#28068-aff in pt & rev in pt-JMK & LSW
2018 S.D. 26
                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA
                                    ****
ESTATE OF WAYNE KENNETH
DUCHENEAUX, Deceased.
**************************************
ESTATE OF WAYNE KENNETH
DUCHENEAUX,                                Plaintiff and Appellee,
      vs.
DOUGLAS D. DUCHENEAUX,                     Defendant and Appellant.
                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     TRIPP COUNTY, SOUTH DAKOTA

                                    ****

                     THE HONORABLE JOHN L. BROWN
                                Judge

                                    ****

BRAD 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
                                           and appellee.

MARK MORENO of
Moreno, Lee & Bachand P.C.                 Attorneys for Dawn Daughters,
Pierre, South Dakota                       interested person and appellee.

CASEY N. BRIDGMAN of
Bridgman & Anderson Law Firm               Attorneys for Douglas D.
Wessington Springs, South Dakota           Ducheneaux, defendant and
                                           appellant.

                                    ****
                                           CONSIDERED ON BRIEFS
                                           OCTOBER 2, 2017
                                           OPINION FILED 03/14/18
#28068

KERN, Justice, and WILBUR, Retired Justice

[¶1.]         Justice Kern delivers the opinion of the Court on Issues One

through Four. Retired Justice Wilbur delivers the opinion of the Court on

Issue Five.

[¶2.]         KERN, Justice, writing for the Court on Issues One through

Four.

[¶3.]         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.

                           Facts and Procedural History

[¶4.]         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

daughters1 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




1.      With the exception of a 2006 Chrysler 300, which the will specifically devised
        to Wayne’s daughter Darnel Swanson.
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which were on tribal trust lands; two vehicles; a certificate of deposit; and a

checking account.

[¶5.]        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.

[¶6.]        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.

[¶7.]        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

representative.


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[¶8.]         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.

[¶9.]         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.”2 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.




2.      We assume this is because the Department lacked jurisdiction over the fee
        land and because the two tribal quarters were transferred by Wayne to
        Ducheneaux prior to Wayne’s death.
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[¶10.]       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.

[¶11.]       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


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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.

[¶12.]       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.

[¶13.]       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,


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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 document.

[¶14.]       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,


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reduc[ing] the damage award by the $96,000,” the amount the jury awarded for the

value of the home quarter.

[¶15.]         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. § 362.3 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.

[¶16.]         Ducheneaux appeals, raising ten issues that we consolidate as follows:

               1.    Whether the circuit court possessed subject-matter
                     jurisdiction and authority to adjudicate disposition of
                     nontrust property.

               2.    Whether the circuit court erred by not granting
                     Ducheneaux summary judgment.

               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.

                               Analysis and Decision

               1.    Whether the circuit court possessed subject-matter
                     jurisdiction and authority to adjudicate disposition of
                     nontrust property.

[¶17.]         Ducheneaux argues that only Indian tribes and the federal

government possess jurisdiction over Indian probate matters. Because the

3.       On January 4, 2018, the United States Bankruptcy Court for the District of
         South Dakota issued an order modifying the automatic stay to enable this
         Court to issue its decision.
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#28068

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 proceedings.

[¶18.]       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, 825).

[¶19.]       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.


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[¶20.]         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.

[¶21.]         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 . . .

.”).4 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



4.       Indeed, the Department of the Interior takes the position that nontrust
         property must be handled separately by another court, such as a state court.
         See U.S. Dep’t of the Interior, Indian Probate and Probate-Type Appeals,
         https://www.doi.gov/oha/organization/ibia/Indian-Probate-and-Probate-Type-
         Appeals (last visited Feb. 16, 2018).
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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 judicata apply.

             2.    Whether the circuit court erred by not granting
                   Ducheneaux summary judgment.

[¶22.]       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 to summary judgment

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“may not rest upon the mere allegations or denials of his pleading, but his

response . . . must set forth specific facts showing that there is a genuine issue for

trial.” SDCL 15-6-56(e).

[¶23.]       Ducheneaux argues there was no dispute about genuine issues of

material fact, highlighting alleged judicial admissions made by Daughters.

Ducheneaux observes that Daughters filed four affidavits in support of her petition

for formal probate. In the affidavits, Daughters alleged that she personally

witnessed Wayne sign three of the writings, that she believed them all to be in his

handwriting, and that she believed him to be competent. Ducheneaux contends

that these affidavits constitute pleadings and thus judicial admissions. See

Tunender v. Minnaert, 1997 S.D. 62, ¶ 35, 563 N.W.2d 849, 856 (Sabers, J.,

dissenting) (observing that statements made in pleadings may constitute judicial

admissions). By making such admissions, Ducheneaux claims that Daughters—and

thereby, the Estate—waived any arguments about undue influence or competency.

