker strongly recommended to Ramos that Bruggeman receive 24-hour care and supervision. The VA note documenting the social worker‘s recommendation noted a concern about Ramos‘s ability to manage his needs given her work and other family obligations. Further, although Ramos had the power to make health care decisions for Bruggeman, the VA social worker noted that “there is a relationship dynamic between the two of them that impairs her ability to make the best decision for [his] care.” The VA note documenting the recommendation also noted that although 24-hour care and supervision had “not been [his] wish,” the social worker was concerned “about [his] capacity to make that decision.” The social worker told Ramos that his living situation was “not ideal” and the VA might “not continue to provide services as it enables him to remain in less than desirable conditions.” The note further documented that Ramos declined additional support services (e.g., home bath aide, homemaking care, and Meals on Wheels) despite Bruggeman‘s agreement to use the services. According to the VA note, Ramos agreed to attend a meeting to discuss living arrangement options.
[¶12.] In January 2018, the VA contacted the Department again with concerns that there had been no medical follow-up since Bruggeman‘s discharge from the VA‘s home health services and he had not shown up for a scheduled appointment. The VA expressed further concerns about whether Bruggeman had the capacity to manage his own health care decisions and with his reliance on Ramos for assistance in making and attending appointments. The VA informed the Department that he might not be receiving the medical care he needed because he had not yet re-established primary care after being discharged from the VA‘s home-based primary care services. The record does not contain information related to what investigation, if any, the Department took in response to this report.
[¶13.] In March or April 2018, Ramos contacted Wells Fargo to be added as a supplemental account owner/authorized third party on Bruggeman‘s Wells Fargo investment accounts. She claimed that she did so because she and Bruggeman had believed, incorrectly, that she already had full access to these accounts but then learned otherwise from the bank. Bruggeman‘s long-time financial advisor, Troy Niehaus, testified that given “the seriousness of giving someone third-party authorization,” he asked Bruggeman to come to the bank. Both Bruggeman and Ramos attended the in-person meeting in April 2018. Niehaus testified that Bruggeman indicated he wanted to add Ramos as a supplemental account owner in case he became incapacitated and money or securities needed to be moved for his benefit. Ramos agreed with this characterization of the purpose for the requested change. There was also a discussion during this meeting about Bruggeman buying a new house. According to Niehaus, Ramos said that Bruggeman planned to purchase a larger house for him, her, and her children so that they could all live in the main home and he would have more supervision as requested by the VA.
[¶14.] After the necessary paperwork was completed, making Ramos a supplemental account owner, Ramos amended a purchase agreement that she and her husband had executed in March 2018 for the purchase of a new home (Willow Creek property).1 The amendment removed Ramos‘s
[¶15.] Dr. Dennig noted the findings from Bruggeman‘s previous evaluations and similarly concluded that his “judgment and decision making continues to be a major concern because of what it suggests about his ability to manage his health care, finances, and ADLs [activities for daily living].” He opined that Bruggeman “no longer has the capacity to care for himself or make decisions that are in his best interests” and diagnosed him with vascular dementia with behavioral disturbance (impulsivity/inhibition). He recommended a higher level of care, such as a nursing home or assisted living.
[¶16.] On May 14, 2018, Ramos withdrew $228,756.46 from Bruggeman‘s Wells Fargo investment accounts. A week later, she withdrew $100,000 from his account at Pioneer Bank and Trust. On May 21, 2018, Ramos purchased the Willow Creek property using $296,500 of the money withdrawn from Bruggeman‘s accounts. She later withdrew an additional $8,000 from his Pioneer Bank and Trust account to construct a pole barn on the new property.
[¶17.] After Ramos withdrew these funds, Bruggeman contacted Niehaus multiple times. According to Niehaus, Bruggeman expressed concern throughout the summer of 2018 about his available balances and requested notification if Ramos attempted additional transactions. He also asked that Ramos be removed as a supplemental owner, but according to Niehaus, Bruggeman would change his mind, so Ramos‘s authorization was not removed. During one conversation, Niehaus learned from Bruggeman that he had not moved into the Willow Creek property with Ramos and believed he likely never would. This concerned Niehaus because he was under the impression that the withdrawal of money from Bruggeman‘s account was for a new home in which Bruggeman would live. He contacted Wells Fargo‘s Elder Client Initiatives to seek guidance on how to proceed. Thereafter, Wells Fargo restricted Bruggeman‘s Wells Fargo accounts, and in September 2018, Bruggeman signed a document revoking Ramos as a supplemental owner/authorized third party.
