Volk v. Wigen

• Decision Date: 19 January 2021
• Docket Number: Case No. 18-CV-3485 (PJS/DTS)
• Parties: JANET E. VOLK, Special Administrator of the Estate of Vivian D. Wigen, Plaintiff, v. ROXANNE R. WIGEN and ESTATE OF MYRON E. WIGEN, III, Defendants.
• Court: U.S. District Court — District of Minnesota

JANET E. VOLK, Special Administratorof the Estate of Vivian D. Wigen, Plaintiff, v. ROXANNE R. WIGEN and ESTATE OF MYRON E. WIGEN, III, Defendants.

Case No. 18-CV-3485 (PJS/DTS)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

January 19, 2021

ORDER

Suzanne W. Kvas, LUTTER, GILBERT & KVAS, LLC, for plaintiff.

Heather N. Hoecke for defendants.

Plaintiff Janet Volk ("Janet"), as special administrator of the estate of Vivian Wigen ("Vivian"), brings claims on behalf of Vivian's estate against the estate of Myron Wigen, III ("Mick") and Mick's widow, Roxanne.¹ Janet challenges the validity of certain inter vivos transfers from Vivian—as well as certain transfers from Vivian's estate—to Mick and Roxanne. Janet brings claims of breach of fiduciary duty, unjust enrichment, constructive trust, fraudulent inducement, conversion, and liability under Minn. Stat. § 524.3-1202. Janet also seeks treble damages under Minn. Stat. § 523.22.

This matter is before the Court on defendants' motion for summary judgment and Janet's partial motion for summary judgment. For the reasons that follow, defendants' motion is granted in part and denied in part. Specifically, the Court grants defendants' motion with respect to (1) all of Janet's claims that relate to the transfers of three parcels of farmland (Parcels 1, 3, and 4) and a certificate of deposit; (2) all of Janet's claims of fraudulent inducement; and (3) Janet's claim that Mick breached his fiduciary duties by accepting transfers in 2013 in excess of the statutory limit in Minn. Stat. § 523.24, subd. 8(2). The Court denies defendants' motion in all other respects and denies Janet's motion in its entirety.

I. BACKGROUND

A. Vivian

Vivian and her husband, Myron Wigen, Jr., had three children—Mick, Janet, and Jon. After Myron Jr. died in June 2004, Vivian became the sole owner of their townhome and four parcels of South Dakota farmland. Roxanne Aff. ¶ 10. Mick, who was a real-estate agent and the only one of the three children to live in the same town as Myron Jr. and Vivian, had helped Myron Jr. manage the farm property. Roxanne Aff. ¶ 12; Jon Aff. ¶ 5; Kirsten Aff. ¶ 8.

In September 2004, Vivian signed a power of attorney appointing Mick as her attorney-in-fact but prohibiting Mick from using the power of attorney to maketransfers to himself. Kvas Aff. ¶ 2 & Ex. B. The power of attorney was drafted by defense counsel Heather Hoecke—who is Mick and Roxanne's daughter—and the executed copy was placed on file at Vivian's bank. Kvas Aff. ¶¶ 1-2 & Ex. B.

Defendants contend that Vivian actually signed two powers of attorney on the same day and that the second one, also drafted by Hoecke, permitted Mick to make transfers to himself. See Hoecke Aff. ¶ 1 & Ex. 1. That is almost surely not true. The signatures of both Vivian and the notary on these two documents appear to be identical (suggesting that one document was created by photocopying the other). Compare Kvas Ex. B with Hoecke Ex. 1. Moreover, in the version that purportedly gives Mick the authority to make gifts to himself, both the checkbox next to language permitting such gifts and the checkbox next to language prohibiting such gifts are marked, with the marking in the "prohibition" checkbox appearing as though someone attempted to erase it or scratch it out. Hoecke Ex. 1. Finally, as Janet notes, the notary whose signature appears on both versions worked at Vivian's bank, where the version prohibiting Mick from making gifts to himself was kept on file. Janet Supp. Aff. ¶ 2; Kvas Aff. ¶ 2. Notably, though, the bank did not possess a copy of the version giving Mick the authority to make gifts to himself. In other words, the version granting Mick authority to make transfers to himself is almost certainly an altered copy of the original. Further strengthening this inference, an unexecuted copy of this same power ofattorney, obtained from Hoecke's former law firm, is drafted to prohibit Mick from making transfers to himself. Kvas Aff. ¶ 1 & Ex. A.

At some point after her husband's death, Vivian decided to sell the four parcels of South Dakota farmland, and she asked Mick to handle the sales. Jon Aff. ¶¶ 3, 5; Roxanne Aff. ¶ 12. In September 2007, right before Vivian began disposing of the farm property, she signed another power of attorney that again appointed Mick as her attorney-in-fact. Hoecke Aff. ¶ 2 & Ex. 2. Like the original power of attorney, the 2007 version was drafted by Hoecke, but unlike the original power of attorney, the 2007 version authorized Mick to make transfers to himself. Hoecke Aff. Ex. 2.