[¶24.]       “A judicial admission is a formal act of a party or his attorney in court,

dispensing with proof of a fact claimed to be true, and is used as a substitute for

legal evidence at the trial.” Zahn v. Musick, 2000 S.D. 26, ¶ 27, 605 N.W.2d 823,

829. “An admission is ‘limited to matters of fact which would otherwise require

evidentiary proof,’ and cannot be based upon personal opinion or legal theory.” Id.

(emphasis added) (quoting Tunender, 1997 S.D. 62, ¶ 21, 563 N.W.2d at 853). In

her affidavits, Daughters claimed that she witnessed Wayne sign the July 16 and

August 23 writings and that she “believe[d] that . . . [Wayne] was competent to

execute a will” at those times; that she was familiar with and believed it was


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Wayne’s handwriting and signature on the writing dated August 2; and that she

witnessed Wayne sign the August 11 writing. While some of these statements are

inconsistent with her testimony at trial, Daughters’s stated belief—i.e., her personal

opinion—that Wayne could competently draft a will on July 16 and August 23 does

not constitute a judicial admission. See id. These averments might serve as

evidence, but they are not dispositive.

[¶25.]       Further, our review of the record reveals a number of genuine issues of

material fact. SDCL 29A-2-502(a) provides that “[a] will is valid as a holographic

will, whether or not witnessed, if the signature and material portions of the

document are in the testator’s handwriting.” However, determining “whether the

writing complies with the statutory requirements for a holographic will” is only the

first step of the analysis. In re Estate of Serbousek, 2008 S.D. 46, ¶ 3, 751 N.W.2d

718, 719. We must also “analyze whether the writing was executed with

testamentary intent and demonstrated testamentary character.” Id. Doing so

requires examination of “any extraneous circumstances bearing upon the question

of intention.” Id. (emphasis omitted). The Estate’s pretrial evidence calls into

question Wayne’s testamentary intent and the testamentary character of the

writings. This includes, for example, medical evidence and testimony regarding

Wayne’s state of mind as well as apparent contradictions in the writings themselves

suggesting lack of competence. For example, Wayne’s August 23, 2011 writing

references five quarters of land when Wayne purportedly transferred three to

Ducheneaux just weeks before. Given these contested issues, the circuit court did

not err in denying Ducheneaux’s motion for summary judgment.


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             3.     Whether the circuit court erred by consolidating the
                    probate and civil cases.

[¶26.]       Ducheneaux argues the circuit court failed to consider the issue of

prejudice in granting the Estate’s motion to consolidate. Ducheneaux contends he

suffered substantial prejudice because the outcome of the probate case would

determine who the personal representative should be. However, by consolidating it

with the civil action—which was brought by the court-appointed personal

representative of the Estate—Ducheneaux argues that the circuit court effectively

rendered his claims illusory before the jury.

[¶27.]       “The denial or grant of a motion to consolidate suits is reviewed under

an abuse of discretion standard.” Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 35,

612 N.W.2d 600, 609. A court abuses its discretion by making “a fundamental error

of judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary or unreasonable.” Purcell v. Begnaud, 2017 S.D. 23,

¶ 6, 895 N.W.2d 346, 348-349. “The ‘mere possibility of some prejudice does not

justify separate trials where such prejudice is not substantial and there are strong

countervailing considerations of economy.’” Landstrom v. Shaver, 1997 S.D. 25,

¶ 28, 561 N.W.2d 1, 6 (quoting Tri-R Sys., Ltd. v. Friedman & Son, Inc., 94 F.R.D.

726, 728 (D. Colo. 1982)).

[¶28.]       SDCL 15-6-42(a) permits consolidation “[w]hen actions involving a

common question of law or fact are pending before the court . . . to avoid

unnecessary costs or delay.” Despite consolidation, the trial here lasted ten days

and involved more than a dozen witnesses and a record spanning thousands of

pages. Both cases examined common questions of law and fact and would have

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involved duplicative testimony, including from expert witnesses. For example, the

issues of Wayne’s competency and whether Ducheneaux exercised undue influence

bear directly on both the probate and civil claims. The court recognized that

prolonged litigation would completely drain the Estate’s resources, and we cannot

say that it abused its discretion by averting two costly and substantially similar

trials. See Martinmaas, 2000 S.D. 85, ¶ 41, 612 N.W.2d at 610.

