Moosmeier v. Johnson
412 N.W.2d 887
S.D.
1987
Check Treatment

*1 State, prohibit at a court-or- To now showing re-sentencing, from

dered file, establish-

court the court’s own have been a proceedings that the entire

es

sham, guise jeopar- all under the of double imprudent.

dy, inappropriate to state that Chief

I am authorized joins in this dissent. WUEST MOOSMEIER, individually and as

Don Estate of Nora Moos

Executor of the

meier, Deceased, Appel Plaintiff and

lant, JOHNSON,

Helene Defendant Appellee.

No. 15486.

Supreme Court of South Dakota. May

Considered on Briefs 1987. Sept.

Decided Johnson,

Wally Eklund & Eklund of Davis, appellant. Gregory, plaintiff Michael D. Stevens of Blackburn & Ste- vens, Yankton, appellee; for defendant and Vermillion, on brief. James A. Johnson generally inappropriate. necessary. corpus Remand the habeas *2 JOHNSON, MILLER, Justice. WHICH WERE ACTIVELY BY PARTICIPATED IN HELENE $10,000 Appellant seeks reversal of JOHNSON AND FROM HEL- WHICH argues he is insufficient. jury verdict which PROFITED, ENE JOHNSON UNDULY We affirm. A ARE VOID AS MATTER OF LAW. principally decided on this case is Since legal grounds, a procedural and detailed trial, During the course the trial necessary. is not recitation of the facts court was never asked to rule as a matter stated, appellant Donald Briefly Moosmeier present. of law that undue influence was (Donald), is the executor of the estate of Although post-trial Donald did make the (Nora) his maiden aunt Nora Moosmeier judgment motions for n.o.v. and alterna executor, age ninety-three. As died at who trial, tively for a new he never moved had made life- Donald discovered Nora any stage directed verdict at of the trial. comprising nearly of assets time transfers judgment The denial of the motion for $300,000 appellee one-third of her estate to properly is not n.o.v. before us since such (Helene). Helene Johnson Donald com- only motions “can be considered when the against menced suit Helene in a five-count moving party requested at trial a directed complaint generally alleging that Helene brings verdict and thus the motion in effect guilty of undue influence and conver- before the trial court for review a second sion, seeking money damages, return of grounds urged support time property, Hel- motion for directed verdict.” Kohlman v. any wrongdoing alleged ene denied Veit, (S.D.1987), citing gifts 409 N.W.2d 125 that Nora made the because Donald Rapids Township her in her el- Parham v. Dell family ignored and his derly years and as a she decided to County, Minnehaha 281, 284, 80 S.D. distribute more of her estate to others ánd v. Oliveras 550-51 less to Donald. Helene testified that she Lines, Inc., Export American Isbrandtsen discourage gifts had tried to but Nora (2d Cir.1970); Hubbard v. 431 F.2d 814 refused. It seems clear from the evidence White, (8th Cir.1985), cert. 755 F.2d 692 Nora, that Helene was a close friend of denied, 474 U.S. S.Ct. degree daily, visited her and to a certain Sabag See also v. Con L.Ed.2d 87 in her was involved business affairs. Dakota, tinental South N.W.2d 349 jury by

The case was submitted special interrogatory. The form in- verdict denying Error in the motion for trial new dividually itemized assets transferred us, argued not before and therefore is required to find Hel- whether 15-26A-60(6); Ar deemed waived. SDCL ene had exerted undue influence over Nora Arens, (S.D.1987); ens v. 400 N.W.2d 900 specific in relation to each asset transfer- Inc., Honeywell, 249 N.W.2d 251 Shaffer $10,- red. The returned a verdict for (S.D.1976); Freight Schumacher v. R-B damages only relating to certain munic- Lines, 45 N.W.2d 458 ipal The bonds. trial court denied Donald’s presented by Donald is: second judgment motion for n.o.v. and alternative THE ERRED BY WHETHER COURT judgment motion for new trial and entered $10,000 GIVING INSTRUCTION NUMBER returned JURY, THE “THE TO WHICH STATED DECISION INFLUENCE MAY CLOUD OF UNDUE BE BY THAT generally, propounded The first issue REMOVED SHOWING as HAD INDEPEN- Donald is: NORA MOOSMEIER ADVICE, DENT THAT WAS NEITHER THE ERRED BY WHETHER COURT PERFUNCTORY,” INCOMPETENT OR FAILING TO AS A MATTER OF RULE THE IN- WHEN GIVING OF SUCH LAW THAT TRANSFERS OF PROPER- BY TY FROM DECEDENT NORA MOOS- STRUCTION WAS UNSUPPORTED MEIER TO DEFENDANT HELENE THE EVIDENCE. pending any action now hereafter that a the settled law property of the decedent or to recover only those issues which given should be include, judgment may his estate ... record. Kase v. find property, in addition to the value such

