Redlin Trust v. First Interstate Bank

#30247, #30248-a-JMK
2024 S.D. 5

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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KELLY J. REDLIN, as beneficiary of the
HELENE M. REDLIN TRUST, u/t/d
December 14, 2004, Plaintiff and Appellant,

v.

FIRST INTERSTATE BANK, as
Co-Trustee of the HELENE M. REDLIN
TRUST, u/t/d December 14, 2004; and
CHARLES A. REDLIN, as Co-Trustee of the
HELENE M. REDLIN TRUST, u/t/d
December 14, 2004, Defendants and Appellees.

****

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE CARMEN MEANS
Judge

****

COREY T. DENEVAN
SHANNON R. FALON
MEGHANN M. JOYCE of
Denevan Falon Prof. LLC
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.

****

ARGUED
OCTOBER 5, 2023
OPINION FILED 01/31/24
****

VINCE M. ROCHE
ASHLEY R. BROST of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee First Interstate Bank.

JOE ERICKSON
LEE SCHOENBECK of
Schoenbeck & Erickson, P.C.
Watertown, South Dakota Attorneys for defendant
and appellee Charles A. Redlin.
#30247, #30248

KERN, Justice

[¶1.] Helene Redlin established a trust with assets of approximately $3

million in order to care for her children in case of financial difficulty. In 2016, she

appointed Great Western Bank, the predecessor to First Interstate Bank, as sole

trustee. A few months later, she appointed her son Charles as trustee and First

Interstate as administrative trustee to exercise powers and authorities as directed

by the co-trustees. After Helene’s death, the trust assets were placed in a money

market account, earning a small amount of interest income. Helene’s daughter

Kelly sued Charles and First Interstate for breach of fiduciary duty, arguing that

their failure to properly invest the trust assets constituted bad faith and gross

negligence. Charles and First Interstate moved for summary judgment, which was

granted by the circuit court. While deciding this motion, the circuit court also

denied Kelly’s motion for further discovery on potential communications between

Charles and First Interstate regarding the trust. Kelly appeals, arguing that

summary judgment was inappropriate as a matter of law and asserting that certain

disputed issues of material fact entitle her to further discovery. We affirm.

Factual and Procedural Background

[¶2.] On December 14, 2004, Helene M. Redlin established a trust of last

recourse (2004 Trust), designed to provide for her children if their other financial

resources failed. In addition to a small amount of cash and an interest in the

Helene Redlin Limited Partnership, the 2004 Trust assets included a $3 million life

insurance policy on Helene. Upon Helene’s death, any assets over $3 million were

to be distributed to the Terry A. Redlin and Helene M. Redlin Dynasty Trust. Her

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daughters, Kim and Kelly, could then, at the discretion of the trustee, receive

income and principal distributions from the remaining assets “for their health,

support and education, taking into consideration their other financial resources of

any kind.” In the event of Kim and Kelly’s deaths, Helene’s son Charles could also

receive income and principal distributions from the 2004 Trust under identical

conditions. Any assets remaining after the death of Helene’s children would be

gifted to the Redlin Art Center.

[¶3.] Charles, Kelly, and Kim are also the beneficiaries of two other family

trusts. The Helene M. Redlin Grantor Trust, established in 2017, is split into three

subtrusts of $11.6 million for each of Helene’s children. Charles, Kelly, and Kim

also received $1 million each through another trust established in 2000. These

funds were distributed to Charles, Kelly, and Kim without consideration for their

interest in the 2004 Trust.

[¶4.] Among other provisions, the language of the 2004 Trust allowed

Helene to appoint and remove trustees, establish plans for the succession of

trustees, and appoint a Trust Protector as well as an Investment Advisor.

According to Article III, Section A, Helene could also appoint “a successor trustee

for limited or general purposes and accord specific responsibilities and powers.”

