#30086, #30094-r-SPM

2023 S.D. 26

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE

ESTATE OF ROSE BEADLE,

DECEASED.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIFTH JUDICIAL CIRCUIT

ROBERTS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE GREGORY MAGERA

Judge

* * * *

PAMELA R. REITER of

Reiter Law Firm, LLC

Sioux Falls, South Dakota

RONALD A. PARSONS JR. of

Johnson, Janklow & Abdallah, LLP

Sioux Falls, South Dakota Attorneys for appellant Truman 

Raguse.

CHRIS A. NIPE

Mitchell, South Dakota Attorney for appellant Travis 

Raguse.

* * * *

ARGUED

MARCH 22, 2023

OPINION FILED 06/14/23
* * * *

GORDON P. NIELSEN of

Delaney, Nielsen & Sannes, P.C.

Sisseton, South Dakota Attorneys for appellee Allen 

Riess.
#30086, #30094

-1-

MYREN, Justice

[¶1.] Rose Beadle’s temporary guardian and conservator changed Rose’s 

investment accounts to eliminate Travis Raguse and Truman Raguse as her 

beneficiaries. Although a court order authorized the guardian/conservator’s actions, 

the court issued that order without a hearing and without notice to the 

beneficiaries. After Rose died, the circuit court approved a final accounting and 

terminated her guardianship/conservatorship. Travis and Truman appealed, but 

this Court dismissed their appeals as moot. During the probate of Rose’s estate, 

Travis and Truman filed petitions to determine title to Rose’s investment accounts. 

The Estate’s personal representative moved for summary judgment on their 

petitions to determine title. The circuit court granted summary judgment to the 

Estate, and Travis and Truman filed timely appeals. We reverse and remand.

Facts and Procedural History

[¶2.] Rose Beadle was in her 90s and living in assisted living when the 

events surrounding this case began. Her husband, Lloyd, died in 2010 after over 

sixty years of marriage. They had no children. Following Lloyd’s death, Rose had a 

spouse-like relationship with Darryl Raguse until he died in 2019. Darryl had four 

grandchildren, including Travis and Truman. In 2012, through a durable power of 

attorney for financial account matters, Rose designated Travis as her attorney-infact.

[¶3.] Rose owned investment accounts at Edward Jones. The beneficiary 

acknowledgment form associated with these accounts listed six of her nieces and 

nephews as primary beneficiaries of the accounts to receive equal portions of the 
#30086, #30094

-2-

assets transferable on death (TOD). After Travis became Rose’s attorney-in-fact, 

the TOD beneficiaries of these accounts were changed to Travis and his brother, 

Truman.0F

1

[¶4.] In February 2019, Travis was charged with embezzling from Rose from 

2013 through 2018. In January 2020, he pled no contest to grand theft by 

embezzlement, was granted a suspended imposition of sentence, and ordered to pay 

$172,857.85 in restitution to Rose.

[¶5.] In August 2019, the circuit court entered an order appointing G. Todd 

Garry as a temporary guardian and conservator for Rose. The order gave him “all 

of the powers as set forth in SDCL 29A-5-411.” Neither Travis nor Truman received 

notice of this appointment. In September 2019, Garry petitioned the circuit court 

for permission to establish conservator checking and investment accounts. 

Specifically, he sought to close Rose’s Edward Jones investment accounts that were 

TOD to Travis and Truman and create new accounts that did not include those TOD 

designations. No hearing was held on the petition, yet the circuit court entered an 

order granting the petition on October 23, 2019. Pursuant to the circuit court’s 

order, Garry removed Truman and Travis as TOD beneficiaries on these accounts.

[¶6.] In November 2019, Allen Riess (Rose’s nephew) and Garry filed a 

petition requesting the circuit court to appoint Riess as guardian and co-conservator 

and Garry as co-conservator. Truman and Travis did not receive notice of this 

1. There are unresolved allegations that Travis accomplished these changes 

through undue influence or through a self-dealing exercise of his authority as 

attorney-in-fact.
#30086, #30094

-3-

petition. The circuit court entered an order appointing Riess and Garry on 

November 25, 2019.

