ESTATE OF WAYNE KENNETH DUCHENEAUX, Deceased.
DOUGLAS D. DUCHENEAUX, Defendant and Appellant. ESTATE OF WAYNE KENNETH DUCHENEAUX, Plaintiff and Appellee,
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TRIPP
COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge
A. SCHREIBER Pierre, South Dakota TIMOTHY M. ENGEL of May,
Adam, Gerdes & Thompson, LLP Pierre, South Dakota
Attorneys for Estate of Wayne Kenneth Ducheneaux, plaintiff
MORENO of Moreno, Lee & Bachand P.C. Pierre, South Dakota
Attorneys for Dawn Daughters, interested person and appellee.
N. BRIDGMAN of Bridgman & Anderson Law Firm Wessington
Springs, South Dakota Attorneys for Douglas D. Ducheneaux,
defendant and appellant.
Justice, and WILBUR, Retired Justice.
Justice Kern delivers the opinion of the Court on Issues
One through Four. Retired Justice Wilbur
delivers the opinion of the Court on
KERN, Justice, writing for the Court on Issues One through
Douglas Ducheneaux appeals from a court order compelling him
to return real property transferred to him by his late
father. He also appeals from a jury verdict requiring him to
pay general and punitive damages to his father's estate.
Ducheneaux alleges that the circuit court made numerous
errors throughout the proceedings, including the denial of
his motion for a new trial. He also contends the court erred
by requiring him to pay the Estate's attorney fees. We
reverse and remand on the issue of attorney fees, but we
affirm in all other respects.
and Procedural History
A detailed summary of the facts underlying this case are
outlined in Estate of Ducheneaux v. Ducheneaux, 2015
S.D. 11, 861 N.W.2d 519. Wayne Ducheneaux died testate on
November 18, 2011, leaving six children. On January 6, 2009,
Wayne executed a will dividing his estate equally among his
five daughters while "intentionally making no
provisions . . . for [his] son Douglas Ducheneaux, "
with whom he was estranged. Prior to his death, Wayne owned
property in Tripp County, South Dakota, including: five
quarters of land, two of which were on tribal trust lands;
two vehicles; a certificate of deposit; and a checking
In May 2011, Wayne was placed in a nursing home for a few
weeks after his health deteriorated. In June, Ducheneaux
visited Wayne in the nursing home and resumed their
relationship. Wayne left the nursing home to reside
intermittently with Ducheneaux and his daughter, Dawn
Daughters. On July 1, 2011, Ducheneaux petitioned the court
for appointment as Wayne's guardian.
Between July and August 2011, Wayne deeded three quarters of
land to Ducheneaux. In July, while the petition for
guardianship of Wayne was pending, Wayne transferred the
first parcel, a lifetime Tribal Land Enterprise assignment
from the Rosebud Sioux Tribe to Ducheneaux. The second and
third transfers occurred shortly thereafter. These included
the "home quarter, " which was fee land located in
Tripp County, and a quarter of land held in trust by the
United States. Additionally, Wayne allegedly gifted a new
pickup truck valued at $31, 890 to Ducheneaux and a 2006
Chrysler 300 to Daughters.
That summer, Wayne also penned four documents dated July 16,
August 2, August 11, and August 23, 2011, that Ducheneaux
alleges were holographic wills. Each writing significantly
revised how Wayne's assets should be distributed. The
last writing executed on August 23 instructed that all five
quarters of land owned by Wayne-including those parcels
already transferred to Ducheneaux-be sold and the proceeds
divided equally among his six children. Further, the document
indicated that Wayne wanted Ducheneaux to be his personal
On August 24, 2011, a hearing was held on Ducheneaux's
petition to become guardian, and on September 6, 2011,
Ducheneaux was made guardian while Gary Fenenga was appointed
Wayne's conservator. In September 2011, Fenenga sued
Ducheneaux and Daughters, seeking in part to have the truck
given to Ducheneaux returned to Wayne's estate. On
November 18, 2011, Wayne passed away, and the suit was
dismissed. On December 29, 2011, Daughters filed a petition
for formal probate of the estate. Daughters attached to her
petition copies of the four holographic writings allegedly
written by Ducheneaux and four affidavits prepared by
Daughters describing her knowledge of each of the writings.
