Bollinger v. Eldredge

• Citation: 524 N.W.2d 118
• Decision Date: 15 February 1994
• Docket Number: No. 18344,18344
• Parties: Janice BOLLINGER, Plaintiff and Appellant, v. Pearl ELDREDGE, as Trustee of Henrietta Sandquist Trust, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 118

524 N.W.2d 118

Janice BOLLINGER, Plaintiff and Appellant, v. Pearl ELDREDGE, as Trustee of Henrietta Sandquist Trust Defendant and Appellee.

No. 18344.

Supreme Court of South Dakota.

Considered on Briefs Feb. 15, 1994.

Decided Aug. 17, 1994.

H.I. King of Tonner, Tobin and King, Aberdeen, for plaintiff and appellant.

Dale A. Wein of Ronayne and Wein, Aberdeen, for defendant and appellee.

AMUNDSON, Justice.

Janice Bollinger appeals the trial court's decision granting partial summary judgment on her claim for unjust enrichment against Pearl Eldredge, as trustee of the Henrietta Sandquist Trust. Bollinger also appeals the trial court's refusal to remove Eldredge as trustee of the Henrietta Sandquist Trust. We affirm in part, reverse in part and remand.

FACTS

This action involves a testamentary trust created by the last will and testament of Henrietta Sandquist (Sandquist) which was executed on November 10, 1975. Sandquist's granddaughter, Pearl Eldredge (Eldredge) is trustee. Janice Bollinger (Bollinger), Sandquist's daughter, is the primary beneficiary of this trust and her four children, including Eldredge, are the secondary beneficiaries.

From the age of twelve, Eldredge and her three younger siblings were raised by Sandquist rather than Bollinger. As a result, Eldredge and Sandquist developed a close relationship. In her later years, Sandquist depended on Eldredge's assistance a great deal.

Sandquist died on or about December 7, 1987. When her last will and testament was admitted to probate, Eldredge and Bollinger's sister, Joanne Mickelson (Mickelson) were appointed as co-executrixes. Bollinger, as an heir to the estate, appeared personally and with counsel during the Spink County Circuit Court's administration of Sandquist's estate. At trial, Bollinger testified that she wanted to contest the will but was not able to get a lawyer to take her case. The final decree of the estate was entered on September 26, 1990. No appeal was taken from this final decree.

As trustee, Eldredge must manage and administer the trust corpus which consists of two quarters of land in Spink County, sixty-eight shares of Northern States Power stock, and $19,055 in cash. Sandquist's trust instructed:

During the life of JANICE BOLLINGER: (1) My Trustee shall pay to [Janice Bollinger] in monthly or other convenient installments the net income derived from said trust. My Trustee may make such advances from the trust property to my said daughter, JANICE BOLLINGER, as my Trustee, PEARL ELDREDGE, in her sole discretion deems necessary and advisable. (2) My Trustee shall pay to or apply for the benefit of my daughter, Janice Bollinger, from time to time such sums from the principal of this "HENRIETTA C. SANDQUIST TRUST" as my Trustee in her sole discretion deem necessary or advisable, in addition to any other funds known to my Trustee to be available to her for those purposes, to provide for her proper care, support, maintenance, and education.

While the estate was being settled, Bollinger and her husband moved from Texas to a Spink County farmhouse which eventually became part of the trust corpus. Bollinger and her husband made repairs to the house during the estate's administration. Bollinger testified that Eldredge assured her the trust would pay for repairs to the farmhouse. Contrarily, Eldredge maintains she tried to discourage Bollinger from making the repairs and Bollinger did not know the trust was going to be created by the will.

Bollinger claims she forwarded bills to Eldredge and requested payment from the trust. Bollinger testified that Eldredge refused to pay these and mailed them back to her. The majority of these requests for payment were made prior to the final decree of Sandquist's estate; however, requests continued after the final decree.

After her husband died in July of 1989, Bollinger no longer desired to reside on the farm in rural Spink County. She then requested funds from the trust to buy a house in Texas for a facility to care for fully disabled veterans. Bollinger also requested funds for a college education ¹ to become a licensed vocational nurse. ² These requests were accompanied with no information about the price of the residence in Texas, whether the Veteran's Administration approval had been given, projected income, expenses, or potential rate of return. Eldredge received no information regarding the school Bollinger planned to attend to become a licensed nurse. Due to the insufficiency of these requests, all were rejected by the trustee.

