In re: the Matter of the Le Duc Living Trust.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1123

In re: the Matter of the Le Duc Living Trust.

Filed April 21, 2025
Reversed
Johnson, Judge

Washington County District Court
File No. 82-CV-21-2949

Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis,
Minnesota (for appellants Jennea Le Duc and Bruce Le Duc)

Sarah B. Sicheneder, J. Noble Simpson, Maser, Amundson & Boggio, P.A., Richfield,
Minnesota (for respondents Margaret Nolde and Gary Le Duc)

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
An elderly couple lent money to an adult grandchild. After one member of the
elderly couple passed away, a family member filed a petition for a conservatorship for the
other elderly person and simultaneously filed a petition to set aside the loan. The borrower
moved to dismiss the set-aside petition, and t he district court denied the motion. We
conclude that the district court erred by denying the motion to dismiss the set-aside petition
because the relevant statute provides that a set-aside petition may be filed only by a person
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who has been appointed conservator. Therefore, we reverse the district court’s denial of
the motion to dismiss.
FACTS
Donald Le Duc and Mary Le Duc had three children: Gary Le Duc, Bruce Le Duc,
and Margaret Nolde. Donald and Mary also had five grandchildren , including Jennea
Le Duc, who is a child of Bruce. Donald and Mary’s estate plan consisted of two wills and
a trust, which they adopted in 2010 with the assistance of an attorney. Their wills provided
that their assets would pass to the trust, of which Gary, Bruce, and Margaret are the only
beneficiaries.
In 2017, Jennea was interested in buying a house. Bruce told Jennea that Donald
and Mary might lend her money for the purchase so that she would not need to borrow
from a commercial lender. Jennea met with Donald and Mary at Bruce’s home and
discussed possible terms, including amount, interest rate, and repayment period. They
agreed on a loan of $200,000, with a 3.5-percent interest rate, and a 30-year repayment
period, which resulted in a monthly payment of approximately $900. Jennea later testified
that, one week later, Donald called her and said that he and Mary had decided that Jennea
did not need to continue paying back the loan after they passed away.
Jennea suggested to Donald and Mary that the agreement be put in writing. Jennea
prepared a written loan agreement, which was signed by Donald, Mary, and Jennea in July
2017. Jennea completed the purchase of a house and began making monthly payments.
In late 2018, Jennea became concerned that Margaret and Gary might challenge the
loan. Jennea hired an attorney to rewrite the loan agreement, and Donald and Mary were
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advised by a different attorney. On January 2, 2019, Donald, Mary, and Jennea signed an
amended loan agreement, which states that, upon the death of both lenders, Jennea would
“inherit the remaining principal and accrued interest under the note. ” On the same date,
Donald and Mary executed codicils to their wills, which state that, if either of them died
and was not survived by the other, they would give to Jennea “the remaining principal
balance and accrued interest” of the loan.
In August 2019, Donald granted Margaret a power of attorney. In May 2020,
Margaret and Gary learned about the loan while sorting through papers in Donald and
Mary’s home. At that time, neither Donald nor Mary remembered signing the loan
agreement or meeting with an attorney to change their wills. Mary passed away in
September 2020 at the age of 97.
On November 20, 2020, Margaret filed a petition for the appointment of a
conservator for Donald. On the same date, she filed a petition to set aside the loan to Jennea
pursuant to Minnesota Statutes section 524.5-417(e). In a cover letter addressed to the
court, Margaret’s attorney stated that the transaction that Margaret sought to set aside
“occurred on or about January 2, 2019,” asserted that the statute authorizing a set-aside
petition “requires that an action be brought within two years,” and requested “a hearing as
soon as possible to avoid an inadvertent lapse of the conservator’s authority to act.”
In late December 2020, Jennea and Bruce separately filed objections to the petitions.
In February 2021, Jennea moved to dismiss the set-aside petition on the ground that
Margaret had not been appointed conservator and, thus, lacked standing to file it. In April
2021, the district court filed a 12-page order in which it denied Jennea’s motion. The
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district court acknowledged that Margaret had “not yet been . . . appointed Conservator”
but nonetheless denied the motion. The district court reasoned that it “sits in equity in
probate matters” and had concerns about the loan agreement. The district court also stated
that Margaret “had an obligation to act based upon her designation as a power of attorney
for Donald Le Duc in her fiduciary capacity to protect his assets and affairs.” In addition,
the district court stated that Jennea’s and Bruce’s conduct toll ed the statutory two-year
look-back period and that the two-year period may be extended due to fraudulent
concealment.1
The district court conducted a five-day court trial on both petitions in November
2022 and May 2023. In December 2023, the district court filed an order in which it granted
Margaret’s conservatorship petition and appointed her conservator. On the same date, the
district court filed a separate order in which it granted Margaret’s set-aside petition and
struck from the loan agreement the provision that would relieve Jennea of making
payments on the loan after Donald’s and Mary’s deaths.

