#31101-aff in pt & vacate in pt-MES
2026 S.D. 44
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
ESTATE OF PAUL O’FARRELL,
individually; and as a beneficiary of
the family trust; SKYLINE CATTLE
COMPANY, a South Dakota corporation, Plaintiffs and Appellants,
THE ESTATE OF VICTORIA
O’FARRELL & VOR, INC., a
South Dakota corporation, Plaintiffs and Appellees,
v.
GRAND VALLEY HUTTERIAN
BRETHREN, INC., a South Dakota
corporation, Defendant and Appellee,
KELLY O’FARRELL, an individual;
and the RAYMOND AND VICTORIA
O’FARRELL LIVING TRUST, a South
Dakota Trust, Defendants.
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
GRANT COUNTY, SOUTH DAKOTA
THE HONORABLE PATRICK T. PARDY
Judge
CONSIDERED ON BRIEFS
MARCH 17, 2026
OPINION FILED 07/09/26
DANIEL K. BRENDTRO of
Hovland, Rasmus, &
Brendtro, Prof. LLC
Sioux Falls, South Dakota Attorneys for plaintiffs and
appellants Estate of Paul
O’Farrell and Skyline Cattle
Company, LLC.
LEE SCHOENBECK
JOE ERICKSON of
Schoenbeck & Erickson P.C.
Watertown, South Dakota Attorneys for appellees
Raymond and Victoria O’Farrell
Living Trust, Estate of Victoria
O’Farrell and VOR, Inc.
WILLIAM BECK
SETH A. LOPOUR of
Woods, Fuller, Shultz
& Smith, P.C.
Sioux Falls, South Dakota
REED RASMUSSEN of
Siegel, Barnett & Schutz
Aberdeen, South Dakota Attorneys for defendant and
appellee Grand Valley
Hutterian Brethren, Inc.
#31101
SALTER, Justice
[¶1.] Paul O’Farrell commenced this civil action against Kelly O’Farrell;
Grand Valley Hutterian Brethren, Inc. (Grand Valley); and the Raymond and
Victoria O’Farrell Living Trust (the Trust), seeking multiple forms of declaratory
relief, rescission of a land sale to Grand Valley, and unspecified “tort damages.” In
addition to listing himself as a plaintiff, Paul claimed he was acting for the benefit
of the Trust. He also included as co-plaintiffs the Estate of Victoria O. O’Farrell
(the Estate), VoR, Inc. (VOR) and Skyline Cattle Company (Skyline).1
[¶2.] With separate counsel, the Estate and VOR appeared and, through a
summary judgment motion, challenged Paul’s authority to sue on their behalf.
Grand Valley also sought summary judgment arguing that Paul was unable to seek
rescission because he was not a party to the land sale at issue. The circuit court
granted the motions for summary judgment after denying Paul’s motion to conduct
additional discovery under SDCL 15-6-56(f) (Rule 56(f)). The court also denied
Paul’s motions to amend the complaint and for an order authorizing an examination
pursuant to SDCL 15-6-35(a) (Rule 35(a)) for his father, Raymond.
[¶3.] We granted Paul’s petition for intermediate appeal and now affirm the
circuit court’s decision to grant summary judgment and its decision to deny Paul’s
Rule 56(f) motion. However, we vacate, in part, the court’s order denying Paul’s
1. Paul died during the pendency of this action, and his estate has been
substituted as a party. Skyline rented and farmed land owned by VOR for
many years. Paul has been the sole owner of Skyline since 2019, and he
named Skyline as a plaintiff in this action to assert what he alleges are its
rights and to recover damages. For ease of reference, Paul, Paul’s estate, and
Skyline are collectively referred to as “Paul” throughout the opinion.
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motion to amend the complaint, and we also vacate the court’s order denying Paul’s
request for a Rule 35(a) examination and for attorney fees.
Factual and Procedural Background
[¶4.] Paul was one of five children born to Raymond and Victoria O’Farrell,
who owned approximately 1,000 acres of farmland near the Grant County
community of Marvin. In 2002, Raymond and Victoria created VOR to hold their
farm assets, including the farmland. Paul lived on a portion of that land for many
years and constructed a house and shop.
[¶5.] In 2011, Raymond and Victoria created the Trust. Paul alleges in his
complaint that Raymond and Victoria “deposited all (or most) of their assets” into
the Trust, including their shares of VOR. The terms of the Trust contemplated that
each of Raymond’s and Victoria’s five children would receive a specified portion of
land. Raymond and Victoria amended the Trust in March 2022, and Paul claims he
was named as the “primary beneficiary” as well as the successor co-trustee in the
event Raymond was unable to serve.
[¶6.] In July 2022, Victoria commenced an action against Raymond,
claiming he unlawfully assigned what Victoria alleged were her separate shares of
VOR from their Trust to himself, individually. Victoria sought a declaration that
Raymond’s attempted transfer of VOR shares was ineffective and invalid, and she
asked to remove Raymond as the trustee of their Trust. Victoria also asserted
claims against Raymond for conversion and tortious interference with business
relationships.
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[¶7.] Victoria died soon after filing suit against Raymond, and Raymond
petitioned the circuit court to be named the special administrator of the Estate.2
The petition was granted without notice to heirs or interested parties. Paul sought
to remove Raymond as the special administrator and to be substituted in the role
based entirely upon his claim that Raymond had a conflict of interest because he
was the defendant in Victoria’s action. But before the circuit court ruled on Paul’s
petition to remove Raymond, Paul appealed the order appointing Raymond as the
special administrator. We dismissed the appeal after concluding it was not from a
final appealable order, noting the pending motions to remove and replace the
special administrator.3
[¶8.] Following dismissal of the appeal, Paul renewed his petition to remove
Raymond as the special administrator, citing Raymond’s alleged conflict and also
asserting for the first time that the appointment was procedurally invalid due to
lack of notice and hearing. The circuit court denied Paul’s petition to remove
Raymond as the special administrator and granted a motion by Raymond to close
the Estate. Paul again appealed, and we agreed with the court’s conclusion that
Paul had waived the lack of notice and hearing requirements because he did not
initially object on that basis. In re Est. of O’Farrell, No. 31106, 2026 WL 827972, at
2. After Victoria’s death, Paul sought to intervene in Victoria’s lawsuit.
Raymond objected to Paul’s intervention. Following a hearing on the motion,
the circuit court orally denied the motion to intervene. Victoria’s counsel
then filed a notice of voluntary dismissal of her suit against Raymond. Paul
appealed the order denying intervention, but we dismissed that appeal,
noting the action was voluntarily dismissed without prejudice before the
appeal was initiated.
3. Est. of Victoria O. O’Farrell, Appeal No. 30532 (S.D. filed Dec. 18, 2024).
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*1 (S.D. Mar. 24, 2026). But we reversed the decision to deny the petition to remove
Raymond as the special administrator of the Estate, stating in our order:
[A]t the time of the appointment of Raymond O’Farrell as the
special administrator of the Estate of Victoria O. O’Farrell,
Raymond O’Farrell was a named defendant in an action brought
by Victoria O’Farrell and, as such, had a conflict of interest and
was not qualified to serve as the special administrator. Such
conflict was apparent on the face of the petition for appointment
of special administrator, which specifically referenced the civil
action.
