#29367-aff in pt & rev in pt-PJD
2021 S.D. 58
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
CLIFFORD WILLIAM OLSON, Plaintiff and Appellant,
v.
MELISSA J. BERGGREN,
EDWARD J. BICKEL and
CHRISTINA MOLD, Defendants and Appellees.
…
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.
…
CONSIDERED ON BRIEFS
JANUARY 11, 2021
OPINION FILED 09/29/21
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.
#29367
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
1. Although the case filing lists as defendant “Christine M. Mold,” her name is
actually “Christina M. Mold” and Melissa Berggren is now known as “Melissa
J. Voronyak.”
-1-
#29367
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.
-2-
#29367
[¶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
-3-
#29367
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
2. According to Clifford, Gail encouraged him and Tyler to bring suit against
Melissa, Tina, and Eddie and likely did so to get back at Eddie and other
family members for a lawsuit Gail lost to Eddie related to the probate of
Edward and Gail’s father’s (Eddie’s grandfather’s) estate. See In re Estate of
Bickel, 2016 S.D. 28,
879 N.W.2d 741.
-4-
#29367
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,
3. The court did not issue a written memorandum or enter an oral decision
explaining its reason for granting summary judgment. However, the absence
of an explanation does not affect our ability to examine the issues on appeal
because we review a summary judgment ruling de novo. See Huston v.
(continued . . .)
-5-
#29367
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 Sioux Falls,
1999 S.D. 18, ¶ 8,
589 N.W.2d 217, 218).
Analysis and Decision
1. Whether Clifford’s claims were timely commenced.
a. Improper distribution, fraud, and unjust enrichment
[¶13.] We first analyze Clifford’s claims of improper distribution, fraud, and
unjust enrichment because they are all based upon the same alleged conduct—the
siblings’ perpetration of fraud in connection with Edward’s probate proceeding. 4
________________________
(. . . continued)
Martin, 2018 S.D. 73, ¶ 10,
919 N.W.2d 356, 361 (reviewing de novo whether
summary judgment was proper even though the circuit court did not indicate
the basis of its decision).
4. Clifford asserts that because his unjust enrichment claim parallels his fraud
claim, the unjust enrichment cause of action is subject to the same time
limitation as his fraud claim under SDCL 29A-1-106. See Healy v. Osborne,
2019 S.D. 56, ¶ 21,
934 N.W.2d 557, 563 (applying the same limitation period
to the related fraud and unjust enrichment claims).
-6-
#29367
Clifford concedes that to recover property improperly distributed or to recover its
value from any distributee, one is generally required under SDCL 29A-3-1006 to
bring the claim within three years of the decedent’s death or within one year after
distribution. That statute provides:
Unless previously adjudicated in a formal testacy proceeding or
in a proceeding settling the accounts of a personal
representative or otherwise barred, the claim of a claimant to
recover from a distributee who is liable to pay the claim, and the
right of an heir or devisee, or of a successor personal
representative acting in their behalf, to recover property
improperly distributed or its value from any distributee is
forever barred (i) if a claim by a creditor of the decedent, three
years after the decedent’s death, and (ii) any other claimant and
any heir or devisee, at the later of three years after the
decedent’s death or one year after the time of its distribution.
This section does not bar an action to recover property or value
received as a result of fraud.
Id. (emphasis added). However, relying on the emphasized language of the statute,
Clifford contends that SDCL 29A-3-1006 does not control because Melissa, Tina,
and Eddie perpetrated fraud in the probate proceeding. Rather, in his view, SDCL
29A-1-106 governs his fraud-based claims. SDCL 29A-1-106 provides in relevant
part:
If fraud has been perpetrated in connection with any proceeding
or in any statement filed under this code or if fraud is used to
avoid or circumvent the provisions or purposes of this code, any
person injured thereby may obtain appropriate relief against the
perpetrator of the fraud or restitution from any person (other
than a bona fide purchaser) benefitting from the fraud, whether
innocent or not. Any proceeding must be commenced within two
years after the discovery of the fraud, but no proceeding may be
brought against one not a perpetrator of the fraud later than five
years after the time of commission of the fraud.
(Emphasis added.)
-7-
#29367
[¶14.] We have not before examined whether the phrase “discovery of the
fraud” in SDCL 29A-1-106 includes both actual and constructive notice of the fraud.