[¶29.]       Further, Ducheneaux suffered minimal or no prejudice. Although the

court denied the Estate’s first, largely identical motion to consolidate, Ducheneaux

ignores the fact that at the second hearing, the court considered consolidating the

cases as part of a bench trial, which would have eliminated the alleged issue of jury

confusion. However, Ducheneaux insisted on a jury trial. To that end, the court

submitted a special-verdict form and interrogatories as well as proper jury

instructions to minimize prejudice. See Karst v. Shur-Co., 2016 S.D. 35, ¶ 33, 878

N.W.2d 604, 618 (“Juries are presumed to follow instructions of the circuit court.”);

Landstrom, 1997 S.D. 25, ¶ 32, 561 N.W.2d at 7. Additionally, although the person

nominated to be personal representative in a probated will receives priority, SDCL

29A-3-203, the issue is ultimately secondary: Ducheneaux’s claim that he should be

personal representative first demands a determination about whether the alleged

August 23, 2011 holographic will was valid. This question necessarily involves an

inquiry into issues like undue influence, fraud, deceit, and conversion, which are

claims common to both cases. Therefore, the circuit court did not err in

consolidating the actions.

             4.     Whether Ducheneaux should be granted a new trial.


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[¶30.]         At the close of trial, Ducheneaux moved for a new trial on the grounds

of irregularity in the proceedings, excessive damages, insufficiency of the evidence,

and surprise.5 The circuit court denied Ducheneaux’s motion, and Ducheneaux

reiterates his arguments on appeal. SDCL 15-6-59(a) provides, in part:

               A new trial may be granted to all or any of the parties and on all
               or part of the issues for any of the following causes:
                     (1) Irregularity in the proceedings of the court, jury, or
                         adverse party or any order of the court or abuse of
                         discretion by which either party was prevented from
                         having a fair trial;
                     ....
                     (3) Accident or surprise which ordinary prudence could
                         not have guarded against;
                     ....
                     (5) Excessive or inadequate damages appearing to have
                         been given under the influence of passion or prejudice;
                     (6) Insufficiency of the evidence to justify the verdict or
                         other decision or that it is against law;

                     (7) Error of law occurring at the trial; provided, that in
                         the case of claim of error, admission, rejection of
                         evidence, or instructions to the jury or failure of the
                         court to make a finding or conclusion upon a material
                         issue which had not been proposed or requested, it
                         must be based upon an objection, offer of proof or a
                         motion to strike.

[¶31.]         Ducheneaux argues that several irregularities occurred, including: the

court’s decision to apply remittitur and compel Ducheneaux to transfer the home




5.       “The abuse of discretion standard is also utilized ‘when reviewing a trial
         court’s denial of a motion for a new trial.’” Harmon v. Washburn, 2008 S.D.
         42, ¶ 10, 751 N.W.2d 297, 300 (quoting Christenson v. Bergeson, 2004 S.D.
         113, ¶ 13, 688 N.W.2d 421, 426).

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quarter back to the Estate;6 the court’s refusal to admit the transcript of the

guardianship proceeding into evidence; and the court’s decision to permit allegedly

improper references about the two tribal quarters during trial.

[¶32.]         With respect to remittitur and the exercise of the court’s equitable

powers, Ducheneaux argues the court nullified the jury’s verdict and substituted its

own judgment by ordering the return of the home quarter to the Estate and by

reducing the general damages by $96,000. This Court has said that a “trial court

cannot substitute its verdict for the verdict of the jury.” Ebert v. Fort Pierre Moose

Lodge No. 1813, 312 N.W.2d 119, 122 (S.D. 1981). However, Article VI, Section 6 of

the South Dakota Constitution guarantees a right to a jury trial only in cases at

law. Absent an agreement by the parties “to a binding jury in an equitable action,

the jury verdict is advisory.” Granite Buick GMC, Inc. v. Ray, 2014 S.D. 78, ¶ 7,

856 N.W.2d 799, 802. Ducheneaux contends that the parties agreed that the jury’s

verdict would be binding and that the jury only awarded monetary damages. Yet as

the Estate observes, a jury cannot provide an equitable remedy. See id. ¶ 10,

856 N.W.2d at 803. Moreover, the court exercised its equitable powers pursuant to

and consistent with the jury’s determination that the deed transferring the home

quarter was void.

[¶33.]         Ducheneaux further argues that under the election-of-remedies

doctrine, the Estate could receive only monetary damages for the value of the home

quarter. In making this argument, Ducheneaux mistakenly claims that the Estate


6.       Challenges to an award of an equitable remedy are reviewed for an abuse of
         discretion. Vander Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 17, 736 N.W.2d
         824, 832.

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requested only a monetary verdict. The Estate consistently requested—including in

its complaint and during opening argument—that the transfers be set aside and

that the home quarter be returned to the Estate. Counsel for Daughters did ask the

jury for monetary damages during closing argument because the “home quarter was

gone,” having been deeded to Ducheneaux. But as counsel explained at the post-

trial motion hearing on November 14, 2016, he made this statement because the

jury was not entitled to grant him equitable relief by returning the land. Once the

jury determined the deed transferring the home quarter was invalid, the Estate

requested equitable relief from the court by remittitur.