Id.
[¶9.] Paul’s allegations in this case focus on his assertions that his brother
Kelly manipulated their father and “engaged in other misconduct, in order to set in
motion an improper and illegal set of maneuvers, all of which were designed to
enrich [Kelly] at the expense of his parents” and Paul. He alleges Kelly “secretly
began an orchestrated effort to alienate and isolate Raymond from his family, with
the intent of thwarting various features of Raymond and Victoria’s Estate plan and
disrupting farming operations.” He also asserts that in March 2022, Kelly engaged
in conduct that caused “substantial financial harm,” including a sale of “$3.2 million
worth of O’Farrell family farmland” to Grand Valley. Paul contends that he was
damaged by Kelly’s actions, as was the Estate, the Trust, VOR, and Raymond.4
4. Paul also alleges the purchase agreement regarding the farmland sold to
Grand Valley was “kept secret” and “no authority was obtained for it via
[Victoria’s] probate process.” In connection with what Paul described as “this
attempted land sale,” VOR issued notices of non-renewal to Paul, Skyline,
and other occupants who were leasing the farmland. Following Grand
Valley’s purchase of the land, it initiated eviction proceedings against Paul
and Skyline—the entity through which the O’Farrells conducted their
farming business. Paul and Skyline appealed the circuit court’s judgment
and order of eviction in a separate appeal, and we affirmed with respect to
(continued . . .)
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[¶10.] Significantly, Paul claims in his complaint to be acting for others. For
instance, he purports to be acting as a plaintiff “for the benefit of the Estate of
Victoria O’Farrell,” asserting that he is, “[b]y statute,” an “interested party” of his
mother’s estate. He also maintains that his authority to bring suit on behalf of VOR
arises from an assertion that he was the “most recent individual to be duly-elected”
as its president before being wrongfully removed in 2022. For the Trust, Paul
alleges he is “an interested person” and is bringing the suit on behalf of the Trust
“to restore the property taken from [the Trust], and, to effectuate the appointment
of Successor Co-Trustees.”
[¶11.] In his complaint, Paul groups an assortment of allegations into what
he describes as three causes of action: (1) a declaratory judgment action seeking to
void or invalidate certain acts by VOR, the Estate, and the Trust under the theory
that they occurred without notice, consent, or authority and were accomplished by
undue influence over Raymond; (2) rescission or “unwinding” of the land sale
agreement between VOR and Grand Valley; and (3) damages that Paul alleged
“would be available” for conversion, breach of fiduciary duty, and tortious
interference.
[¶12.] Soon after the complaint was filed, Paul sought to remove the assigned
circuit court judge using the procedure set out in our court rule at SDCL 15-12-21.1,
which allows a party one opportunity to unilaterally disqualify a judge under
(. . . continued)
the eviction issues Paul raised, though we reversed the court’s decision that
personal property belonging to Paul and Skyline was forfeited as part of the
eviction. See VOR, Inc. v. Est. of O’Farrell, 2025 S.D. 2, 17 N.W.3d 252.
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certain conditions. The presiding judge of the Third Judicial Circuit ultimately
denied Paul’s request, and the assigned judge remained.
[¶13.] VOR, the Estate, and the Trust, together appeared and filed an
answer, counterclaim, motion to dismiss, and motion for attorney fees, asserting
principally that Paul had no authority to act for them.5 Kelly filed a separate
answer and counterclaim. Grand Valley filed a motion to dismiss in lieu of an
answer pursuant to SDCL 15-6-12(b)(5).
[¶14.] The circuit court granted Grand Valley’s motion to dismiss and took
the other parties’ motions to dismiss under advisement. The court eventually
dismissed all of the claims pled in the complaint. Paul appealed the dismissal, as
well as the denial of his requested change of judge. We held that the presiding
judge of the Third Circuit erroneously applied the SDCL 15-12-21.1 rule and should
have disqualified the assigned judge. Est. of O’Farrell v. Grand Valley Hutterian
Brethren, Inc., 2024 S.D. 81, ¶¶ 27–28, 15 N.W.3d 745, 752. As a result, we vacated
all orders entered and remanded for appointment of a replacement judge. Id. ¶ 32,
15 N.W.3d at 753.
[¶15.] After the remand and appointment of a different judge, VOR, the
Estate, and the Trust filed a motion for summary judgment, again based largely on
the contention that Paul was not authorized to act for any of them. In addition,
they claimed that Paul did not have the legal capacity to challenge the land sale.
Grand Valley filed a separate motion for summary judgment and asserted that Paul
has no authority or rights to seek rescission of the land sale contract and that the
5. Paul actually named the Trust as a defendant.
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notice of rescission was otherwise deficient. Kelly has not filed any dispositive
motions.
[¶16.] After the motions for summary judgment were filed, Paul’s counsel
filed a Rule 56(f) affidavit, seeking to conduct additional discovery to support his
claims. The seven-page affidavit of counsel set out a lengthy list of information
sought through depositions and written discovery, apparently none of which had yet
been obtained during the pendency of the case. Paul also filed a motion to amend
the complaint and a motion seeking a physical and mental examination of
Raymond, pursuant to Rule 35(a).
[¶17.] The circuit court granted the various motions for summary judgment,
concluding Paul did not have the authority to bring suit on behalf of VOR or the
Estate, and dismissing them as plaintiffs. As it relates to the issues on appeal, the
court determined it was undisputed that Raymond is the president of VOR, that
Paul is not listed as an officer, director, or shareholder of VOR, and that Paul is
neither a personal representative nor a special administrator for the Estate. The
court also held that because Paul was not a party to the land sale agreement, he
could not, under SDCL 53-11-2(1), rescind that agreement.
[¶18.] The circuit court concluded that additional discovery would not change
any of these critical legal determinations and denied Paul’s Rule 56(f) request. The
court also denied Paul’s motion to amend the complaint. Based on counsel’s
admission that the claim for “tort damages” was only against Kelly, the court
granted the motion for summary judgment on this claim as it relates to the Trust
and Grand Valley. The court denied Paul’s Rule 35(a) motion to conduct an
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examination of Raymond based on its conclusion that the “case does not center on
the alleged undue influence of Raymond, but rather on whether the Plaintiffs have
the authority to litigate this claim.” Finally, the court relied upon SDCL 15-17-51
to award attorney fees to VOR, the Estate, and the Trust, after finding that Paul’s
action was frivolous.
[¶19.] Paul sought intermediate review of the circuit court’s orders, which we
granted without opposition from the other parties. He identifies several issues on
appeal, which we restate as follows:
1. Whether the circuit court erred when it granted summary
judgment to VOR and the Estate and dismissed them as
plaintiffs.
2. Whether the circuit court erred when it granted summary
judgment on Paul’s claim for rescission.
3. Whether the circuit court abused its discretion when it
denied Paul’s Rule 56(f) request to conduct additional
discovery.
4. Whether the circuit court abused its discretion when it
denied Paul’s motion to amend the complaint and motion
for a Rule 35(a) examination.
5. Whether the circuit court erred in awarding attorney fees.
Analysis
[¶20.] The standards we apply in reviewing a circuit court’s entry of
summary judgment are well-settled:
We review a circuit court’s entry of summary judgment under
the de novo standard of review. 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. We view the
evidence most favorably to the nonmoving party and resolve
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reasonable doubts against the moving party. We will affirm the
circuit court’s summary judgment decision if there exists any
basis which supports the ruling of the trial court.