[¶7.] Rose died in February 2020. In March 2020, Riess petitioned for 

formal probate of Rose’s will. Following a contested hearing, the circuit court 

appointed Riess as personal representative and admitted Rose’s will to formal 

probate.

[¶8.] In April 2020, Riess and Garry petitioned for termination of the 

guardianship and conservatorship and requested approval of their final accounting. 

Travis and Truman were not given notice of these requests. On June 16, 2020, the 

circuit court entered an order approving the final accounting and terminated the 

guardianship and conservatorship. On October 20, 2020, the guardian/conservators 

gave notice of entry of the October 23, 2019 order and the June 16, 2020 order to 

Travis through an attorney who was assisting him on another matter. This notice 

of entry was not provided to Truman or his attorney.

[¶9.] On November 18, 2020, Travis filed a timely appeal of the October 23, 

2019 order. This notice of appeal did not include the June 16, 2020 order. Although 

he had received no notice of entry, Truman filed his appeal on February 24, 2021. 

He appealed the October 23, 2019 order and the June 16, 2020 order. Truman and 

Travis both filed a notice of intention to file a statement of the proceedings under 

SDCL 15-26A-54. On March 31, 2021, the circuit court entered two statements of 

the proceedings in which it found that Travis and Truman had not received any 

notice before or after the court entered its order approving the change in 
#30086, #30094

-4-

beneficiaries.1F

2 It also found that no hearing had been held before the entry of that 

order.

[¶10.] On May 20, 2021, counsel for Riess, Attorney Gordon Nielsen, issued a 

notice of entry to Travis and Truman that included all orders in the 

guardianship/conservatorship file. On June 18, 2021, Travis filed an amended 

notice of appeal in which he attempted to add the June 16, 2020 order to the orders 

he was appealing.

[¶11.] This Court issued orders to show cause in Travis’ appeal and Truman’s 

appeal, asking the parties to address jurisdiction and mootness. In his response to 

the order to show cause in each file, Riess asked this Court to dismiss both appeals 

and asserted the probate court was the appropriate place for Travis and Truman to 

assert their claims.2F

3

[¶12.] This Court ruled that Travis’ November 18, 2020 appeal was timely 

but he only appealed the order dated October 23, 2019. His subsequent attempt on 

2. Statements of proceedings are authorized by SDCL 15-26A-54 and allow the 

appellant, in certain instances, to prepare a “statement of the proceedings 

from the best available means” and submit it to the trial court for approval.

3. Specifically, Riess stated:

In addition, the conservatorship has been closed and the assets 

transferred to the Rose Beadle Probate estate which is not a 

party to this action. It is not possible for the Conservators to be 

directed to distribute assets that they don’t have especially 

when the actions of the Conservators and the accounting of the 

Conservators have been approved by Court Order and their 

letters of guardianship and conservatorship have been revoked. 

As argued in Appellee’s brief, Appellants should seek a remedy

in the Probate Estate, which is open. Not in the 

Conservatorship Estate, which has been closed by Court order 

and by operation of law.
#30086, #30094

-5-

June 18, 2021 to expand his appeal to include the June 16, 2020 order was 

ineffectual because it was not timely. Although Travis’ appeal of the October 23, 

2019 order was timely, this Court dismissed the appeal as moot. Truman’s timely 

appeal was dismissed on the same grounds. In each order, this Court indicated 

those appeals were moot because “this Court can no longer grant effectual relief of 

the challenged orders” because of Rose’s death and the termination of the 

guardianship and conservatorship.

[¶13.] On November 2, 2020, before the dismissal of the appeals in the 

guardianship/conservatorship proceedings, Riess petitioned the probate court to 

determine title to the Edward Jones accounts. However, after this Court dismissed 

the appeals of the guardianship/conservatorship orders, Riess withdrew that 

petition. On January 5, 2022, Truman filed a petition to determine the title to the 

funds from the Edward Jones accounts. On January 24, 2022, Travis filed the same 

petition.