[¶34.]       While a party may not seek “double recovery,” it can request remedies

in the alternative. See Ripple v. Wold, 1996 S.D. 68, ¶ 7, 549 N.W.2d 673, 674-75.

“The purpose of the election of remedies doctrine is not to block recourse to any

particular remedy but to prevent duplicate recovery for a single wrong.” Id.

Because the circuit court remitted the $96,000 the jury awarded in monetary

damages for the home quarter, no double recovery occurred. Although the court

acknowledged that the home quarter might be worth more than $96,000, we cannot

say—given the jury’s verdict invalidating the deed—that the court erred in ordering

Ducheneaux to return the land.

[¶35.]       Ducheneaux next argues the circuit court erred when it refused to

allow him to testify as to the court’s prior ruling in the guardianship proceeding.

On the sixth day of trial, Ducheneaux filed a motion for recusal or, in the

alternative, to admit into evidence the transcript from the August 24, 2011

guardianship hearing. The court denied the motion. During direct examination of


                                         -17-
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Ducheneaux, Ducheneaux’s counsel asked whether “there [were] comments made by

the [c]ourt at the August 24th, 2011 guardianship?” While the court permitted

Ducheneaux to respond “yes,” it did not allow him to repeat what the court said. At

the guardianship proceeding, the court appointed Ducheneaux as Wayne’s

guardian, finding that Wayne displayed sufficient cognitive ability to express his

desire that he reside with Ducheneaux. According to Ducheneaux, by disallowing

the transcript and his testimony about the court’s previous holding, “[the judge]

made himself the only witness to that evidence.” This, Ducheneaux contends,

required the judge to recuse himself from the current action so that he could testify

as to Wayne’s competence. See SDCL 19-19-605 (providing that a presiding judge

may not testify at trial).

[¶36.]        A judge’s decision to recuse himself is in part discretionary. Marko v.

Marko, 2012 S.D. 54, ¶ 18, 816 N.W.2d 820, 826. However, once a judge determines

that “the facts and circumstances fit within the disqualifying criteria,” recusal is

mandatory. Id. “Canon 3E(1) provides that ‘a judge shall disqualify himself or

herself in a proceeding in which the judge’s impartiality might reasonably be

questioned, including but not limited to instances’ of (a) ‘personal bias or prejudice’

or ‘personal knowledge,’ (b) prior service as a lawyer in the matter, (c) economic

interest, and (d) close personal relationship of relatives or parties to a proceeding.”

Id. ¶ 19 (quoting SDCL ch. 16-2 app. Canon 3E(1)). On the other hand, if the facts

and circumstances do not fit within the disqualifying criteria, a judge has an

equally strong duty not to recuse. Id. ¶ 21.




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[¶37.]       Here, none of the relevant criteria apply. “[E]ven in cases where

judges have had prior judicial exposure to parties, without more, . . . this is

insufficient to show that impartiality might reasonably be questioned.” Id. ¶ 23,

816 N.W.2d at 827. Further, the Estate notes that Ducheneaux failed to disclose

during discovery and in response to the pretrial order that he either intended to use

the statements as evidence or call the judge as a witness. Ducheneaux does not

respond to this argument, and we conclude that the circuit court did not err.

[¶38.]       Ducheneaux further claims the “jury was inundated with evidence

regarding the two tribal quarters,” including their value and the amount of rent

owed. Ducheneaux claims that despite this Court’s holding in Ducheneaux that

trust property was not within the jurisdiction of the circuit court, the circuit court

here improperly allowed the Estate to submit evidence regarding these parcels. The

trust parcels in Ducheneaux’s possession were valued at a total of $238,057 and

produced rental income. Ducheneaux claims the associated monetary figures

excited the jury’s passions, leading to an excessive general-damages award as well

as an award for punitive damages to redress the loss of the tribal quarters to the

Estate in violation of SDCL 15-6-59(a)(5). Ducheneaux also claims that this

constituted an error of law under SDCL 15-6-59(a)(7).

[¶39.]       However, “the amount of damages to be awarded ‘is peculiarly a

question for the jury,’” and “the trial court is best able to judge whether the

damages awarded by a jury are the product of passion or prejudice.” Maryott v.

First Nat. Bank of Eden, 2001 S.D. 43, ¶ 26, 624 N.W.2d 96, 105 (quoting Berry v.

Risdall, 1998 S.D. 18, ¶ 10, 576 N.W.2d 1, 4). While this Court held in Ducheneaux


                                          -19-
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that a state court could not adjudicate ownership of trust property or interfere with

the interests of the United States, 2015 S.D. 11, ¶ 20, 861 N.W.2d at 527, here it is

apparent that references to the tribal quarters were made only to provide the jury

with necessary context. It would be extraordinarily difficult to refer to the

holographic writings, Wayne’s assets, Ducheneaux’s net worth, and issues of undue

influence and Wayne’s competency without making mention of these parcels. The

jury received proper instructions that any information about the trust quarters was

“presented [only] to provide a complete picture of the events that are at issue” and

that “ownership of the tribal land is not an issue to be considered in this case.”

