In re the Guardianship and Conservatorship of: Helen Vikla, Conservatee.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0449

In re the Guardianship and Conservatorship of: Helen Vikla, Conservatee.

Filed March 12, 2018
Affirmed
Schellhas, Judge

Rice County District Court
File No. 66-P8-05-001645

David L. Ludescher, Robin W. Finke, Jennifer M. Novak, Grundhoefer & Ludescher, P.A.,
Northfield, Minnesota (for appellant David Vikla)

Scott P. Drawe, Drawe & Maland, Edina, Mi nnesota (for respondent Empire Fire and
Marine Insurance Company)

Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellants-interested parties challenge the district court’s allowance of the final
accounts of the conservatee’s emergency and general conservatorships. Respondent bond
company challenges the court’s application of equity to estop it from disclaiming bond
coverage of conservatee’s general conservatorship. We affirm.

2
FACTS
The procedural history in this case is lengthy and reflects a substantial commitment
of time and attention by the district court. In August 2005, Rice Co unty Social Services
petitioned the district court for an emergency guardianship and conservatorship over Helen
Vikla, then age 85. On Augus t 17, in an ex parte order, the court found Helen to be
incapacitated and granted a 90-day emergency guardianship and conservatorship over her
and her estate, appointing Esta tes Resources, Inc. (ERI) to serve as emergency guardian
and conservator.
On September 13, following a hearing, add itional order, and issuance of letters of
emergency guardianship and conservatorship, ERI, as the principal, filed a $269,000 bond
to cover the guardianship and conservatorshi p. ERI obtained the bond from respondent
Empire Fire and Marine Insurance Company (E mpire) through its ag ent, the Patrick J.
Thomas Agency (PJT).
On September 15, 2005, Rice County petitioned for a general guardian and
conservator for Helen. On October 5, the district court appointed attorney Phillip Zrimsek
to represent Helen. On November 8, the dist rict court granted a general guardianship and
conservatorship over Helen, appointed ERI as guardian and conservator, and ordered ERI
to file a bond in the amount of $200,000. Rice County did not serve Empire with a copy of
its petition or the district court’s order granting a general guardianship and conservatorship,
and ERI did not file a new bond.1

1 In an order of May 18, 2012, the district court noted that the $269,000 bond filed in Helen
Vikla’s emergency conservatorship case “was physically transferred to the General

3
On March 27, 2007, the district court approved the final account of Helen’s
emergency conservatorship. On July 9, the district court approved the first annual account
for Helen’s general guardianship and conservatorship. Helen died on September 24, 2007.
On July 31, 2008, ERI filed its final account of Helen’s general conservatorship.
On July 30, 2008, appellants Elmer and Margaret Vikla (Viklas),2 “as Co-Personal
Representatives of the Estate of Helen Vikla, Deceased,” moved the court to permit them
“to intervene as an interested party in this matter, pursuant to Mi nn. Stat. § 524.5-102,
subd. 7 (iii) and subd. 11.” 3 On September 2, the district court granted the motion. The
Viklas then objected to the first and final accounts of Helen’s general conservatorship and
moved to enjoin ERI from further distribution of Helen’s non-probate assets.
On November 14, 2008, the district court granted the Viklas’ motion and restrained
ERI from taking any further actions regardin g Helen’s non-probate assets. On May 26,
2009, the court ordered ERI to pay Helen’s estate the sum of $10,112.71, representing
$4,100 in conservator fees received after Helen’s death, $363 in bank charges and overdraft

Conservatorship File and is currently located there. This was done without Court Order or
direction.”
2 While this appeal was pending, Elmer and Margaret Vikla died. This court has allowed
their son, David Vikla, to be substituted for them as a ppellant. We nevertheless refer to
appellant as the “Viklas.”
3 The Viklas devote two pages in their brief to an argument that the district court erred by
treating them as personal representatives of Helen’s estate, rather than as “interested
persons” within the meaning of Minn. Stat. § 524.5-420(e), and that this treatment
prejudiced their ability to challenge the ERI’s accountings. Because the record reflects that
the court—without regard to th e Viklas’ status as personal re presentatives or “interested
persons”—exhaustively considered the Vi klas’ accounting objec tions and amended
objections, we will not further address this argument.

