Sturdevant v. SAE Warehouse, Inc.

• Decision Date: 07 October 1981
• Docket Number: Nos. 9432-A,s. 9432-A
• Citation: 310 N.W.2d 749
• Parties: Glen A. STURDEVANT, Plaintiff and Appellee, v. SAE WAREHOUSE, INC., a North Dakota Corporation, Richard Sturdevant, JamesSturdevant, Terry Sturdevant, individually and as Executors of the Estate ofVirgil Sturdevant, deceased, and Trustees of the "Lucylle Trust" and"Residuary Trust" ofthe Virgil Sturdevant Estate, Defendants and Appellees, v. Robert STURDEVANT, Intervening Defendant and Appellant. Glen A. STURDEVANT, Plaintiff and Appellee, v. STURDEVANT'S AUTO PARTS, INC. OF OAKES, a North Dakota Corporation, RichardSturdevant, James Sturdevant and Terry Sturdevant, individually and asExecutors of the Estate of Virgil Sturdevant, deceased, and Trustees of the"Lucylle Trust" and"Residuary Trust" of the Virgil Sturdevant Estate, Defendants and Appellees, v. Robert STURDEVANT, Intervening Defendant and Appellant. Glen A. STURDEVANT, Plaintiff and Appellee, v. Richard STURDEVANT, James Sturdevant and Terry Sturdevant, individually and asExecutors of the Estate of Virgil Sturdevant, deceased, and Trustees of the"Lucylle Trust" and "Residuary Trust" of the Virgil Sturdevant Estate, Defendants andAppellees, v. Robert STURDEVANT, Intervening Defendant and Appellant. Civ.to 9432-C.
• Court: North Dakota Supreme Court

Page 749

310 N.W.2d 749

Glen A. STURDEVANT, Plaintiff and Appellee, v. SAE WAREHOUSE, INC., a North Dakota Corporation, Richard

Sturdevant, JamesSturdevant, Terry Sturdevant, individually

and as Executors of the Estate ofVirgil Sturdevant,

deceased, and Trustees of the "Lucylle Trust" and"Residuary

Trust" ofthe Virgil Sturdevant Estate, Defendants and Appellees, v. Robert STURDEVANT, Intervening Defendant and Appellant.

Glen A. STURDEVANT, Plaintiff and Appellee, v. STURDEVANT'S AUTO PARTS, INC. OF OAKES, a North Dakota

Corporation, RichardSturdevant, James Sturdevant and Terry

Sturdevant, individually and asExecutors of the Estate of

Virgil Sturdevant, deceased, and Trustees of the"Lucylle

Trust" and"Residuary Trust" of the Virgil Sturdevant Estate, Defendants and Appellees, v. Robert STURDEVANT, Intervening Defendant and Appellant.

Glen A. STURDEVANT, Plaintiff and Appellee, v. Richard STURDEVANT, James Sturdevant and Terry Sturdevant,

individually and asExecutors of the Estate of Virgil

Sturdevant, deceased, and Trustees of the"Lucylle Trust" and "Residuary Trust" of the Virgil Sturdevant Estate, Defendants andAppellees, v. Robert STURDEVANT, Intervening Defendant and Appellant.

Civ. Nos. 9432-A to 9432-C.

Supreme Court of North Dakota.

Oct. 7, 1981.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendants and appellees James Sturdevant and Terry Sturdevant, individually; argued by C. Nicholas Vogel, Fargo.

Thysell, Gjevre, McLarnan, Hannaher, Vaa & Skatvold, Moorhead, Minn., and Roderic E. Schuster, Fargo, for intervening defendant and appellant Robert Sturdevant; argued by Galen J. Vaa, Moorhead, Minn.

Johnson, Milloy, Johnson & Stokes, Wahpeton, for defendants and appellees SAE, James Sturdevant, and Terry Sturdevant as Executors of the Estate of Virgil Sturdevant, deceased, and Trustees of the "Lucylle Trust" and "Residuary Trust" of the Virgil Sturdevant Estate.

Odell M. Astrup, Fargo, for defendant and appellee Richard Sturdevant.

ERICKSTAD, Chief Justice.

This is an appeal by the intervening defendant, Robert Sturdevant, from an order of the District Court of Richland County, dated October 18, 1980, denying Robert's motion under Rule 60(b), N.D.R.Civ.P., to vacate the court's May 8, 1979, order. We affirm.

This matter is a continuation of protracted litigation arising after the death of Virgil Sturdevant regarding the settlement of his estate and the ownership interests of certain properties and businesses among the litigants. A recitation of facts pertaining to this litigation can be found in Sturdevant v. SAE Warehouse, Inc., 270 N.W.2d 794 (N.D.1978), and only those facts necessary to an understanding of this appeal will be reiterated in this opinion.

During August, 1971, Richard, James, and Terry Sturdevant, trustees of the residuary trust established by Virgil Sturdevant's will, purchased all of Virgil's stock in SAE Warehouse, Inc., from Virgil's estate. In SAE Warehouse, supra, this Court upheld the district court's determination that the trustees must convey to the residuary trust all of the SAE Warehouse, Inc., stock purchased by them from the estate. On April 5, 1979, subsequent to this Court's decision in SAE Warehouse, supra, the trustees of the residuary trust, Glen Sturdevant, and James and Terry Sturdevant, acting individually, entered an agreement in an attempt to settle all litigation among them. As part of this settlement, Glen agreed to sell all of his stock in SAE Warehouse, Inc., for an "updated book value", and, in turn, it was agreed that James and Terry would not be required to convey their stock in SAE Warehouse, Inc., to the residuary trust. Robert was not a party to the settlement agreement, and he subsequently brought a motion before the district court requesting it to find James and Terry in contempt of court for failing to convey their SAE Warehouse, Inc., stock to the residuary trust. The district court entered an order, dated May 8, 1979, denying Robert's request that Terry and James be held in contempt. However, the court also ordered that James and Terry pay to the residuary trust for distribution to Robert, as a beneficiary of the trust, an amount which would give Robert the fair market value for his share of the SAE Warehouse, Inc., stock which, but for the settlement agreement, James and Terry would have been required to convey to the residuary trust. The court determined that as a beneficiary of the residuary trust Robert had an interest in 5.28 shares of SAE Warehouse, Inc., stock and that, pursuant to an independent appraisal ordered by the court from Charles Bailly and Company, the fair market value of the stock was $581.37 per share. There was no appeal by Robert or any other party from the court's order of May 8, 1979.

Robert subsequently filed a motion requesting the district court to vacate its May 8, 1979, order under Rule 60(b)(ii), and (iii), N.D.R.Civ.P., which provides in relevant part:

"Mistakes Inadvertence Excusable neglect Newly discovered evidence Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order in any action or proceeding for the following reasons: ... (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ..."

In support of his motion to vacate, Robert introduced evidence that subsequent to the May 8, 1979, order Glen sold his SAE Warehouse, Inc., stock to James and Terry for $1,427.78 per share and that during April and May of 1979, the period in which the district court was attempting to determine the fair market value of Robert's interest in SAE Warehouse, Inc., negotiations for such sale were being conducted among Glen, Terry, and James. Robert asserts that this evidence constitutes newly discovered evidence of the fair market value of the SAE Warehouse, Inc., stock. He also asserts that such evidence demonstrates that although Glen, Terry, and James knew the fair market value of the stock was greater than that indicated by the Bailly...