Ducheneaux’s speculation that the jury award encompassed damages for the tribal

quarters is unfounded, and we presume the jury followed the instructions. Karst,

2016 S.D. 35, ¶ 33, 878 N.W.2d at 618.

[¶40.]       Ducheneaux also claims that the award of $74,000, presumptively for

rent, was excessive. Ducheneaux highlights the following colloquy from his

testimony:

             Q. Well, you must have some sort of idea how much you get in a
             check each month. Do you get $25,000 a year?
             A. I think 24 or something like that maybe between the three.
             Q. About $24,000 a year in rental income?
             A. Approximately, I believe.
             ....
             Q. When is the first year you started receiving rental income off
             of this real estate?
             A. When I filed the paperwork for the home quarter is when
             that started and the other two tribal quarters, whatever dates
             those were. I believe it was ’11 or ’12.
             Q. So you’re thinking it was 2011 or 2012?
             A. Somewhere around there.
                                          -20-
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               Q. So is it your testimony in 2011 you would have received
               $24,000 in rental income off of this real estate?
               A. Right.
               Q. And every year since then you’ve been receiving
               approximately $24,000 in rental income?
               A. Right.

(Emphasis added.)

[¶41.]         Ducheneaux interprets the exchange to mean the land only earned

$8,000 in rent per year (focusing on the words “between the three”). Ducheneaux

claimed to receive rent for only four-and-a-half years, totaling $36,000 in rent.

Ducheneaux also observes that the Estate’s personal representative testified that

the Estate leased land for approximately $12,000 a year. Additionally, Ducheneaux

claims that it was improper for the jury to award both interest on the home quarter

and compensation for lost rents during that same period, citing Rensch v. Riddle’s

Diamonds of Rapid City, Inc., 393 N.W.2d 269, 274 (S.D. 1986), and SDCL 21-3-3.

[¶42.]         The Estate counters that although the deed transferring the home

quarter to Ducheneaux was not recorded until 2012, he came into possession of the

land in 2011, thus holding it for five-and-a-half years. The Estate argues without

conceding that even if $12,000 a year is the proper figure, this rate amounts to more

than $68,000 in lost rents.7 The Estate also contends that a jury could reasonably

interpret Ducheneaux’s statements to mean that he earned $24,000 per year from

the home quarter. During closing argument, the Estate’s counsel suggested the

Estate lost $132,000 in rent based on this calculation. Additionally, the Estate



7.       According to Exhibit 36-A, which details a final inventory of the Estate, a
         lessee paid $12,442 in rent in 2012. The Estate multiplies this figure by 5.5,
         totaling $68,431.
                                           -21-
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observes that these rent figures reflect agricultural use only and do not “include any

rent for hunting, for use of the structures on the land, or for the pickup truck.”

Finally, the Estate points to Exhibit D-3, which indicated that the insurance

company “held back” $11,355 in depreciation/replacement costs as a result of the

flood claim on the home quarter.

[¶43.]          We agree with the Estate that there was more than sufficient evidence

in the record to support the remaining $74,000 of the jury’s verdict. The jury could

interpret Ducheneaux’s statements to mean he received $24,000 per year, arriving

at a figure well in excess of $74,000. Alternatively, the evidence supported a figure

of over $12,000 in rentals per year, which accounting for factors like inflation, could

similarly support such an award. Rent aside, the evidence also indicated that the

Estate suffered other general damages, e.g., on the insurance claim and from the

guns Wayne owned that Ducheneaux never returned. Further, even assuming

Ducheneaux is correct that returning the land and an award of damages would be

duplicative, here the court remitted the $96,000 and interest awarded for the home

quarter. We therefore find sufficient evidence to support the jury’s verdict and no

error of law.

[¶44.]          Ducheneaux next claims surprise from Daughters’s testimony.

According to Ducheneaux, the defense expected Daughters’s testimony to be

consistent with her statements in the affidavits. Ducheneaux claims Daughters’s

contradictory statements on the stand caught him off guard. However, Daughters

had submitted an affidavit dated March 14, 2016, months before trial, explaining

the mistakes she made in executing her previous affidavits, and this updated


                                          -22-
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affidavit is consistent with her testimony at trial. As the circuit court explained,

“the positions of the parties . . . had been staked out at least dating back to probably

six months prior to trial,” and Ducheneaux cannot now claim surprise. See Fullmer

v. State Farm Ins. Co., 498 N.W.2d 357, 361-62 (S.D. 1993) (affirming vacation of

judgment and grant of new trial due to “newly discovered evidence” as a result of

witness radically changing testimony provided in a deposition two weeks before the

first trial on a bifurcated issue and defendants’ failure to diligently inform plaintiff

of the change in opinion before the second trial).