4
fees paid by ERI, and $5,649.71 for overpayment of conservator fees to ERI, noted in the
first annual account of Helen’s general guardianship and conservatorship.
In June 2009, the Viklas filed amended objections to the first annual account and
the final account of Helen’s general guardianship and conservatorship. On May 13, 2010,
after ERI failed to respond to the Viklas’ objections, the district court found ERI in
contempt of court, ordered ERI to file a timely response to the Viklas’ amended objections,
and threatened to sanction ERI $1,000 if it failed to respond.
On January 18, 2011, the district court en tered judgement against ERI in favor of
Helen’s estate in the amount of $10,112.71. And the court ordered ERI to notify Empire of
the judgment, make alternative arrangements for completion of the annual account, and
pay the court’s sanction of $1,000 for its failure to file an amended account and respond to
the Viklas’ objections. On September 26, the court ordered Zrimsek to prepare a final
account of Helen’s general conservatorship.4 On November 15, 2011, the court ordered the
Viklas to prepare an inventory of Helen’s a ssets and mistakenly ordered PJT, instead of
Empire, to satisfy the judgme nt against ERI. In January 2012, the Viklas petitioned for
surcharge on Empire’s bond, believing that it covered Helen’s general conservatorship.

4 Because ERI’s vice president, Terri Hauge, wa s convicted of six counts of felony theft-
by-swindle and one count of perjury, the district court removed ERI as conservator. See In
re Disciplinary Action against Hauge , 831 N.W.2d 913, 913 (Min n. 2013). As part of
Hauge’s sentence, she was ordered to pay He len’s estate $39,216.45 in restitution. The
Viklas also claimed restitution, but the record is unclear about whether Hauge was ordered
to pay restitution to the Viklas. State v. Hauge, No. 66-CR-10-3444 (Minn. Dist. Ct. Oct. 8,
2012). [Opinion not available on Westlaw].

5
On March 21, 2012, Empire moved the distri ct court to discharge its bond filed in
Helen’s emergency conservatorship and to find that the bond did not cover Helen’s general
conservatorship. On May 18, the court conclude d, as a matter of law, that Empire’s bond
covered only Helen’s emergency conservatorshi p but that the Viklas had nevertheless
adequately pleaded in equity the necessary elements to estop Empire from disclaiming
coverage of Helen’s general conservatorship. The court conducted an evidentiary hearing
on the Viklas’ equitable claim and on wh ether Empire had proper notice of prior
proceedings.5
On February 25, 2013 , following the eviden tiary hearing, the district court found
that although ERI and PJT knew that emergency conservatorships ended at most after 90
days, PJT invoiced Helen’s estate for a su rety-bond premium for four years after the
emergency conservatorship ended and for two years after Helen’s death, and Helen’s estate
paid the bond premiums throu gh 2009. The district court al so found that Hauge had not
informed PJT or Empire about the requi rement for a bond in Helen’s general
conservatorship. The district court: (1) vacat ed the mistaken judg ement entered against
PJT; (2) discharged ERI as conservator for Helen’s emergency conservatorship, retroactive
to December 11, 2005; (3) denied Empire’s motion to discharg e it of liability relating to
the emergency conservatorship; and (4) esto p p e d E m p i r e i n e q uity from disclaiming
coverage of Helen’s general conservatorship.

5 At the evidentiary hearing in December 2012, the court heard testimony from a bond-
writing expert, the president of PJT, and Hauge, and accep ted into evid ence exhibits
relating to Helen’s assets prior to and after her death.

6
In September 2014, Zrimsek filed th e final account for Helen’s general
conservatorship. In November 2014, the Viklas filed objections to the final account. On
September 25, 2015, based in part on the Viklas’ objections, the district court accepted an
amended final account from Zrimsek. Viklas th en filed further objections to the final
account based on ERI’s alleged misconduct. The court heard the Viklas’ objections in May
2016, and on August 1, 2016, found that the Viklas had failed to prove many of their claims
against ERI by a preponderance of the evidence. But the court ordered ERI to pay attorney
fees incurred by Helen’s estate in the amou nt of $30,000 and to pay Helen’s estate
$14,143.75 for overbilling Helen as her general conservator.
The Viklas moved for a new trial or ame nded findings of facts and conclusions of
law. On December 21, 2016, th e district court denied the post-trial motions and ordered
that upon payment of $44,143 .75, including $3,200 to Zrimsek, Empire would be
discharged “on its obligations under any surety bond issued to [ERI], regarding the General
Conservatorship of Helen Vikla.” In January 2017, Empire made the requisite payments,
and the district court ordered the discharge of ERI and Empire on January 17, 2017, stayed
for 60 days. This appeal followed.
Following the Viklas’ appeal of the distri ct court’s order of December 21, 2016, and
Empire’s notice of related appeal of the distri ct court’s order of Fe bruary 25, 2013, this
court construed the Viklas’ appeal as including the August 1, 2016 order and judgment and
accepted jurisdiction over both the direct appeal and the notice of related appeal.