[¶14.] On May 3, 2022, Riess moved for summary judgment on the petitions 

filed by Travis and Truman. In contrast to the argument he made to this Court on 

appeal regarding the guardianship/conservatorship orders, Riess argued that the 

final order approving the termination and final accounting “extinguishe[d] any and 

all legal claims by Travis and Truman Raguse to the Edward Jones investment 

accounts.” Riess further argued that because this Court dismissed the appeals in 

the guardianship and conservatorship case, “there is no legal claim to be brought by 

the Raguses in the probate file.” Travis and Truman opposed the Estate’s request 
#30086, #30094

-6-

for summary judgment. The circuit court issued an order granting the Estate’s 

motion for summary judgment, and Truman and Travis filed timely appeals.

Standard of Review

[¶15.] “‘We review a circuit court’s entry of summary judgment under the de 

novo standard of review.’ We will affirm a circuit court’s ‘grant of a motion for 

summary judgment when no genuine issues of material fact exist, and the legal 

questions have been correctly decided.’” Harvieux v. Progressive N. Ins. Co., 2018 

S.D. 52, ¶ 9, 915 N.W.2d 697, 700 (citation omitted) (quoting Wyman v. Bruckner, 

2018 S.D. 17, ¶ 9, 908 N.W.2d 170, 174).

Whether this Court’s dismissal of the guardianship/ 

conservatorship appeals as moot precluded the probate 

court from determining issues related to the title of the 

Edward Jones accounts.

[¶16.] “[A]n appeal will be dismissed as moot where, before the appellate 

decision, there has been a change of circumstances or the occurrence of an event by 

which the actual controversy ceases and it becomes impossible for the appellate 

court to grant effectual relief.” Larson v. Krebs, 2017 S.D. 39, ¶ 13, 898 N.W.2d 10, 

15–16 (alteration in original) (quoting Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11, 764 

N.W.2d 895, 899). The Estate contends that this Court’s dismissal of the 

guardianship/conservatorship appeals effectively affirmed the circuit court’s 

decisions and precluded the probate court from addressing any claims regarding the 

title to the Edward Jones accounts. The Estate misunderstands the meaning of our 

orders of dismissal. We dismissed the appeals in the guardianship/conservatorship 

proceeding because they were “rendered moot by Rose Beadle’s death on February 

8, 2020, and by entry of the circuit court’s final order of June 16, 2020, approving 
#30086, #30094

-7-

termination of the guardianship and conservatorship and the final accounting, as 

this Court can no longer grant effectual relief of the challenged orders.” There was 

no longer a guardianship or conservatorship because the circuit court’s order had 

terminated it. The probate court has the authority to resolve any disputes 

regarding the ownership of Rose’s investment accounts. SDCL 29A-3-105.3F

4

Whether the October 23, 2019 order entered in the 

guardianship/conservatorship was valid.

[¶17.] Travis and Truman asked the probate court to determine whether the 

prior order authorizing the conservator to change the investment accounts was void 

because it was issued without notice to the beneficiaries and without a hearing. 

Garry was a temporary guardian and conservator when he requested court 

authorization to make these changes to the Edward Jones accounts. “A temporary 

guardian or conservator shall have only those powers and duties which are 

specifically set forth in the order of appointment.” SDCL 29A-5-315. The order 

appointing him as temporary guardian and conservator gave him all the powers 

4. SDCL 29A-3-105 provides in part:

Persons interested in decedents’ estates . . . may petition the 

court for orders in formal proceedings within the court’s 

jurisdiction including but not limited to those described in this 

article. . . . The court has jurisdiction of any other action or 

proceeding concerning a succession or to which an estate, 

through a personal representative, may be a party, including 

actions to determine title to property, and of any action or 

proceeding in which property distributed by a personal 

representative or its value is sought to be subjected to rights of 

creditors or successors of the decedent.