Under SDCL 15-2-3, which governs fraud claims in general, a cause of action based
on fraud is “deemed to have accrued” when “the aggrieved party discovers, or has
actual or constructive notice of, the facts constituting the fraud.” (Emphasis added.)
We have referred to this as the “fraud discovery rule” and have explained that
“[s]tatutes of limitations begin to run when plaintiffs first become aware of facts
prompting a reasonably prudent person to seek information about the problem and
its cause.” Strassburg v. Citizens State Bank, 1998 S.D. 72, ¶ 13,
581 N.W.2d 510,
515.
[¶15.] In Robert L. Kroenlein Trust v. Kirchhefer, the Wyoming Supreme
Court specifically examined whether the phrase “discovery of the fraud” in a statute
on the wrongful taking of personal property means that the cause of action does not
accrue “until the actual discovery of the fraud.”
357 P.3d 1118, 1125 (Wyo. 2015).
The court considered the legislature’s purpose and objective in creating statutes of
limitation and concluded that the term “discovery” means the time the fraud was
actually discovered or could have been discovered.
Id. at 1126. The court noted
that it “has long been a discovery state, meaning a statute of limitations is triggered
when a party knows or should have known his claim has accrued.”
Id. at 1127;
accord Yoder v. Weston,
250 P. 522 (Okla. 1926) (determining that “[t]he phrase
‘until the discovery of the fraud’ as contained in said section of the statute does not
necessarily mean until the party complaining had actual notice of the fraud alleged
to have been committed, for it has been repeatedly held that constructive notice
-8-
#29367
thereof is sufficient to set the statute in motion, even though there may be no actual
notice”). We likewise conclude that “discovery of the fraud” means that a fraud
claim under SDCL 29A-1-106 accrues when a plaintiff has either actual or
constructive notice of the fraud.
[¶16.] Actual notice is defined in SDCL 17-1-2 as “express information of a
fact,” and under SDCL 17-1-3, “[c]onstructive notice is imputed by the law to a
person not having actual notice.” We have further explained that “one having
actual notice of circumstances sufficient to put a prudent person on inquiry about ‘a
particular fact, and who omits to make such inquiry with reasonable diligence, is
deemed to have constructive notice of the fact itself.’” Strassburg, 1998 S.D. 72, ¶
10,
581 N.W.2d at 514 (quoting SDCL 17-1-4).
[¶17.] Here, the record reveals Clifford was not aware that Edward had died
until August 2018, and he did not learn of the probate of the estate until
approximately November 2018 when Gail Bickel told him about the probate action.
We need not determine at what point Clifford had knowledge of sufficient facts to
put him on constructive notice of a possible fraud because there is no dispute
Clifford commenced his fraud action within two years of the date he learned of
Edward’s death. This date was the earliest point in time in which Clifford could
conceivably be charged with constructive notice that Edward’s estate had been
distributed in a fraudulent manner.
[¶18.] We reject Melissa and Tina’s argument that because “[a]t all relevant
times, Clifford was the only one who knew that he was” Edward’s son, he should
have been more diligent in obtaining knowledge about Edward and his death by, for
-9-
#29367
example, maintaining a relationship with Edward or reaching out to his siblings
earlier. Clifford did not have a duty to be more diligent in discovering the predicate
facts giving rise to the alleged fraud. As the comments to the Uniform Probate Code
explain, “the burden should not be on the heirs and devisees to check on the honesty
of the other interested persons or fiduciary.” Uniform Probate Code 1-106 cmt. (last
amended in 2010). Although our Legislature did not adopt the comments to the
Uniform Probate Code and they are not binding, we have previously explained that
the comments can be helpful in the interpretation of statutes. See, e.g., In re Estate
of Jetter, 1997 S.D. 125, ¶ 12 n.3,
570 N.W.2d 26, 29 n.3. Because Clifford brought
his claims based upon fraud within two years of August 2018 (when he learned of
Edward’s death), they were timely commenced under SDCL 29A-1-106. 5
b. Breach of fiduciary duty and aiding and abetting the same
[¶19.] Clifford contends that his claims against Melissa for breach of
fiduciary duty, and against Eddie and Tina for aiding and abetting the same, were
timely instituted under SDCL 29A-3-1005. That statute provides that a claim
against the personal representative must be “commenced within six months after
5. Of further note, while SDCL 29A-1-106 authorizes those injured from fraud
to obtain relief not only from the perpetrator of the fraud, but also from other
persons benefitting from the fraud, the statute requires actions for restitution
or other relief from persons who are not the perpetrators of the fraud to be
commenced no later than five years after the commission of the fraud.