French, Black (S.D.1982); thereof, a sum not to exceed the value as damages, in the discretion of the (S.D. DuBray, State *3 jury. court or 684, Egan Scheffer, v. 1980); 86 S.D. 201 Toms, Davies v. (1972); 75 S.D. N.W.2d 174 SDCL 21-3-2 also for 273, 406 as follows: 63 N.W.2d any In action an for breach of Here, ample evidence there arising contract, obligation not from giving of instruction record to warrant guilty has where the defendant been closely DeVany was Attorney John fraud, malice, oppression, actual or arrange financial Nora’s involved with wrongful presumed, any or in case of of most of the trans aware ments animals, being injury subjects prop- occurred, possible they with the actions as erty, intentionally committed will- municipal transfer exception of the bond misconduct, disregard ful and wanton was rendered. He upon which the verdict humanity, jury, in addition to the duties to Nora that his generally testified damage, may give damages actual for being included by way example, the sake of punishing the defendant. adviser, someone who her financial financial take care of her routine would light foregoing statutes stand In investments, affairs, care of her take supra, and Black v. alone, ing rent, income, helping collect her farm punitive damages could have issue of her, doing banking for and other her submitted to the Since been in her legal might that be involved work influence had exert found that undue been affairs, drawing contracts such as involving the transfer of the over Nora ed house, her, property her renting her bonds, municipal could also have town, contracts for those. preparing an award opportunity to consider A find claim. on that with Mr. fact that Nora did not consult that fraud influence indicates ing of undue specific transfer or did not DeVany on each re Es may have occurred. Snowball’s of his advice is not agree or follow all (1910); tate, In re 301, P. 598 157 107 Kase, Cal. supra. That was some- dispositive. Estate, P. 413 63 Shell’s 28 Colo. light of all thing to consider Ind.App. Mooy, v. (1900); 104 Van Ginkle arriving in the case of the other evidence (1937).* portion of 282, 10 That N.E.2d 759 specific trans- verdict on the at its ultimate seeking exemplary complaint, Donald’s that she often re- fers. The fact remains influence, oppres damages, alleges undue independent advice that was neither ceived sion, cause of in that and malice. Nowhere perfunctory. incompetent nor action, for that matter nowhere nor framed Donald was: The last Hel allegation an is there complaint, AS A THE COURT ERRED WHETHER must be Fraud ene committed a fraud. LAW IN STRIKING MATTER OF 15-6- SDCL particularity under stated with PUNI- PLAINTIFF’S DEMAND FOR influ 9(b). and “undue The terms “fraud” TIVE DAMAGES. synonymous. ence” are not 697 Link, 278 N.C. evidence, 179 S.E.2d the Link v. the close of the At Etheredge, 191 Ga. v. (1971); Daniel motion to granted Helene’s trial court Agee, 222 Cooper v. (1941); 763 punitive dam 13 S.E.2d request Donald’s strike (1931); In re Shell’s punitive Ala. 132 So. 173 ages. Two salient statutes allow (1900). In Estate, 413 63 P. 28 Colo. provides: damages. SDCL 30-17-8 * conduct, humanity, disregard is untenable. position there that in addition to fraud Helene’s simply the statute. showing Helene misreads and wanton mis- must be a of willful

