In Re the Estate of Flaws

#25930-rev & rem-DG

2012 S.D. 3

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE
ESTATE OF
LORRAINE ISBURG FLAWS, DECEASED.

* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
BRULE COUNTY, SOUTH DAKOTA

* * * *
HONORABLE BRUCE V. ANDERSON
Judge

* * * *

DAVID J. LARSON
Chamberlain, South Dakota

and

JONATHAN K. VAN PATTEN
Vermillion, South Dakota Attorneys for Appellant
Yvette Herman.

ROBERT R. SCHAUB of
Sundall, Schaub & Fox, PC
Chamberlain, South Dakota

and

PAUL O. GODTLAND
Chamberlain, South Dakota Attorneys for Appellees
Audrey Courser and
Clinton Baker.

* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 14, 2011

OPINION FILED 01/25/12
#25930

GILBERTSON, Chief Justice

[¶1.] Yvette Herman (Yvette) appeals a partial summary judgment for

certain heirs of the estate of Lorraine Isburg Flaws (Lorraine) determining that

Yvette does not have standing to maintain her claim that she is an heir of the

estate. We reverse and remand.

Facts

[¶2.] Lorraine died testate on February 18, 2010. However, Lorraine was

predeceased by her named beneficiaries and her will did not designate contingent

beneficiaries.1 Thus, administration of Lorraine’s estate was governed by the laws

of intestate succession.

[¶3.] Lorraine was also predeceased by her parents and her only sibling,

Donald Isburg (Donald). Donald died in 1979. His estate was probated by the

United States Department of the Interior, Bureau of Indian Affairs, Office of

Hearings and Appeals, the office that completes probate matters for Native

Americans who reside in Indian Country. Donald had two children from his

marriage, Audrey Courser (Audrey) and Clinton Baker (Clinton). Donald’s probate

was completed in 1981 and an order determining heirs in that proceeding

determined that Audrey and Clinton were Donald’s sole heirs.

[¶4.] Yvette was born in 1970 to Joyzelle Rilling (Joyzelle). At the time

Yvette was conceived, Joyzelle was married to Gene Rilling (Gene). However,

Joyzelle divorced Gene a month before Yvette’s birth. Joyzelle provided a sworn

1. Lorraine’s named beneficiaries were her husband and her only child.

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statement in the trial court proceedings in this matter that Donald was Yvette’s

biological father.

[¶5.] In 2005, Yvette contacted Lorraine about her claim that Donald was

her father. At Yvette’s request, Lorraine submitted to DNA testing to determine

Donald’s paternity of Yvette. The testing concluded that there was a 94.82%

probability that Donald was Yvette’s father. Yvette then petitioned the Crow Creek

Sioux Tribal Court for an order of paternity and to correct her birth record. The

tribal court entered an order in 2008 declaring that Donald was Yvette’s father and

ordering the birth record to be changed to include him as Yvette’s biological father.

Based upon that order, the South Dakota Department of Health, Vital Records

Office, issued a new birth certificate naming Donald as Yvette’s biological father.

[¶6.] Proceedings to probate Lorraine’s estate were commenced by Audrey in

March 2010 with the filing of a petition to determine heirs and for her appointment

as personal representative. Yvette opposed the petition on the basis that she was

Lorraine’s niece and was equally entitled to appointment. Yvette nominated herself

and Tamara Allen (Tamara), another woman claiming status as Donald’s child, to

act as co-personal representatives of the estate. Alternatively, Yvette requested

appointment of a special administrator.

[¶7.] The trial court appointed an attorney not otherwise involved in the

estate proceedings to act as special administrator and set a hearing to determine

heirs. Prior to that hearing, a motion for partial summary judgment was filed on

behalf of Audrey and Clinton claiming that Yvette did not have standing under the

pertinent statutes to assert that she was an heir of the estate. A hearing was held

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on the motion on July 20, 2010. The trial court issued a memorandum decision

(also designated as its findings of fact and conclusions of law) and an order on

February 3, 2011, granting Audrey and Clinton partial summary judgment on the

basis of Yvette’s lack of standing. Yvette obtained the trial court’s certification of its

order as a final judgment pursuant to SDCL 15-6-54(b) and appealed the order to

this Court.

Issue 1

[¶8.] Whether Yvette’s appeal should be dismissed for failure to
serve the notice of appeal on Tamara.

[¶9.] After the filing of Yvette’s notice of appeal, Audrey and Clinton moved

to dismiss for failure to serve the notice on Tamara. This Court considered the

motion and reserved its ruling, directing the parties to brief the issue as part of the

appeal.