1In July 2021, Bruce commenced a separate action with respect to the trust
established by Donald and Mary. He request ed, among other things, an order clarifying
who would serve as successor trustee and a full accounting. Two months later, Bruce’s
action concerning the trust was consolidated with Margaret’s action concerning a
conservatorship, and further proceedings were conducted using a dual caption and the case
number of the trust action. The district court’s electronic docketing system shows only the
case title of the trust action. Because this court’s electronic docketing system is linked to
the district court’s electronic docketing system, this opinion bears the case title of the trust
action, even though we are reviewing an order filed in the conservatorship action before
the commencement of the trust action.
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In January 2024, Jennea and Bruce filed a joint motion for amended findings ,
judgment as a matter of law, or a new trial. Donald passed away in February 2024 at the
age of 101. The district court denied the post-trial motion in June 2024.
Bruce and Jennea appeal from the orders filed in April 2021, December 2023, and
June 2024. Margaret and Gary have appeared as respondents on appeal.
DECISION
Appellants make three arguments for relief: (1) the district court erred in its April
2021 order by denying Jennea’s motion to dismiss Margaret’s set-aside petition; (2) the
district court erred in its second December 2023 order by finding that Donald was
incapacitated and that Bruce and Jennea unduly influenced Donald and Mary when they
signed the 2017 and 2019 loan agreements; and (3) the district court erred in its June 2024
order by denying their post-trial motion. Because we conclude that appellants’ first
argument has merit, we grant relief on that argument and do not reach their second and
third arguments.
A.
As stated above, appellants’ primary argument is that the district court erred by
denying Jennea’s motion to dismiss Margaret’s set-aside petition on the ground that
Margaret was not a conservator when she filed the set-aside petition and because the loan
agreement that Margaret seeks to set aside was entered into more than two years before
Margaret was appointed conservator.
The relevant statute provides, “If a person subject to conservatorship has made a
financial transaction or gift or entered into a contract during the two-year period before
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establishment of the conservatorship, the conservator may petition for court review of the
transaction, gift, or contract.” Minn. Stat. § 524.5-417(e) (2024) (emphasis added). “By
its terms, section 524.5-417(e) applies when a conservator seeks to void a contract or
transaction the conservatee entered into before the conservatorship started if that contract
or transaction was entered into under duress or coercion. ” In re Disciplinary Action
Against Ludescher, 1 N.W.3d 433, 449 (Minn. 2023).
On appeal, appellants renew the argument that Margaret did not have standing to
file the set-aside petition when she filed it. They contend that a set-aside petition may be
filed only by a person who has been appointed conservator of the person who previously
made or entered into the transaction, gift, or contract that is the subject of the set-aside
petition.
Appellants’ argument is consistent with the plain language of the first sentence of
the statute, which authorizes only one person to file a set-aside petition: the conservator.
See Minn. Stat. § 524.5-417(e). The negative implication of that provision is that a person
who has not been appointed conservator may not file a set -aside petition. A ppellants’
argument also is consistent with this court’s opinion in In re Conservatorship of Douglas,
No. A04-48, 2004 WL 1878876 (Minn. App. Aug. 24, 2004), rev denied (Minn. Oct. 19,
2004), in which we concluded that a person who was not the conservator of his father did
not have standing to file a set-aside petition challenging transactions made by his father
before the establishment of the conservatorship. Id. at *1-3; see also Minn. R. Civ. App.
P. 136.01, subd. 1(c) (providing that nonprecedential opinions are “not binding authority”
but “may be cited as persuasive authority”).
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This case is analogous to Ortiz v. Gavenda, 590 N.W.2d 119 (Minn. 1999), in which
the plaintiff commenced a wrongful-death action without having been appointed trustee
for that purpose, as required by statute. Id. at 120-21 (citing Minn. Stat. § 573.02 (1998)).
After the three- year statute of limitations had lapsed, the plaintiff was appointed trustee
and moved to amend the complaint to relate back to the date of the original complaint. Id.
at 121. On appeal, the supreme court observed that the relation-back doctrine has been
applied to common-law claims but that “the limitation provisions in a statutorily created
cause of action are jurisdictional, requiring dismissal for failure to comply.” Id. at 122.
The supreme court explained that, “because the wrongful death statute itself made no
exceptions to the time limit for bringing a wrongful death action, no exceptions could be
made by construction.” Id. (citing Rugland v. Anderson, 15 N.W. 676 (Minn. 1883)). The
supreme court further explained that, “because appointment of a trustee was a condition
precedent to bringing a wrongful death action under Minn. Stat. § 573.02, an action filed
without it was a “‘legal nullity.’” Id. at 122-23 (quoting Regie de l ’assurance Auto. du
Quebec v. Jensen, 399 N.W.2d 85 (Minn. 1987)).