On February 21, 2012, the circuit court appointed attorney
Jack Gunvordahl as the Estate's personal representative.
On July 10, 2012, the U.S. Department of the Interior held a
probate hearing to determine how Wayne's tribal trust and
restricted property assets should be distributed. Because the
holographic writings did not comport with the attestation
requirements of 25 C.F.R. § 15.4, the Department held
that the 2009 will controlled. Regardless, the Department
held the five quarters of land described in the will were
"not a part of the inventory of property submitted by
the Agency, subject to this jurisdiction." Ducheneaux
submitted a petition for rehearing, requesting that the
Department determine "the testamentary intent of
decedent and carry out his wishes." The Department
denied the petition.
In August 2012, the Estate sued Ducheneaux and Daughters.
With respect to Ducheneaux, the Estate alleged that Wayne was
not competent to transfer the pickup and three quarters of
land to Ducheneaux, that Ducheneaux exercised undue influence
over Wayne, and that Ducheneaux converted Wayne's
property and violated his confidential relationship with
Wayne in doing so. The Estate also sought punitive damages,
alleging Ducheneaux engaged in fraudulent behavior such as
attempting to personally collect the insurance proceeds for
flood damage to Wayne's home and by selling the truck
Wayne allegedly gave him without giving notice to the Estate.
Daughters returned the vehicle allegedly transferred to her
by Wayne, and the Estate dismissed its claim against her. On
November 20, 2012, Daughters moved to intervene as an
additional party plaintiff, and on December 3, 2012, the
circuit court granted the motion.
Ducheneaux and the Estate filed cross-motions for partial
summary judgment. The Estate moved for summary judgment on
whether Ducheneaux ever possessed a valid interest in the
parcels Wayne transferred to him, while Ducheneaux argued
that the court lacked subject-matter jurisdiction over land
held in trust by the United States. In response, the Estate
agreed that the circuit court lacked subject-matter
jurisdiction over the trust property. However, it attempted
to circumvent this requirement by requesting that the court
compel Ducheneaux- over whom the court possessed personal
jurisdiction-to make application to the Bureau of Indian
Affairs to return the two quarters of trust land to the
Estate. The court refused to do so, holding that it lacked
subject-matter jurisdiction over parcels held in trust by the
United States and dismissing that portion of the Estate's
complaint. We affirmed the circuit court's dismissal in
Ducheneaux, 2015 S.D. 11, ¶ 20, 861 N.W.2d at
527, holding that although exercising personal jurisdiction
over Ducheneaux in this manner would not "directly
determine ownership of the land, " a trial on the merits
would nevertheless violate 28 U.S.C. § 1360(b). We
explained that the circuit court would be adjudicating the
right to possess trust land, thereby interfering with the
interests of the United States. Id.
On September 8, 2015, the Estate moved to consolidate the
civil action with the probate case. At a hearing held on
October 28, 2015, the circuit court denied the motion,
reasoning that a ruling on the probate issues in
Ducheneaux's favor would resolve any claim the Estate had
against Ducheneaux. On March 18, 2016, the Estate again moved
to consolidate the cases in a motion largely identical to the
first. During the motions hearing on March 24, 2016,
Ducheneaux argued that the holographic wills entitled him to
be personal representative of the Estate. Ducheneaux contends
on appeal that consolidating the civil action-which had been
brought by the court-appointed personal representative of the
Estate-with the probate case effectively defeated his claim
to be personal representative in front of a jury. The
plaintiffs had agreed to proceed with a bench trial to avoid
any concern that a jury might be confused by the claims and
for purposes of judicial economy. Although the court agreed
to hold a bench trial, Ducheneaux demanded a jury trial. The
court granted the Estate's motion to consolidate and
scheduled a jury trial.