Clifford alleges that the fraud occurred on February 21, 2014, when Melissa,
Tina, and Eddie filed documents in connection with the probate proceeding
affirming they were Edward’s only heirs. The record reveals that Melissa,
Eddie, and Tina were all served with the summons and complaint within five
years of this date. Therefore, if a fraud is ultimately established, Clifford’s
claim for restitution or other appropriate relief against any of the three
siblings, regardless of whether they are deemed perpetrators of the fraud, is
also timely under this additional provision in SDCL 29A-1-106.
-10-
#29367
the filing of the closing statement” in the underlying probate proceeding. Id.
According to Clifford, because Melissa did not file a closing statement in the
underlying probate proceeding (and has yet to file such a statement), the six-month
limitation period had not even commenced at the time he initiated his lawsuit.
[¶20.] Melissa asserts that she did file a verified statement of informal
closing of Edward’s estate on January 2, 2017, but she relies upon a document she
submitted to the circuit court in Clifford’s lawsuit. From our review of the probate
record, this document, which is consistent with what would typically be filed as a
closing statement, was not filed in the probate proceeding. Because the limitation
period in SDCL 29A-3-1005 had not expired (or even begun to run) when Clifford
commenced his lawsuit, he timely commenced his breach of fiduciary duty claim
against Melissa. As to the aiding and abetting claims, neither Tina nor Eddie have
argued that these claims are subject to a different limitation period. Therefore, we
also apply SDCL 29A-3-1005 to the aiding and abetting claims and conclude they
were timely commenced.
2. Whether genuine issues of material fact preclude summary
judgment.
a. Improper distribution, fraud, and unjust enrichment
[¶21.] Clifford contends that summary judgment was improperly granted on
these claims because, in his view, there are material issues of fact in dispute on the
question whether Melissa, Tina, and Eddie perpetrated fraud in connection with the
-11-
#29367
probate of Edward’s estate. 6 In particular, he asserts that the evidence and
reasonable inferences in the record support that Melissa, Tina, and Eddie were each
aware that Edward had other potential heirs, including Tyler; they intentionally
withheld this information from the probate court; they falsely represented to the
court that they were Edward’s only heirs; and their fraudulent conduct prevented
Clifford from receiving his share of Edward’s estate.
[¶22.] This Court has not before examined what is meant by “fraud” in a
claim for relief under SDCL 29A-1-106. According to Clifford, his claims implicate
both common law and extrinsic fraud. We agree. The statute is broadly written to
cover fraud “perpetrated in connection with any proceeding or in any statement filed
under this code” and fraud “used to avoid or circumvent the provisions or purposes
of this code[.]” SDCL 29A-1-106 (emphasis added). Therefore, each type of fraud
alleged here could apply to Clifford’s claim under SDCL 29A-1-106.
i. Extrinsic fraud
[¶23.] We explained extrinsic fraud in Gifford v. Bowling, as “fraud in the
means whereby the judgment was procured, and not fraud in the cause of action or
matter put in issue and presented for adjudication.” 86 S.D. 615, 625–26,
200
N.W.2d 379, 384 (1972) (citation omitted). As one court noted, “[t]he seminal
6. Although filed as separate causes of action in his amended complaint,
Clifford identifies in his reply brief to this Court that his improper
distribution, fraud, and unjust enrichment claims are based on Melissa,
Eddie, and Tina having acted fraudulently in having Edward’s estate divided
only between them. Therefore, we examine them together. It appears these
separate claims were alleged to afford Clifford particular remedies if fraud is
proven, but this appeal does not involve the issue of what remedies might be
afforded if Clifford prevails.