[¶5.] Article XI, Section A of the 2004 Trust grants specific powers to

trustees, including the ability to “open and maintain one or more savings accounts

or checking accounts and . . . deposit to the credit of such account or accounts all or

any part of the trust property, irrespective of whether such property may earn

interest.” In the event of multiple co-trustees, Article XI, Section O provides that

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decisions are to be made by majority vote, with unanimity required where only two

co-trustees are qualified to vote. Article XI, Section K of the 2004 Trust also waives

the Prudent Investor Rule:

In exercising the investment powers conferred above, the trustee
may (but is not directed to) acquire or continue to hold any
property received by the trustee, even though not of a kind
usually considered suitable for trustees to acquire or hold
(including investments that would be forbidden by the “prudent
investor rule” or the “prudent person rule,” as may be
applicable. . .), or even though an investment may constitute a
larger proportion of the trust than, but for this provision, would
be appropriate, and irrespective of any risk, nonproductiveness,
or lack of diversification.

At the end of this waiver, Helene made explicit her intent to “grant the trustee the

broadest possible discretion in determining what constitutes an appropriate

investment, acceptable level of risk and proper investment strategy, consistent with

his fiduciary duties.”

[¶6.] In the 2004 Trust documents, Robert M. Ronayne was designated as

the initial trustee and no appointments were made to fill the positions of Trust

Protector or Investment Advisor. However, in October 2016, Helene appointed her

sister, Jill Fahnhorst, as Trust Protector. Pursuant to her new authority under

Article V, Jill immediately removed Ronayne as trustee and Helene designated a

plan of successor trustees, appointing Great Western Bank, the predecessor to First

Interstate Bank, “as the successor and sole Trustee of the Trust.” Later, in

December 2016, Helene signed a document (Appointment Instrument) appointing

her son Charles as trustee and Great Western “as an administrative trustee to

exercise such powers and authorities as the co-trustees may, from time to time,

direct.”

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[¶7.] Helene died in January 2020 and life insurance proceeds of $3 million

were distributed to the 2004 Trust. The assets were then placed in a money market

account at Kovack Securities, a Florida financial firm. As required by the terms of

the 2004 Trust, assets in excess of $3 million were distributed to the Terry A. Redlin

and Helene M. Redlin Dynasty Trust in October 2020. From March 2020 to April

2021, the money market account yielded $843.23 in interest. Learning of this rate

of return, Kelly retained Paul Freidel, a financial expert, to assess the economic

damage to the 2004 Trust while it was held in the low interest money market

account. Freidel opined that if the $3 million in trust assets were aggressively

invested from March 31, 2020 through December 31, 2021, the 2004 Trust would

have reaped a total investment return of $2,388,768.

[¶8.] Based on this information, Kelly filed suit against Charles and First

Interstate, alleging breach of fiduciary duty and seeking their removal as trustees.

Kelly argued that Charles and First Interstate were both co-trustees and that they

had breached their fiduciary duties by failing to invest the trust assets more

aggressively. Despite Helene’s waiver of the Prudent Investor Rule, Kelly claimed

that Charles and First Interstate remained liable for investment decisions made

unreasonably or in bad faith under SDCL 55-4-30. To support this claim, Kelly

relied upon Friedel’s affidavit, which concluded that placing the 2004 Trust assets

in a money market account was “egregiously unreasonable given the low-interest

rate environment during this time period and the fact that [the 2004 Trust] . . . was

not expected to be tapped for a considerable length of time.”

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[¶9.] First Interstate and Charles moved for summary judgment. First

Interstate argued that its appointment as administrative trustee in 2016 had

removed it from general trustee status, leaving Charles as the sole general trustee.

First Interstate reasoned that, due to its ostensibly inferior position to Charles, it

had no fiduciary duty to invest the 2004 Trust assets. However, even if the bank

was a general trustee, both First Interstate and Charles maintained that waiver of

the Prudent Investor Rule shielded them from liability for placing the 2004 Trust

assets in the money market account. Relying on the language of the 2004 Trust,

they contend that Article XI, Section K explicitly authorized the trustee(s) to make

investment determinations “irrespective of . . . nonproductiveness.” In their view,

Kelly’s allegations of bad faith required her to “allege something far more

egregious” such as “an investment in an illegal drug distribution syndicate or an

investment in a well-publicized Ponzi scheme.” Finally, in response to Kelly’s

claimed issues of material fact regarding fiduciary duty, First Interstate argued

that “the only material facts that matter” were the language of the 2004 Trust and

the undisputed reality that First Interstate was, at least, an administrative trustee.