The same is true in this case. Because the appointment of a conservator, and a
petition filed by the conservator, are conditions precedent of a set-aside action under
section 524.5-417(e), Margaret’s failure to have satisfied those conditions at the time she
filed the petition makes her set-aside action a legal nullity.
B.
Appellants also argue that the district court erred by asserting jurisdiction over
Margaret’s set-aside petition for other reasons.
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First, appellants challenge the district court ’s reliance on equitable principles.
Appellants argue that equity must follow the law. See In re Dakota County, 866 N.W.2d
905, 914 (Minn. 2015). That concept is, in essence, incorporated into the conservatorship
statutes, which provide, “Unless displaced by the particular provisions of this article, the
principles of law and equity supplement its provisions.” Minn. Stat. § 524.5-103 (2024 ).
The district court did not specifically identify the equitable principles on which it relied
when it stated that it “sits in equity.” But, in any event, equitable principles must yield to
the statutory provision stating that only a conservator may file a set-aside petition. In the
circumstances of this case, any equitable principles that might otherwise apply have been
“displaced by the particular provisions of” section 524.5-417(e). See id.
Furthermore, the supreme court rejected a similar argument in Ortiz, in which the
plaintiff-appellant argued that the statutory action commenced in violation of the wrongful-
death statute should be recognized “on equitable grounds.” 590 N.W.2d at 123. The
supreme court reasoned that “no matter how compelling the circumstances for equitable
intervention, equity cannot breathe life into a claim that has never been anything more than
a nullity.” Id. (quotation omitted). Likewise, Margaret’s set-aside action cannot be revived
by equitable principles.
Second, appellants challenge the district court’s reliance on the fact that Margaret
was Donald’s attorney-in-fact from August 2019 until his death. R espondents argue that
the authority granted to Margaret by Donald’s power of attorney gave her standing to file
a lawsuit. We do not doubt that Margaret could have authorized the commencement of a
lawsuit in Donald’s name based on her power of attorney. See In re Conservatorship of
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Riebel, 625 N.W.2d 480, 482 (Minn. 2001) (stating that “power of attorney authorizes the
attorney-in-fact to act on behalf of the principal as the client in an attorney -client
relationship”). But Margaret did not do that. Her set-aside petition makes no reference to
her power of attorney or her status as Donald’s attorney-in -fact. Rather, the set-aside
petition expressly refers to section 524.5-417(e).
Third, appellants challenge the district court’s application of the doctrines of
equitable tolling and fraudulent concealment. As an initial matter, equitable tolling is an
equitable doctrine, which cannot be invoked because, as stated above, a set-aside claim is
a statutory cause of action with strict jurisdictional requirements requiring dismissal upon
a failure to comply. See Ortiz, 590 N.W.2d at 123. Furthermore, equitable tolling would
not apply in the circumstances of this case because Margaret’s failure to first be appointed
conservator and then timely commen ce a set-aside action was not due to “circumstances
beyond [her] control.” See Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn. App. 1997).
It would not be equitable to toll the two-year look-back period because the requirements of
section 524.5- 417(e) were clear: only a conservator may file a set -aside petition. See
Regents of Univ . of Minn. v. Raygor, 620 N.W.2d 680 , 687 (Minn. 2001) (holding that
equitable tolling was inapplicable because “it was clear the federal district court could not
exercise jurisdiction over the supplemental MHRA claims”); Carlson v. Independent Sch.
Dist. No. 623, 392 N.W.2d 216, 223-24 (Minn. 1986) (holding that equitable tolling was
inapplicable because plaintiffs failed to file administrative charges before commencing
lawsuits in district court).
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The doctrine of fraudulent concealment also is an equitable doctrine. Minnesota
Laborers Health & Welfare Fund v. Granite Re, Inc., 844 N.W.2d 509, 513 (Minn. 2014).
For that reason alone, fraudulent concealment can not be the basis of the district court’s
jurisdiction over the parties’ dispute. See O rtiz, 590 N.W.2d at 123. Furthermore,
Margaret cannot show that Jennea fraudulently concealed the loan because Jeannea had no
duty to disclose the loan to Margaret, with whom she did not have a fiduciary relationship.
See Richfield Bank & Trust Co. v. Sjogren, 244 N.W.2d 648, 650 ( Minn. 1976); Driscoll
v. Standard Hardware, Inc., 785 N.W.2d 805, 812 (Minn. App. 2010), rev. denied (Minn.
Sept. 29, 2010). Margaret was not Donald’s attorney-in-fact when Donald and Jennea
entered into either the 2017 or the 2019 loan agreement, and Margaret has not cited any
legal authority for the proposition that a third party has a duty of disclosure toward a
principal’s attorney-in-fact.
Thus, the district court erred by relying on equity in asserting jurisdiction over
Margaret’s set-aside petition.
In sum, the district court erred by denying Jennea’s motion to dismiss Margaret’s
set-aside petition. The set-aside petition was a nullity when filed, and all subsequent orders
on the set-aside petition shall have no legal effect.
Reversed.