Between September 21, 2016, and October 3, 2016, the circuit
court held a ten-day jury trial. Numerous witnesses
testified, including Daughters. Daughters had previously
averred in her four affidavits filed on December 29, 2011,
that she had either witnessed Wayne execute the alleged
holographic wills or that she believed they were in his
handwriting. Daughters had also averred that she believed him
to be competent at the time of their drafting. However,
Daughters had later filed an affidavit dated March 14, 2016,
explaining errors made in her previous affidavits. At trial,
Daughters testified that her affidavits were mistaken and
that she did not witness Wayne sign the writing dated July
16. Daughters also testified that her understanding of
competency did not reflect the legal meaning of the word.
Further, Daughters claimed that she was not familiar with her
father's handwriting aside from his signature. As to the
August 23 writing, Daughters testified that she was
performing yard work outside while Wayne allegedly penned the
At the conclusion of the evidence, the circuit court
instructed the jury and provided it with a special-verdict
form containing twenty interrogatories. The jury returned a
verdict awarding the Estate $200, 000 in general damages and
$80, 000 in punitive damages. Under the category of general
damages, the jury awarded $96, 000 plus interest for the home
quarter and $30, 000 for the pickup truck. The jury
presumably awarded the remaining $74, 000 for rent collected
by Ducheneaux while he possessed the land. The jury also
invalidated the deed transferring the home quarter to
Ducheneaux, finding that not only was Wayne incompetent to
execute the deed but that the deed was "the product of
fraud, duress, mistake of fact and undue influence." The
parties filed post-verdict motions. Because the deed had been
invalidated, the court entered an order "exercis[ing]
its equitable power to return the property to [the Estate]
and, through remittitur, reduc[ing] the damage award by the
$96, 000, " the amount the jury awarded for the value of
the home quarter.
On December 14, 2016, Ducheneaux filed a notice of appeal
from the jury's verdict and the court's remittitur.
On December 19, Ducheneaux filed a Chapter 13 bankruptcy
petition, triggering the automatic stay provisions of 11
U.S.C. § 362. That same day, the court held a post-trial
hearing and determined that title of the home quarter should
nevertheless be conveyed to the Estate. On December 28, the
court entered an order divesting Ducheneaux of title to the
home quarter and transferring it to the Estate.
Ducheneaux appeals, raising ten issues that we consolidate as
1. Whether the circuit court possessed subject-matter
jurisdiction and authority to adjudicate disposition of
2. Whether the circuit court erred by not granting Ducheneaux
3. Whether the circuit court erred by consolidating the
probate and civil cases.
4. Whether Ducheneaux should be granted a new trial.
5. Whether the circuit court erred in awarding attorney fees.
Whether the circuit court possessed subject-matter
jurisdiction and authority to adjudicate disposition of
Ducheneaux argues that only Indian tribes and the federal
government possess jurisdiction over Indian probate matters.
Because the Department of the Interior already probated
Wayne's trust property, Ducheneaux argues that principles
of federal preemption, res judicata, and collateral estoppel
bar further litigation in state court. In its decision, the
Department of the Interior disapproved the holographic will
dated August 23, 2011, finding that it did not meet the
attestation requirements outlined in 25 C.F.R. § 15.4.
The Estate did not appeal from the Department's decision,
and Ducheneaux contends that the Estate is precluded from
litigating the validity of the wills in state-court
Challenges to a court's subject-matter jurisdiction are
reviewed de novo. Ducheneaux, 2015 S.D. 11, ¶
7, 861 N.W.2d at 521. Therefore, we give no deference to the
circuit court's conclusions of law. Id.
"Because 'subject matter jurisdiction is conferred
solely by constitutional or statutory provisions, it can
neither be conferred on a court, nor denied to a court by the
acts of the parties or the procedures they employ.'"
Id. (quoting Cable v. Union Cty. Bd. of Cty.