Anderson Indus., LLC v. Thermal Intel., Inc., 2025 S.D. 47, ¶ 23, 25 N.W.3d 257,
264 (citation modified).
Dismissing VOR and Victoria’s Estate as plaintiffs
[¶21.] The circuit court concluded that Paul had no authority to bring suit in
the name of VOR or the Estate. Paul argues that in so doing, the court “ignored the
substance” of his claims and “focused instead upon irrelevant issues, such as how
the caption was aligned and whose name was listed as ‘president’ in the Secretary of
State’s records.” Because SDCL 21-24-7 requires that “all persons shall be made
parties who have or claim any interest which would be affected by the declaration,”
Paul claims that “as long as one or more plaintiffs are capable of seeking the
‘declaration,’ then all other interested partes should be joined, either as co-plaintiff,
or as defendants.”
[¶22.] The issue presented here is not whether VOR and the Estate are
“suitable parties.” Rather, the pertinent issue is Paul’s capacity to sue on behalf of
the named plaintiffs, VOR and the Estate. See, e.g., 1 Litigating Tort Cases § 5:8,
Westlaw (database updated Oct. 2024) (“Capacity refers to a party’s legal ability to
sue and be sued in the courts of a particular forum. Capacity is not only the power
to bring an action, but is also the power to maintain it once it has been initiated.”
(citation modified)). Whether seeking declaratory relief, rescission, or damages,
Paul must have the capacity to sue on behalf of the named plaintiffs. As to VOR
and the Estate, he does not.
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a. Dismissal of VOR
[¶23.] As a corporation, VOR has the power to bring suit in its own name.
See SDCL 47-1A-302(1) (providing that a corporation has the power to “[s]ue and be
sued, complain, and defend in its corporate name”); see also 19 Am. Jur. 2d
Corporations § 1851, Westlaw (database updated May 2026) (explaining a suit for
“injury to the corporation can only be brought by the corporation itself”). But
because a “corporation is an artificial legal creation,” it acts “only through its
officers and agents,” including its president. Aimonetto v. Rapid Gas, Inc., 126
N.W.2d 116, 119 (S.D. 1964). See also Hutterville Hutterian Brethren, Inc. v. Sveen,
776 F.3d 547, 555 (8th Cir. 2015) (applying South Dakota law and noting that
plaintiff, “as a South Dakota nonprofit corporation, . . . has the power to sue and be
sued, complain and defend, in its corporate name,” but that given its corporate form,
could “act only through individuals acting as its agents, which comes down to the
board of directors—its ultimate governing body” (citation modified)). See also 9
Fletcher Cyc. Corp. § 4216, Westlaw (database updated Sept. 2025) (noting that
corporate directors generally have the authority to initiate or to defend an action,
but such power can also be “vested in the president or other managing officer of the
corporation” to institute and defend suits in the corporate name). Paul did not, at
the time he commenced suit, hold any of the positions that would authorize him to
sue on behalf of VOR.
[¶24.] Paul compares his assertion of VOR’s rights and claims in this action
to a shareholder derivative action, although he cites no supporting authority to
justify appropriating such a singular and exceptional procedure in this way. And,
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in any event, the requirements for an actual shareholder derivative action bear
little resemblance to Paul’s efforts here.
[¶25.] South Dakota’s statutes concerning shareholder derivative actions
contain specific requirements, including the obligation of the shareholder to make
written demand on the corporation before the shareholder purports to bring an
action in the name of the corporation. SDCL 47-1A-742. But even more
fundamentally, a shareholder derivative action on behalf of VOR must be brought
by a shareholder, which Paul was not. See SDCL 47-1A-741 (“No shareholder may
commence or maintain a derivative proceeding unless the shareholder: (1) Was a
shareholder of the corporation at the time of the act or omission complained of[.]”).
[¶26.] Based on VOR’s 2022 Annual Report filed with the South Dakota
Secretary of State, which was made a part of the record, the circuit court concluded
that at the time the suit was commenced, Paul was not an officer, director, or
shareholder of VOR. Beyond stating in his “opposition” to the court’s memorandum
opinion that the annual report “is not determinative,” Paul has not challenged the
accuracy of the court’s determination. Nor has Paul cited to any record evidence
that indicates he was an officer, director, or shareholder of VOR such that he had
the authority to bring suit on VOR’s behalf. Thus, the facts regarding Paul’s
inability to bring suit for VOR remain undisputed, and the court correctly granted
the motion for summary judgment seeking to dismiss VOR as a plaintiff in this
action.
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b. Dismissal of the Estate
[¶27.] The circuit court determined that “it is undisputed that Paul is neither
a personal representative nor a specially appointed administrator” of the Estate and
it, therefore, concluded that Paul had no authority to make claims on behalf of the
Estate. Our statutes support that conclusion. See SDCL 29A-3-703 (“Except as to
proceedings which do not survive the death of the decedent, a personal
representative . . . has the same standing to sue and be sued . . . as the decedent
had immediately prior to death.”); SDCL 29A-3-617 (“A special administrator
appointed by order of the court in any formal proceeding has the powers of a general
personal representative, except as limited in the order of appointment, and the
duties as prescribed in the order.”).
[¶28.] Paul asserts that he is authorized to act on behalf of the Estate by
virtue of his status as an interested person, citing a Nebraska Supreme Court
decision. See Beachy v. Becerra, 609 N.W.2d 648, 651–52 (Neb. 2000). The common
law standing rule stated in Beachy provides that “when the legal representative has
failed or refused to act, the heir may maintain an action to recover assets for the
benefit of the estate.” Id. at 652 (citation omitted). It is unclear whether the rule
would even be necessary following South Dakota’s enactment of the Uniform
Probate Code, which contains specific statutory provisions for removing a personal
representative or special administrator. See SDCL 29A-3-611 (authorizing “[a]ny
interested person” to petition for the removal of personal representative for cause);
SDCL 29A-3-618 (providing that the appointment of a special administrator is
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“subject to termination as provided in §§ 29A-3-608 to 29A-3-611, inclusive”).
Regardless, though, the rule stated in Beachy would not apply here.
[¶29.] Frankly, even the Beachy court did not actually apply the rule. It
stated it, and then held that the question of the heir’s ability to bring suit was
rendered moot by the removal of an allegedly conflicted personal representative.
Beachy, 609 N.W.2d at 652.
[¶30.] But, beyond this, there are two other reasons Paul cannot prevail on
his claim to represent the Estate under a Beachy theory. The first requires us to set
the argument within the context of the serpentine procedural history of the
O’Farrell constellation of cases. In late 2022, after Raymond had been appointed
the special administrator of the Estate, Paul petitioned to remove Raymond and
have himself substituted, citing SDCL 29A-3-611. After Paul’s attempted appeal
was dismissed, he filed a renewed petition to remove Raymond as the special
administrator. The circuit court denied the petition to remove Raymond in May
2025. Paul appealed, as indicated, and we reversed that determination by order.
See supra at ¶ 7.
