Maggie OAKLAND, daughter of John T. Gassmann, Plaintiff and Appellant
Bonnie G. BOWMAN, Evan B. Del Val, Dayna K. Del Val, and State Bank and Trust of Fargo North Dakota, Personal Representative of The John T. Gassmann Estate and Trustee of The John T. Gassmann Revocable Living Trust under agreement dated August 11, 2004, The Second amendment to and Complete restatement of the John T. Gassmann Revocable Trust Agreement dated December 16, 2011 and any other Amendment of these instruments, Defendants and Appellees.
Margaret A. Oakland (appeared), self-represented, and Michael Arthur Ernst
Loesevitz (argued), Grand Forks, ND, for plaintiff and appellant.
Robert Glynn Manly (argued) and Vanessa L. Anderson (appeared), Fargo, ND, for defendants and appellees Bonnie G. Bowman, Dayna K. Del Val, and Evan B. Del Val.
Berly D. Nelson (argued) and Timothy George Richard (on brief), Fargo, ND, for defendant and appellee State Bank and Trust of Fargo North Dakota.
[¶ 1] Margaret A. Oakland appeals a district court order granting summary judgment in favor of Bonnie G. Bowman, Evan B. Del Val and Dayna K. Del Val. Oakland argues her claim was not time-barred and equitable tolling should apply. We affirm, concluding that the district court did not err in determining that Oakland's claim was commenced after the statute of limitations expired and that equitable tolling did not apply.
[¶ 2] Oakland is John T. Gassmann's biological child. Bowman was a friend of Gassmann, and the Del Vals are Bowman's children. Gassmann executed a revocable living trust prior to his death on February 9, 2012. Gassmann's revocable living trust devised Gassmann's farm property and other property over which he held a power of appointment to a trust for the benefit of Bowman and the Del Vals.
[¶ 3] Oakland received notice of the trust's existence from the trustee, Bell State Bank and Trust, on March 13, 2012. The letter provided notice to all beneficiaries under N.D.C.C. § 59-14-04(1) that " [a] person shall commence a judicial proceeding to contest the validity of a trust that was revocable immediately before the settlor's death within ... one hundred twenty days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding." The 120-day statute of limitation period expired on July 11, 2012. Oakland filed this action on October 18, 2012 and did not serve any parties until after October 18, 2012. Oakland failed to serve Bell State Bank and Trust, who appeared specially in the district court.
[¶ 4] Oakland filed an objection to the probate of Gassmann's will on April 10, 2012. Oakland later moved to amend her objection to the probate of Gassmann's will. She argued that her motion to amend should act to preserve her claim in the trust matter. The district court determined her motion to amend did not preserve her claim in the trust case.
[¶ 5] The district court did not apply equitable tolling because North Dakota has not adopted the doctrine and because the circumstances surrounding the failure to timely commence the proceedings did not rise to the level where equitable tolling would be an appropriate means to avoid the statute of limitations. The district court also was persuaded to not apply equitable tolling because of Oakland's ...