Olson v. Berggren

2021 S.D. 58

CLIFFORD WILLIAM OLSON, Plaintiff and Appellant, v. MELISSA J. BERGGREN, EDWARD J. BICKEL and CHRISTINA MOLD, Defendants and Appellees.

No. 29367-aff

Supreme Court of South Dakota

September 29, 2021

CONSIDERED ON BRIEFS JANUARY 11, 2021

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT CORSON COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER Judge

SCOTT N. HEIDEPRIEM MATTHEW A. TYSDAL PETE HEIDEPRIEM of Heidepriem, Purtell, Siegel & Hinrichs, LLP Sioux Falls South Dakota, ROBERT M. RONAYNE REBECCA L. RONAYNE of Ronayne Law Office, P.C. Aberdeen, South Dakota Attorneys for plaintiff and appellant.

JUSTIN L. BELL of May, Adam, Gerdes & Thompson, LLP Pierre South Dakota, FRANCIS J. RONDONI ELIZABETH C. HENRY of Chestnut Cambronne, P.A. Minneapolis, Minnesota Attorneys for defendants and appellees, Melissa J. Berggren and Christina Mold.

JACK H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for defendant and appellee, Edward J. Bickel.

DEVANEY, JUSTICE

[¶1.] Clifford Olson did not have a relationship with his father Edward P. Bickel, and had never met any of his siblings while Edward was alive. After Edward passed away in 2014, his estate was distributed intestate to Melissa Berggren, Christina Mold (Tina), and Edward J. Bickel (Eddie). After learning of Edward's death, Clifford brought suit against Melissa, Tina, and Eddie, alleging improper distribution, fraud, unjust enrichment, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty. Melissa, Tina, and Eddie filed motions for summary judgment on all claims, asserting, among other things, that Clifford's claims were untimely and also failed as a matter of law because Clifford presented no evidence that they knew at the time of Edward's death that Clifford was a possible heir. The circuit court granted summary judgment dismissing Clifford's claims. Clifford appeals. We affirm in part, reverse in part, and remand.

Factual and Procedural Background

[¶2.] Edward P. Bickel died intestate on February 13, 2014, with an estate worth approximately $2 million. Edward had three children born from two different marriages-Eddie from his first marriage, and Melissa and Tina from his second marriage.^[1] Although Melissa, Tina, and Eddie were siblings, they were not close with each other or with Edward. Tina only lived with Edward in Minnesota during the time when her parents were married and while she was an infant. Melissa likewise lived with Edward in Minnesota during her infant years, but she also lived with him in Firesteel, South Dakota, for one year when she was twelve years old. Eddie lived with Edward in South Dakota while his parents were married. After his parents divorced when Eddie was approximately three years old, he lived with Edward during the summers, including during the year that Melissa stayed with Edward. Eddie also lived with Edward for approximately two years around the time he was in eighth and ninth grade. However, after an incident between Edward and Eddie, Edward pled guilty to felony child abuse and lost custody of Eddie. According to Melissa, after the children became adults, she and Eddie did not maintain a relationship with Edward due to his alcoholism, but Tina "has a soft heart" and maintained a relationship with Edward. Tina explained that although Melissa and Eddie "had their issues" with Edward, she "loved him[.]"

[¶3.] In addition to his children born in wedlock, Edward was suspected to have additional children born out of wedlock, two sons in particular. In early 2010, Tyler Ebel reached out via social media to Melissa, Tina, and Eddie after reading the obituary for Edward's father (their grandfather). The obituary listed Melissa, Tina, and Eddie as Edward's children. Tyler had been told by his mother when he was five years old that Edward was his father, and Tyler had met Edward when he was a child; however, he did not see him at any time after turning seven years old. Tyler did not have an interest in talking to or establishing a relationship with Edward; he only wished to connect with his siblings. For the next two years, Tyler communicated regularly with Melissa, Tina, and Eddie. He also met Eddie in person at a restaurant in Mobridge, South Dakota. However, after Edward's death in 2014, Melissa, Tina, and Eddie stopped all communications with Tyler.