[¶18.] In August 2018, Bruggeman moved into an assisted living center. In January 2019, while he was still residing there, he left the facility against medical advice and Ramos‘s wishes and went to Arizona with a friend. After later learning of his whereabouts, Ramos brought Bruggeman back to South Dakota in April 2019. Ramos discovered that he had been in a rehabilitation facility in Las Vegas after injuring his back. He was covered in bruises and Ramos brought him to the VA where he was diagnosed with failure to thrive. The VA told Ramos that 24-hour care and supervision was necessary for Bruggeman‘s safety, but on May 1, Ramos instead had him discharged into her care. She testified that she did so because Bruggeman did not want to be in a nursing home away from Ramos and her children. According to a note kept by the VA, Ramos
[¶19.] Shortly thereafter, on May 14, Ramos brought Bruggeman to the VA emergency department because she was unable to care for him. The VA staff again suspected Ramos was using Bruggeman‘s money for her own benefit or otherwise preventing his money from going toward payment for his necessary care and supervision, so they contacted the Department. Becky Fleming from the Department met with Bruggeman on May 21, 2019, and with Ramos on May 30. She informed Ramos that the VA was strongly recommending that he not be discharged into her care. According to Fleming, Ramos was upset with that information and indicated concern over finances. Fleming testified that Ramos said, “Does everyone expect me to sell my house? I won‘t do that, I have three kids.” Bruggeman was then placed in long-term care at the VA.
[¶20.] In June 2019, Black Hills Advocate filed a petition requesting to be appointed as Bruggeman‘s guardian and conservator.2 The circuit court granted the petition on January 31, 2020. Thereafter, on February 7, 2020, Black Hills Advocate petitioned for a protection order alleging that Bruggeman is a person 65 years or older who is unable to protect himself from acts of vulnerable adult abuse by Ramos. In its petition, Black Hills Advocate alleged, among other things, that despite being directed by the court to turn over rental proceeds from two of Bruggeman‘s properties, Ramos was still collecting and retaining these rental proceeds. The circuit court entered a temporary protection order on February 11, 2020, and noticed the matter for a hearing on February 24, 2020. Prior to the hearing, Ramos filed a motion to amend the protection order to remove the requirement that she be excluded from the Willow Creek property, claiming that the property is her only home. She also indicated that she “will request a future evidentiary hearing at the February 24, 2020, hearing so that she may have time to subpoena witnesses to come testify.”
[¶21.] At the February 24 hearing, the court granted Ramos‘s motion to amend the protection order. Thereafter, counsel for Ramos asked for a continuance to afford more time for an evidentiary hearing and to better prepare and “to subpoena at least two very important witnesses[.]” She identified the police chief and another, but not Bruggeman, as the “witnesses that we need to have here.” Black Hills Advocate objected to the continuance, noting that Ramos‘s counsel had appeared in the guardianship proceeding involving the same facts and has had the documents Black Hills Advocate intended to present at the protection order hearing since October or November of 2019. The circuit court granted Ramos‘s motion to continue, and after inquiring of both counsel how much time was needed for a hearing, counsel agreed that a one-day hearing would be sufficient. They also agreed upon a continued hearing date of March 17, 2020.
[¶22.] On March 11, Ramos subpoenaed Bruggeman to appear and testify, and in response, Black Hills Advocate filed a motion to quash the subpoena. Black Hills Advocate attached the following supporting documents to the motion: a VA progress note from May 1, 2018, relating that Ramos had called requesting a letter from the VA that Bruggeman does not have the capacity to make decisions; a report from Dr. Dennig‘s May 9, 2018 neuropsychological
[¶23.] At the beginning of the permanent protection order hearing on March 17, the circuit court granted the motion to quash, relying on its previous determination in the guardianship proceeding that Bruggeman was not competent and further relying on written reports from physicians at the VA that Bruggeman lacked “the capacity to understand” and had severe neurocognitive impairment. The court also determined that it would be detrimental to his health, care, or safety to attend the hearing.