[¶45.]       Ducheneaux finally argues that there was insufficient evidence to

support the verdict. “This Court will uphold a jury verdict ‘if the jury’s verdict can

be explained with reference to the evidence,’ viewing the evidence in a light most

favorable to the verdict.” Lenards v. DeBoer, 2015 S.D. 49, ¶ 10, 865 N.W.2d 867,

870. “In considering the verdict of a jury in any particular case, to determine

whether or not it is sustained by the evidence, we are not to speculate or query how

we would have viewed the evidence and testimony . . . .” Biegler v. Am. Fam. Mut.

Ins. Co., 2001 S.D. 13, ¶ 32, 621 N.W.2d 592, 602. “[I]f there is competent and

substantial evidence to support the verdict, it must be upheld.” Rogen v. Monson,

2000 S.D. 51, ¶ 18, 609 N.W.2d 456, 461. Although Ducheneaux argues that there

was no evidence to suggest Ducheneaux exerted any undue influence over Wayne to

support the jury’s award of $30,000 for the truck, Ducheneaux couches this

argument in part in his claims about judicial admissions. As explained above, we

reject this argument, supra ¶ 24, and conclude that sufficient evidence existed to

support the verdict and that the court did not err by refusing to grant a new trial.


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                                     Conclusion

[¶46.]       Neither federal preemption nor principles of res judicata barred

jurisdiction. The circuit court did not err in refusing to grant Ducheneaux’s motion

for summary judgment because many genuine issues of material fact existed.

Further, the court did not err in consolidating the probate and civil actions: the

cases involved numerous questions of law and fact common to both, and principles

of judicial economy outweighed the minimal prejudice to Ducheneaux. The court

also properly denied Ducheneaux’s motion for a new trial.

[¶47.]       Affirmed.

[¶48.]       GILBERTSON, Chief Justice, ZINTER and SEVERSON, Justices, and

WILBUR, Retired Justice, concur on Issues One through Four.

[¶49.]       JENSEN, Justice, not having been a member of the Court at the time

this action was assigned to the Court, did not participate.

[¶50.]       WILBUR, Retired Justice, writing for the Court on Issue 5

             5.     Whether the circuit court erred in awarding attorney fees.

[¶51.]       In separate motions, Brad Schreiber as counsel for the Estate and Jack

Gunvordahl as personal representative of the Estate requested an award of

attorney fees and taxation of costs and disbursements. They relied on SDCL 29A-3-

720, SDCL 15-6-54(d), SDCL 15-17-37, and SDCL 15-17-38 as authority. The

circuit court granted both motions and ordered Ducheneaux to pay the Estate

$45,000 in attorney fees. The circuit court did not cite authority for assessing the

fees against Ducheneaux rather than from the Estate. The court ordered

Ducheneaux to pay the fees, finding “that the claims [the Estate and personal

representative] prosecuted resulted in a substantial benefit to the Estate” and “that
                                         -24-
#28068

the interests of justice dictate an award of attorney’s fees in these cases[.]” The

circuit court also concluded that “as the prevailing party, the Estate should be

awarded costs and disbursements[.]”

[¶52.]       On appeal, Ducheneaux challenges the circuit court’s authority to

order him to pay attorney fees to the Estate. Under SDCL 15-6-54(d)(2)(B), a

motion for an award of attorney’s fees “must specify the judgment and the statute,

rule, or other grounds entitling the moving party to the award[.]” According to the

Estate and personal representative, SDCL 29A-3-720 authorized an award of fees

from Ducheneaux.

[¶53.]       In In re Estate of Bickel, we recognized that “[u]nder SDCL 29A-3-720,

the person nominated as personal representative may recover necessary expenses

and disbursements from the estate including reasonable attorney’s fees for

defending any proceeding in good faith.” 2016 S.D. 28, ¶ 49, 879 N.W.2d 741, 755

(emphasis added). SDCL 29A-3-720 also authorizes the court to “award necessary

expenses and disbursements, including reasonable attorney’s fees, to any person

who prosecuted or defended an action that resulted in a substantial benefit to the

estate.”

[¶54.]       By its plain language, SDCL 29A-3-720 did not permit the circuit court

to order Ducheneaux to pay the Estate’s and personal representative’s attorney

fees. Indeed, in Estate of Card v. Card, we recognized that “[t]he plain and

unambiguous language of this statute authorizes an award of attorney’s fees from

the estate[.]” 2016 S.D. 4, ¶ 19, 874 N.W.2d 86, 92 (emphasis added) (citing In re

Guardianship of G.T.C., 2014 S.D. 65, ¶ 8, 854 N.W.2d 343, 345 (“interpreting


                                          -25-
#28068

similar statutory language and ruling that ‘the attorney for the guardianship and

conservatorship was entitled to her fees from the estate rather than guardians and

conservators personally’”)).

