Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Estate of Vizenor v. Brown

Supreme Court of North Dakota

July 17, 2014

The Estate of Carolyn Vizenor, by Donald Vizenor, Personal Representative, and, Estate of Leonard J. Vizenor, by Larry Refsland, Successor Personal Representative, Plaintiffs and Appellants and Cross-Appellees
Debra Lee Brown and Sandra Helland, Co-Personal Representatives, as substituted for Ragna Mesling (deceased), individually and as Attorney-in-Fact for Carolyn Vizenor, Clifford P. Stecher and Linda A. Stecher, Defendants, Clifford P. Stecher and Linda A. Stecher, Appellees and Cross-Appellants

Page 120

Appeal from the District Court of Hettinger County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

Zenas Baer, Hawley, Minn., for plaintiffs and appellants and cross-appellees.

Gary D. Ramsey, Dickinson, N.D., for appellees and cross-appellants.

Daniel J. Crothers, Mary Muehlen Maring, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice. The Honorable Lisa Fair McEvers was not a member of the Court when this case was heard and did not participate in this decision. Surrogate Judge Mary Muehlen Maring, sitting.


Crothers, Justice.

Page 121

[¶1] The Estates of Carolyn Vizenor and Leonard Vizenor (" Vizenors" ) appeal from a judgment dismissing their action against Clifford and Linda Stecher (" Stechers" ) and from orders denying their post-judgment motions. The Stechers have also cross-appealed from the judgment. We conclude Ragna Mesling, as her daughter Carolyn Vizenor's attorney-in-fact, was authorized under a power of attorney to transfer real estate to the Stechers and sufficient evidence supported the district court's findings the transfer was not the product of undue influence. Because the court did not err in dismissing the action and denying the post-judgment motions, we affirm.


[¶2] Carolyn Vizenor and Leonard Vizenor were married and lived most of their lives together in Minnesota. Ragna Mesling, a widow and Carolyn Vizenor's mother, owned real estate outside of New England, in Hettinger County. The Stechers were long-time renters of the Mesling farmland. The Vizenors sued Mesling and the Stechers, seeking to avoid a deed executed on November 28, 2006, in which Mesling, as Carolyn Vizenor's attorney-in-fact, transferred certain real estate to the Stechers. The Vizenors alleged the transaction directly resulted from improper conduct by the Stechers.

[¶3] In February 2005, Mesling executed deeds transferring to her daughter Carolyn Vizenor remainder interests in Mesling's farmland, mineral interests and a home. Mesling reserved a life estate. In November 2005, while living in Minnesota, Carolyn Vizenor executed a Minnesota statutory short-form power of attorney, appointing Mesling as her attorney-in-fact. The district court found that as of November 2006, Carolyn Vizenor was suffering through the last stages of terminal metastatic melanoma and had returned to New England. The court found that in late-November 2006, on being discharged from a medical center in Hettinger, both Mesling and Carolyn Vizenor expressed the wish that Carolyn Vizenor go home with her mother until she died. Additionally, at about this time, Carolyn Vizenor's husband, Leonard, was totally disabled and in a full-time care facility in Dickinson. The court found Leonard and Carolyn Vizenor had no children to care for them, and the burden fell upon Mesling.

[¶4] On November 28, 2006, Mesling executed the warranty deed as Carolyn Vizenor's attorney-in-fact and transferred to the Stechers without consideration Carolyn Vizenor's remainder interest in the two quarter-sections of land in Hettinger County at issue here. Mesling again reserved

Page 122

a life estate in that land. In separate deeds Mesling conveyed back to herself Carolyn Vizenor's remainder interest in the home and in the mineral interests located in Hettinger County. Carolyn Vizenor died the following day. She was 70 years old at the time of her death.

[¶5] The Vizenors subsequently commenced this action seeking rescission and return of the real estate Mesling had transferred to the Stechers as Carolyn Vizenor's attorney-in-fact. In May 2012, while this action was pending, Mesling died and the personal representatives of her estate were substituted as party-defendants. In September 2012, the Vizenors settled their case with the personal representatives of Mesling's estate and entered into a Pierringer release. In October 2012, the district court held a trial on the action. On the day of trial, Mesling's estate moved to dismiss the cross-claim Mesling filed against the Stechers. The court granted the motion. The court also denied the Stechers' motion to dismiss the action based on the Vizenors' release of Mesling's estate.