[¶24.] During the hearing on the protection order, multiple witnesses testified including Ramos, Niehaus, and Fleming. At the conclusion of the hearing, the circuit court issued an oral ruling determining that Bruggeman is a vulnerable adult and that he has been the subject of vulnerable adult abuse because of neglect and financial exploitation by Ramos. On April 6, 2020, the circuit court issued written findings and conclusions and a judgment restraining Ramos from contact with Bruggeman and from committing acts of vulnerable adult abuse. The court also restrained Ramos from exercising any powers on behalf of Bruggeman or having control over his funds, property, resources, belongings, or assets. The court ordered Ramos to return custody or control over these items to Black Hills Advocate. The court initially ordered Ramos to convey the Willow Creek property to Bruggeman by warranty deed; however, the court later amended its judgment to remove this directive. Instead, the court ordered Ramos to return $296,500 to Bruggeman, “representing the amount that [she] admits she withdrew from [his] bank account(s) to purchase the Willow Creek Property.” Lastly, the court ordered Ramos to pay Black Hills Advocate‘s attorney fees.
[¶25.] Ramos appeals, asserting the following issues:
- Whether the circuit court abused its discretion when it quashed the subpoena for Bruggeman to testify.
- Whether the circuit court erred when it determined Bruggeman to be a vulnerable adult.
- Whether the circuit court erred when it found that Bruggeman was the victim of financial exploitation.
- Whether the circuit court erred when it found that Bruggeman was the victim of neglect.
- Whether the circuit court erred when it ordered Ramos to pay Black Hills Advocate‘s attorney fees.
Analysis and Decision
1. Whether the circuit court abused its discretion when it quashed the subpoena for Bruggeman to testify.
[¶26.] Ramos first asserts that the circuit court erred in relying on written neurological evaluations without holding a hearing to assess Bruggeman‘s competency to testify. In her view, the medical records were insufficient to support a finding that he was not competent to testify at this hearing because none of the records address whether he lacked the understanding to receive, remember, and communicate impressions, or whether he was able to understand the obligation of the oath. Ramos further contends that the court erred in relying on its previous determination
[¶27.] In response, Black Hills Advocate claims that Ramos waived the right to assert this alleged error on appeal. It notes that Ramos did not ask that the circuit court hold a competency hearing and did not object to the court‘s reliance on written documents related to Bruggeman‘s competency that were attached to Black Hills Advocate‘s motion to quash. Black Hills Advocate also claims that the court did not abuse its discretion in quashing the subpoena because, according to Black Hills Advocate, Ramos did not specifically dispute Bruggeman‘s lack of competency to testify.
[¶28.] Ramos did not file a reply brief on appeal; thus, there is no response from Ramos on the question whether she waived any particular argument. Nevertheless, Bruggeman was presumed competent to testify, see
[¶29.] As acknowledged in its brief in support of its motion to quash, Black Hills Advocate was required to prove that Bruggeman lacked “sufficient understanding to receive, remember, narrate impressions and [be] sensible to the obligation of an oath.” See State v. Warren, 462 N.W.2d 195, 198 (S.D. 1990); see also
[¶30.] In response to the motion to quash, Ramos‘s counsel did not take issue with the findings in the medical reports offered by Black Hills Advocate or object to the court‘s reliance on these reports in determining whether Bruggeman was competent to testify. Notably, Ramos‘s counsel in the protection order proceeding had also represented Ramos in the guardianship proceeding, and during the protection order hearing, Ramos‘s counsel acknowledged the circuit court‘s prior finding in the guardianship proceedings that Bruggeman was not competent. Counsel also noted the current concern with the potential impact of the coronavirus (commonly referred to as COVID-19) precluding physical contact with nursing home residents like Bruggeman. Counsel nevertheless requested that the court allow Bruggeman to provide “very limited” testimony regarding his wishes with respect to Ramos and suggested that Bruggeman could testify via telephone.3
[¶32.] In the most recent of these prior reports, Dr. Dennig indicated that he had assessed Bruggeman‘s “[e]xecutive functioning, spatial abilities, memory, attention and language[.]” According to Dr. Dennig, since 2017, Bruggeman has had “considerable degradation in executive functioning along with the ability to pay attention and concentrate.” He further opined that:
[Bruggeman] is easily confused about the task in front of him, and was disoriented to time. His expressive verbal skills far outperform his receptive abilities. . . . His performance today is a major concern in terms of his mental capacities in relation to his peers.