-12-
#29367
definition of extrinsic fraud is found in” the United States Supreme Court’s opinion
in United States v. Throckmorton, 98 U.S. 61,
25 L. Ed. 93 (1878). Estate of
Sanders,
710 P.2d 232, 236 (Cal. 1985). In Throckmorton, the Court offered the
following scenarios that would constitute extrinsic fraud:
Where the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practised [sic] on
him by his opponent, as by keeping him away from court, a false
promise of a compromise; or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the
plaintiff; or where an attorney fraudulently or without authority
assumes to represent a party and connives at his defeat; or
where the attorney regularly employed corruptly sells out his
client’s interest to the other side,—these, and similar cases
which show that there has never been a real contest in the trial
or hearing of the case, are reasons for which a new suit may be
sustained to set aside and annul the former judgment or decree,
and open the case for a new and fair hearing.
98 U.S. at 65–66. We have similarly defined extrinsic fraud to include instances
such as “[k]eeping the unsuccessful party away from the court by a false promise, or
purposely keeping him in ignorance of the suit . . . .” 7 Reeves v. Reeves, 24 S.D. 435,
123 N.W. 869, 871 (1909).
ii. Common law fraud
[¶24.] To establish common law fraud, one must prove:
[T]hat a representation was made as a statement of fact, which
was untrue and known to be untrue by the party making it, or
else recklessly made; that it was made with intent to deceive
and for the purpose of inducing the other party to act upon it;
and that he did in fact rely on it and was induced thereby to act
to his injury or damage.
7. Our statutory law also recognizes extrinsic fraud when identifying instances
in which a court may vacate a judgment or order. See SDCL 15-6-60(b)(3).
However, this case does not involve a request to vacate a judgment or order of
the court.
-13-
#29367
N. Am. Truck & Trailer, Inc. v. M.C.I. Comm’n Servs., Inc., 2008 S.D. 45, ¶ 8,
751
N.W.2d 710, 713 (citation omitted). Although common law fraud is typically based
on a representation made to the person to be deceived, in the probate context, the
false representation is made to the court such that the injured party is prevented
from participating in the probate proceeding. Thus, this type of common law fraud
is similar to, if not the same as, extrinsic fraud, and the “other party” in this context
is the court. Other courts have concluded the same. See, e.g., Eoff v. Forrest,
789
P.2d 1262, 1267 n.2 (N.M. 1990) (“the ‘other party’ whose reliance is essential for a
valid cause of action” is “the court to which the representation is made”); Harkins v.
Fielder,
310 P.2d 423, 429 (Cal. Dist. Ct. App. 1957) (fraud claim not “limited so
strictly as to require as a basis evidence of representations made directly to the one
defrauded” (citation omitted)).
[¶25.] Clifford asserts that Eddie, Tina, and Melissa each acted fraudulently,
and because the evidence differs somewhat with regard to each sibling, we address
the claims against them separately.
Eddie
[¶26.] Eddie does not dispute that he knew Clifford’s first and last names and
knew that Clifford was from Aberdeen. Eddie nevertheless asserts that his failure
to disclose Clifford as a possible heir could not constitute fraud because he was not
the personal representative of the estate with a duty to disclose. Eddie directs this
Court to Stevens v. Torregano, 192 Cal. App. 2d 105, 123 (Cal. Ct. App. 1961), in
which the California district court determined that mere silence of an heir does not
“constitute either extrinsic mistake or extrinsic fraud.” The court observed that
-14-
#29367
unlike the duties owed by an executor or administrator of an estate, “[a]n heir,
devisee or legatee has been held to be under no duty to notify another heir, devisee
or legatee of the death of the decedent, or of the probate proceedings.” Id.
(emphasis added).
[¶27.] Even if we were to apply this rule, this case is factually distinguishable
from Stevens. The evidence in this case is not confined to mere silence on the part
of Eddie, and this case does not concern whether Eddie had a duty to notify Clifford
of the probate proceeding. Rather, the question in this case is whether Eddie
affirmatively misrepresented to the probate court that he, Melissa, and Tina were
Edward’s only heirs with the intention of keeping Clifford from participating in the
probate proceeding. On that question, there is no dispute that Eddie signed and
filed a bond waiver and renunciation of appointment as personal representative
stating that he, Melissa, and Tina were Edward’s only heirs, despite his knowledge
of both Tyler and Clifford.