7
D E C I S I O N
I.
“The primary purpose of a conservatorship is to protect the person and property of
a class of citizens who are incapable of fully protecting themselves.” In re Guardianship
and Conservatorship of Durand , 845 N.W.2d 821, 825 (Minn. App. 2014) (quotation
omitted), aff’d, 859 N.W.2d 780 (Minn. 2015). “Factu al questions in probate court are
evaluated under the clearly erroneous standard.” In re Conservatorship of Moore , 409
N.W.2d 14, 16 (Minn. App. 1987); see also Minn. Stat. § 524.1-304(a) (2016) (noting that
probate proceedings “shall be governed insofa r as practicable by [the] Rules of Civil
Procedure . . . .”); Minn. Civ. R. P. 52.01 (“Findings of fact . . . shall not be set aside unless
clearly erroneous . . . .”). Appellate courts revi ew the district court’s decision to grant or
deny a motion for a new trial for clear abuse of discretion because the decision rests largely
within the discretion of the district court. Frazier v. Burlington N. Santa Fe Corp. , 811
N.W.2d 618, 625 (Minn. 2012).
The Viklas argue that “[a]pproval of a co nservator’s accountings require notice to
all interested persons” and that “Helen’s beneficiaries and heirs were denied their right to
receive notice when the district court decide d that the Viklas’ objections to the Final
Account in the Emergency Conservatorship and their objections to the First Annual
Account in the General Conservatorship would not be considered.” The Viklas argue that
the emergency conservatorship should be reopened “so that the account can be examined
as required under the rules,” without specifying which rules. They also argue that Helen’s
general conservatorship should remain open and that the district court should settle the first

8
annual and final accounts based on their objections. Empire argues that the Viklas’ claims
represent a collateral attack on the probate court’s final orders.
A. Notice to the Viklas and Helen’s heirs
1. Emergency Conservatorship
In addition to service upon the respondent, “[i]n a proceeding to establish a
conservatorship . . . notice of the hearing shall also be give n to the persons listed in the
petition.” Minn. Stat. § 524.5-404(a), (b) (2016). After appointment of a conservator, notice
of the hearing on a petition for an order to es tablish a conservatorship “shall be given to
interested persons pursuant to section 524.5-113 and to any other person as ordered by the
court.” Minn. Stat. § 524.5-404(c) (2016) . Under section 524.5- 113(a), “[i]nterested
persons” are to be given “notice of a hear ing on a petition.” Minn. Stat. § 524.5-113(a)
(2016).
“Interested persons” include: a protected person; conservator; legal representative;
spouse, child, sibling, or if none can be foun d, the next living kin; an attorney for the
protected person; and “any other person designated by the court.” Minn. Stat. § 524.5-102,
subd. 7 (2016). The term ‘“[n]ext of kin’ sh all be determined by the court.” Minn. Stat.
§ 524.5-102, subd. 11 (2016). “The conserva tor shall give notice of the filing of the
conservator’s inventory . . . to the protected person and any other person the court directs.”
Minn. Stat. § 524.5-404(d) (2016) (emphasis added).
In this case, the parties do not dispute th at the Viklas were “interested persons”
under the law. By taking judicial no tice of the emergency-guardianship-and-
conservatorship district cour t file, we know that the em ergency petition did not list the