[¶55.]       Nevertheless, the Estate and personal representative also relied on

SDCL 15-17-38. Under SDCL 15-17-38, “[t]he compensation of attorneys and

counselors at law for services rendered in civil and criminal actions and special

proceedings is left to the agreement, express or implied, of the parties.” No such

agreement for an award of fees exists in this case. However, SDCL 15-17-38 also

provides that “[t]he court may award attorneys’ fees from trusts administered

through the court as well as in probate and guardianship proceedings.” From the

language of this phrase, it is unclear whether the Legislature meant to permit an

award of fees against an individual in probate proceedings.

[¶56.]       In In re Estate of Perry, we wrote that “SDCL 15-17-38 gives the trial

court the authority to grant attorney fees in probate and guardianship proceedings.”

1998 S.D. 85, ¶ 36, 582 N.W.2d 29, 36. We, however, were not asked to specifically

interpret whether SDCL 15-17-38 authorizes an assessment of fees against an

individual rather than from the estate. We simply assumed fees were awardable so

long as the services were beneficial to the estate. Thus, Perry does not provide

guidance in interpreting SDCL 15-17-38.

[¶57.]       More importantly, “in considering whether an award of attorney fees is

authorized by statute, ‘this Court has rigorously followed the rule that authority to

assess attorney fees may not be implied, but must rest upon a clear legislative grant

of power.’” Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 32, 827 N.W.2d 55, 67


                                         -26-
#28068

(quoting In re Estate of O’Keefe, 1998 S.D. 92, ¶ 17, 583 N.W.2d 138, 142). Here,

SDCL 15-17-38 “is insufficiently specific” to permit the circuit court’s award of

attorney fees against Ducheneaux. See Schuldies v. Millar, 1996 S.D. 120, ¶ 38, 555

N.W.2d 90, 100. First, the plain language of SDCL 15-17-38 does not make clear

that the Legislature meant to permit an award of fees against an individual in

probate proceedings. Second, the more specific statutes (SDCL 29A-3-720 and

SDCL 29A-5-116) unambiguously provide that an award of fees comes from an

estate.

[¶58.]       A review of legislative history also fails to evince clear legislative

authorization for an award of attorney fees against an individual in probate

proceedings. See In re Petition of Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D.

1984) (utilizing our rules of statutory construction to discover legislative intent).

SDCL 15-17-7 preceded SDCL 15-17-38, and provided:

             The court may allow attorneys’ fees as costs for or against any
             party to an action in the cases if it is specifically provided by
             statute, but nothing herein abridges the power of the court to
             order payment of attorneys’ fees in all cases of divorce
             annulment of marriage, determination of paternity or for
             separate maintenance and alimony, if the allowance of the same
             before or after judgment is warranted. Nor does anything herein
             abridge the power of the court to allow attorneys’ fees from trusts
             administered through the court.

(Emphasis added.) In 1992, the Legislature repealed SDCL 15-17-7 and enacted

SDCL 15-17-38 in its place.

[¶59.]       Today, SDCL 15-17-38 is similar to its predecessor in many respects.

One significant difference exists, however. Instead of the phrase—“Nor does

anything herein abridge the power of the court to allow attorneys’ fees from trusts


                                          -27-
#28068

administered through the court”—SDCL 15-17-38 provides that “[t]he court may

award attorneys’ fees from trusts administered through the court as well as in

probate and guardianship proceedings.” Id. (emphasis added). Although the

Legislature did not use the phrase “from trusts administered” in reference to

“probate and guardianship proceedings,” we conclude that SDCL 15-17-38 does not

create a clear legislative grant of power to a court to assess fees against an

individual in probate proceedings.

[¶60.]       Because the circuit court did not have statutory authority to assess

attorney fees against Ducheneaux, the court erred when it ordered Ducheneaux to

pay the Estate’s and personal representative’s attorney fees. We reverse the circuit

court’s order assessing attorney fees against Ducheneaux and remand for the court

to consider the Estate’s and personal representative’s requests for fees consistent

with this opinion.

[¶61.]       Dawn Daughters, as an interested person, filed a motion and

supporting affidavit requesting $11,420.70 in appellate attorney fees. SDCL 15-

26A-87.3. She filed a motion for attorney fees at the circuit court level, and the

circuit court awarded Daughters $50,865.31 in fees and costs from the Estate. The

court “found that the claims that she and her counsel prosecuted and defended

resulted in a substantial benefit to the Decedent’s Estate[.]” On appeal, Daughters

relies on SDCL 29A-3-720 and SDCL 15-17-38 and attests that the fees were related

to the prosecution and defense of this case on appeal and that the services were

beneficial to the Estate on appeal. We award Daughters $11,420.70 in appellate

attorney fees from the Estate.