[¶31.] Therefore, at the time Paul commenced this case in March 2023,
purporting to act on behalf of the Estate, he had petitioned to remove Raymond, but
the issue had not been decided by the circuit court. When it was ultimately
presented to the court and decided adversely to Paul, he exercised his right to
appellate review and ultimately prevailed. In other words, he has no need for a
common law Beachy-type rule. He needed only to exhaust his statutory remedies in
order to remove Raymond.
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[¶32.] The second reason why Paul cannot act for the Estate is that
subsequent events have rendered the capacity question moot. Not only have we
reversed the circuit court’s decision denying Paul’s petition to remove Raymond,
Paul, himself, has passed away and can no longer act for the Estate. In our order
disposing of the appeal, our remand instructions required the court to “appoint a
qualified special administrator . . . to perform such duties as are necessary to
determine whether Victoria O’Farrell died intestate and to determine what assets
or claims, if any, Victoria possessed at the time of her death.” In re Est. of O’Farrell,
2026 WL 827972, at *1.
[¶33.] Notably, the circuit court in its summary judgment ruling in this case
also concluded that Paul’s request for declaratory relief relating to the Estate “must
be brought within the estate/probate proceeding.” Although Paul briefly mentions
this ruling, he has not challenged it on appeal. See Shevling v. Major, 2026 S.D. 27,
¶ 51, 35 N.W.3d 833, 850 (holding an issue on appeal is waived by a party’s failure
to make any argument on the issue).
[¶34.] For all these reasons, we affirm the circuit court’s summary judgment
decision that dismissed the Estate from this case.
The individual requests for declaratory relief
[¶35.] In the first count of his complaint, Paul seeks declaratory relief
regarding purported “improper corporate, trust, probate, and individual actions”
and regarding Skyline’s and Paul’s rights concerning the real estate sold to Grand
Valley. The motion for summary judgment principally centered on Paul’s
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representative capacity, and, as a result, the circuit court’s memorandum opinion
does not directly address much of the declaratory relief sought.
[¶36.] As noted, the opinion states, “As Count 1 pertains to the Estate, it
must be brought within the estate/probate proceeding. Thus summary judgment
regarding Count 1 as it pertains to the Estate is GRANTED.” (Emphasis added.)
The circuit court also determined that Paul did not “plead any cause of action
against Grand Valley in Count 1.” In its order, the court’s only references to
declaratory relief are the statement that “to the extent Count 1 pertains to the
Estate of Victoria O’Farrell, it is dismissed” and its statement granting “Grand
Valley’s Motion for Summary Judgment with respect to Counts 1, 2, and 3.” The
court’s decision granting summary judgment focused on Paul’s claim that he had
the representative capacity to commence the action on behalf of VOR and the
Estate.6
[¶37.] All of this to say the circuit court did not pass on the merits of the
claims regarding VOR’s actions and the Trust’s actions or naming a successor
trustee. Nevertheless, Paul seems insistent that the petition for intermediate
appeal placed the issues before us, stating the court “granted ‘partial’ summary
judgment, but the scope of that partial summary judgment is a full and complete
6. The Trust, VOR, and the Estate (as defendants) also moved for summary
judgment on Paul’s claim seeking a declaration that Skyline is “legally
permitted to continue farming” the land sold to Grand Valley and that Paul
“is legally permitted to continue occupying” the land. The circuit court
correctly noted that we decided these claims, at least with respect to
immediate possession, in our decision affirming Paul’s and Skyline’s eviction
in the prior forcible entry and detainer matter. VOR, Inc. v. Est. of O’Farrell,
2025 S.D. 2, 17 N.W.3d 252.
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summary judgment as to all of the Plaintiffs’ claims involving the Trust, VOR, and
the land.” None of the parties have voiced disagreement with Paul’s interpretation,
and the other parties appear to be operating under the belief that the court granted
relief on all of Paul’s claims against them.
[¶38.] We read the circuit court’s memorandum opinion and corresponding
order differently. It is patently clear that the court did not reach the merits of the
request for declaratory relief, as we have explained, and we decline to address
issues that that court did not consider and decide. See Hall v. State ex rel. S.D.
Dep’t of Transp., 2006 S.D. 24, ¶ 12, 712 N.W.2d 22, 27 (stating the Court “will only
review the issues that were presented to and determined by the trial court”).
The claim for rescission
[¶39.] The second count of Paul’s complaint seeks rescission of VOR’s sale of
land to Grand Valley based on Paul’s allegation that “Raymond’s consent for the
transaction was procured via undue influence, or without his full understanding,
and without following necessary corporate formalities.” Paul claims that the “land
transaction should be rescinded by this [c]ourt.”
[¶40.] VOR and Grand Valley moved for summary judgment, with both
generally asserting that Paul (and now his estate) has no right to rescind the land
sale and that he cannot restore the consideration Grand Valley paid for its purchase
of the land. Grand Valley also notes that, to date, there is no evidence of undue
influence over Raymond, who effectuated the land sale on behalf of VOR in October
2022.
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[¶41.] The circuit court granted the motions for summary judgment on the
rescission claim, stating in its memorandum opinion that statutory rescission under
SDCL 53-11-2(1) is available only for a party to the contract, which Paul is not. The
court further concluded that Paul did not establish he was entitled to equitable
rescission under SDCL 21-12-1.
[¶42.] Rescission can be obtained pursuant to SDCL 53-11-2 or through an
equitable action pursuant to SDCL 21-12-1. CAL SD, LLC v. Interwest Leasing,
LLC, 2024 S.D. 76, ¶ 21 n.5, 15 N.W.3d 433, 439 n.5 (quoting Knudsen v. Jensen,
521 N.W.2d 415, 417 (S.D. 1994)). The text for each statute provides:
SDCL 53-11-2—A party to a contract may rescind the same in
the following cases only:
(1) If consent of the party rescinding or of any party
jointly contracting with him was given by mistake or
obtained through duress, fraud, or undue influence
exercised by or with the connivance of the party as to
whom he rescinds, or of any other party to the contract
jointly interested with such party;
(2) If through fault of the party as to whom he rescinds,
the consideration for his obligation fails in whole or in
part;
(3) If the consideration becomes entirely void from any
cause;
(4) If such consideration before it is rendered to him fails
in a material respect from any cause; or
(5) By consent of all the other parties.
SDCL 21-12-1—The rescission of a written contract may be
adjudged on the application of a party aggrieved:
(1) In any of the cases mentioned in § 53-11-2;
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(2) Where the contract is unlawful, for causes not
apparent upon its face, and the parties were not equally
in fault;
(3) When the public interest will be prejudiced by
permitting it to stand.
[¶43.] In CAL SD, LLC, we noted the differences between these rescission
statutes and explained:
The grounds for legal rescission are set forth in SDCL 53-11-2
and these same grounds are the basis for equitable rescission
under SDCL 21-12-1. The difference between the two types of
rescission is in the relief sought. If the action is in equity, the
rescission is accomplished by court decree. Rescission is
equitable if the complaint asks the court to order rescission of a
contract. It is legal if the court is asked to enforce a completed
rescission.
2024 S.D. 76, ¶ 21 n.5, 15 N.W.3d at 439 n.5 (citation modified).
[¶44.] Here, Paul has not sought to enforce an already completed rescission—
legal rescission. Rather, he requested that the circuit court order a rescission of the
land sale contract—equitable rescission—based on the alleged undue influence
exerted over Raymond, who entered into the land sale contract on behalf of VOR.