9
Viklas as interested persons, and that the district court did not direct ERI to give notice to
the Viklas, nor did the Viklas receive a ny notice of the emergency-conservatorship
proceedings. See Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn. , 787 N.W.2d 523, 530
(Minn. 2010) (“[W]e have taken judicial notice of public records a nd have said we have
the inherent power to look be yond the record where the orde rly administration of justice
commends it.” (quotation omitted)).
But the record reflects that on November 23, 2005, in the general guardianship and
conservatorship proceeding, ER I mailed notice of filing of the November 8, 2005 order
appointing a guardian and conservator for Hele n to Margaret and El mer Vikla. The last
finding of fact in this order states that “[a]n emergency guardians hip of the person and
conservatorship of the estate was established following hearing on September 2, 2005.” In
its May 13, 2015 order, the district court c oncluded that the Viklas’ objections to the
amended final account for the emergency conser vatorship were not properly before the
court and therefore declined to consider them . The Viklas argue that the district court
abused its discretion. We disagree.
When the district court allowed the final account of Helen’s emergency
guardianship on March 27, 2007, the Vi klas had known about the emergency
conservatorship since November 2005. From November 2005 until July 2008, the Viklas
did not complain to the court that they were not noted as interested persons in the
emergency proceeding and did nothing to ensure that they would receive notice of ERI’s
request for allowance of account of Helen’s emergency conservatorship. Instead, the Viklas
waited to seek intervention in the general c onservatorship only after Helen’s death on

10
September 24, 2007, and did not object to the final account of Helen’s emergency
conservatorship until July 2008.
On appeal, “the burden of showing erro r rests upon the one who relies on it. And
[appellate courts] do not reverse unless there is error causing harm to the appealing party,”
because “error without prejudice is not ground for reversal.” Midway Ctr. Assocs. v.
Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (emphasis and quotation
omitted); see also Minn. R. Civ. P. 61 (“No error . . . in any ruling or order . . . is ground
for . . . disturbing a judgment or order, unless refusal to take such action appears to the
court inconsistent with substantial justice.”). We conclude that the Viklas have failed to
demonstrate how they sustained prejudice by not receiving formal notice of the hearing on
the final account. We therefore affirm the dist rict court’s refusal to consider the Viklas’
objections to the emergency conservatorship account. See Midway Ctr. Assocs., 306 Minn.
at 357, 237 N.W.2d at 79 (concluding that the appellant failed to show prejudicial error by
the district court and therefore the court was “compelled to affirm the [district] court”).
2. General conservatorship
On July 9, 2007, the distri ct court allowed the first a nnual account of the general
conservatorship for the period ending November 7, 2006, almost two years after the Viklas
received a copy of the order appointing a gene ral conservatorship for Helen. The Viklas
argue that, because Elmer Vikla was Helen’s ne xt of kin, ERI should have notified them
of the hearing regarding the first annual account, but it did not. Assuming without deciding
that the Viklas were entitled to such notice, we conclude that they have not shown that they

11
were prejudiced by the lack of notice becaus e the district court heard and addressed their
objections to the first annual account.
B. Allowance of the final account of Helen’s general conservatorship
The Viklas argue that the district court erred in allowing the final account of the
general conservatorship because it improperly dismissed all other interested parties except
the Viklas, and failed to address their objec tions regarding post-death expenses and
conservator fees. The Viklas argue that this court should remand and order that the final
account be kept open and that Empire and ERI not be discharged. We disagree.
This court applies an abuse-of-discretion st andard of review to a district court’s
decision allowing or disallowing the fees and expenses contai ned within a conservator’s
accounting. In re Guardianship of Doyle , 778 N.W.2d 342, 350– 51 (Minn. App. 2010)
(citing In re Estate of Baumgartner , 274 Minn. 337, 346, 144 N. W.2d 574, 580 (1966)).
“A probate court’s determinati on of factual questions will not be set aside unless clearly
erroneous.” In re Conservato rships of T.L.R. , 375 N.W.2d 54, 58 (Minn. App. 1985).
“Clear error exists when the district court’ s findings are not support ed by the evidence.”
Doyle, 778 N.W.2d at 352.
Following the death of a protected person , the conservator “shall conclude the
administration of the estate by distribution of probate property to the personal
representative of the protected person’s estate,” and the conservator “shall file a final report
and petition for discharge . . . and notice of he aring for allowance of said report shall be
given to interested persons and to the personal representative.” Minn. Stat. § 524.5-431(b)