In regard to specific testing observations, Dr. Dennig reported that Bruggeman‘s comprehension of instructions was poor. Of most concern for Dr. Dennig, was Bruggeman‘s “inability to pay attention and concentrate.” The data from his neuropsychological assessment indicated “a severe impairment in cognitive functioning.” Among several recommendations, Dr. Dennig suggested that Bruggeman receive assistance from a speech therapist because his “receptive language (comprehension) is moderately to severely impaired.”
[¶33.] Ultimately, the circuit court granted the motion to quash. It noted “that [it] had previously found [Bruggeman] incompetent” in the guardianship proceeding, and then ruled that it has “now” “found him incompetent.” The court also determined that Bruggeman was not competent to testify because he “lacks the capacity to understand.” Finally, the court determined that it would be detrimental to his health, care, or safety to attend the hearing.
[¶34.] We review a circuit court‘s determination as to whether a witness is competent to testify for an abuse of discretion. See State v. Spaniol, 2017 S.D. 20, ¶ 12, 895 N.W.2d 329, 335. We also review a circuit court‘s decision to quash a subpoena for an abuse of discretion. Kern, 2016 S.D. 52, ¶ 29, 883 N.W.2d at 517–18. An abuse of discretion is “a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” Field v. Field, 2020 S.D. 51, ¶ 15, 949 N.W.2d 221, 224 (citation omitted).
[¶35.] Ramos and the dissent correctly identify that a circuit court‘s determination of incapacity in a guardianship proceeding is not the same as a determination that a person is not competent to testify as a witness. In a guardianship proceeding, the court is tasked with determining whether a person “is impaired to such an extent” that he or she “lacks the capacity” to manage “health, care, safety, habilitation, or therapeutic needs” or “the capacity to manage property or financial affairs” without assistance.
#29308
[¶36.] However, the circuit court did not simply rely on its previous competency
#29308
[¶37.] Nevertheless, the dissent further faults the circuit court for not “personally interact[ing] with Bruggeman” when assessing his competency to testify. The dissent then quotes State v. Lutheran, for the proposition that the circuit court should have personally examined Bruggeman. See 76 S.D. 561, 82 N.W.2d 507 (1957) (examining whether a nine-year-old rape victim was properly found competent to testify). While this Court noted, in Lutheran, that the circuit court did not err in finding the child to be competent “[a]fter informing itself by proper examination and observation,” see id. at 564, 82 N.W.2d at 509, we did not hold that a circuit court must in all instances personally observe and canvass a potential witness in order to make a competency determination.
[¶38.] Admittedly, a court‘s personal observations of a potential witness could be a significant factor in determining the witness‘s competency to testify, and in most cases, it is preferable to personally observe and inquire into a prospective witness‘s competency or conduct an evidentiary hearing to hear expert testimony, or both. This case, however, unfolded in such a manner that the circuit court‘s reliance solely on written reports of the observations and conclusions of Bruggeman‘s medical providers, though perhaps atypical, was within the range of permissible choices presented by this unique record. By the time of the March 2020 protection order hearing, the same parties, counsel, and judge had been litigating similar issues involving Bruggeman and his property for several months, in both a
(... continued)
did not issue any finding that Bruggeman needed protection from a traumatic confrontation with Ramos, we do not examine this particular basis for quashing the subpoena.
#29308separate guardianship and conservatorship proceeding
[¶39.] Therefore, under the circumstances of this case, the circuit court‘s competency determination was not arbitrary or unreasonable. It was based on the applicable standards and the undisputed medical evidence indicating that Bruggeman‘s severe neurocognitive impairment impacted his memory and ability to comprehend questions as to the past events at issue.7 Importantly, a finding that a
potential witness lacks any of the requisite functions—“understanding to receive, remember, narrate impressions and [be] sensible to the obligation of an oath“—would support a court‘s determination that the witness is not competent to testify.8 See Warren, 462 N.W.2d at 198. The circuit court did not abuse its discretion in finding Bruggeman incompetent and quashing the subpoena.
[¶40.] Even if this Court were to conclude that the circuit court should have
[¶41.] Regardless, the evidence Ramos sought to admit via Bruggeman‘s testimony—“that his intentions have always been to have Ms. Ramos take care of things and that he had given her certain things“—is already in the record. For example, the VA records documented, on more than one occasion, Bruggeman‘s wish that he continue to be in Ramos‘s care rather than placed in a nursing home facility. The record also contains evidence establishing
[¶42.] Under
2. Whether the circuit court erred when it determined Bruggeman to be a vulnerable adult.
[¶43.] On appeal, Ramos asserts for the first time that
[¶44.] Ramos did not assert her constitutional challenge below. Ordinarily, one cannot challenge the constitutionality of a statute for the first time on appeal, and here, Ramos has not asserted that an exception to that general rule applies. See Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D. 1988) (observing that “a court may in its discretion decide to consider a constitutional issue raised for the first time on appeal because the question is a matter of considerable importance to the public policy of the state“). Accordingly, we will not address Ramos‘s constitutionality argument.
