Nizielski v. Tvinnereim, No. 16731
| Court | Supreme Court of South Dakota |
| Writing for the Court | HENDERSON; WUEST; SABERS; SABERS |
| Citation | 453 N.W.2d 831 |
| Docket Number | No. 16731 |
| Decision Date | 14 February 1990 |
| Parties | Beverly NIZIELSKI and Loretta McClain, Plaintiffs and Appellants, v. Ervin TVINNEREIM and Selma Tvinnereim, Defendants and Appellees. . Considered on Briefs |
Page 831
Appellants,
v.
Ervin TVINNEREIM and Selma Tvinnereim, Defendants and
Appellees.
Decided April 4, 1990.
Arthur M. Hopper, Watertown, for plaintiffs and appellants.
James R. Delaney, Webster, Rory King, Aberdeen, for defendants and appellees.
HENDERSON, Justice.
PROCEDURAL HISTORY/ISSUES
This is the second appeal by Beverly Nizielski and Loretta McClain (Nizielski and McClain) in this case. Nizielski and McClain first appealed the entry of a Summary Judgment in favor of Ervin and Selma Tvinnereim (the Tvinnereims) on May 15, 1987. This Court reversed the Summary Judgment and remanded the case to the trial court. Nizielski v. Tvinnereim, 429 N.W.2d 483 (S.D.1988).
Page 832
The case was scheduled for trial on March 28, 1989, and commenced on that day. On March 30, 1989, the jury returned a verdict for Nizielski and McClain awarding them the sum of $32,000.00. On April 3, 1989, the court sent a Memorandum Decision to Nizielski and McClain which recited that the jury was acting in an advisory capacity. Contrary to the jury verdict, the Memorandum Decision went on to rule for the Tvinnereims in all respects. On appeal Nizielski and McClain argue:
1) That the trial court erred in concluding that Nizielski and McClain were not entitled to a trial by jury on the issues of undue influence and monetary damages;
2) That the trial court erred in considering the jury verdict in favor of Nizielski and McClain to be advisory;
3) That findings of fact of the trial court, holding no undue influence and that Lena Tvinnereim's joint bank accounts were intended to be the sole property of Ervin Tvinnereim, were not supported by the record;
4) That the trial court erred in concluding that the burden of proof is on Nizielski and McClain to establish undue influence by a preponderance of the evidence.
--Holding--
We reverse and remand to the trial court judge, with directions to reinstate the jury's verdict. Below, we treat the first two issues, deeming that issues 3 and 4 are not vital to our decision.
The parties in this action are all children of Ben and Lena Tvinnereim. Ben Tvinnereim died testate on February 28, 1947 and Lena Tvinnereim died intestate on October 22, 1984.
Following Ben Tvinnereim's death, his will was admitted to probate, leaving two quarters of land (the home place) to brothers Donald and Ervin, subject to the life estate in his wife, Lena. The residue of the estate was divided among Lena and the children. Ervin subsequently bought out Donald's interest in the property and was the sole remainderman at the time of Lena's death in 1984.
In 1967, Lena began to experience difficulties in her vision, which continued to deteriorate. In 1968, Lena suffered a broken hip. At that point, Selma, her daughter, came to live with her mother. From March, 1971 until her death, Lena's vision was below the level established for "legal blindness." Her condition did not improve throughout the rest of her life. During her later years, Lena's hearing was also impaired.
From 1947 to 1957, the farmland was leased by Ervin and 3 of his brothers. It was at the end of that period that Ervin bought out Donald and terminated the partnership with the other brothers. The rental arrangements for the period from 1958 through 1975 are not clear. In any event, in 1975 Lena executed a Quit Claim Deed conveying the home place to Ervin and his wife, reserving a life estate interest. Ervin testified that the purpose for the deed was to relieve Lena of the responsibility of receiving income, paying taxes and making land payments. The deed stated that Lena was "to have the income therefrom and to pay all taxes," but, in fact, he kept Lena's share.
In 1962, a joint tenancy checking account was created by Lena and Ervin. Ervin testified that from 1975 on, with but few exceptions, the only income deposited in that account was Lena's social security benefits. In any event, after the other children began demanding an accounting after Lena's death, Ervin made a distribution of the balance in that account.
At the time of her death, Lena also held a certificate of deposit jointly with Ervin. That certificate was eventually redeemed by Ervin and is now held jointly between Ervin and Una Tvinnereim, his wife.
I. The trial court erred in concluding that Nizielski and McClain were not entitled to a trial by jury on the issues of undue influence and monetary damage.
The right to a jury trial is guaranteed both litigants in Article VI, Sec. 6 of the
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South Dakota Constitution and SDCL 15-6-38(a), (b). This right, however, does not exist in all civil cases. In cases where the pleadings seek equitable relief or where the legal relief is incidental, a jury trial is a matter for the trial court's...To continue reading
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People in Interest of Z.B., No. 24619.
...when a defendant must prove prosecutorial bad faith in failing to preserve potentially exculpating evidence); Nizielski v. Tvinnereim, 453 N.W.2d 831, 834 (S.D.1990) (noting fundamental fairness requires reinstatement of a jury verdict); State v. Lamont, 2001 SD 92, ¶ 16, 631 N.W.2d 603, 61......
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Landstrom v. Shaver, Nos. 19490-19492
...SDCL 15-6-39(c) authorizes the use of an advisory jury in "all actions not triable of right by a jury...." See Nizielski v. Tvinnereim, 453 N.W.2d 831 6 SDCL 15-6-42(b) provides: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to exp......
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Fox v. Burden, No. 20811.
...South Dakota Constitution and SDCL 15-6-38(a), (b), the right to a jury trial is guaranteed to both litigants. Nizielski v. Tvinnereim, 453 N.W.2d 831, 832-33 (S.D. 1990). The right to a jury trial does not exist in all civil cases. Id. at 833. It is the well-settled rule of this Court that......
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Rindal v. Sohler, No. 22246
...for equitable adjustment is reversed. This 658 N.W.2d 774 Court has authority to reinstate an advisory verdict. Nizielski v. Tvinnereim, 453 N.W.2d 831, 834 (S.D.1990). Both sides fully tried the breach of contract issue to the jury. Since the jury has already found that the Sohlers did not......
-
People in Interest of Z.B., No. 24619.
...when a defendant must prove prosecutorial bad faith in failing to preserve potentially exculpating evidence); Nizielski v. Tvinnereim, 453 N.W.2d 831, 834 (S.D.1990) (noting fundamental fairness requires reinstatement of a jury verdict); State v. Lamont, 2001 SD 92, ¶ 16, 631 N.W.2d 603, 61......
-
Landstrom v. Shaver, Nos. 19490-19492
...SDCL 15-6-39(c) authorizes the use of an advisory jury in "all actions not triable of right by a jury...." See Nizielski v. Tvinnereim, 453 N.W.2d 831 6 SDCL 15-6-42(b) provides: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to exp......
-
Fox v. Burden, No. 20811.
...South Dakota Constitution and SDCL 15-6-38(a), (b), the right to a jury trial is guaranteed to both litigants. Nizielski v. Tvinnereim, 453 N.W.2d 831, 832-33 (S.D. 1990). The right to a jury trial does not exist in all civil cases. Id. at 833. It is the well-settled rule of this Court that......
-
Rindal v. Sohler, No. 22246
...for equitable adjustment is reversed. This 658 N.W.2d 774 Court has authority to reinstate an advisory verdict. Nizielski v. Tvinnereim, 453 N.W.2d 831, 834 (S.D.1990). Both sides fully tried the breach of contract issue to the jury. Since the jury has already found that the Sohlers did not......