[¶28.] Eddie nevertheless claims that his signing and filing of these
documents cannot amount to fraud upon the court because when he signed them he
believed his representations—that he, Tina, and Melissa were the only heirs of
Edward—to be true. He notes that although he had learned about Clifford through
his father and had met Tyler before Edward’s death, he did not believe that Clifford
or Tyler were Edward’s sons because Edward had told him that neither Tyler nor
Clifford were his children. According to Eddie, Edward told him that he did not
believe Tyler looked like him and that he (Edward) had obtained a blood test
confirming that Clifford was not his son. Clifford counters that if Eddie had really
-15-
#29367
believed Clifford was not Edward’s son, he failed to disclose as much to Clifford
when Clifford began establishing a relationship with Eddie in 2018, and his actions
toward Clifford suggested otherwise.
[¶29.] It is well settled that on summary judgment, we are not free “to weigh
the evidence and determine the matters’ truth.” Hanna, 2020 S.D. 33, ¶ 37,
945
N.W.2d at 545 (citation omitted). Therefore, what Eddie believed to be true is not
for this Court to decide. Rather, we must view the evidence and all reasonable
inferences drawn therefrom in a light most favorable to the nonmoving party, see id.
¶ 21,
945 N.W.2d at 541, to determine whether Clifford identified a material issue
of fact in dispute on the question of fraud, see Liebig v. Kirchoff,
2014 S.D. 53, ¶ 13,
851 N.W.2d 743, 747 (noting the summary judgment burden on a fraud claim).
[¶30.] Our review of the record reveals there are material issues of fact in
dispute on the question whether Eddie perpetrated fraud in connection with his
statements filed in the probate proceeding and whether, as a result, Clifford was
kept ignorant of the suit and away from the probate court. Eddie knew that a
“Clifford Olson in Aberdeen” could be Edward’s son. Moreover, he also knew about
Tyler before Edward’s death and interacted with Clifford and Tyler as if they were
in fact Edward’s sons. The record further shows that Eddie had shared his
knowledge of Clifford with Tyler. Yet in the probate proceeding, Eddie made a
representation of fact that he, Melissa, and Tina were Edward’s only heirs.
[¶31.] Although not directly on point, similar circumstances were examined
in Harkins,
310 P.2d at 428. In Harkins, an heir, Oscar, failed to inform the
attorneys hired to handle the administration of the estate of his knowledge that
-16-
#29367
other heirs (half brothers and sisters) existed when they interviewed him. Id. Just
as Eddie did in this case, Oscar signed a statement prepared by the attorneys in
conjunction with an application for appointment of an administrator and filed with
the court that falsely identified Oscar as the sole heir. The California court noted
that “[w]hile there are many varieties, facets and shadings of extrinsic fraud, a
familiar example consists of deceptive conduct on the part of the distributee of an
estate which has kept other interested parties away from court by some fraudulent
artifice or wilfull suppression of material facts.”
Id. The court further noted that
even though Oscar was not acting in a fiduciary capacity, “one who speaks is not
only obligated to tell the truth but he is equally bound not to suppress or conceal
any facts within his knowledge which materially qualify those stated.”
Id. at 429.
[¶32.] Ultimately, the court concluded that Oscar’s conduct constituted a
fraud upon the court and had the effect of depriving the plaintiffs of notice of the
hearing. Id.; see also In re Bailey’s Estate,
238 N.W. 845, 848–49 (Wis. 1931)
(involving similar facts and broadly noting that the suppression of material facts
“by those who claimed the estate and who knew the facts, and that the general
order of distribution was entered upon a mistaken notion of the fact” can constitute
fraud); In re Cisneros,
430 P.2d 86, 89 (Colo. 1967) (determining that a court erred
in summarily dismissing a fraud complaint involving an heir who represented to the
probate court in a petition to determine heirship that he and his brother were the
only heirs of the decedent even when the evidence established that he knew the
heirs included the decedent’s wife and other children).
-17-
#29367
[¶33.] So too here, Clifford has identified evidence supporting that Eddie
falsely represented that he, Melissa, and Tina were Edward’s only heirs, and that
he did so with the intent to keep other potential heirs ignorant of the probate
proceeding, thereby excluding them from the distribution of Edward’s estate. See N.