[¶45.] Ramos further claims that the circuit court erred because it merely declared that Bruggeman is a vulnerable adult without making any findings as to whether he was unable to protect himself from abuse as a result of his mental condition. She then contends that the evidence does not show that his mental condition prevented him from protecting himself. In particular, she claims that he is strong willed, and as recently as 2019, he was oriented to person and place and was able to understand others and make his needs known.
[¶46.] We have not before examined a circuit court‘s determination that a person is a vulnerable adult as the term is defined by
[¶48.] While not noted by the circuit court, Ramos testified that Bruggeman was like a toddler and could not be left alone. She also agreed that “probably at certain points” it was detrimental to his health to leave him alone. Further, Dr. Huxford opined that Bruggeman lacked the skills necessary to protect his health or to respond to illness or injury. Ramos acknowledged that she was aware since 2017 that Bruggeman no longer had the ability to make health care decisions and that he could not take care of himself. Therefore, the circuit court did not err in determining that Bruggeman is a vulnerable adult under
3. Whether the circuit court erred when it found that Bruggeman was the victim of financial exploitation.
[¶49.] Ramos contends that Black Hills Advocate failed to prove by a preponderance of the evidence that she financially exploited Bruggeman. She does not dispute that she was in a position of trust and confidence with Bruggeman. However, she claims that he has assisted her financially since she was a child, including paying cash to purchase vehicles for Ramos throughout the years. She further claims he always intended that she have access to his accounts for her and her children‘s needs. Thus, she asserts that there is no evidence that she had the requisite intent to defraud Bruggeman. According to Ramos, “[t]he lifelong familial bond and the attendant, mutual personal and economic support established by the record clearly places this care [sic] outside the parameters of actionable conduct under”
[¶50.] Under
[¶51.] We review for clear error the circuit court‘s finding that Ramos wrongfully took or exercised control over Bruggeman‘s property with intent to defraud him. Hiller v. Hiller, 2018 S.D. 74, ¶ 19, 919 N.W.2d 548, 554 (providing that factual findings are reviewed for clear error). Under the clearly erroneous standard of review, the evidence is viewed in a light most favorable to the court‘s findings, and “we give due regard to its opportunity to
[¶52.] The circuit court specifically considered the long-established relationship between Bruggeman and Ramos and the fact that he executed a will leaving his entire estate to Ramos. The court also noted that Bruggeman had purchased items for Ramos throughout her life, including multiple vehicles, and that in 2012, he liquidated assets to purchase the Union Street property for Ramos and her children. However, on the issue of financial exploitation, the circuit court focused primarily on Ramos‘s May 2018 withdrawal of approximately $300,000 from Bruggeman‘s accounts, concluding that she did so with the intent to defraud him by causing financial loss to him and financial gain to herself. The court also observed that throughout 2018, Ramos had been using his money from his bank account, while acting as his power of attorney, to purchase various items for herself and her children.
[¶53.] In light of our deferential standard of review, we are not left with a definite and firm conviction that a mistake has been made here.11 It is undisputed that at the time of these recent transactions, Ramos was aware that Bruggeman had been diagnosed with severe neurocognitive impairment and needed 24/7 supervision and care. She was also aware that he had sufficient funds to pay for his placement in a long-term care facility, and she knew she had the responsibility to make financial and health care decisions on his behalf. Yet, she called the VA specifically to request a letter indicating that Bruggeman lacked the capacity to make decisions so that she could then use that letter to personally access his funds. She also brought him to Wells Fargo so he could add her as a supplemental account owner on his investment accounts.
[¶54.] Instead of using Bruggeman‘s money to place him in a long-term care facility, Ramos withdrew nearly $300,000 from his accounts to purchase the Willow Creek property. While Ramos claims the house was for her and her children and Bruggeman to live in together, she only put her name on the deed, and the record suggests he never lived there, or if he did, it was for a very short time. In light of this evidence, the circuit court did not err in determining that “Ramos’ actions, as Bruggeman‘s power of attorney, constitute financial exploitation of a vulnerable adult, with the intent to defraud Bruggeman by financial loss to him and financial gain to herself.”