[¶10.] This Court held in In re Reese Trust:

SDCL 15-26A-4 sets forth the steps for taking an appeal to this
Court. SDCL 15-26A-4(3) provides in pertinent part: “The
appellant, or his or her counsel, shall serve the notice of appeal
and docketing statement on counsel of record of each party other
than appellant, or, if a party is not represented by counsel, on
the party at his or her last known address.” (Emphasis added).
Failure to timely serve and file a notice of appeal is
jurisdictionally fatal to the appeal. Hardy v. W. Cent. Sch. Dist.,
478 N.W.2d 832, 834 (S.D. 1991) (citing W. States Land & Cattle
Co., Inc. v. Lexington Ins. Co., 459 N.W.2d 429, 432 (S.D. 1990)).

***

Failure to serve a notice of appeal on a party before the time for
taking an appeal has expired is fatal to the appeal and requires
its dismissal. See Long v. Knight Const. Co., Inc., 262 N.W.2d
207 (S.D. 1978) (citing Morrell Livestock Co. v. Stockman’s
Comm’n Co., 77 S.D. 114, 86 N.W.2d 533 (1957)).

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2009 S.D. 111, ¶¶ 5, 14, 776 N.W.2d 832, 833, 836. See also In re B.C., 2010 S.D.

59, 786 N.W.2d 350; Estate of Geier, 2012 S.D. 2, __ N.W.2d__ .

[¶11.] In Reese Trust, this Court looked to the law on trust proceedings to

identify the parties the appellant in that case was required to serve with the notice

of appeal. 2009 S.D. 111, ¶ 6, 776 N.W.2d at 834. See also In re B.C., 2010 S.D. 59,

¶ 5, 786 N.W.2d at 351 (examining the Indian Child Welfare Act to identify the

parties entitled to service of a notice of appeal in proceedings under that act); Geier,

2012 S.D. 2, ¶ 21, __ N.W.2d at __ (examining the law on probate proceedings to

identify the parties required to be served with the notice of appeal). This action was

commenced as a formal probate proceeding. Under the law applicable to probate

proceedings, notice must be given in the manner prescribed in SDCL 29A-1-401.

SDCL 29A-3-403(a). Under SDCL 29A-1-401, notice must be given to “any

interested person.” Both Yvette and Tamara were interested persons in Lorraine’s

estate, having asserted interests as putative children of Donald and potential heirs

of Lorraine and having also been nominated to act as co-personal representatives of

the estate. Although Yvette seeks to minimize Tamara’s separate interest by

asserting she and Tamara are “similarly situated claimants,” the law on service of

the notice of appeal requires service on “each” party, not just “adverse” parties as

Yvette argues. See SDCL 15-26A-4(3).2

2. Yvette bases her argument on SDCL 15-26A-6, repeatedly asserting that it
requires service of the notice of appeal on only “adverse parties.” SDCL 15-
26A-6, however, is not the applicable rule. Although SDCL 15-26A-6 does
refer to appeal time and service on “adverse parties,” it is in the context of
(continued . . .)
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[¶12.] Based upon the foregoing, Tamara would normally be regarded as a

separate party in this case entitled to separate service of the notice of appeal.

However, Tamara is represented in this appeal by the same counsel who represents

Yvette. Counsel argues that requiring service of the notice of appeal on Tamara

would be “nonsensical” under these circumstances because it would have required

counsel to serve himself. There is, however, conflicting authority on this point. In

Weeter Lumber Co. v. Fales, the Idaho Supreme Court held that, where the same

counsel was the attorney for three defendants and only one of them appealed, the

notice of appeal did not need to be served upon the nonappealing defendants or

their counsel. 118 P. 289 (Idaho 1911). Weeter has subsequently been interpreted

by the Idaho Supreme Court as holding that, “representation by the same attorney

of an appealing and nonappealing party has the effect of service of the notice of

appeal on the nonappealing party.” Walker v. Shell, 282 P. 947, 948 (Idaho 1929).

A dissenting view in Weeter, however, focused on the potential conflict of interest for

counsel representing appealing and nonappealing parties in the same case and

suggested that separate service of the notice of appeal on the nonappealing parties

themselves would afford them the opportunity to obtain other counsel and be

_______________________________
( . . . continued)
service of the notice of entry of the judgment or order appealed from, not
service of the notice of appeal. Service of the notice of appeal is governed by
SDCL 15-26A-4(3), which requires service on “each party other than
appellant.” (Emphasis added.)

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properly represented. 118 P. at 290 (Sullivan, J., dissenting).3 These views have

subsequently been endorsed in Box Elder Cnty. v. Harding, 28 P.2d 601, 602 (Utah

1934) and Donny v. Chain of Lakes Cheese Co., 35 N.W.2d 333, 334 (Wis. 1948).