Am. Truck & Trailer, 2008 S.D. 45, ¶ 8,
751 N.W.2d at 713 (common law fraud);
Reeves,
24 S.D. 435,
123 N.W. at 871 (extrinsic fraud). Notably, “[f]raud, like any
other fact, may be inferred from circumstantial evidence.” Harkins,
310 P.2d at
429; see Funke v. Holland Furnace Co.,
78 S.D. 374, 378,
102 N.W.2d 668, 670
(1960) (although fraud is not presumed, “[l]ike other issues of fact it may be
established by inference arising from all the other facts and circumstances in
evidence”). Thus, accepting Clifford’s evidence and the reasonable inferences drawn
therefrom, the circuit court erred in granting summary judgment on Clifford’s
fraud-based claims against Eddie.
Tina
[¶34.] Tina had less knowledge about Clifford than Eddie. However, the
evidence shows that Tina maintained a relationship with Edward in her adulthood
during which she learned details about his life. Importantly, in a message between
Tina and Clifford in September 2018, Tina told Clifford that “Dad talked about
there being another boy a couple of times, one in Aberdeen. And that sure seems
like you so he probably said that to Eddie also.” Given Tina’s statement that she
knew of another boy in Aberdeen, coupled with her knowledge of Tyler and
interactions with him, there is evidence from which it can be inferred that she
falsely represented to the court that she, Eddie, and Melissa were Edward’s only
-18-
#29367
heirs. Also, given the evidence that Tina was aware that Tyler was a potential heir
when she filed this statement with the court, it can be inferred that Tina made a
false representation with the intent to keep other heirs, including the other “boy in
Aberdeen,” ignorant of the administration of Edward’s estate. Therefore, just as
with Eddie, the circuit court erred in granting summary judgment as to the fraud-
based claims against Tina.
Melissa
[¶35.] The evidence relevant to Melissa’s knowledge of Clifford is based on a
message between Melissa and Tyler in 2010 via Facebook wherein Melissa told
Tyler that she “had heard that [Edward] might have two more children – you (I
believe) and another boy somewhere.” Melissa also testified that one night while
she was living with Edward, he had told her that he would not be surprised “if there
were other little Bickel’s [sic] out there.” Melissa explained that Edward was
intoxicated at the time and claimed that she did not reply or inquire further.
Although the evidence of Melissa’s knowledge of Clifford is more equivocal and less
detailed than Tina’s and Eddie’s knowledge, Clifford nevertheless contends it is
reasonable to infer that Melissa knew about Clifford. In his view, such an inference
is reasonable because Melissa, Tina, and Eddie must have shared information with
each other about the existence of other heirs when the three siblings had a
discussion about Tyler after he made contact with them and when, after Edward
died, they met together at the probate attorney’s office. 8
8. Melissa testified that the probate attorney has since retired from the practice
of law. The record does not contain testimony or evidence outside of the
(continued . . .)
-19-
#29367
[¶36.] But Melissa testified that no discussion occurred in the attorney’s
office about other heirs, and she specifically denied that she had asked Eddie or
Tina about whether other possible children existed. She also denied that either
Eddie or Tina volunteered information to her about other heirs, and both Eddie and
Tina similarly denied having such a conversation before or during the probate
proceeding. Moreover, although there is no question they had discussions about
Tyler and did not disclose to the probate court that Tyler was a possible heir, we
would have to engage in speculation to surmise from this conduct that there might
have been a discussion amongst the siblings about other possible heirs and that
Eddie and Tina shared the information they had about Clifford with Melissa. 9
[¶37.] As this Court has said, “[s]peculation and innuendo, however, are not
enough to raise a genuine issue of material fact.” Schwaiger v. Avera Queen of
Peace Health Services, 2006 S.D. 44, ¶ 13,
714 N.W.2d 874, 880. Moreover, “cases of
fraud and deceit require a higher degree of specificity in order to avert summary
judgment.” Schwaiger v. Mitchell Radiology Assoc.,
2002 S.D. 97, ¶ 14,
652 N.W.2d
372, abrogated on other grounds as recognized by Poeppel v. Lester,
2013 S.D. 17,
827 N.W.2d 580. Without specific material facts from which it can reasonably be
inferred that Melissa had specific knowledge of Clifford (beyond a mere possibility),
________________________
(. . . continued)
siblings’ testimony regarding what conversations did or did not transpire in
the attorney’s office.
9. It is troubling that Melissa knew of Tyler’s claim that he was Edward’s son,
and yet she did not identify him and give him notice of the probate
proceeding. However, by itself, this fact is insufficient to support a
reasonable inference that she knew of Clifford.