See S.D. Bd. of Regents ex rel. Black Hills State Univ. v. Glob. Synthetics Env’t.,
LLC, 270 F. Supp. 3d 1088, 1107 (D.S.D. 2017) (citing Mattson v. Rachetto, 591
N.W.2d 814, 818 (S.D. 1999) (describing the remedy of equitable rescission as
“extraordinary”)). Further, because Paul seeks rescission based upon alleged undue
influence, whether he seeks legal or equitable rescission, SDCL 53-11-2(1) applies.
See SDCL 21-12-1(1) (incorporating SDCL 53-11-2 by reference).
[¶45.] VOR and Grand Valley argue that whether the remedy sought is legal
or equitable rescission, Paul, who was not a party to the land sale contract in any
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capacity, cannot seek this remedy. Paul asserts that he has the “legal ability to
effectuate the unilateral rescission permitted under SDCL 53-11-2(1)” based on his
allegation that he was “improperly removed as an officer of VOR” and at the time of
the land sale contract, he was the validly elected president. However, even if that
legal premise were sound, which we do not hold, Paul has not produced record
evidence supporting that assertion.
[¶46.] In fact, in response to VOR’s statement of undisputed material fact
that, “Raymond A. O’Farrell was the president, director, and owner of VOR, Inc. in
August of 2022,” Paul simply stated:
DISPUTED. The Complaint, the attachments to it, and the
Record generally demonstrate that Raymond’s election as
president, director, and owner of VOR are disputed; the disputes
include a failure to follow corporate formalities and notice
provisions, and, capacity questions, and question of undue
influence.
[¶47.] But, this sort of a conclusory response without any citations to the
record is insufficient to resist a motion for summary judgment, as SDCL 15-6-56,
itself, requires:
When a motion for summary judgment is made and supported
as provided in § 15-6-56, an adverse party may not rest upon the
mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in § 15-6-56, must set forth
specific facts showing that there is a genuine issue for trial. If he
does not so respond, summary judgment, if appropriate, shall be
entered against him.
SDCL 15-6-56(e) (emphasis added); see also SDCL 15-6-56(c)(2) (requiring the party
opposing summary judgment to respond to the statement of undisputed material
facts with “citations to the record”).
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[¶48.] Our cases have faithfully applied this rule. They require a party
responding to a summary judgment motion, like Paul, to “substantiate his
allegations with sufficient probative evidence that would permit a finding in his
favor on more than mere speculation, conjecture, or fantasy.” Anderson Indus.,
2025 S.D. 47, ¶ 25, 25 N.W.3d at 265 (citation modified); Zochert v. Protective Life
Ins., 2018 S.D. 84, ¶ 19, 921 N.W.2d 479, 486 (“The nonmoving party, however,
must present specific facts showing that a genuine, material issue for trial exists.”
(citation modified)).
[¶49.] Paul alternatively argues that even if he cannot seek legal rescission
on behalf of VOR, he can seek equitable rescission, and that his status as a “party
aggrieved” is sufficient to make this remedy available to him. But this argument
fails to support a meaningful difference between “party” and “party aggrieved,” at
least in this case, because it overlooks the statutory requirement of SDCL 21-12-1(1) that connects equitable rescission to the grounds for rescission—equitable
rescission “may be adjudged . . . [in] any of the cases mentioned in § 53-11-2[.]”7
Paul was not a party to the land sale agreement that he seeks to rescind, and the
circuit court, therefore, correctly determined that neither Paul nor Skyline could
seek rescission of the contract. See SDCL 53-11-2 (“A party to a contract may
rescind the same[.]”); 17B C.J.S. Contracts § 591, Westlaw (database updated April
7. Paul has not alleged the existence of the other two SDCL 21-12-1 bases for
equitable rescission—“(2) Where the contract is unlawful, for causes not
apparent upon its face, and the parties were not equally in fault” and “(3)
When the public interest will be prejudiced by permitting it to stand.”
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2026) (“The rescission of a contract generally refers to the cancellation, annulment,
or abrogation of the contract by the parties or one of them[.]” (emphasis added)).
[¶50.] Regardless, although pled in the complaint as a separate claim or
“count,” rescission is not a claim at all—it is a remedy, as we have held. See Beals
v. AutoTrac, Inc., 2017 S.D. 80, ¶ 10 n.1, 904 N.W.2d 765, 768 n.1 (stating that
“rescission is a remedy—not a cause of action—available in contract cases”
(emphasis added) (citation omitted)); see also Kennebrew v. Harris, 425 S.W.3d 588,
595–96 (Tex. Ct. App. 2014) (“Because rescission is a remedy, it is available only if
the other party to the contract has committed some wrong.” (citation omitted));
Baglivo v. Mut. of Omaha Ins. Co., No. 20-CV-15605, 2025 WL 2976657, at *9
(D.N.J. Oct. 22, 2025) (“A party seeking rescission must identify and establish a
substantive basis for that remedy.”).
[¶51.] In this regard, we note that Paul has alleged Kelly exerted undue
influence over Raymond as the basis for rescission. Again, without agreeing with
the premise that Kelly’s alleged undue influence necessarily gives Paul the ability
to, as he says, “unwind” the land sale, it is sufficient here to note that Paul did not
successfully resist summary judgment on the rescission claim if it was based on
undue influence.
[¶52.] In response to Grand Valley’s statement of undisputed material fact—
“there is no evidence of what Kelly did or said to Ray giving rise to this dispute”—
Paul responded only that “[u]ndue influence can be shown with circumstantial
evidence, rather than with evidence of certain statements,” without actually
producing any circumstantial evidence in support of his claim. This falls far short
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of Paul’s duty to “substantiate his allegations with sufficient probative evidence.”
Anderson Indus., 2025 S.D. 47, ¶ 25, 25 N.W.3d at 265 (citation omitted).
[¶53.] Under the circumstances, the observations of the court in the Baglivo
case seem particularly apt:
As previously indicated, rescission is a remedy—not a cognizable
cause of action. For that very reason, courts in this district have
consistently dismissed so-called “rescission claims” as invalid on
their face.
This imprecision is not a matter of mere formality or
nomenclature—it reflects a fundamental defect that goes to the
heart of what constitutes a justiciable claim and the Court’s
authority to grant relief grounded in a recognized legal right.
See United States v. Tohono O’Odham Nation, 563 U.S. 307, 331
(2011) (observing that “entitlement to relief is essential to the
existence of a claim or cause of action”).
Baglivo, 2025 WL 2976657, at *9.
Paul’s Rule 56(f) request to conduct additional discovery
[¶54.] Perhaps sensing the need for additional factual support for his claims,
Paul sought more time to conduct discovery pursuant to Rule 56(f). The circuit
court denied that request, stating “further discovery will not change the outcome of
this proceeding.” Paul appeals this ruling.
[¶55.] The text of Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit
facts essential to justify his opposition, the court may refuse the
application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery
to be had or may make such other order as is just.