                                          -28-
#28068

[¶62.]       Reversed and remanded.

[¶63.]       ZINTER and SEVERSON, Justices, concur on Issue Five.

[¶64.]       GILBERTSON, Chief Justice, and KERN, Justice, concur in part and

dissent in part on Issue Five.


KERN, Justice (concurring in part and dissenting in part on Issue Five).

[¶65.]       I concur with the majority that Daughters should be awarded appellate

attorney fees from the Estate. However, because I interpret SDCL 15-17-38 to

mean attorney fees can be assessed against a party in a probate proceeding, with

respect to the Estate’s request for fees, I respectfully dissent in part. SDCL 15-17-

38 codifies the American Rule and provides in part:

             The compensation of attorneys and counselors at law for services
             rendered in civil . . . actions . . . is left to the agreement, express
             or implied, of the parties. However, attorneys’ fees may be taxed
             as disbursements if allowed by specific statute. The court, if
             appropriate, in the interests of justice, may award payment of
             attorneys’ fees in all cases of divorce, annulment of marriage,
             determination of paternity, custody, visitation, separate
             maintenance, support, or alimony. The court may award the
             fees before or after judgment or order. The court may award
             attorneys’ fees from trusts administered through the court as
             well as in probate and guardianship proceedings.

(Emphasis added.)

[¶66.]       The majority observes that the statute did not originally include the

language “as well as in probate and guardianship proceedings” after the words

“from trusts administered through the court.” Supra ¶ 59. It further acknowledges

that the phrase “from trusts administered” does not directly precede the words “in

probate and guardianship proceedings.” See id. Nevertheless, it inserts those

words in arriving at its conclusion that “SDCL 15-17-38 does not create a clear

                                          -29-
#28068

legislative grant of power to a court to assess fees against an individual in probate

proceedings.” Id.

[¶67.]       However, we determine legislative intent “from what the [L]egislature

said, rather than from what we or others think it should have said.” Clark Cty. v.

Sioux Equip. Corp., 2008 S.D. 60, ¶ 28, 753 N.W.2d 406, 417. This is because “[i]t is

always safer not to add to or subtract from the language of a statute unless

imperatively required to make it a rational statute.” Fin-Ag, Inc. v. Pipestone

Livestock Auction Mkt., Inc., 2008 S.D. 48, ¶ 16, 754 N.W.2d 29, 38. Here, the

majority unnecessarily inserts “from trusts administered” before the words “in

probate or guardianship proceedings.” The majority then claims that the statute

lacks specificity because “the plain language of SDCL 15-17-38 does not make clear

that the Legislature meant to permit an award of fees against an individual in

probate proceedings.” Supra ¶ 57. However, it is unclear why the majority believes

this to be the case. If it is because the words “against an individual” do not appear

in the sentence ending “in probate and guardianship proceedings,” then such an

analysis would be equally applicable to the preceding sentence providing that

attorney fees may be awarded “in all cases” of divorce, annulment of marriage, and

so on. See SDCL 15-17-38.

[¶68.]       With respect to SDCL 29A-3-720 and SDCL 29A-5-116, these statutes

entitle specified individuals to recover from the estate. On the other hand,

SDCL 15-17-38 broadly permits all parties to seek attorney fees from the other

party. Thus, SDCL 29A-3-720 and SDCL 29A-5-116 serve a separate purpose:




                                         -30-
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ensuring an alternative source of potential compensation for a smaller pool of

persons.

[¶69.]       Additionally, the legislative history does not support the majority’s

view. Both versions of the statute contain the words “from trusts administered

through the court.” The prior version ended the statute there and did not make any

mention of probate or guardianship proceedings. However, in revising the statute,

the Legislature appended the language “as well as in probate and guardianship

proceedings.” The majority’s interpretation suggests that the Legislature merely

added surplusage in revising the statute. See Hollman v. S.D. Dep’t of Soc. Servs.,

2015 S.D. 21, ¶ 9, 862 N.W.2d 856, 859 (“We presume the Legislature does not

insert surplusage into its enactments.”). This is because only courts can administer

probate and guardianship proceedings. SDCL ch. 29A-3; SDCL ch. 29A-5. Thus,

any trust administered in a probate or guardianship proceeding is necessarily

administered through a court. As the first part of the sentence already establishes

that attorney fees may be sought “from trusts administered through the court,”

SDCL 15-17-38 (emphasis added), the majority’s reading renders the latter part of

the sentence redundant.

[¶70.]       Because I believe SDCL 15-17-38 can be rationally construed as

permitting attorney fees against another party in a probate proceeding without

needing to insert language, and because the legislative history better comports with

this view, I respectfully dissent in part.

[¶71.]       GILBERTSON, Chief Justice, joins this writing.




                                             -31-