During the administration of the estate and trust, personal relations between Eldredge and Bollinger deteriorated to a point that they communicated only through their respective attorneys. Bollinger does not have a strong relationship with any of her four children. ³ In fact, Bollinger testified she would rather see the corpus of the trust go to lawyer's fees than her own children.

Bollinger brought this action to remove Eldredge as trustee of the Sandquist Trust and for reimbursement from the trust for repairs to the farmhouse. Eldredge filed a motion for partial summary judgment on the reimbursement claim, arguing neither the trust nor trustee were in legal existence at the time of the repairs and the claim is barred by res judicata. ⁴ The motion for partial summary judgment was granted on the "unjust enrichment" claim and, after a trial, the court refused to remove Eldredge as trustee of the Sandquist trust. Bollinger appeals.

ISSUES

1. Did the trial court err by granting partial summary judgment on Bollinger's claim for unjust enrichment?

2. Did the trial court err by refusing to remove Eldredge as trustee of the Henrietta Sandquist Trust?

STANDARD OF REVIEW

The principal considerations for reviewing a grant or denial of summary judgment were summarized in Waddell v. Dewey County Bank, 471 N.W.2d 591, 593 (S.D.1991) (citations omitted):

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

DISCUSSION

ISSUE I

Did the trial court err by granting partial summary judgment on Bollinger's claim for unjust enrichment?

The trial court granted Eldredge's motion for summary judgment on three grounds: res judicata, improper collateral attack, and the trust did not exist when the repairs were made.

RES JUDICATA

First, the trial court held that Bollinger's claim is barred by res judicata. The trial court barred the claim because the repairs were made during the probate of Sandquist's estate and, therefore, the claim should have been raised at probate. In its decision, the court stated that Eldredge rejected Bollinger's claim, pursuant to SDCL 30-21-34, ⁵ and Bollinger failed to commence suit within thirty days.

Unfortunately, the record does not indicate whether this claim was rejected under SDCL 30-21-34. Bollinger's answers to Eldredge's second set of interrogatories states the repair bills were mailed to Eldredge and "[Eldredge's] only response was she mailed them back...." Consequently, on appeal we are unable to conclusively determine what occurred when Bollinger made her request to Eldredge. Nothing in the record indicates that this claim was made against the estate rather, Bollinger has consistently maintained her claim against the Sandquist Trust.

We must determine whether the doctrine of res judicata applies to this claim.

The doctrine of res judicata as applied in this jurisdiction involves the following principles:

'First, a final judgment or decree of a court of competent jurisdiction upon the merits is a bar to any future action between the same parties ... upon the same cause of action so long as it remains unreversed; and, second, a point which was actually and directly in issue in a former action and was there judicially passed upon and determined by a domestic court of competent jurisdiction cannot be drawn in question in any future action between the same parties ... whether the cause of action in the two actions be identical or different. * * * Under the first rule the res which is judicata is the cause of action. Under the second, the res which may be judicata is the particular issue or fact common to both actions.'

Golden v. Oahe Enterprises, Inc., 90 S.D. 263, 275, 240 N.W.2d 102, 109 (1976) (quoting Keith v. Willers Truck Service, 64 S.D. 274, 276, 266 N.W. 256, 257-58 (1936)), modified by Black Hills Jewelry Mfg. v. Felco Jewel Ind., 336 N.W.2d 153 (S.D.1983).

In determining whether a cause of action is the same for purposes of applying the doctrine of res judicata, this court tests " 'whether the wrong for which redress is sought is the same for both actions.' " Golden, 90 S.D. at 276, 240 N.W.2d at 109 (quoting Hanson v. Hunt Oil Company, 505 F.2d 1237, 1240 (8th Cir.1974)). "A judgment which bars a second action upon the same claim extends not only to every matter offered and received to sustain or defeat the claim or demand, but also to all other admissible matters which might have been offered for the same purpose." Golden, 90 S.D. at 276, 240 N.W.2d at 109 (citing Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877)). "If, however, the second action is based upon a different claim or demand the prior judgment precludes further consideration only of those issues which were actually litigated and determined." Hanson, 505...