[¶13.] Despite the concerns mentioned by the dissent in Weeter, we are

persuaded by the logic of the majority position in the case and adopt it as our own in

similar circumstances. Accordingly, Audrey and Clinton’s motion to dismiss

Yvette’s appeal for failure to serve the notice of appeal on Tamara is denied for the

reason that Yvette and Tamara are represented by the same counsel and this had

the effect of service of the notice of appeal on Tamara. Weeter, 118 P. 289; Walker,

282 P. at 948.

Issue 2

[¶14.] Whether SDCL 29A-2-114(c) bars Yvette from asserting her
status as Donald’s natural born child.

[¶15.] SDCL 29A-2-114 sets forth the methods and time limits an individual

born out of wedlock must comply with in order to establish parentage for purposes

of intestate succession. The statute provides in relevant part:

(a) For purposes of intestate succession by, from, or through
a person . . . an individual born out of wedlock is the child
of that individual’s birth parents.

***

(c) The identity of the mother of an individual born out of
wedlock is established by the birth of the child. The

3. Although Justice Sullivan authored the majority opinion in Weeter, he also
incorporated his dissenting views on the service issue, conceding that his
associates did not concur with him in those views. 118 P. at 290 (Sullivan, J.,
dissenting).

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identity of the father may be established by the
subsequent marriage of the parents, by a written
acknowledgement by the father during the child’s
lifetime, by a judicial determination of paternity during
the father’s lifetime, or by a presentation of clear and
convincing proof in the proceedings to settle the father’s
estate.

Id. (emphasis added).

[¶16.] The trial court held the methods and time limits in SDCL 29A-2-114

are exclusive and that Yvette’s failure to comply with any of them deprived her of

standing to maintain her claim that she is an heir of Lorraine’s estate. Accordingly,

the court granted Audrey and Clinton partial summary judgment against Yvette.

[¶17.] Focusing on the word “may” in SDCL 29A-2-114(c), Yvette argues that

the statute is permissive and not mandatory and that her presentation of clear and

convincing DNA evidence in the trial court proceedings was sufficient to establish

Donald’s paternity. In support of her argument, Yvette cites cases interpreting the

word “may” in similar provisions of other state probate codes as permissive and not

mandatory. See Lewis v. Schneider, 890 P.2d 148 (Colo. App. 1994); In re Estate of

Rogers, 81 P.3d 1190 (Haw. 2003); In re Estate of Palmer, 658 N.W.2d 197 (Minn.

2003). In those cases, however, the courts were examining whether time limits in

Uniform Parentage Acts applicable in determining child support obligations should

bar establishment of paternity under intestate succession laws. See id. No such

issue is presented here. South Dakota has not adopted the Uniform Parentage Act.4

4. South Dakota’s only other statutes addressing establishment of paternity
appear in SDCL ch. 25-8. Under those statutes, the time limit for bringing a
paternity action expires with the eighteenth birthday of the child. SDCL 25-
(continued . . .)
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[¶18.] The cases cited by Yvette determine the application of competing

statutory schemes, but do not interpret a single, self-contained statute such as

SDCL 29A-2-114. Although, ordinarily, the word “may” in a statute such as SDCL

29A-2-114(c) is given a permissive or discretionary meaning, in certain instances, it

has the effect of “must.” Matter of Groseth Intern., Inc., 442 N.W.2d 229, 232 n.3

(S.D. 1989). As further explained in Groseth:

Although the form of verb used in a statute, i.e., whether it says
something “may,” “shall” or “must” be done, is the single most
important textual consideration determining whether a statute
is mandatory or directory, it is not the sole determinant. Other
considerations, such as legislative intent, can overcome the
meaning which such verbs ordinarily connote. 2A Sutherland
Stat. Const. § 57.03 at 643-44 (4th ed. 1984). In our search to
ascertain the legislature’s intended meaning of statutory
language, we look to the words, context, subject matter, effects
and consequences as well as the spirit and purpose of the
statute.

Id.

[¶19.] An additional maxim useful in determining the mandatory or directory

nature of a statute is expressio unius est exclusio alterius, “the expression of one

thing is the exclusion of another.” Rush v. U.S. Bancorp Equip. Fin., Inc., 2007 S.D.

119, ¶ 10, 742 N.W.2d 266, 269. “The rule . . . may be used

advantageously in determining whether a statute should be construed as

mandatory or directory (permissive). As applied in this connection the rule is that if

a statute provides one thing, all others implied are excluded.” 3 Norman J. Singer,

_______________________________
( . . . continued)
8-9. Yvette turned eighteen in 1988. However, Audrey and Clinton have
raised no argument that SDCL 25-8-9 bars Yvette’s claimed interest in
Lorraine’s estate.