12
(2016). When a conservatee dies “the personal representative of the estate is the only
interested person.” Minn. R. Gen. Pract. 416(g).
Upon termination of the conservatorship, a conservator shall report to the court for
administration of the estate. Minn. Stat. § 524.5-420(a) (2016). “An order, after notice and
hearing, allowing a final report adjudicates all previously unsettled liabilities relating to the
conservatorship.” Id.
On September 15, 2008, following their inte rvention, the Viklas served specific
objections to ERI’s Final Account for the general conservatorship, including objections to
the first annual account for the period ending November 7, 2006. Th e Viklas maintained
that an $8,530.79 deficiency existed concerning the value of Helen’s assets,6 and that ERI
overbilled for its conservator fees by $5,649.71. On May 26, 2009, the district court ordered
ERI to pay Helen’s estate $5,649.71 as a resu lt of the objected-to conservator fees in
connection with the first annual account of the general conservatorship. In June 2009, the
Viklas submitted further account objections.
On September 10, 2014, the district cour t ordered Zrimsek to file an informal
accounting of the post-death expenses. Zrimse k filed an informal accounting and final
account for the general conservatorship, whic h included $14,461.53 in conservator fees.
On January 13, 2015, the court conducted a he aring on the final account and, on May 13,
issued an order, addressing the Viklas’ obje ction to post-death expenses. The court
disallowed $12,578.02 in “unverified paym ents” by ERI and allowed the remaining

6 According to the first annual account, this deficiency resulted from the termination of a
life estate Helen held upon her death.

13
expenses of $11,697.51 as be ing “fully documented” in the final account submitted by
Zrimsek and “necessary [for Helen’s] living expenses and . . . not disputed.”
The Viklas filed objections again in October 2015, repeating earlier objections. On
May 26, 2016, the district court conducted another hearing on the Viklas’ objections and,
in an August 1 order, found that it had already addressed the Viklas’ objection to ERI’s use
of Helen’s POD accounts to pay for post-death expenses and that it had fully considered
post-death expenses in the final account and denied any further claims. The court allowed
an amended final account of Helen’s cons ervatorship, which included a reduction in
conservator fees of $14,461.5 3 to $12,061.98, based on the Viklas’ objection. The court
found that an $8,494.04 deficiency existed in the value of Helen’s assets to be distributed
to her estate and determined that the Viklas were entitled to attorney fees in the amount of
$30,000.
The court ordered judgment in favor of Helen’s estate and against ERI and Empire,
jointly and severally, in the amount of $44,143.75 ($5,649.71+$8,494.04+$30.000). Upon
payment of the judgment amount, the court or dered that ERI would be relieved of its
liability as conservator and that Empire woul d be discharged from any obligations under
its surety bond. Empire made full payment, and the district court ordered the discharge of
ERI and Empire on January 17, 2017, stayed for 60 days.
We conclude that the district court did not clearly err in finding that it had already
addressed the Viklas’ objections to the post-d eath expenses, and that it did not abuse its
discretion in its allowance and di sallowance of post-death expenses. See Doyle, 778
N.W.2d at 352 (“Clear error exists when the district court’s findings are not supported by

14
the evidence.”). Our review shows that the district court carefully and exhaustively
considered the Viklas’ objections and argu ments before allowing the amended final
account.
Because the court’s decision is not based on an erroneous view of the law and is not
against logic or the facts in the record, we conclude that the district court did not abuse its
discretion in allowing the amended final account of the general conservatorship. See
Thompson ex rel. Minor Child v. Schrimsher , 906 N.W.2d 495, 501 (Minn. 2018) (“A
district court abuses its discretion when its de cision is based on an erroneous view of the
law or is against logic and the facts in the record.” (quotation omitted)). We therefore affirm
the district court’s August 1, 2016 order for judgement against Empire and ERI jointly and
severally in favor of Helen’s estate, and we affirm the denial of the Viklas’ motion for a
new trial or amended findings of fact and conclusions of law.
C. The Viklas’ claim that ERI remains in default
The Viklas’ claim that ERI is in default and that we therefore must remand and order
the district court to keep th e conservatorship open. But the Viklas did not apply to the
district court for default judgment against ERI. See Minn. R. Civ. P. 55.01(b) (stating that
“a party entitled to a judgment by default shall apply to the court therefor” (emphasis
added)). The Viklas therefore are functionally arguing that the district court erred by failing
to grant relief that they did not request. The Viklas’ request that this court hold ERI in
default is not properly before this court. We conclude that the district court did not abuse
its discretion by ordering Empire and ERI discharged upon satisfaction of judgment in the
amount of $44,143.75 and therefore reject the Viklas’ claim that ERI remains in default.