[¶56.] This rule requires that Paul establish that the facts sought through
discovery are “‘essential’ to opposing the summary judgment,” which, in turn,
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“requires a showing how further discovery will defeat the motion for summary
judgment.” Stern Oil Co. v. Border States Paving, Inc., 2014 S.D. 28, ¶ 26, 848
N.W.2d 273, 281 (citations omitted).
To make this showing, the Rule 56(f) affidavit must include
identification of the probable facts not available and what steps
have been taken to obtain those facts, how additional time will
enable the nonmovant to rebut the movant’s allegations of no
genuine issue of material fact, and why facts precluding
summary judgment cannot be presented at the time of the
affidavit.
Id. at 281–82 (citation modified).
[¶57.] “The circuit court has discretion under SDCL 15-6-56(f) to determine
whether a party has demonstrated that additional discovery is necessary to defeat
the motion for summary judgment.” Harvieux v. Progressive N. Ins., 2018 S.D. 52,
¶ 23, 915 N.W.2d 697, 703. We review the court’s decision to deny a continuance
requested under Rule 56(f) for an abuse of discretion. Davies v. GPHC, LLC, 2022
S.D. 55, ¶ 51, 980 N.W.2d 251, 265.
[¶58.] Here, the circuit court did not abuse its discretion when it determined
that Paul’s Rule 56(f) showing fell short. There is little doubt that additional
discovery could not alter the fact that Paul does not have the authority to bring suit
on behalf of VOR or the Estate. Additional time would not change the fact that
Paul is not an owner, officer, or director of VOR. And there is simply no specific
showing that Paul could hope to discover evidence that would allow him to bring
suit on behalf of an estate that he has not been appointed to represent.
[¶59.] Further, the Rule 56(f) affidavit from Paul’s counsel is more of a
general blueprint for discovery that could have been drafted in 2023 when the case
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was commenced, and less a specific showing of how additional time for discovery
will allow Paul to successfully resist summary judgment, as Rule 56(f) and our cases
require. Of course, nothing connected with the circuit court’s Rule 56(f) ruling, or
ours, precludes Paul from undertaking discovery after our resolution of this
intermediate appeal, but we hold that the court did not abuse its discretion in
denying Paul Rule 56(f) relief and proceeding to resolve the summary judgment
motions that were before it.
The motion to amend the complaint and for a Rule 35(a) examination
[¶60.] In its decisions denying Paul’s motions to amend the complaint and to
authorize a Rule 35(a) examination of Raymond, the circuit court rejected the idea
that this was even an undue influence case. The court is correct in the sense that
Paul’s complaint does not set out a specific claim for undue influence. See Stockwell
v. Stockwell, 2010 S.D. 79, ¶ 35, 790 N.W.2d 52, 64 (listing the elements of undue
influence as: “(1) decedent’s susceptibility to undue influence; (2) opportunity to
exert such influence and effect the wrongful purpose; (3) a disposition to do so for an
improper purpose; and, (4) a result clearly showing the effects of undue influence”).
[¶61.] But still, Paul does make several general, diffuse statements in the
complaint that Kelly exerted influence over Raymond. And the sufficiency of the
complaint is not at issue in this summary judgment proceeding, particularly given
the fact that Kelly has not sought dismissal or summary judgment. Beyond this,
the posture of this intermediate appeal and our disposition make clear that the
case, in some form, will continue after our remand. Indeed, the merits of the tort
claims referenced in the third count remain, as do some of the declaratory judgment
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claims in the first count, and a claim for unjust enrichment, which was referenced
in the complaint as an alternative to rescission.
[¶62.] Complicating our review of the circuit court’s decisions to deny the
motion to amend and the motion for a Rule 35(a) examination is the fact that Paul
does not fully develop an appellate challenge to either. As to the former, he has
argued that amending the complaint to realign the parties would be an alternative
to summary judgment, though the proposed amended complaint did more than just
realign the parties, and Paul simultaneously continues to maintain in this appeal
that he could sue on behalf of the Trust, VOR, and the Estate. And as to the Rule
35(a) ruling, Paul does not develop a direct challenge to the court’s Rule 35(a)
determination that “Raymond’s mental status is not at issue.” See SDCL 15-6-35(a)
(“In an action in which the mental or physical condition of a party . . . is in
controversy, the court in which the action is pending may order such person or
party to submit to a physical or mental examination.”).
[¶63.] Paul operates under the premise that he has properly pled a claim for
undue influence, just as the circuit court seemed to believe he has not. But the
resolution of the summary judgment claims here does not require a definitive
determination of that question, which is better left for further proceedings after the
case is remanded.
[¶64.] For now, it is enough to conclude that the unresolved nature of the
Count 1 declaratory judgment claims involving VOR and the Trust would require
joinder of VOR and Raymond, the current Trustee of the Trust, as defendants (the
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Trust was named as a defendant in the existing complaint).8 See SDCL 21-24-7
(“When declaratory relief is sought all persons shall be made parties who have or
claim any interest which would be affected by the declaration, and no declaration
shall prejudice the rights of persons not parties to the proceeding.”). Because of
this, the circuit court’s order precluding the addition of the unnamed defendants for
the still-viable declaratory claims is not within the range of permissible choices, and
we vacate the portion of the court’s order denying Paul’s motion to amend the
complaint that prevented him from joining VOR and Raymond as defendants. 9 See
Hamer v. Duffy, 2026 S.D. 4, ¶ 12, 31 N.W.3d 680, 686 (“We review the circuit
court’s decision to grant or deny a motion to amend pleadings using the abuse of
discretion standard of review.” (citation omitted)).
8. The captions for Paul’s principal appellate brief and his reply brief
inexplicably list as defendants “Raymond O’Farrell, individually, as Trustee,
and as Special Administrator of the Estate of Victoria O’Farrell; and VOR,
Inc. (by Raymond O’Farrell).” Neither Raymond nor VOR have previously
been listed as defendants in the case caption—indeed, their roles as parties in
this litigation is a central issue on appeal. We are unable to find any order
permitting this change. We note that the petition for intermediate appeal did
not list Raymond or VOR as defendants, which is consistent with the caption
on the complaint and the caption used in the circuit court proceedings and in
our previous opinion in this case. See Est. of O’Farrell v. Grand Valley
Hutterian Brethren, Inc., 2024 S.D. 81, 15 N.W.3d 745. We are left to
conclude that the incorrect captions reflect unilateral changes to state that
Raymond and VOR are already defendants, despite the fact that Paul did not
prevail on his motion to amend the complaint. This action was not
authorized.
9. VOR and Raymond argue that VOR’s realignment would effectively mean
that Paul’s attorneys were transgressing the Rules of Professional
Responsibility by suing a former client. But this argument is incongruent
with their other argument that Paul lacked the authority to bring suit on
behalf of VOR, the Trust, and the Estate, which has been accepted by both
the circuit court and by us.
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[¶65.] We also vacate the circuit court’s order denying the Rule 35(a)
examination. Until the question of whether Paul has pled a claim of undue
influence is squarely presented and resolved, the court’s resolution of the Rule 35(a)
motion under the rule’s “good cause” standard was premature. See Stormo v.
Strong, 469 N.W.2d 816, 822 (S.D. 1991) (court’s discretionary decision to authorize
a Rule 35(a) examination turns on a showing of good cause under the circumstances
of the case).
