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Riskey v. Riskey

Supreme Court of North Dakota

September 20, 2018

Rodney G. Riskey, individually and as Co-trustee of the Annette Riskey Family Irrevocable Trust dated April 12, 2004, Plaintiff and Appellee
v.
Jeffrey T. Riskey, in his capacity as Co-trustee of the Annette Riskey Family Irrevocable Trust dated April 12, 2004, Defendant and Appellant Joseph Riskey, Robert E. Riskey, Randy G. Riskey, John G. Riskey, and Jeff T. Riskey, individually and as Co-trustee of the Annette Riskey Family Irrevocable Trust dated April 12, 2004, Plaintiffs and Appellants
v.
Rodney G. Riskey, individually and as Co-trustee of the Annette Riskey Family Irrevocable Trust dated April 12, 2004, Defendant and Appellee

          Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable Lonnie Olson, Judge.

          Lawrence D. DuBois, Cavalier, ND, for plaintiff and appellee.

          Theodore T. Sandberg (argued) and Laura D. Cobb (on brief), Grand Forks, ND, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Jeffrey Riskey, individually and as co-trustee of the Annette Riskey Family Irrevocable Trust dated April 12, 2004 ("Trust"), and other Riskey family members (collectively, "the Riskeys") appealed from judgments entered after the district court granted his brother and co-trustee Rodney Riskey's summary judgment motion. We conclude that the facts, when viewed in a light most favorable to the Riskeys, do not support a conclusion that the Trust's purchase option provision was the effect of Rodney Riskey's undue influence on their mother, Annette Riskey. We affirm.

         I

         [¶ 2] In granting Rodney Riskey's summary judgment motion, the district court provided the following undisputed facts:

Annette Riskey's husband, Gilbert Riskey, died in December 2003. Within months of the death, Rodney Riskey brought Annette Riskey to attorney David Peterson. A new trust was drafted which allowed Rodney Riskey to purchase land, bins and a house owned by Annette Riskey [after her death] for the sum of $65, 000. The trust was signed by Annette Riskey [as settlor] and Rodney Riskey [as co-trustee] on April 12th, 2004. Jeffrey Riskey was appointed [c]o-trustee but was only sent a signature page, which he signed shortly thereafter. Jeffrey Riskey did not know of the purchase option until 2015. All parties agree the land, bins and house are worth more than $65, 000, though no appraisal has been admitted into the record. Annette Riskey died in November 2015. Rodney Riskey executed a purchase agreement, which Jeffrey Riskey, [c]o-trustee, would not sign.

In 2004 Annette Riskey had also executed a warranty deed transferring the property to the co-trustees, Rodney Riskey and Jeffrey Riskey, and reserving a life estate.

         [¶ 3] In February 2016, Rodney Riskey filed this action seeking an order to compel Jeffrey Riskey, as co-trustee, to execute the purchase option required under the 2004 Trust's provision allowing Rodney Riskey to purchase farmland and homestead area for $65, 000. This provision states, in relevant part: "The Co-Trustees shall give an option unto my son, Rodney G. Riskey, to purchase the NE1/4-6-155-51, including any buildings thereon, and the SE1/4-6-155-51 for the sum of $65, 000, said option exercisable and payable in full within 6 months of [Annette Riskey's] death." Jeffrey Riskey answered the complaint in his capacity as co-trustee, responding that Rodney Riskey had improperly, illegally, and unduly influenced Annette Riskey during the formation of the Trust, which caused the creation of Trust provisions that were not Annette Riskey's personal desires and intentions.

         [¶ 4] In March 2016, brothers Jeffrey Riskey, Randy Riskey and John Riskey, and family members representing deceased brothers Joseph Riskey and Robert Riskey, commenced a separate action seeking to reform the Trust. The Riskeys claimed the trust provision containing the purchase option was invalid, also alleging their brother Rodney Riskey had exerted undue influence over their mother, Annette Riskey, in creating the Trust with the purchase option. In June 2016, the parties stipulated to joining the two cases for discovery and trial.

         [¶ 5] In August 2017, Rodney Riskey moved for summary judgment in both of the cases, and the Riskeys opposed the motion. After a September 2017 hearing, the district court granted summary judgment in favor of Rodney Riskey, holding the Riskeys had failed to present sufficient evidence to overcome summary judgment on their undue influence claim.

         II

         [¶ 6] Our standard for reviewing a district court's grant of ...


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