4. Whether the circuit court erred when it found that Bruggeman was the victim of neglect.
[¶55.] Ramos asserts that she cannot be found to have neglected Bruggeman because her decision not to place him in a long-term care facility aligned with his express desire not to reside in such a facility. She directs this Court to notations in the medical records wherein Bruggeman related that he wanted to remain independent and claimed that he would not last more than three months if he lived away from Ramos and her children. She also asserts that the circuit court failed to identify instances in which her decision to keep
[¶56.] Under
harm to the health or welfare of an elder or an adult with a disability, without reasonable medical justification, caused by a caretaker, within the means available for the elder or adult with a disability, including the failure to provide adequate food, clothing, shelter, or medical care[.]
However, under
the term, neglect, does not include a decision that is made to not seek medical care for an elder or disabled adult upon the expressed desire of the elder or disabled adult; a decision to not seek medical care for an elder or disabled adult based upon a previously executed declaration, do-not-resuscitate order, or a power of attorney for health care; a decision to not seek medical care for an elder or disabled adult if otherwise authorized by law; or the failure to provide goods and services outside the means available for the elder or disabled adult.
[¶57.] The circuit court did not specifically examine the language of the exception in
5. Whether the circuit court erred when it ordered Ramos to pay Black Hills Advocate‘s attorney fees.
[¶58.] Ramos does not challenge the circuit court‘s decision to award attorney fees to Black Hills Advocate. She also does not challenge the reasonableness of the fee. Rather, she requests that this Court remand the issue of attorney fees “to the circuit court for more appropriate findings of fact.” In response, Black Hills Advocate contends that remand is unnecessary because the circuit court‘s judgment reflects that the court considered the relevant factors via its findings and conclusions incorporating counsel‘s affidavit addressing the reasonableness and necessity of the attorney fee award.
[¶59.] Under
- the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
-
the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; - the fee customarily charged in the locality for similar legal services;
- the amount involved and the results obtained;
- the time limitations imposed by the client or by the circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation, and ability of the lawyer or lawyers performing the services; and
- whether the fee is fixed or contingent.
Id. (quoting In re S.D. Microsoft Antitrust Litig., 2005 S.D. 113, ¶ 29, 707 N.W.2d 85, 98-99).
[¶60.] “This Court has consistently required a trial court to enter findings of fact and conclusions of law when ruling on a request for attorney‘s fees.” Hoffman v. Olsen, 2003 S.D. 26, ¶ 10, 658 N.W.2d 790, 793. In particular, courts are to make specific findings based on the relevant factors. Duffy v. Seventh Jud. Cir., 2004 S.D. 19, ¶ 18, 676 N.W.2d 126, 134. Here, the circuit court took the matter of attorney fees under advisement. It then issued findings of fact, conclusions of law, and a judgment, which included an attorney fee award. Although the court did not enter findings on the factors relevant to such award, the court ordered that “Ramos shall pay [Black Hills Advocate‘s] reasonable and necessary legal fees incurred in bringing this action as determined by the [c]ourt and set forth in the Affidavit of Cassidy M. Stalley[.]” (Emphasis added.) Attorney Stalley‘s affidavit addressed some of the factors to be considered in determining whether attorney fees are reasonable, including the type and length of litigation, the billing attorneys’ experience, the fact that the fee was fixed and was within the range of rates typically charged for similar work, the difficulty of the questions involved, and the time spent and services rendered.
[¶61.] Although the better practice would have been for the circuit court to enter the requisite findings rather than simply adopting counsel‘s affidavit, remand is not necessary here because the court‘s judgment, which incorporated counsel‘s affidavit, provides a sufficient basis from which this Court can review the circuit court‘s award of attorney fees. See BAC Home Loans Servicing, LP v. Trancynger, 2014 S.D. 22, ¶¶ 23, 847 N.W.2d 137, 143 (noting that the circuit court considered the attorney affidavit in awarding fees); see also Ridley v. Lawrence Cnty. Comm‘n, 2000 S.D. 143, ¶ 13, 619 N.W.2d 254, 259 (noting that an appellate court, “if it feels that it is in a position to do so[,]” could review an attorney fee award “[d]espite the absence of findings” on whether a lawsuit was frivolously or maliciously brought such that attorney fees were warranted). Importantly, Ramos does not challenge the reasonableness of the fee award. We therefore affirm the circuit court‘s award of attorney fees.