[¶4.] Edward's obituary was published in the Aberdeen American News on February 18, 2014. Shortly thereafter, Melissa, Tina, and Eddie met with an attorney regarding the probate of the estate. The three of them agreed that Melissa would be appointed personal representative of the estate. On February 21, 2014, Melissa filed an application for informal appointment as personal representative. In addition to herself, Melissa identified Eddie and Tina as Edward's heirs. Eddie and Tina executed a renunciation of right to appointment as personal representative the same day and in that document represented that they and Melissa were Edward's only heirs. Melissa, Tina, and Eddie also executed a document waiving bond and, in such document, represented that they were "all of the heirs of" Edward. Melissa was appointed personal representative, and the notice of informal appointment of personal representative was mailed to Melissa, Eddie, and Tina.

[¶5.] The majority of Edward's estate consisted of land. The land was conveyed to Eddie, and he paid Melissa and Tina for their shares. In late 2016, Melissa, Tina, and Eddie filed a waiver of accounting and consent to distribution. In January 2017, the remaining asset in the estate-some residual cash-was distributed to Melissa, Eddie, and Tina.

[¶6.] In 2018, Clifford Olson googled Edward's name and found his 2014 obituary. He thereafter made contact with Eddie through Eddie's wife's Facebook page. Clifford sent Eddie a message explaining that he was Edward's son and indicating that he was interested in talking to Edward's family. Eddie and Clifford exchanged communications multiple times and eventually met at a restaurant in Mobridge. Their meeting lasted approximately five hours, and they discussed their lives and families. According to Clifford, Eddie never suggested Clifford was not Edward's son. After their in-person meeting, Eddie and Clifford continued to communicate.

[¶7.] Clifford also exchanged messages with Tina. In one early communication, Tina wrote to Clifford that "Dad talked about there being another boy of his a couple times, one in Aberdeen. And that sure seems like you so he probably said that to Eddie also." Clifford expressed interest in hearing stories about Edward, and Tina shared information about her father's likes, hobbies, and personality.

[¶8.] In August 2018, Clifford reached out via Facebook to Edward's sister, Gail Bickel. Gail told Clifford that she recognized his name. Gail had also been in communication with Tyler. Gail told Tyler about Clifford and sent both of them information related to the probate of Edward's estate.^[2]

[¶9.] In February 2019, Tyler and Clifford brought suit against Melissa (individually and as personal representative of Edward's estate), Tina, and Eddie for: (1) improper distribution, (2) fraud, (3) breach of fiduciary duty (Melissa), and (4) unjust enrichment. Thereafter, the parties learned through DNA testing that Edward was not Tyler's father, and Tyler's claims were dismissed. Clifford then filed an amended complaint alleging the same claims set forth in the initial complaint, but he added an additional claim against Tina and Eddie for aiding and abetting Melissa's breach of fiduciary duty.

[¶10.] Melissa and Tina, represented by the same counsel, and Eddie, represented by separate counsel, filed separate motions for summary judgment on all claims asserted by Clifford. All three siblings asserted that Clifford's claims related to the distribution of the estate were barred under SDCL 29A-3-1006 because Clifford failed to bring suit within three years of Edward's death or within one year of the distribution of the estate property. In response, Clifford noted that SDCL 29A-3-1006 does not apply when fraud is alleged; therefore, in his view, his claims related to the distribution of the estate were timely under SDCL 29A-1-106. Melissa, Tina, and Eddie argued that summary judgment was nevertheless appropriate because Clifford failed to identify any evidence to support his fraud allegation, namely that Melissa, Tina, and Eddie knew, at the time of Edward's death or during the probate, that Clifford was Edward's child. Melissa further argued that summary judgment was proper on the breach of fiduciary duty claim because she did not know Clifford existed and thus did not owe him a duty.

[¶11.] After hearing arguments by counsel and considering deposition testimony and supporting affidavits, the circuit court took the matter under advisement and thereafter issued an order granting Melissa, Tina, and Eddie summary judgment and dismissing all of Clifford's claims.^[3] Clifford appeals, arguing that the circuit court erred in granting summary judgment. He asserts that he timely commenced the fraud-based claims, as well as the claims for breach of fiduciary duty and aiding and abetting, under the applicable limitation periods. He further argues that genuine issues of material fact exist, precluding summary judgment on each of his claims against Melissa, Tina, and Eddie.

Standard of Review

[¶12.] On review of a decision granting summary judgment, "we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law." Hanna v. Landsman, 2020 S.D. 33, ¶ 21, 945 N.W.2d 534, 541 (quoting Millard v. City of...