Moeckly v. Hanson, #29100

CourtSupreme Court of South Dakota
Writing for the CourtGILBERTSON, Chief Justice
Parties Anna MOECKLY and Roger Scott Orr, Personal Representatives of The Sharon L. Orr-Hanson Estate, Plaintiffs and Appellees, v. Bennet G. HANSON a/k/a Ben G. Hanson, Defendant and Appellant.
Decision Date29 July 2020
Docket Number#29100

947 N.W.2d 630

Anna MOECKLY and Roger Scott Orr, Personal Representatives of The Sharon L. Orr-Hanson Estate, Plaintiffs and Appellees,
v.
Bennet G. HANSON a/k/a Ben G. Hanson, Defendant and Appellant.

#29100

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS APRIL 20, 2020
OPINION FILED July 29, 2020


ROBERT B. DECK of Deck Law, PLC, Sioux City, Iowa, Attorneys for plaintiffs and appellees.

MICHAEL A. HENDERSON of Swier Law Firm, Prof. LLC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice

¶1.] Personal representatives for the estate of Sharon Orr-Hanson brought a partition action for property owned by Sharon and her husband, Bennet Hanson. The circuit court held the property was owned as tenants in common and ordered partition. Hanson appeals, arguing the property was held as joint tenants and should go to him alone as the surviving joint tenant. We affirm.

Facts and Procedural History

[¶2.] Bennet Hanson (Hanson) and Sharon Orr-Hanson (Sharon) were married in December 1994. The day of their wedding, Hanson and Sharon entered into an antenuptial contract, which stated in relevant part that "[i]n the event of death of either party, any property, real or personal, jointly held by the parties acquired either prior to marriage or thereafter, shall be that of the survivor." The couple lived in Sioux City, Iowa for three years before moving to Burbank, South Dakota.

[¶3.] They purchased the following described property in Burbank in 1996 "as joint tenants with right of survivorship and not as tenants in common:"

Lot 13 of the Ponderosa Addition and Ponderosa Drive, Parts of Lot 1, Section 2 and Lot 1, Section 3, Township 91 North, Range 51 West of the 5th P.M., and Accretion thereto, Clay County, South Dakota.

In 1998, Hanson and Sharon purchased the lot next door as joint tenants with right of survivorship as well:

Lot 14 of the Ponderosa Addition and Ponderosa Drive, Parts of Lot 1, Section 2 and Lot 1, Section 3, Township 91 North, Range 51 West of the 5th P.M., and the Accretion thereto, Clay County, South Dakota.

[¶4.] In December 2006, Craig Thompson, an attorney licensed in South Dakota, drafted a warranty deed for Hanson and Sharon that conveyed Lot 14 to themselves. The deed did not contain any language that it would be held as joint tenants. In April 2007, Thompson drafted another warranty deed, entitled "Corrective Warranty Deed." The corrective deed did not correct anything except to add Lot 13 to the already transferred Lot 14. The corrective deed also contained no language that the property would be held as joint tenants. In May 2007, Hanson and Sharon sold Lot 14.

[¶5.] Sharon was diagnosed with pancreatic cancer in October 2016 and passed away in February 2017. Anna Moeckly, Sharon's granddaughter, and Roger Scott Orr, Sharon's son from her first marriage, acting as personal representatives (collectively, the Personal Representatives) of her estate, opened a probate in Polk County, Iowa, where Sharon had been living between her cancer diagnosis and her death. Sharon's will stated in relevant part:

I give, devise and bequeath my one-half interest in and to my current residence which is located at 32193 Ponderosa Drive, Burbank South Dakota, to my

[947 N.W.2d 634

children, ... in equal shares, share and share alike, they to have and to hold the same absolutely and forever in fee.

The Personal Representatives opened an ancillary probate in Clay County, South Dakota to deal with Sharon's one-half interest in the Burbank property, which they believed to be held as tenants in common.

¶6.] In March 2017, Hanson asked Thompson to draft an affidavit for termination of joint tenancy under SDCL 21-44-27 and gave Thompson the 1996 deed for Lot 13 to base the affidavit on. At that time, Thompson did not remember about the 2006 and 2007 deeds he had drafted and proceeded to draft the affidavit to sever the joint tenancy. However, on May 1, 2017, after the affidavit had been filed, Thompson sent Hanson a letter indicating that it had come to his attention that the corrective deed changed the interests in Lot 13 to a tenancy in common, so the affidavit to sever joint tenancy would have no effect.

[¶7.] The Personal Representatives brought this partition action to have the property sold and the proceeds split evenly based on the belief that the property was owned as tenants in common. Both Hanson and the Personal Representatives made motions for summary judgment. The only dispute of consequence between the motions was whether the property was held as joint tenants with rights of survivorship or as tenants in common. The circuit court considered the motions at separate hearings and denied them both, finding that the issue of how the land was held was a disputed fact.