890 claim, following holdings of this party Within recover on a civil order to Court, decision, plus federal I would allegations one appropriate must make jury question existed in take comfort that can be based. Schwartz upon relief Smith v. exemplary ease on Falls, in Sioux First Nat. Bank v. Utils., F.Supp. Montana-Dakota Jewell, Baker (S.D.1986); Gross v. (D.S.D.1983); 349 N.W.2d (1959); Kindley Kouf S.D. Cattle, (S.D.1984); K E Land & Inc. & 225, 76 N.W.2d 227 Williams, Mayer, Engineer (1956); Linder v. Combustion Gardner, 320 N.W.2d 153 (S.D. Black v. Inc., (Fla.1977); 61A ing, 342 So.2d Indus., v. Meilman Food 1982); Hulstein Pleading 4 Am. Am.Jur.2d § (S.D.1980); Till v. Ben 293 N.W.2d 889 Error Appeal & Jur.2d nett, 281 N.W.2d 276 allega- view, there was no In our because Smith, Judge Bogue, Chief the record is and because tion of fraud 266-67, F.Supp. at wrote: any showing that Helene was devoid *4 Noah, Dako- Hannahs the South malice, the trial oppression or guilty of Supreme held that the evidence ta Court claim for exem- properly struck the court jury to find malice sufficient for the was plary did not err in that the trial court and Affirmed. damage submitting punitive question the 296, jury. 83 S.D. MORGAN, J., WUEST, C.J., and case, 678, (1968). In the defend- that concur. unjustifiedly filed and served notice ant plaintiff on the agister’s lien on the of an HENDERSON, J., part concurs plaintiff’s auction sale. morning of farm part. and dissents in notice, the auction sale Because of this successfully delayed. Plaintiff SABERS, J., part and in concurs in wrongful brought interference suit for part. part, and dissents his farm auction sale. with HENDERSON, (concurring in Hannahs supreme court ' dissenting part). part and language the exact occasion to examine II, Significantly, I but dissent 21-3-2. I concur on Issues in SDCL found language in analyzed to Issue III. as defining The court of malice. context issue, damage major- punitive On the observed: (form) technicality over ity opinion vaults supported by statute in this The rule finding implicit, within the substance. 22, Dam- is stated in Am.Jur. state influence, that fraud by this of undue 243, ages, p. 334: § upon might perpetrated well have been rule, exemplary dam- general “As a Further, language con- aggrieved. for ages recoverable in all actions are Noah, 296, tained in Hannahs v. upon acts damages based tortious (1968), 303, 678, ingredi- circumstances or involve the submission precedent Court, in this malice, fraud, insult, ents, or a or of damages It states: of to “ disregard of the reckless wanton recoverable ‘[Ejxemplary are in the rights plaintiff.” And of upon tortious all actions for based 250, text, p. 341: same § ingre- or acts which involve circumstances to ex- insult, used in reference dients, malice, “Malice as fraud, or or a simply the do- damages is not rights emplary disregard of the wanton and reckless ” act, injurious it or ing of an unlawful Id. (quoting 22 Am. plaintiff.’ (em- complained of (1965) implies that the act Damages at 334 Jur.2d spirit of mischief or added)).1 conceived phasis (Emphasis particularity.” 6—9(b) pleader required, or mistake ... added.) 1. A under SDCL 15— constituting plead the fraud to "circumstances criminal indifference to civil obli courts developed large have a vocabulary gations. to While it has said describe the kind of been mental state re- quired vex, defendant imports term must annoy, a wish to be “mali- —the cious”, “reckless”, “oppressive”, “evil”, (Bogue injure v. Gunder another “wicked”, or guilty of “wanton miscon- son, (1912)]) S.D. 137 N.W. 595 [30 conduct_ duct,” or “morally culpable” necessarily it does not mean mere [Ajlmost any term that describes miscon- will, spite, ill or hatred.” coupled duct with a bad state of mind recently As as the South Dakota , will describe the case for a Supreme Court in Till v. Bennett award. (S.D.1979), approved an Id. at 205. punitive damages award in an action involve, Can “undue be, influence” coex- injury cropland as a result a with, ist upon, touch partake trespass by the defendants’ cattle. Con “fraud”? 21-3-2, struing SDCL the court cited “Undue influence” is