(Emphasis added.)
#30086, #30094

-8-

under SDCL 29A-5-411. While that statute contains a broad authorization of 

powers, it does not include the power to make changes to a protected person’s estate 

plan. Instead, SDCL 29A-5-420 provides that, upon petition, a court may authorize 

a conservator to make such changes.4F

5 That statute requires that “[n]o order may be 

5. SDCL 29A-5-420 provides in part:

Upon petition therefor, the court may authorize a conservator to 

exercise any of the powers over the estate or financial affairs of a 

protected person which the protected person could have 

exercised if present and not under conservatorship, including 

the powers:

. . .

(7) To withdraw funds from a multiple-party bank account as 

defined in § 29A-6-101, to change the beneficiary on or 

dispose of any payable or transfer on death arrangement as 

defined in § 29A-6-113, or to dispose of any property 

specifically given under the protected person’s will; or

(8) To make, amend, or revoke a will.

The court, in authorizing the conservator to exercise any of the 

above powers, shall primarily consider the decision which the 

protected person would have made, to the extent that the 

decision can be ascertained. The court shall also consider the 

financial needs of the protected person and the needs of legal 

dependents for support, possible reduction of income, estate, 

inheritance or other tax liabilities, eligibility for governmental 

assistance, the protected person’s prior pattern of giving or level 

of support, the existing estate plan, the protected person’s 

probable life expectancy, the probability that the 

conservatorship will terminate prior to the protected person’s 

death, and any other factors which the court believes pertinent.

No order may be entered under this section unless notice of 

hearing is first given to the protected person, to the beneficiaries 

of the protected person’s estate plan, and to the individuals who 

would succeed to the protected person’s estate by intestate 

succession and, if known, to any attorney or financial advisor 

who advised the protected person within the last five years. No 

trust or will may be amended or revoked without prior notice of 

(continued . . .)
#30086, #30094

-9-

entered under this section unless notice of hearing is first given to . . . the 

beneficiaries of the protected person’s estate plan[.]” SDCL 29A-5-420. The Estate 

contends that SDCL 29A-5-4195F

6 allows the circuit court to authorize any action by 

the conservator, even when that action would violate the express requirements of 

another statute governing the authority of conservators. In SDCL 29A-5-420, the 

Legislature established the authority and required procedure for a court to 

authorize a conservator to alter a protected person’s estate plan. The suggestion 

that SDCL 29A-5-419 allows the circuit court to ignore that required procedure is 

misguided. SDCL 29A-5-420 requires notice to the beneficiaries and a hearing 

before a circuit court can authorize a conservator to change a protected person’s 

TOD designation.

[¶18.] At oral argument, all parties acknowledged that the October 23, 2019 

order authorizing the conservator to remove the TOD beneficiaries on Rose’s 

Edward Jones accounts was entered without notice to the beneficiaries and without 

________________________

(. . . continued)

hearing to the trustee or nominated personal representative 

thereof.

(Emphasis added.)

6. SDCL 29A-5-419 provides:

Nothing in this chapter prohibits the court from limiting the 

powers which may otherwise be exercised by a guardian or 

conservator without prior court authorization, from authorizing 

transactions which might otherwise be prohibited, nor from 

granting additional powers to a guardian or conservator. 

Nothing in this chapter prohibits a guardian or conservator from 

seeking court authorization, instructions, or ratification for any 

actions, proposed actions, or omissions to act.
#30086, #30094

-10-

hearing.6F

7 Consequently, the order is void as a matter of law. See Lessert v. Lessert, 

64 S.D. 3, 263 N.W. 559, 561 (1935) (judgment was void when “it was beyond the 

power and authority of the court which rendered it.”). On remand, the probate 

court retains full authority to resolve any and all claims regarding the ownership of 

those accounts.

[¶19.] We reverse and remand for further proceedings consistent with this 

opinion.

[¶20.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY, 

Justices, concur.

7. The parties’ acknowledgements that Truman and Travis were not provided a 

full and fair opportunity to litigate in the guardianship/conservatorship 

proceedings also precludes the Estate’s contention that Truman and Travis 

are barred by res judicata with respect to any determinations in that 

proceeding.