Attorney fees under SDCL 15-17-51
[¶66.] VOR, the Estate, and the Trust moved for an award of attorney fees
pursuant to SDCL 15-17-51, arguing that the action was frivolous. The circuit court
agreed, granted the motion, and after counsel’s submission of the fees incurred in
this case, awarded fees and costs in the amount of $56,337.40. Paul appeals the
award of fees and costs, arguing this action is not frivolous.10
[¶67.] Whether attorney fees are authorized is a question of law that is
reviewed de novo. Toft v. Toft, 2006 S.D. 91, ¶ 10, 723 N.W.2d 546, 549. Attorney
fees are allowable under SDCL 15-17-51, which states:
If a civil action . . . is dismissed or requested relief is denied and
if the court determines that it was frivolous or brought for
malicious purposes, the court shall order the party whose claim,
cause of action, or defense was dismissed or denied to pay part
or all expenses incurred by the party defending the matter,
including reasonable attorneys’ fees.
10. Paul does not challenge the award of attorney fees on any other basis and did
not file with the circuit court any objection to the amount of fees awarded, nor
does he claim on appeal that the amount was improper.
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[¶68.] In Reidburn v. South Dakota Department of Labor & Regulation
Reemployment Assistance Division, we explained that a “frivolous action exists
when the proponent can present no rational argument based on the evidence or law
in support of the claim.” 2024 S.D. 19, ¶ 29, 5 N.W.3d 834, 841 (citation modified).
In addition, we clarified that “to fall to the level of frivolousness there must be such
a deficiency in fact or law that no reasonable person could expect a favorable
judicial ruling.” Id. (citation modified).
[¶69.] In support of its award of attorney fees and costs, the circuit court
based its frivolous determination upon a finding that “Paul named VOR as a
plaintiff without the requisite authority to act on its behalf, and pursued claims on
behalf of [the Estate] without proper authority.” Paul argues that his “effort to
pursue claims that would rectify substantial allegations of undue influence ‘cannot
be characterized as a legal position so wholly without merit as to be ridiculous.’”
[¶70.] Paul’s argument ignores, however, that even if the substantive claims
had merit, he did not have the authority to bring such claims on behalf of VOR or
the Estate—a fact that should have been apparent to him at the time he filed his
complaint and certainly by the time the second round of dispositive motions were
filed. For the reasons discussed above, Paul could not reasonably believe he was an
owner, shareholder, or officer of VOR. Similarly, Paul could not reasonably believe
he was the personal representative or special administrator of the Estate or had
any other legal authority to sue on its behalf, as we explained above. See supra at
¶¶ 23–28.
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[¶71.] Nevertheless, despite our agreement with the circuit court’s findings in
this regard, its attorney fee award seems premature. The court found that both the
“action” and the “complaint” were frivolous. This is an apparent reference to the
text of SDCL 15-17-51, which authorizes an attorney fee award when a frivolous
“action” is dismissed. But here, the dismissal of VOR and the Estate as plaintiffs
was not the dismissal of an “action” or the denial of “requested relief.” SDCL 15-17-51. A portion of the case remains, as we have noted, and the court’s attorney fee
award under SDCL 15-17-51 is premature.11 Indeed, it is possible that Paul could
still prevail on some of the remaining claims.
Conclusion
[¶72.] Paul had no authority to bring suit on behalf of VOR or the Estate and
the circuit court did not err when it granted summary judgment and dismissed
them as plaintiffs. Because he was not a party to the land sale contract, Paul
cannot seek to rescind it, and the court correctly granted VOR’s and Grand Valley’s
motions for summary judgment on that claim. Paul failed to demonstrate that
additional time would enable him to produce facts in support of his summary
judgment resistance, and the court did not abuse its discretion in denying Paul’s
Rule 56(f) motion. We affirm on these issues.
11. We also deny the motion by VOR, the Estate, and the Trust for an award of
appellate attorney fees pursuant to SDCL 15-26A-87.3, which, we have held,
authorizes attorney fees when they “are permissible at the trial level.”
Matter of Dissolution of Healy Ranch, Inc., 2026 S.D. 15, ¶ 83, 32 N.W.3d 721,
747 (citation modified). Because we are vacating the circuit court’s order
awarding attorney fees, there is no basis for an award of appellate attorney
fees.
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[¶73.] However, we vacate the circuit court’s order denying the motion to
amend insofar as it denied an amendment to allow VOR and Raymond to be joined
as defendants. We also vacate the court’s order awarding attorney fees and the
order denying a Rule 35(a) examination of Raymond.12
[¶74.] JENSEN, Chief Justice, and MYREN and GUSINSKY, Justices,
concur.
[¶75.] DEVANEY, Justice, concurs in part and dissents in part.
DEVANEY, Justice (concurring in part and dissenting in part).
[¶76.] While I concur in many respects with the majority opinion’s resolution
of most of the issues raised in this appeal, I write separately to explain my
alternative or additional reasons for reaching the same conclusions, and to explain
why I respectfully dissent as to one of the issues. I concur with the majority
opinion’s determination that the circuit court did not err in dismissing VOR as a
plaintiff in the pending lawsuit. Because Paul was not a shareholder of VOR, he
could not bring a shareholder derivative action, and Paul’s estate, as the current
plaintiff and appellant, has conceded in this appeal that after Paul’s death, he is “no
longer an ousted officer capable of seeking relief under the theory that he remains
the last, rightful President of VOR.” As such, I agree with the majority opinion’s
12. Paul has moved to consolidate this appeal with the recent appeal regarding
Victoria’s Estate. We have referred to the Estate appeal in several instances
in this opinion and grant the motion to that limited extent. We deny Paul’s
additional request for us to “upon remand . . . direct the consolidation of [both
cases] as permitted by SDCL 15-6-42(a)[.]” The request is unconnected to an
allegation of error and there was no request for consolidation before the
circuit court. Under the circumstances, this seems like an extraordinary
level of supervision over the circuit court’s authority to manage its cases.
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conclusion that the circuit court did not err in dismissing the request for rescission
of the land sale under Count 2. As currently pled and argued below, such remedy is
not available under either SDCL 53-11-2(1) or SDCL 21-12-1(1) to those who are not
a party to the transaction.
[¶77.] I also agree with the majority opinion that several of the claims
seeking declaratory relief under Count 1 remain because the circuit court’s order
did not dispose of them. Although matters relating to the interpretation of the
Trust Agreement and its application to Raymond’s acts on behalf of the Trust and
VOR were briefed and argued by the parties below in the context of whether the
land sale could be rescinded, the circuit court did not address these arguments or
rule on them. Such arguments, which also apply to the pending claims for
declaratory relief, involve matters of law and fact, and I agree with the majority
opinion’s determination that they must be considered and resolved below.13
[¶78.] I further agree with the majority opinion that the circuit court erred in
denying the motion to amend the alignment of the named parties. In my view, the
circuit court’s reasons for denying the motion to amend are unsound. The court
stated that “[t]his case does not center on the alleged undue influence of Raymond,
but rather on whether the Plaintiffs have the authority to litigate this claim.” The
13. Much of the discovery outlined in Paul’s Rule 56(f) motion pertains to the
claims for declaratory relief regarding whether Raymond’s actions violated
corporate rules or the Trust Agreement and whether Raymond should be
removed as Trustee of the Trust. While I disagree with the circuit court’s
expressed reason for denying the Rule 56(f) motion, i.e., that “further
discovery will not change the outcome of this proceeding,” because these
declaratory claims, the unjust enrichment claim, and the undue influence
and tort claims against Kelly are still pending, I agree with the majority
opinion that much of this discovery could still be undertaken on remand.