-20-
#29367
Clifford cannot prevent summary judgment on his claim that Melissa perpetrated
fraud as described in SDCL 29A-1-106. 10
[¶38.] While Clifford has failed to identify a genuine issue of material fact to
support his claim that Melissa was a perpetrator of the fraud, the provisions of
SDCL 29A-1-106 are broader and permit a defrauded party to obtain “restitution
from any person (other than a bona fide purchaser) benefitting from the fraud,
whether innocent or not.” Thus, despite the absence of facts showing Melissa was a
perpetrator of the fraud, she remains a party for restitution purposes in the fraud-
based claims under SDCL 29A-1-106, as there is evidence that Melissa may have
benefitted from the alleged fraud by Tina and Eddie. Therefore, we affirm the
dismissal of the direct fraud claim against Melissa but reverse the court’s dismissal
of Melissa as a party to the action.
b. Breach of fiduciary duty and aiding and abetting breach of
fiduciary duty
i. Breach of fiduciary duty
10. On appeal, Clifford contends that his fraud claim against Melissa also
“functions as a fraudulent concealment claim[.]” Fraudulent concealment is a
form of deceit and is defined in SDCL 20-10-2(3) as “[t]he suppression of a
fact by one who is bound to disclose it, or who gives information of other facts
which are likely to mislead for want of communication of that fact[.]” Clifford
claims that because Melissa was the personal representative, she owed a
“duty to disclose” her knowledge of other persons interested in the estate.
However, as with the other fraud claims against the defendants collectively,
Clifford must identify evidence to support that Melissa had knowledge of
him. See Conway v. Conway, 487 N.W.2d 21, 24 (S.D. 1992) (the duty to
disclose concerns known facts). Nevertheless, although Clifford has not
identified evidence in the record supporting a fraud claim against Melissa,
the crux of his argument relating to her duties as the personal representative
of the estate are addressed in our analysis of why summary judgment was
improper on his breach of fiduciary claim.
-21-
#29367
[¶39.] To establish a valid claim for a breach of a fiduciary duty, Clifford
must first prove that Melissa was acting as his fiduciary. The existence of a
fiduciary duty and the scope of that duty are questions of law for the Court. Chem-
Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 37,
652 N.W.2d 756, 772. As described
in SDCL 29A-3-703(a),
A personal representative is a fiduciary who, except as otherwise
provided in the will, shall observe the standards of care in
dealing with the estate assets that would be observed by a
prudent person dealing with the property of another. A personal
representative is under a duty to settle and distribute the estate
of the decedent in accordance with the terms of any probated
and effective will and this code, and as expeditiously and
efficiently as is consistent with the best interests of the estate.
Relevant here, Melissa had a duty to “give information of the appointment to the
heirs and devisees . . . whose address is reasonably available to the personal
representative.” SDCL 29A-3-705(a), (b). This Court has also explained that “[a]
personal representative is obligated to use the same care and skill in managing an
estate that a reasonably prudent man would utilize in the management of his own
affairs.” Ward v. Lange, 1996 S.D. 113, ¶ 15,
553 N.W.2d 246, 251 (citation
omitted); see In re Estate of Alexander,
758 A.2d 182, 187 (Pa. 2000) (providing that
the duty to act with reasonable diligence means the personal representative “would
make an honest effort to determine those persons lawfully entitled to the estate”).
A “failure to give the information is a breach of duty to the persons concerned . . . .”
SDCL 29A-3-705(d).
[¶40.] According to Clifford, Melissa breached her duty to give him notice
when she failed to exercise reasonable diligence to determine whether other
suspected heirs existed. He argues that because Edward told Melissa there could be
-22-
#29367
other Bickel children, she could have done more as it relates to her duty to ascertain
the existence of heirs. In particular, he faults Melissa for not asking the probate
attorney whether Tyler should have received notice and for not asking Eddie or
Tina or other family members whether they knew of other heirs. He further claims
that had Melissa inquired with the Department of Social Services or any clerk of
court, she likely would have learned about Clifford because a child support order
was issued in 1981 requiring Edward to pay monthly child support and past arrears
for Clifford’s benefit.