[¶6] After a trial, the district court concluded Mesling's conveyances as attorney-in-fact for Carolyn Vizenor were valid. The court concluded that Carolyn Vizenor had authorized Mesling to act on her behalf to the full extent granted in the power of attorney and that no legal duty, confidential or otherwise, existed between the Stechers and Carolyn Vizenor that could have been breached. The court also found no credible evidence established the Stechers exerted undue influence on Carolyn Vizenor, but that Carolyn Vizenor authorized the gift to the Stechers. The court entered judgment dismissing the Vizenors' claims. The court also denied the Vizenors' post-trial motions for amended findings under N.D.R.Civ.P. 52 and for a new trial under N.D.R.Civ.P. 59.


[¶7] Our standard of review for an appeal from a judgment entered after a bench trial is well-established:

" In an appeal from a bench trial, the trial court's findings of fact are reviewed under the clearly erroneous standard of N.D.R.Civ.P. 52(a) and its conclusions of law are fully reviewable. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. In a bench trial, the trial court is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations."

Brash v. Gulleson, 2013 ND 156, ¶ 7, 835 N.W.2d 798 (internal quotation marks and citations omitted); see also Burlington N. & Santa Fe Ry. v. Burlington Res. Oil & Gas Co., 1999 ND 39, ¶ 10, 590 N.W.2d 433. " A district court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the district court." MayPort Farmers Co-Op v. St. Hilaire Seed Co., Inc., 2012 ND 257, ¶ 7, 825 N.W.2d 883 (citation omitted).

[¶8] Further, this Court will not reverse the district court's decision on a motion to amend or make additional findings under N.D.R.Civ.P. 52(b) or its decision on a motion for new trial under N.D.R.Civ.P. 59 unless the court abused its discretion. See MayPort Farmers, 2012 ND 257, ¶ 8, 825 N.W.2d 883; Christian v. Christian, 2007 ND 196, ¶ 21, 742 N.W.2d 819. " A [district] court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision

Page 123

is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law." McGhee v. Mergenthal, 2007 ND 120, ¶ 9, 735 N.W.2d 867.


[¶9] The Vizenors argue the Minnesota statutory durable power of attorney does not grant authority to the attorney-in-fact to convey, by gift, real property to an unrelated third party without a current expression of intent to gift from the principal. The Vizenors argue that an expression of a future intent to disinherit in-laws by the owner of real property at a remote time and place did not authorize an agent to gift the property to an unrelated third party 18 months later; that an attorney-in-fact breaches the confidential relationship by transferring property of the principal to herself and third parties without consideration, authorizing the rescission of the conveyance; and that the district court applied the incorrect standard of proof to the validity of the gift transfer.


[¶10] Generally, a power of attorney is a written instrument that authorizes one person to act as another person's agent. Alerus Fin., N.A. v. Western State Bank, 2008 ND 104, ¶ 19, 750 N.W.2d 412; Matter of Estate of Mehus, 278 N.W.2d 625, 629 (N.D. 1979). " The agent holding the power of attorney is the attorney-in-fact." Alerus Fin., at ¶ 19. " Any person having capacity to contract may appoint an agent and any person may be an agent." N.D.C.C. § 3-01-04. We have described our rules for interpreting a power of attorney:

" Because a power of attorney creates an agency relationship, agency principles are applicable in determining the authority and duties of the attorney in fact. [Matter of Estate of Mehus, 278 N.W.2d 625, 629 (N.D. 1979)] An agency relationship involves both a contractual and a fiduciary relationship, and the interpretation of an agent's authority is governed by the rules for construing contracts, except to the extent the fiduciary relationship requires a different rule. Burlington N. and Santa Fe Ry. Co. v. Burlington Res. Oil and Gas Co., 1999 ND 39, ¶ 15, 590 N.W.2d 433."

Alerus Fin., at ¶ 19 (quoting Estate of Littlejohn, 2005 ND 113, ¶ 7, 698 N.W.2d 923). " We construe contractual agreements to give effect to the parties' intent, which, if possible, must be ascertained from the writing as a whole." Littlejohn, ¶ 7; see N.D.C.C. § § 9-07-03, 9-07-04. " A contract's clear and explicit language governs its interpretation, and its 'words are construed in their ordinary sense.'" Alerus Fin., at ¶ 19 (quoting Burlington N., at ¶ 22); see N.D.C.C. § 9-07-09. The contract's language " governs its interpretation [when] the language is clear and explicit and does not involve an absurdity." Bernabucci v. Huber, 2006 ND 71, ¶ 15, 712 N.W.2d 323 (citing N.D.C.C. § 9-07-02). A contract is interpreted as a whole to give effect to every provision, if reasonably practicable, and each clause is used to help ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.