Hannahs quoted above-language species Will, In re Chinsky’s “fraud.” defining legal standard for an Misc. 268 N.Y.S. 719 Taylor punitive damages award of in South Da Klahm, Mich.App. 516, 517-18, kota. The court held that indicating “evidence a ‘wanton and reck species “Undue influence” is disregard’ of con- plaintiff’s rights less is suf Eldridge structive May, fraud. ficient to warrant the instruction for 112, 114-16, Me. 150 A. exemplary damages and to *5 Till, “Undue influence” commonly verdict.” 281 N.W.2d at 279. (Footnotes omitted.) larger sense, “fraud” in the and also partakes of the nature of “duress.” Mc- SDCL 53-4-7 deals with “un- MacNeil, Donald v. 300 Mass. 352- provides: due influence.” (1938). 15 N.E.2d Undue influence consists: “Undue species influence” is a of con- (1) use, In in one whom a confi- structive fraud which the courts will not reposed by another, dence is or who by any princi- undertake to define fixed holds apparent authority a real or ples, very lest the definition itself furnish him, over of such confidence or au- finger-board pointing a path by out the thority purpose obtaining of may be evaded. Stewart v. which it advantage him; an unfair over or Marvin, 769, 774-75, Cal.App.2d P.2d (2) taking In advantage an unfair of an- determining “Undue influence” mind; other’s weakness of fraud is a fraudulent influence over the (3) taking grossly oppressive a and mind and will of another to the extent unfair advantage of another’s neces- professed freely action is not sities or distress. done but is in truth that act of one who quoted This statute was in Black v. Gard- In re Estate of procures the result. ner, 156 n. 1 Loftin, 285 N.C. 717, 721-22, 208 S.E.2d According Dobbs, Handbook on to D. the Law Remedies 3.9, 204-05, at Defendant, acting of while in a confidential

(1973), punitive damages may awarded be relationship, safety deposit took from the plaintiff established, if part has on the $10,000 elderly plaintiff, City box of the of sufficiently aggravated the defendant “a Development of Watertown Industrial Rev- piece plus of culpable misconduct ... a put enue Bonds. She then them in her own mind_” Id. at 208. Dobbs state of Later, safety deposit they box. she said notes that “gifts”; were said otherwise.2 Attorney DeVany represented attorney knowledge the el- John claimed that the of his derly plaintiff. testimony giving permission Defendant’s at trial client to remove the bonds “Ingre- punitive damages of Yes.

“Circumstances fraud”? matter as a of law was Black, dients of fraud”? Yes. or reck- supra. “Wanton error. rights plaintiff”? of disregard less majority The opinion states: “Fraud awarding punitive purpose Yes. “The must be stated particularity under punish wrongdoer.” damages to 15-6-9(b). SDCL terms The ‘fraud’ and Hulstein, This jury 293 N.W.2d at 892. influence’ specifically synon- ‘undue are not wrongdoer. to A found the defendant be a ymous.” They “specifi- do not have to be 21-3-2, forth, ex- reading of set SDCL cally synonymous.” Both rise to a suffi- tenso, reflects, majority opinion, in- support liability cient level to wrongdo- alia, ter fraud, malice, ac- “oppression, ing punitive and a on instruction dam- tual or presumed_” added.) (Emphasis ages. alleged complaint undue influ- Said further for giving statute ence, oppression, If plead- and malice. additional “for the sake exam- uncertain, ing was insufficient or a motion ple, by way punishing the defend- for more definite statement could have circumstances, ant.” these Under trial Johnson, been demanded but was not. have should submitted the issue of Therefore, pleading apparently jury. sufficient for pleading Johnson. The SABERS, part (concurring jury’s also sufficient to deter- part, dissenting part). result Therefore, of liability. mination it was also only I concur in on the first issue punitive damages. sufficient because I affirm would on the merits. I necessarily Undue influence involved concur on second issue. I would re- oppression fraud and here because it con- verse and remand on the third and last taking advantage superior stituted po- the issue because dam- if automatically sition. Even it is not ages should have been submitted or oppressive, certainly fraudulent it is a Black jury question. Black, supra. 30-17-8; SDCL 21-3-2. SDCL

Since the found that Helene exerted resulting

undue influence over Nora in lia- $10,000

bility involving the transfer of bonds,

the municipal *6 should have opportunity

had the to consider

damages at least on For that claim. plaintiff’s

trial court to strike demand for safety deposit having vehemently testimony. from the box and them contradicted this Attorney DeVany transferred unto defendant.