[¶41.] In response, Melissa asserts that she fulfilled all of her statutory
duties as personal representative. She claims that she identified in her application
for appointment the heirs of which she was aware and mailed the notice to the heirs
and other persons whom she knew had or may have an interest in the estate. She
also highlights that notice of the probate was filed in the Corson County newspaper.
[¶42.] Notably, under SDCL 29A-3-301, Melissa was required to include in
her application for informal appointment the names and addresses of the heirs
known to her or “ascertainable with reasonable diligence[.]” (Emphasis added.) It is
undisputed she did not include Tyler’s name in this application, and there is
evidence in the record suggesting that at that time, she and her siblings believed
Tyler was their sibling. While she contends there is no evidence that she had any
identifying information from which she could have ascertained Clifford’s name and
address, the question at this juncture is whether there are material issues of fact in
dispute on the question whether she breached her fiduciary duty to ascertain, with
reasonable diligence, the existence and whereabouts of other possible heirs. There
-23-
#29367
is evidence in the record that Melissa had general knowledge of such, but she did
not advise the probate attorney that other heirs may exist and did not take any
steps to ascertain whether Tyler was in fact an heir or seek further information
regarding the other possible son she had mentioned to Tyler. Therefore, there are
material issues of fact in dispute as to whether the knowledge she did have should
have prompted further inquiry, and the circuit court erred in granting summary
judgment on this claim.
ii. Aiding and abetting breach of fiduciary duty
[¶43.] In Chem-Age, we held “that to establish a cause of action for aiding or
assisting in the breach of a fiduciary duty, a plaintiff must prove that (1) the
fiduciary breached an obligation to plaintiff; (2) defendant substantially assisted the
fiduciary in the achievement of the breach; (3) defendant knew that the fiduciary’s
conduct constituted a breach of duty; and (4) damages were sustained as a result of
the breach.” 2002 S.D. 122, ¶ 46, 652 N.W.2d at 775. Substantial assistance
requires evidence that the defendant “actively participate in the breach of a
fiduciary duty.” Id. ¶ 44, 652 N.W.2d at 774. Further, “[k]nowing participation in a
fiduciary’s breach of duty requires both knowledge of the fiduciary’s status as a
fiduciary and knowledge that the fiduciary’s conduct contravenes a fiduciary duty.”
Id. ¶ 45, 652 N.W.2d at 775.
[¶44.] Clifford argues that Tina and Eddie knew Melissa was required to act
as a fiduciary and knew that Melissa failed to disclose at least one potential heir to
the probate court. He further contends that Tina and Eddie substantially assisted
in Melissa’s breach by affirmatively representing to the probate court that they
-24-
#29367
were Edward’s only heirs. In response, Tina claims that the aiding and abetting
claim fails as a matter of law because there is no evidence that Melissa knew of
Clifford, and thus, she did not breach her fiduciary duties. For his part, Eddie
contends that his signing of the bond waiver and renunciation of appointment did
not have anything to do with identifying heirs and therefore could not constitute
substantial assistance. He further asserts that the record contains no evidence that
he actively and knowingly assisted Melissa in excluding Clifford from the
proceedings.
[¶45.] Because we have determined that there are material issues of fact in
dispute as to whether Melissa breached her fiduciary obligation to Clifford, there
are likewise material issues of disputed fact precluding summary judgment on the
claim that Tina and Eddie aided and abetted Melissa’s breach. It is undisputed
that all three siblings met with the probate attorney after Edward’s death. They
made the collective decision that Melissa act as the personal representative, and
each signed statements declaring that they were Edward’s only heirs. They did this
at a time when, as evidence in the record suggests, they believed Tyler was
Edward’s heir, yet they did not disclose him. It can reasonably be inferred from this
conduct, along with the evidence of Eddie’s and Tina’s collective knowledge of the
name and general location of another son besides Tyler, that Tina and Eddie
knowingly assisted Melissa in breaching her duty to distribute Edward’s estate to
all those entitled to a share of the estate property. Eddie’s and Tina’s silence as to
their knowledge about another heir, along with their affirmation in a statement
filed with the court that they were the only heirs, could constitute substantial
-25-
#29367
assistance supporting an aiding and abetting claim. Therefore, the circuit court
erred in granting summary judgment on this claim.
[¶46.] Affirmed in part, reversed in part, and remanded.
[¶47.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,
concur.
-26-