15
See Minn. Stat. § 524.5-431(f) (2016) (stating that a district court “shall enter a final order
of discharge upon the approval of the final report and satisfaction by the conservator”).
II.
A district court “shall require the conserva tor to furnish a bond in an amount that
the court determines is necessary to reas onably protect the prot ected person’s assets”
whenever “the value of the personal property of the estate of the proposed protected person
in the initial inventory of the es tate filed by the conservator . . . is expected to be at least
$10,000.” Minn. Stat. § 524.5-416(a)(5) (2016); accord In re Guardianship and
Conservatorship of Pates, 823 N.W.2d 881, 890 (Minn. App. 2012). As noted above, on
November 8, 2005, the district court grante d a general guardianshi p and conservatorship
over Helen, appointed ERI as guardian and conservator, and ordered ERI to file a bond in
the amount of $200,000. Rice County did not serve Empire with a copy of its petition or
the district court’s order granting a general guardianship and conservatorship, and ERI did
not file a new bond.
In a February 25, 2013 order, the district court ruled that, as a matter of law,
Empire’s bond for the emergency conser vatorship did not cover Helen’s general
conservatorship.7 But the district court also conclude d that under principles of equitable
estoppel, Empire could not disclaim coverage of Helen’s general conservatorship. Empire,

7 The district court cited Minn. Stat. § 524. 5-311 (2004) (“[A]n emergency guardian . . .
may be granted authority to act for a period not to exceed 90 days.”), because the law
governing emergency conservatorships did not exist at the time of the creation of Helen’s
emergency conservatorship. See 2010 Minn. Laws ch. 334, § 15, at 1008 −10 (codified as
Minn. Stat. § 524.5-409 (2010)).

16
in its cross-appeal, argues that, as a matter of law, equitable estoppel cannot create a surety
bond.
Minnesota law applies equitable princi ples in proceedings pertaining to
conservatorships. Minn. Stat. § 524.5-103 (2016 ) (stating that “the principles of law and
equity supplement [the] provisions” of the c onservatorship statute). Minnesota appellate
courts review a district court’s decision to award equitable relief for an abuse of discretion.
Melrose Gates, LLC v. Moua, 875 N.W.2d 814, 819 (Minn. 2016); see also City of North
Oaks v. Sarpal , 797 N.W.2d 18, 24 (Minn. 2011) (c oncluding that “a district court’s
conclusion on equitable estoppel . . . is revi ewed for abuse of discretion”). A reviewing
court gives the district court’s equitable dete rminations deference be cause it “acts like a
fact-finder, weighing all relevant factors and considering the unique facts of each case,”
and “is in the best position to analyze the facts and balance the relevant factors.” Moua,
875 N.W.2d at 819.
“Under an abuse-of-discretion standard, we may overrule the district court when the
court’s ruling is based on an erroneous view of the law,” and when “its decision is against
the facts in the record.” Sarpal, 797 N.W.2d at 24. This court reviews findings of fact under
the clearly erroneous standard. Minn. R. Civ. P. 52.01. “If the district court’s ruling is free
of legal or factual errors,” we do not overturn its decision. Sarpal, 797 N.W.2d at 24.
Equitable estoppel is “an equitable doctrine addressed to the discretion of the court
and intended to prevent a party from taking unconscionable advantage of his own wrong
by asserting his strict legal rights.” Nelson v. Comm’r of Revenue , 822 N.W.2d 654, 660
(Minn. 2012) (quotation omitted). “Those who deal with a [conservator] are bound, at their