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Sutherland Statutory Construction § 57:10 (6th ed. 2001). In an analysis of this

rule, it has been observed that, “[a] statute which provides that a thing shall be

done in a certain way carries with it an implied prohibition against doing that thing

in any other way. Thus, the method prescribed in a statute for enforcing the rights

provided in it is likewise presumed to be exclusive.” 2A Norman J. Singer & J.D.

Shambie Singer, Sutherland Statutory Construction § 47:23 (7th ed. 2007). Further,

“[i]t has also been assumed when the legislature expresses things through a list, . . .

that what is not listed is excluded.” Id.

[¶20.] SDCL 29A-2-114 provides that parentage for purposes of intestate

succession is established in certain ways and lists those ways. Under the rule

expressio unius est exclusio alterius, this implies a prohibition against any other

way of establishing parentage for these purposes. It also implies that those

methods not listed are excluded.

[¶21.] Yvette argues SDCL 29A-2-114 should be interpreted to permit proof of

paternity through presentation of clear and convincing evidence, including DNA

evidence, in any proceeding where the father’s paternity is at issue. This would

essentially rewrite the statute to omit its last clause limiting establishment of

paternity by clear and convincing evidence to “proceedings to settle the father’s

estate.” This would violate any number of settled rules of statutory construction.

See, e.g., People ex rel. J.L., 2011 S.D. 36, ¶ 4, 800 N.W.2d 720, 722 (noting that in

determining the intent of a statute a court must confine itself to the language used);

City of Deadwood v. M.R. Gustafson Family Trust, 2010 S.D. 5, ¶ 9, 777 N.W.2d

628, 632 (observing that in interpreting legislation this Court cannot add language

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that is not there); State ex rel. Dept. of Transp. v. Clark, 2011 S.D. 20, ¶ 10, 798

N.W.2d 160, 164 (noting that in interpreting a statute this Court never presumes

the Legislature intended to use surplusage in its enactments and, where possible, it

must construe the law to give effect to all of its provisions).

[¶22.] Based upon the plain language of SDCL 29A-2-114 and the foregoing

authorities, we hold that the trial court did not err in determining that the methods

and time limits in the statute for establishing paternity are exclusive. A question

remains, however, as to whether Yvette failed to comply with any of them. The trial

court found that Yvette had petitioned the Department of the Interior, Bureau of

Indian Affairs, Office of Hearings and Appeals to reopen Donald’s probate to include

her as an heir. For that reason, the court initially took this matter under

advisement to see if Yvette’s petition would be granted. The court subsequently

determined it could take more than a year to have Yvette’s petition heard. For that

reason, the court issued its decision and this appeal followed. The day after the

filing of Yvette’s appellant’s brief, however, the Bureau of Indian Affairs tribunal

issued an order directing any parties opposed to naming Yvette as an heir to

Donald’s estate to show cause for their objections within thirty days.5 Thus,

5. We take judicial notice of the order to show cause. See Opoka v. Immigration
and Naturalization Serv., 94 F.3d 392, 394-95 (7th Cir. 1996) (observing the
Courts of Appeals have the power and even the obligation to take judicial
notice of relevant decisions of courts and administrative agencies made before
or after the decision under review, including proceedings outside the federal
judicial system, if they have a direct relation to matters at issue). Accord
Advanced Software Design Corp. v. Fed. Reserve Bank of St. Louis, 583 F.3d
1371, 1379 n.3 (Fed. Cir. 2009). See also Gibson v. Barnes, 597 So.2d 176,
177 n.2 (La. Ct. App. 1992) (taking judicial notice of a U.S. District Court
(continued . . .)
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Yvette’s efforts to reopen Donald’s probate may still prove successful, permitting

her to comply with SDCL 29A-2-114(c) to establish Donald’s paternity. In the

interests of justice, therefore, we remand this matter to the trial court to wait for a

reasonable time for the Bureau of Indian Affairs’ decision and to proceed

accordingly. Having reached this conclusion, we decline to address Yvette’s

constitutional arguments under Issue 3 of her brief. See Sheehan v. United Pac.

Ins. Co., 439 N.W.2d 117, 119 (S.D. 1989) (noting this Court defers deciding a

constitutional question when the cause under review can be determined without

reaching the constitutional issue).

[¶23.] Reversed and remanded.

[¶24.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.

_______________________________
( . . . continued)
order); Smith v. Dorsey, 599 So.2d 529, 548 (Miss. 1992) (taking judicial
notice of a related federal interpleader action and its conclusion by a final
judgment).

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