Appellate Attorney Fees
[¶62.] Black Hills Advocate petitioned this Court for an award of $15,756.68 in appellate attorney fees and taxes. It filed the requisite affidavit and itemized statement of legal services rendered and asserts that because an award of attorney fees is authorized under
[¶63.] In response, Ramos requests this Court deny such an award as unreasonable
[¶64.] While appellate attorney fees are authorized in this case, in our past decisions addressing such fee requests, albeit in domestic protection order and divorce cases, we have “examine[d] the fee request from the perspective of whether the party‘s appellate arguments carried any merit.” Trumm v. Cleaver, 2013 S.D. 85, ¶ 16, 841 N.W.2d 22, 26 (quoting Roth v. Haag, 2013 S.D. 48, ¶ 21, 834 N.W.2d 337, 342). Given the unique facts of this case, we do not find that Ramos “unreasonably required [Black Hills Advocate] to defend against [a] meritless appeal.” See id. Therefore, we decline to order appellate attorney fees.
[¶65.] Affirmed.
[¶66.] SALTER and MYREN, Justices, concur.
[¶67.] KERN, Justice, concurs in part and dissents in part.
[¶68.] JENSEN, Chief Justice, dissents.
KERN, Justice (concurring in part and dissenting in part).
[¶69.] I concur with the majority opinion on all issues aside from the denial of the requested $15,756.68 of appellate attorney fees sought by Black Hills Advocate. Because I would award Black Hills Advocate half of its requested fees ($7,878.34), I respectfully dissent as to this issue alone.
[¶70.] The majority opinion correctly concludes that an award of appellate attorney fees is authorized in this case pursuant to
[¶71.] In Trumm v. Cleaver, a domestic abuse protection order case, we considered whether to award appellate attorney fees “from the perspective of whether the [appellant‘s] appellate arguments carried any merit.” 2013 S.D. 85, ¶ 16, 841 N.W.2d 22, 26 (cleaned up). As part of this review, however, we also considered “the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case” in determining whether to award appellate attorney fees. Id. (citation omitted). In the underlying case in Trumm, the appellee had requested and been granted a domestic abuse protection order against the appellant, and we affirmed the protection order on appeal. We concluded that the appellant had “unreasonably required [the appellee] to defend against his meritless appeal“; for that reason, we awarded the appellee her appellate attorney fees. Id.
[¶72.] We conducted a similar analysis to that in Trumm in Roth v. Haag, an appeal of a custody decision in which both parties submitted motions for appellate attorney fees. 2013 S.D. 48, ¶ 21, 834 N.W.2d 337, 342. In Roth, we briefly discussed each party‘s assets and income and whether either party had unreasonably increased the amount of time spent on the case. We concluded that “considering the relative financial condition of the parties, the good faith arguments, and the closeness of the case, both parties’ motions for appellate attorney fees are denied.” Id.
JENSEN, Chief Justice (dissenting).
[¶74.] The circuit court quashed the subpoena for perhaps the most crucial witness in this case. The court did so without personally observing or canvasing Bruggeman as to his ability to observe, recall, and communicate his recollection of events, his capacity for truthfulness, or otherwise having an adequate basis to consider these criteria. The court also failed to apply the appropriate standard for witness competency.
[¶75.]
[¶76.] While the medical reports suggest that Bruggeman has cognitive deficits, it is clear that he was able to hear, respond to, and communicate with staff and medical personnel throughout the time he was in their care.13 Further, each monthly nursing assessment affirmatively stated that “[v]eteran denies any complaints of issues with hearing, answering questions appropriately and communicating with staff with no issues.” More importantly, the medical reports fail to indicate whether Bruggeman had the ability to remember and narrate impressions about the events at issue,
[¶77.] In the absence of an adequate record to determine witness competency, it was incumbent upon the circuit court to make further inquiry, or personally interact with Bruggeman, to assess his competency to testify. “The competency of a witness presents questions very closely related to those involved with the matter of credibility of a witness. Many recognized authorities upon the law of evidence deem it doubtful policy entirely to exclude any such witnesses. After informing itself by proper examination and observation[,] it is within the discretionary judgment of the trial court, in the first instance, to determine the testimonial capacity and competency of such a witness.” State v. Lutheran, 76 S.D. 561, 564, 82 N.W.2d 507, 509 (1957) (emphasis added) (citation and quotation marks omitted); see also State v. Guthmiller, 2003 S.D. 83, ¶ 11, 667 N.W.2d 295, 301 (“The determination of the competency of a witness is left in the first instance to the discretionary judgment of the trial court, after informing itself by proper examination.” (emphasis added) (citation omitted)).