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court then stated that the proposed “amendments do not alter the outcome of its
prior analysis” of the issues regarding whether Paul could bring a claim on behalf of
VOR and Victoria’s Estate. The first statement, which mirrors the court’s expressed
reason for denying a motion for a Rule 35(a) examination of Raymond, is not
supported by the record, nor was it asserted by the parties. The existing complaint
centers on two things: (1) an assertion that Kelly unduly influenced Raymond; and
(2) the allegation that Raymond’s actions were in violation of corporate rules and
the Trust Agreement. Perhaps the reference to “this case” was an inadvertent error
and the court was instead referring only to the summary judgment motions. But if
so, contrary to the court’s second statement that the proposed amendment would
not alter the outcome of its analysis of the summary judgment issues, the proposed
amendment to realign the parties resolves the summary judgment argument that
Paul or his estate could not bring a claim on behalf of VOR or Victoria’s Estate.
[¶79.] Moreover, the proposed realignment did not effect any substantive
changes in the existing claims, nor could it cause any prejudice to these parties, who
had already appeared in this lawsuit and had asserted defenses to such claims on
numerous prior occasions in this lawsuit and in other related proceedings. See
Hamer v. Duffy, 2026 S.D. 4, ¶ 13, 31 N.W.3d 680, 686 (noting that “[t]he most
important consideration in determining whether a party should be allowed to
amend a pleading is whether the nonmoving party will be prejudiced by the
amendment” (citation omitted)). I therefore agree with the majority opinion that
the circuit court abused its discretion when denying the motion to amend the
current alignment of the parties to include both VOR and Raymond as defendants
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or interested parties under SDCL 21-24-7, and when prematurely denying the Rule
35(a) motion for an examination of Raymond. Hamer, 2026 S.D. 4, ¶ 12, 31 N.W.3d
at 686 (reviewing a circuit court’s decision whether to grant or deny a motion to
amend for an abuse of discretion and noting that “[a]n abuse of discretion occurs
when discretion [is] exercised to an end or purpose not justified by, and clearly
against reason and evidence” (second alteration in original) (citation omitted)).
[¶80.] However, I part ways with the majority opinion’s analysis on the
question of whether the circuit court erred when dismissing Victoria’s Estate as a
plaintiff. I agree with the premise that an action brought on behalf of an estate
must generally be brought by a personal representative or special administrator of
the estate, and neither Paul nor his estate could act in that capacity. But the
circuit court did not address the claim that Paul and his estate made below and on
appeal, i.e., that a person with an interest in an estate may bring an action to
recover assets for the benefit of the estate if a personal representative has refused
to do so. See Beachy v. Becerra, 609 N.W.2d 648, 651−52 (Neb. 2000) (citing 31 Am.
Jur. 2d Executors and Administrators § 1285 at 604 (1989) to support this
principle); see also Bem v. Shoemaker, 74 N.W. 239, 240 (S.D. 1898) (affirming a
“holding that the heirs of the estate, after the refusal of the administrator to act,
could maintain the action” to recover property for the estate, noting that “[c]ourts of
equity are always open to heirs . . . of an estate . . . to give them redress whenever
those whose duty it is to protect the trust property refuse to perform their duty”); cf.
In re Est. of Calvin, 2021 S.D. 45, ¶ 18, 963 N.W.2d 319, 324 (similarly noting, in
the context of trusts, that “[a] beneficiary may maintain a proceeding related to the
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trust or its property against a third party only if . . . the trustee is unable,
unavailable, unsuitable, or improperly failing to protect the beneficiary’s interest”
(alterations in original) (citation omitted)).
[¶81.] There is no dispute that, at the time Paul filed his lawsuit, Raymond
was acting as the appointed special administrator of Victoria’s Estate and had
refused to maintain the action Victoria had commenced against him prior to her
death alleging violations of their longstanding estate plans and Trust Agreement.
These are the same violations that Paul, as a named beneficiary and successor
trustee in the Trust Agreement, and now his estate, have asserted in this lawsuit.
Nevertheless, I acknowledge that a reversal on this issue is not warranted, at this
time, given our recent order in In re Est. of O’Farrell, No. 31106, 2026 WL 827972,
at *1 (S.D. Mar. 24, 2026) reversing the circuit court’s denial of Paul’s petition to
remove Raymond as special administrator because of his apparent conflict of
interest. Our order further directs the court, on remand, to appoint a qualified
special administrator “to perform such duties as are necessary to determine
whether Victoria O’Farrell died intestate and to determine what assets or claims, if
any, Victoria possessed at the time of her death.” It is now uncertain what claims
may or may not be asserted by a newly appointed administrator of Victoria’s Estate.
[¶82.] As to the related matter of the circuit court’s ruling dismissing Count 1
(seeking declaratory relief) “as it pertains to Victoria’s Estate,” I disagree with the
statement in the majority opinion that Paul has failed to make an argument
challenging this ruling on appeal. Within Paul’s first asserted issue challenging the
circuit court’s grant of summary judgment with respect to Count 1, he notes the
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court’s ruling dismissing Count 1 “as it pertains to the Estate” on the basis that “it
must be brought within the estate/probate proceeding,” and argues that, under
SDCL 21-24-7, “Victoria’s Estate and VOR, Inc., are proper parties, regardless of
whether they are denominated as plaintiffs o[r] defendants.” In my view, just as
VOR, Raymond, and the Trust have interests that would be affected by the
declaratory relief requested, so too would Victoria’s Estate. And while it is true that
declaratory relief could also be sought in the estate/probate proceeding, this does
not preclude the declaratory relief being sought in Paul’s lawsuit. Under SDCL 15-6-57, “[t]he existence of another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate.” See Agar Sch. Dist. v. McGee,
527 N.W.2d 282, 287 (S.D. 1995) (rejecting a trial court’s dismissal of a request for
declaratory relief on the basis that a different proceeding would be better suited to
address the factual matters presented, noting that “[a] request for declaratory relief
may be allowed even when another adequate remedy exists”). In the event claims are
asserted in the estate/probate proceeding that overlap with those pending in Paul’s
lawsuit, the circuit court may consider whether to consolidate such claims if
presented with a motion for such on remand.
[¶83.] Finally, while I agree with the majority opinion’s determination that
the circuit court’s grant of attorney fees on the basis that Paul’s complaint was
frivolous as a matter of law was premature, for the reasons I explain above, I do not
agree that Paul had no reasonable basis to assert claims for the benefit of Victoria’s
Estate, given Raymond’s then-existing status as a special administrator, with a
conflict of interest, who had refused to pursue the claims pending against him in
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Victoria’s lawsuit at the time of her death. Whether Victoria’s claims, many of
which are now asserted in Paul’s lawsuit, are meritorious has yet to be determined.
Therefore, the motion for attorney fees cannot be properly decided until all the
intertwined legal and factual claims in this lawsuit are resolved.
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