Nizielski v. Tvinnereim, 15864

• Citation: 429 N.W.2d 483
• Decision Date: 19 February 1988
• Docket Number: No. 15864,15864
• Parties: Beverly NIZIELSKI and Loretta McClain, Plaintiffs and Appellants, v. Ervin TVINNEREIM and Selma Tvinnereim, Defendants and Appellees. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 483

429 N.W.2d 483

Beverly NIZIELSKI and Loretta McClain, Plaintiffs and Appellants, v. Ervin TVINNEREIM and Selma Tvinnereim, Defendants and Appellees.

No. 15864.

Supreme Court of South Dakota.

Considered on Briefs Feb. 19, 1988.

Decided Sept. 28, 1988.

Arthur M. Hopper of Austin, Hinderaker, Hackett & Hopper, Watertown, for plaintiffs and appellants.

Rory King of Siegel, Barnett & Schutz, Aberdeen, for defendants and appellees; James R. Delaney of Delaney, Vander Linden & Delaney, Webster, on the brief.

MORGAN, Justice.

Appellants Beverly Nizielski and Loretta McClain (appellants), appeal from a summary judgment entered by the trial court against the appellants on their action for an accounting of the estate of their mother Lena Tvinnereim (Lena). The accounting was sought from two of Lena's other children, Ervin Tvinnereim (Ervin) and Selma Tvinnereim (Selma). We reverse.

The background for this contest finds the parties are four of thirteen children who survived their parents Ben and Lena Tvinnereim. Ben died testate in 1947. The will admitted to probate gave, among other specific devises, two quarters of land (the home place) to brothers Donald and Ervin, subject to a life estate in Lena. The residue of the estate was divided equally among Lena and the children. Ervin subsequently bought out Donald and it is undisputed that he took title to the home place on the passing of Lena in 1984 at age ninety-seven. Lena had remained in the family home on the farm until six months before her death. Ervin and his family lived in a separate home on the farm where he had resided since 1949.

In 1967, Lena began to experience difficulties with her vision, which continued to deteriorate. In 1968, Lena suffered a broken hip as the result of a fall and thereafter was unable to walk without the aid of a walker. At that point, Selma came to live with her mother and care for her needs. By 1971, Lena's vision was below the "legal blindness" level. During Lena's later years her hearing was also impaired.

From 1947 to 1957, the farm land was leased by Ervin and three 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. Ervin claims that part of the time it was a share-crop arrangement and the balance was a cash-rental basis, but Ervin is unable to find his own records to substantiate this, nor can Lena's meticulously detailed ledger book be found. Each side of the litigation blames the other for its disappearance. In 1962 or 1963, when Ervin built his home on the farm, Lena cooperated in signing a new mortgage that raised the mortgage indebtedness on the home place from $12,000 to $18,000 and extended the payments from 1967 to 1975.

Ervin claims that in 1975 Lena wanted to be relieved of the responsibility for payment of taxes and upkeep on the property and suggested that Ervin "take charge." In exchange for the security of living at the homestead for the rest of her life, she relinquished all of the farm income to Ervin. As evidence of this agreement, Ervin points to a quitclaim deed executed by Lena on April 4, 1975, conveying the property to Ervin and his wife, reserving, however, a life estate interest to Lena, "she to have the income therefrom and to pay all taxes." Ervin testified that the life estate reservation was only to protect Lena in the event that he predeceased her. Evidence in the record reflects that Lena signed checks for expenses and hospital bills up until six months prior to her death.

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, Ervin made a distribution of the balance in that account in the total sum of $9,000 plus.

This action was commenced when Ervin refused to make any accounting to the others for Lena's rental income for the many years that Ervin had farmed the land. After considerable discovery, Ervin and Selma made an alternative motion to dismiss the action for failure to state a cause of action or for summary judgment. They supported their motion with a statement of some thirty-four "undisputed facts." These "facts" were allegedly supported by the affidavits, depositions, and admissions on file. Appellants responded with objections to the statement, also allegedly supported by the affidavits, depositions, and admissions in the record. In the memorandum decision supporting the granting of the motion for summary judgment, the trial court stated:

The Plaintiff has a duty to bring before the Court the facts upon which they base their claim. This the Plaintiffs failed to do. Plaintiffs seek a fishing expedition at trial to find the facts necessary to back up their claims. This will not be allowed.

We cannot agree with the trial court's disposition of the case. It appears to us that there are substantial issues of material facts that require resolution by a trial.

Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19 (1968), is the proemial writing on the use of summary judgment in this court. It has been cited repeatedly by this court. Among the lessons it teaches us are:

'The question presented by [motion for summary judgment] is whether or not there is a genuine issue of fact. It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.' ...

... Three classes of litigation which are not usually suited for summary disposition are (1) negligence actions, (2) actions involving state of mind, (3) equitable actions.

83 S.D. at 211-12, 157 N.W.2d at21-22.

On appeal, the scope of review from a granting of a summary judgment motion as set out in Time Out, Inc. v. Karras, 392 N.W.2d 434, 436-37 (S.D.1986), is as follows:

[O]ur scope of review on appeal is not under the 'clearly erroneous' doctrine, but rather under the strict standards attendant upon entry of summary judgment as delineated in Wilson, supra:

(1) Evidence must be viewed most favorable to the nonmoving party;

(2) The burden of proof is on the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law;

(3) Summary judgment is not a substitute for a court trial or for trial by jury where any genuine issue of material fact exists;

(4) Surmise that a party will not prevail upon trial is not sufficient basis to grant summary judgment on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious that it would be futile to try them;

(5) Summary judgment is an extreme remedy which should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant;

(6) When no genuine issue of fact exists, summary judgment is looked upon with favor and is particularly adaptable to expose sham claims and defenses.

From our review of the record, we are of the opinion that there are material issues of fact properly raised by appellants. The question of Lena's intent, whether to turn the entire property over to Ervin and Selma or to distribute it equally among the children, is a key issue of material fact. We perceive this to be clearly raised by the affidavit of Donald where he claims that Lena rejected the need for a will because "all her property would be equally distributed among her children as directed and required by the will of her late husband." While there is evidence that Lena was a strong-willed person, it is also quite evident that from the time of her disabling fall and her failing eyesight and hearing, she was very much dependant upon Ervin and Selma for her day-to-day care. This appears to raise a confidential relationship which, of course, changes the burden of proof in this litigation. Delany v. Delany, 402 N.W.2d 701 (S.D.1987). The foregoing, coupled with the admonition that summary judgment is not usually suitable for actions involving state of mind and equitable actions, leads us to the decision that the trial court erred in granting summary judgment in this instance.

Accordingly, we reverse the summary judgment.

WUEST, C.J., and SABERS and MILLER, JJ., concur.

HENDERSON, J., concurs specially.

HENDERSON, Justice (concurring specially).

Here, Beverly Nizielski and Loretta McClain were denied, inter alia, the opportunity to present evidence to a jury that joint tenancy accounts were established for convenience. The complaint sounded in (1) failure to account in a fiduciary capacity and (2) wrongfully inducing an agreement so as to gain control of all farm income. Deceit and undue influence is alleged on the latter count. ¹ All parties hereto are sisters and a brother.

During Lena's lifetime, ² Ervin and Lena wrote checks on the joint account. Ervin signed checks at/about the time Lena suffered a stroke to pay Lena's attendant medical expenses. This suggests a...