[¶78.] The circuit court also appears to have applied an incorrect standard for determining witness competency by adopting Black Hills Advocate‘s position that “the court previously found [Bruggeman] incompetent” because a guardian and conservator had been appointed for him.15
[¶79.] The circuit court also relied upon the physician‘s opinion during the guardianship proceedings that a personal appearance by Bruggeman could impact his health or safety. However, the conclusory report from the guardianship proceedings gave no indication that Bruggeman could not recall the events at issue, or that his testimony could not be accommodated by other means that could “be received under the special care of the court and under guarded circumstances.” See Warren, 462 N.W.2d at 198. Despite the request by Ramos‘s counsel for the court to accommodate Bruggeman‘s testimony by remote means, the court gave no consideration to whether other arrangements could be made to facilitate Bruggeman‘s testimony, such as a deposition or a remote appearance. Any suggestion by the majority opinion that his difficulties could have been heightened by such means is speculative.
[¶80.] In the end, the circuit court failed to apply the correct standard for witness competency by focusing on the standard applicable in guardianship proceedings rather than assessing whether Bruggeman had “sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility[.]” Anderson, 2000 S.D. 45, ¶ 24, 608 N.W.2d at 653. A court “necessarily abuse[s] its discretion if it base[s] its ruling on an erroneous view of the law[.]” Corcoran v. McCarthy, 2010 S.D. 7, ¶ 13, 778 N.W.2d 141, 147 (citation omitted).
[¶81.] The court‘s decision was also prejudicial to Ramos. Black Hills Advocate sought to show throughout the hearing that Ramos committed elder abuse by neglecting Bruggeman‘s physical needs and taking advantage of him by purloining his money for her own use. Ramos, in contrast, testified that she thought of Bruggeman as a father for most of her life, that they had commingled their funds for many years, and that Bruggeman had a donative intent toward her, which included giving her money to make the recent home purchase. Black Hills Advocate strongly challenged Ramos‘s gifting theory and attacked Ramos‘s credibility throughout the hearing. The record affirmatively shows that Ramos‘s substantial rights were affected by her inability to call Bruggeman to testify about his intentions with respect to these challenged transactions.
[¶82.] Further, in assessing prejudice, the majority opinion fails to consider that the circuit court‘s evidentiary error effectively granted judgment as a matter of law on the question of whether Bruggeman had the capacity to gift the money to Ramos. In Stockwell v. Stockwell, this Court applied a testamentary capacity standard to consider whether a grantor has capacity to make end of life gifts.16 2010 S.D. 79, ¶ 27, 790 N.W.2d 52, 62; see also In re Est. of Long, 2014 S.D. 26, ¶ 18, 846 N.W.2d 782, 786. Stockwell explained this capacity as follows:
Testamentary capacity and competence evincing the soundness of mind required to make a will are demonstrated when, without prompting, one is able to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty, and the disposition that he desires to make of [his] property. Testamentary capacity and competence [] does not require that one have the intellectual vigor of youth or perfect health. Moreover, it is not necessary that a person desiring to make a will have the capacity to make contracts and do business. One may lack competency, such that in the view of medical science he is not of sound mind and memory, yet still retain the requisite competency to execute a will.
Id. (internal citations and quotation marks omitted).
[¶83.] No expert testimony was offered on the question of Bruggeman‘s capacity to make a gift. Further, the circuit court relied upon medical reports and other documents that were not subject to cross-examination by Ramos to find that Ramos “financially exploited Bruggeman by taking and exercising control over his funds....” Ramos and Bruggeman had a complicated relationship, but there was evidence of a significant bond between them that had existed for many years, and that Bruggeman wanted Ramos to have money to purchase the house. A crucial question on this record is whether Bruggeman was competent to make a gift to Ramos. Bruggeman‘s testimony would be critical to resolving the central issues in this case.
[¶84.] I would reverse and remand, so the circuit court can develop an adequate record and apply the correct standard to determine Bruggeman‘s competency to testify.