Over the course of the next four years, Vivian disposed of the four parcels of farmland, with Mick selling two of them to a third party named John Green (in 2007 and 2008, respectively) and Vivian deeding two of the parcels to Mick and Roxanne (in August 2011). In 2013, Green paid Mick a total of $225,394 in rent and mortgage payments that were owed to Vivian on one of the parcels. Of this amount, Mick paid Vivian $4,894 (which represented a portion of the rent payment) and kept the rest for himself. According to defendants, Vivian wanted Mick to keep the mortgage payment.

As to Vivian's other major assets: In September 2008, Vivian executed a quitclaim deed giving her townhome to Mick and Roxanne, although she continued to live in the townhome until shortly before her death. And in July 2009, Vivian gaveMick $75,000 that she had held in a certificate of deposit. All told, Vivian transferred over $900,000 in cash and property to Mick; Roxanne was a direct (joint) recipient of over $600,000 of those transfers. Janet Aff. ¶ 13. The details of each transfer, as well as the disputed transfers from Vivian's estate, are described below in chronological order.

Sometime in January or February of 2011—about six or seven months before Vivian deeded any farmland to Mick and Roxanne—Janet asked Vivian whether Vivian had transferred farmland to Mick. Janet Aff. ¶ 8. Vivian said several times that she "would never do that." Janet Aff. ¶ 8.

Several years later, in November 2014, Janet noticed that Vivian was writing a large check to Mick. Janet Aff. ¶ 2. When questioned, Vivian said that she was reimbursing Mick for paying her property taxes, but could not explain why Mick was paying them. Janet Aff. ¶ 2. Janet did some investigation and discovered that Vivian's townhome had been transferred to Mick and Roxanne in 2008. Janet Aff. ¶ 3. Shortly afterward, in December 2014, Vivian revoked the September 2004 power of attorney and appointed Mick and Janet as joint attorneys-in-fact. Janet Supp. Aff. ¶ 3 & Exs. A, C. Janet later contacted the relevant counties in South Dakota and learned of the transfers of farmland to Mick and Roxanne. Janet Aff. ¶ 4.

Around this same time, Vivian was suffering dizziness and had a pacemaker implanted. Jon Aff. ¶ 12. In November 2014, Jon moved back to Hutchinson to livewith Vivian because she needed additional care. Jon Aff. ¶¶ 12-13. Mick, Roxanne, and Vivian's granddaughters also assisted Vivian during this time; however, she mostly took care of herself, handled her own finances, and made her own decisions. Jon Aff. ¶ 14.

In January 2015, Janet and Vivian met with Janet's legal counsel, who showed Vivian the 2008 quitclaim deed for her townhome. Janet Aff. ¶ 9. Vivian became upset, pushed the deed away, and said multiple times that no one was going to take her out of her home. Janet Aff. ¶ 9. Around the same time, in response to a request for an accounting of Vivian's assets, Mick left a voicemail for Janet's attorney in which he made references to Vivian paying taxes and utilities for "her" home. Janet Aff. Ex. G.² Sometime in May 2015, after Janet showed Vivian legal correspondence questioning Mick about the farmland transfers, Vivian became upset and insisted that she did not remember signing any of the deeds transferring the farmland. Janet Aff. ¶ 10.

In July 2015, Janet petitioned to have a conservator appointed for Vivian. Kvas Aff. ¶ 17 & Ex. R. At the hearing on the petition, Janet testified briefly concerning her discovery that Vivian had quitclaimed her townhome to Mick and Roxanne but did not seem to be aware that she had done so. Kvas Aff. Ex. R at 7. Vivian and her children all agreed that a conservator should be appointed for Vivian. Kvas Aff. Ex. R at 4-5, 12-13.The court granted Janet's petition to appoint a conservator, finding that Vivian "has no understanding of her assets or finances," that she "is vulnerable to the influence of [Mick] and has previously been persuaded to follow his direction," and that "[s]ubstantially all of [her] assets have been transferred to [Mick]." Kvas Aff. ¶ 17 & Ex. S.

Less than a year later, the appointed conservator petitioned to terminate the conservatorship and restore Vivian to capacity. Hoecke Aff. ¶ 12 & Ex. 12 at 3. At the hearing on the petition, the conservator told the judge that Vivian was competent to handle her own affairs, stating,

As a matter of fact, she has been handling her own financial affairs from the very beginning. She was told at the time that she would be able to have her checkbook and—and do her own financial. And I have met with her and we've reviewed the—her checkbook and her bank statements, and there's never been a concern. She's fully capable of handling it at this time.

Hoecke Aff. Ex. 12 at 4. The court granted the motion on July 7, 2016. Hoecke Aff. ¶ 5 & Ex. 5.

In October 2017, Vivian was diagnosed with dementia and shortly thereafter was admitted to a hospital and then to a nursing home. Hoecke Aff. ¶ 26 & Ex. 26; Roxanne Aff. ¶ 38; Jon Aff. ¶ 20. Vivian died on December 28, 2017. Roxanne Aff. ¶ 38. At the time of her death, Vivian had approximately $1,500 remaining in her checking account.Janet Aff. ¶ 7. Medical Assistance had paid for a portion of her nursing-home care. Janet Aff. ¶ 14.

Vivian's will, executed in December 1989, devised her estate to her husband and, in the event that he predeceased her, granted her...