[¶8.] Hanson also made a motion to amend the pleadings to add a third-party complaint against Moeckly, challenging Sharon's will for undue influence and lack of testamentary capacity. The circuit court determined that the amendment would be futile, as Moeckly would not be liable to Hanson for any of Moeckly's claims against him in the partition action. In denying the motion, the court noted that Hanson's claim would be better brought in the probate matter because "[t]he contest of a will is not a logical third-party complaint in this action for partition[.]" The court also denied the motion based on "undue delay, bad faith on the part of the moving party, and unfair prejudice to the unmoving party."

[¶9.] The parties originally set the case for a jury trial, but the Personal Representatives made a motion to strike Hanson's jury demand, and the circuit court granted the motion because partition is an equitable action. The circuit court later denied Hanson's motion for reconsideration on that issue as well.

[¶10.] At the partition hearing, Moeckly, Thompson, and Hanson testified. The court granted Hanson's motion to exclude expert testimony from Thompson as irrelevant, so Thompson testified only as to his drafting of the deeds and affidavit and his interactions with Hanson and Sharon. Thompson recalled a conversation with Hanson and Sharon in which they asked Thompson to draft the 2006 deed and stated that they wanted to change the way the property was held to a tenancy in common. Thompson further testified that he had minimal interactions with Hanson in the process of drafting the wills, and that he did not remember specifically when he would have met with Hanson and what the conversations had specifically entailed. Hanson's testimony expressed a different recollection of his and Sharon's interactions with Thompson. Hanson claimed the conversation regarding changing the manner in which the property was held to a tenancy in common never happened, and that he and Sharon met with Thompson at least once before each deed was signed.

[947 N.W.2d 635

[¶11.] The circuit court held that the corrective deed terminated the joint tenancy and created a tenancy in common. The court found Thompson's and Moeckly's testimony credible, but found Hanson's testimony not credible. The court also found that after Sharon's death, Hanson provided Thompson the 1996 deed, rather than the 2007 corrective deed, in an attempt to fraudulently terminate Sharon's estate's interest when he knew the 2007 deed had changed title in the property to tenants in common. Because partition was impractical, the circuit court ordered the property sold and the proceeds divided between the one-half interests held by Hanson and Sharon's estate.

¶12.] Hanson filed motions for a new trial and for relief from judgment and order. Hanson also filed a motion for clarification of the memorandum opinion. Hanson claims he never received notice that the court had extended the time to respond to the motion for a new trial, so presumed that it had been denied by operation of law and filed a notice of appeal. The circuit court determined that the notice of appeal removed any jurisdiction it had over those motions. The circuit court also granted a stay of judgment pending appeal. Hanson's appeal raises three issues:
1. Whether the circuit court erred in concluding the corrective deed severed the joint tenancy.

2. Whether the circuit court erred in concluding a jury trial was not appropriate.

3. Whether the circuit court based its decision on issues not properly before the court.

Analysis and Decision

[¶13.] Partition actions are equitable actions reviewed for abuse of discretion. Gartner v. Temple , 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850. A circuit court's "factual determinations are subject to a clearly erroneous standard." Id. ¶ 8, 855 N.W.2d at 850 (quoting State v. Guthrie , 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203 ).

"We give no deference to the circuit court's conclusions of law, however, and review them under a de novo standard." Id.

1. Whether the circuit court erred in concluding the corrective deed severed the joint tenancy.

[¶14.] Hanson argues that the circuit court erred in deciding that the corrective deed severed the joint tenancy on Lot 13 and created a tenancy in common. He emphasizes that the court never found that the four unities for joint tenancy were destroyed and argues that the court's reliance on SDCL 43-2-12, and 43-2-16 is misplaced. SDCL 43-2-12 provides: "A joint tenancy interest is one owned by several persons in equal shares, by a title created by a single will or...

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2 practice notes
  • Brazil v. Menard, Inc., 1:22-CV-1001-CBK
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • April 27, 2022
    ...applies Wisconsin contract law when interpreting whether there is an enforceable arbitration agreement. See generally Moeckly v. Hanson, 947 N.W.2d 630, 637-38 (S.D. 2020) (adopting choice of law provision in agreement to enforce Iowa contract principles). Wisconsin contract interpretation ......
  • Fodness v. City of Sioux Falls, #28965
    • United States
    • Supreme Court of South Dakota
    • July 29, 2020
    ...In their brief in support of their request, the Fodnesses admitted that the motion to amend was a "belt and suspenders motion" [947 N.W.2d 630 used as a precautionary measure in the event the circuit court felt the complaint was "missing certain technical language that could ......
2 cases
  • Brazil v. Menard, Inc., 1:22-CV-1001-CBK
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • April 27, 2022
    ...applies Wisconsin contract law when interpreting whether there is an enforceable arbitration agreement. See generally Moeckly v. Hanson, 947 N.W.2d 630, 637-38 (S.D. 2020) (adopting choice of law provision in agreement to enforce Iowa contract principles). Wisconsin contract interpretation ......
  • Fodness v. City of Sioux Falls, #28965
    • United States
    • Supreme Court of South Dakota
    • July 29, 2020
    ...In their brief in support of their request, the Fodnesses admitted that the motion to amend was a "belt and suspenders motion" [947 N.W.2d 630 used as a precautionary measure in the event the circuit court felt the complaint was "missing certain technical language that could ......

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