Comm'rs, 2009 S.D. 59, ¶ 19, 769 N.W.2d 817,
In the parties' first appeal to this Court in
Ducheneaux, we observed that Congress established a
barrier to state jurisdiction over Indian property held in
trust by the United States. 2015 S.D. 11, ¶ 12, 861
N.W.2d at 523-24. We held that even if the circuit court
possessed personal jurisdiction over Ducheneaux, it could not
compel him to make application to the Bureau of Indian
Affairs to return the two quarters of trust land to the
Estate. Id. ¶ 20, 861 N.W.2d at 527. Thus,
while a trial on the merits "would not be an attempt to
adjudicate the ownership of Indian trust land, it
would violate [28 U.S.C. § 1360(b)] by virtue of
necessarily adjudicating the right to possession of
land held in trust by the United States." Id.
However, the United States lacks an interest in property not
held in federal trust. See In re Estate of Flaws,
2016 S.D. 60, ¶¶ 25-26, 885 N.W.2d 336, 344-45. The
present dispute concerns a quarter section of fee land that
was owned by Wayne. Ducheneaux cites no authority suggesting
that states are federally preempted from exercising
jurisdiction over such cases. Nevertheless, Ducheneaux argues
that if the federal government possesses jurisdiction over
only trust land while the state court holds jurisdiction over
fee land, multiple probates would be required. Such a result,
Ducheneaux contends, could lead to potentially inconsistent
results, a waste of judicial resources, and a violation of
sovereignty and the doctrine of res judicata.
Although the bifurcation of property in this manner may lead
to some inefficiency, as we explained in Flaws,
"there is no evidence that Congress intended to control
probates of Indian estates involving non-trust land."
Id. ¶ 27, 885 N.W.2d at 345 (citing 25 U.S.C.
§ 2206 (2012)); see also 25 C.F.R. §
15.10(b)(1) ("[The Secretary of Interior] will not
probate . . . real or personal property other than trust or
restricted land or trust personalty owned by the decedent at
the time of death . . . ."). Res judicata also does not
apply. "Res judicata consists of two preclusion
concepts: issue preclusion and claim preclusion."
Estate of Johnson ex rel. Johnson v. Weber, 2017
S.D. 36, ¶ 41, 898 N.W.2d 718, 733. With respect to
issue preclusion, we cannot say the issue decided in the
prior adjudication was identical to the one presented in the
current action. See Hamilton v. Sommers, 2014 S.D.
76, ¶ 34, 855 N.W.2d 855, 866 (outlining the elements of
collateral estoppel). The Department determined which will
controlled under federal law to probate trust property,
ultimately deciding that the alleged holographic wills failed
to meet the requirements of 25 C.F.R. § 15.4. The
circuit-court litigation concerned how nontrust property
should be probated under South Dakota law. Further, claim
preclusion does not apply because the Department could not
and would not handle nontrust property; thus, the case could
not "have been advanced in an earlier suit."
Johnson, 2017 S.D. 36, ¶ 41, 898 N.W.2d at 733.
Therefore, neither federal preemption nor principles of res
Whether the circuit court erred by not granting Ducheneaux
Ducheneaux claims that the circuit court erred in denying his
motion for summary judgment on the issue of the validity of
the holographic wills. "In reviewing a grant or a denial
of summary judgment under SDCL 15-6-56(c), 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." Nicolay
v. Stukel, 2017 S.D. 45, ¶ 16, 900 N.W.2d 71, 77.
We review evidence "most favorably to the nonmoving
party and resolve reasonable doubts against the moving
party." Id. ¶ 16, 900 N.W.2d at 78.
"Summary judgment is an extreme remedy and should be
awarded only when the truth is clear and reasonable doubts
touching the existence of a genuine issue as to material fact
should be resolved against the movant." Citibank
S.D., N.A. v. Schmidt, 2008 S.D. 1, ¶ 14, 744
N.W.2d 829, 834. However, a party adverse ...