17
peril, to determine under what authority he acts.” Vadnais v. State, 224 Minn. 439, 442, 28
N.W.2d 694, 696 (1947).
Equitable estoppel is properly invoked when the following elements are proved:
1. There must be conduct, acts, language or silence amounting
to a representation or a concealment of material facts.
2. These facts must be known to the party estopped at the time
of his said conduct, or at least the circumstances must be such
that knowledge of them is necessarily imputed to him.
3. The truth concerning these facts must be unknown to the
other party claiming the benefit of the estoppel, at the time
when such conduct was done, and at the time when it was acted
upon by him.
4. The conduct must be done with the intention, or at least with
the expectation, that it will be acted upon by the other party, or
under such circumstances that it is both natural and probable
that it will be so acted upon.
5. The conduct must be relied upon by the other party, and, thus
relying, he must be led to act upon it.
6. He must in fact act upon it in such a manner as to change his
position for the worse, in other wo rds, he must so act that he
would suffer a loss if he were compelled to surrender or forego
or alter what he has done by reason of the first party being
permitted to repudiate his c onduct and to assert rights
inconsistent with it.

Brekke v. THM Biomedical, Inc., 683 N.W.2d 771, 777 (Minn. 2004) (quotation omitted).
Empire does not cite to any law or case to support its argument that the district court
cannot use equitable estoppel to create a surety bond. This court is unaware of any caselaw
that bars the application of equity to surety bonds. Indeed, Minnesota appellate courts have
also used equitable estoppel in an analog ous situation involving insurance contracts. See
Pesina v. Juarez , 288 Minn. 379, 385–86, 181 N.W.2d 109, 113 (1970) (affirming
application of equitable estoppel against auto insurer to pr event insurer from disclaiming
expired coverage for insured driver); Alwes v. Hartford Life and Acc. Ins. Co., 372 N.W.2d

18
376, 379–80 (Minn. App. 1985) (affirming a pplication of equitable estoppel estopping
insurer from disclaiming coverage for insured).
Empire argues that even if the district court did not err in applying equity, the facts
of this case fail to meet the necessary elemen ts of equitable estoppel. Empire specifically
challenges whether Empire made a material misrepresentation, had knowledge of Helen’s
general conservatorship, and intended to i nduce reliance by the Viklas, and whether the
court or ERI relied on Empire’s representations. Empire concedes that the Viklas had no
reason to know that ERI failed to procure a bond in the general conservatorship.
The district court considered multiple de finitions of equitable estoppel, including
the six factors outlined by the supreme court in Brekke, and based its order on the following
facts and circumstances: strict assertion of Empire’s rights would harm Helen’s estate (i.e.
the protected person); both ER I and Hauge, its guilty office r, were insolvent; Empire
continued to invoice and collect premiums for four years during the pendency of the
general conservatorship and after Helen’s d eath; Empire knew that Helen’s emergency
conservatorship could last no more than 90 days; Empire was deemed to have knowledge
of the termination of the emergency conserva torship because it had been included in the
original emergency conservato rship proceedings; and Empire deviated from industry
standards with “hasty” underwriting practices it used in issuin g the bond for Helen’s
emergency conservatorship.
Empire argues that it had no duty to di scover the status of Helen’s emergency
conservatorship. But this c ourt concluded that such a du ty to discover exists in
conservatorships where a district court orde r, sent to the party implicated by the duty,

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imputes knowledge of the conservatorship. See In re Conservatorship of W.L., 552 N.W.2d
734, 737 (Minn. App. 1996) (imputing actual knowledge of terms of conservatorship to
bank, despite not having received letters of conservatorship, and stating that bank
“transacted business without the letters [of conservatorship] . . . at its own risk,” and “to
hold otherwise would reward [the bank] for its failure to obtain [the district court’s order].
Such a result is intolerable”).
Based in part on Hauge’s testimony, the district court found that the Viklas did not
know that ERI had failed to acquire a separa te bond for the general conservatorship. The
district court found that the Viklas reas onably believed that Em pire’s bond for Helen’s
emergency conservatorship protected Helen’s general conservatorship because they had
continued paying premiums for the bond cove rage, which PJT had continued to cash for
Empire beyond the termination of Helen’s em ergency conservatorship and after she died.
The record includes copies of the prem ium checks sent fro m “Helen Viklas
Conservatorship,” and received and cashed by PJT. From this evidence, the court
reasonably determined that “Empire neglected that duty [to inqui re as to the status of the
90-day bond] but continued to collect bond premiums.”
The district court’s findings of fact are well supported by eviden ce in the record,
and we conclude that the court did not abus e its discretion in equitably estopping Empire
from disclaiming bond coverage of Helen’s general conservatorship.
Affirmed.