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Nelson v. Nelson

Supreme Court of North Dakota

September 13, 2018

Steven J. Nelson, and Gail Nelson-Hom, Plaintiffs and Appellees
William L. Nelson, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

          Michael A. Mulloy, Bismarck, ND, for plaintiffs and appellees.

          Theresa L. Kellington, Bismarck, ND, for defendant and appellant.


          Crothers, Justice.

         [¶ 1] William Nelson appeals from a judgment ordering the sale of real property, removing him from the property, ordering him to pay past rent, and awarding Steven Nelson and Gail Nelson-Hom attorney fees for defending against his frivolous pleadings. The district court erred in granting partial summary judgment on William Nelson's claims of undue influence and lack of mental capacity involving the execution of the quitclaim deed to the property and we reverse and remand for trial on those issues. We reverse the award of costs and attorney fees and remand for reconsideration. We reverse the judgment and remand for further proceedings.


         [¶ 2] The parties are the surviving children of Elsie Haykel, who in a 2011 quitclaim deed conveyed a remainder interest in a Bismarck condominium to her three children as tenants in common while reserving a life estate in the property. Shortly after Haykel's death in 2014 at age 92, William Nelson began living in the condominium. Haykel's will devised the residue of her estate to the children in equal shares, and Steven Nelson was appointed personal representative.

         [¶ 3] The parties were unable to agree about the timing and terms for sale of the condominium. As discussions continued, Steven Nelson and Nelson-Hom requested that William Nelson begin paying rent for living in the condominium, but he refused. In January 2016 Steven Nelson and Nelson-Hom brought this partition action against William Nelson seeking a sale of the condominium under N.D.C.C. § 32-16-12. William Nelson counterclaimed, alleging in part that the 2011 quitclaim deed was invalid because of Haykel's lack of capacity and because of undue influence.

         [¶ 4] The district court granted partial summary judgment concluding the 2011 quitclaim deed was valid, ordered William Nelson to vacate the premises by July 31, 2017, ordered the property be sold by a licensed real estate agent, and ruled Steven Nelson and Nelson-Hom could pursue their claim for rents based on their allegation that they were ousted from the property. Following a trial, the court found William Nelson ousted his siblings from the property and ordered him to pay "$13, 000 to each Gail and Steven from the proceeds from the sale" of the property as "reasonable rents from the date of the ouster." The court further ruled Steven Nelson and Nelson-Hom were "entitled to costs in the amount of $2, 415.94 and attorney's fees in the amount of $15, 020.33 for frivolous filings."



         [¶ 5] William Nelson argues the district court erred in dismissing his claim that the 2011 quitclaim deed was invalid based on Haykel's lack of capacity and undue influence. We question whether the validity of the deed and the grantor's capacity can be effectively challenged outside of a probate proceeding and when neither the grantor nor the personal representative are a party. The "law of the case" doctrine and the scope of the parties' appeal define the parameters of our review. Tom Beuchler Constr. v. Williston, 413 N.W.2d 336, 339 (N.D.1987). Here, no question was raised whether through this proceeding William Nelson could fully effectuate an attack on the deed or whether the grantor or personal representative is a necessary party. We therefore consider the case as presented. See Hopfauf v. Hieb, 2006 ND 72, ¶ 11, 712 N.W.2d 333 (arguments addressed as presented even though legal basis for claim of lack of informed consent claim was in doubt).

         [¶ 6] The district court dismissed this claim through a partial summary judgment. Our standard for reviewing summary judgments is well established:

"Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record."

Arnegard v. Arnegard Twp., 2018 ND 80, ¶ 18, 908 N.W.2d 737 (quoting Poppe v. Stockert, 2015 ND 252, ¶ 4, 870 N.W.2d 187).

         [¶ 7] "Before a court may set aside a transaction on the ground of mental incapacity, the party attacking the validity of the transaction has the burden to prove the grantor, at the time of the transaction, was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction." Vig v. Swenson, 2017 ND 285, ¶ 12, 904 N.W.2d 489; see also Estate of Wenzel-Mosset v. Nickels, 1998 ND 16, ¶ 13, 575 N.W.2d 425. We discussed undue influence in Erickson v. Olsen, 2014 ND 66, ¶ 26, 844 N.W.2d 585:

"In cases involving nontestamentary transactions, this Court has defined undue influence as 'improper influence [ ] exercised over the grantor... in such a way and to such an extent as to destroy his free agency or his voluntary action by substituting for his will the will of another.' Johnson v. Johnson, 85 N.W.2d 211, 221 (N.D. 1957). In nontestamentary cases, this Court has held '[a] finding of undue influence... requires that three factors be established: (1) A person who can be influenced; (2) The fact of improper influence exerted; and (3) Submission to the overmastering effect of such unlawful conduct.' Sulsky v. Horob, 357 N.W.2d 243, 248 (N.D. 1984) (citing Kronebusch v. Lettenmaier, 311 N.W.2d 32, 35 (N.D. 1981))."

         The determination of mental capacity and whether undue influence exists are ordinarily questions of fact which will not be overturned on appeal unless they are clearly erroneous. See Vig, at ΒΆ ...

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