[¶10.] In response, Kelly argued that there were disputed issues of material

fact regarding the scope of First Interstate’s fiduciary duties. She referenced

“contradictory emails” between First Interstate employees regarding whether the

bank served as a general or administrative trustee. Specifically, Becky Conger, the

Wealth Management Administrator, told Scott Olson, the Director of Fiduciary

Services, that “it appears we are trustee, not just administrative trustee on this

account.” However, in a subsequent email, she appeared to revise her opinion based

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on an unidentified document: “Sorry-I found the document. We are only admin

trustee!” Kelly claimed that, although “it is likely that Ms. Conger is referring to

the appointment of Charles as co-trustee,” she was nevertheless “entitled to conduct

further discovery . . . on the issue of FIB’s status as co-trustee of the Trust.”

[¶11.] After hearing argument from the parties, the circuit court issued a

memorandum opinion determining that the 2016 Appointment Instrument

amended First Interstate’s status from general trustee to administrative trustee,

thereby limiting its duties and liability. The court concluded that there was no

evidence in the record that Charles had directed First Interstate to otherwise invest

the trust assets, much less that First Interstate ignored any such instruction. The

court therefore rejected Kelly’s argument that, as an administrative trustee, First

Interstate should be held liable for the alleged “wrongful acts” of Charles.

According to the court, because First Interstate was in a “position of inferiority to

Charles,” it could not be held liable for his actions. The court granted First

Interstate’s motion for summary judgment and denied Kelly’s motion to remove the

bank as trustee.

[¶12.] Regarding Charles, the circuit court held that, even though he did have

a fiduciary duty to invest the trust assets, this duty was limited by Article XI,

Section K of the 2004 Trust, which waived the Prudent Investor Rule. The court

determined, based on the record, “that Charles did invest the Trust’s assets, albeit

conservatively, into a money market account that increased the assets by $843.23.”

According to the court, allowing Kelly’s “blank assertions” that this investment

strategy was “unreasonable” to constitute a material issue of fact would “present[]

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an indiscernible standard for future trustees and courts.” The court, concluding

that Charles had not breached his fiduciary duty, granted his motion for summary

judgment, and denied Kelly’s motion for his removal as trustee.

[¶13.] Kelly raises three issues on appeal, which we restate as follows:

1. Whether First Interstate Bank is a general co-trustee of
the 2004 Trust.

2. Whether the terms of the 2004 Trust waived the Prudent
Investor Rule and absolved Charles and First Interstate
Bank of any duty to invest the 2004 Trust assets.

3. Whether there are disputed questions of fact regarding
whether Charles and First Interstate Bank breached their
fiduciary duties by failing to invest the 2004 Trust assets.

Standard of Review

[¶14.] “We review an order granting summary judgment de novo and

determine ‘whether there were genuine issues of material fact and whether the

moving party was entitled to judgment as a matter of law.’” In re Matheny Family

Trust, 2015 S.D. 5, ¶ 7, 859 N.W.2d 609, 611 (quoting Law Cap., Inc. v. Kettering,

2013 S.D. 66, ¶ 10, 836 N.W.2d 642, 645). On review, “[t]he evidence must be

viewed most favorably to the nonmoving party and reasonable doubts should be

resolved against the moving party. . . . If there exists any basis which supports the

ruling of the trial court, affirmance of a summary judgment is proper.’” Kirlin v.

Halverson, 2008 S.D. 107, ¶ 10, 758 N.W.2d 436, 443.

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#30247, #30248

Analysis

1. Whether First Interstate Bank is a general co-
trustee of the 2004 Trust.

[¶15.] Because our resolution of the second issue presented by Kelly is

dispositive, we need not determine whether First Interstate Bank is a general or

administrative trustee. “To recover for breach of fiduciary duty, a plaintiff must

prove: (1) that the defendant was acting as plaintiff’s fiduciary; (2) that the

defendant breached a fiduciary duty to plaintiff; (3) that plaintiff incurred damages;

and (4) that the defendant’s breach of the fiduciary duty was a cause of plaintiff’s

damages.” Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 38, 652 N.W.2d 756,

772 (citation omitted). Regardless of First Interstate’s trustee status, if investing

the 2004 Trust assets in a money market account was not a breach of fiduciary

duty, then summary judgment is appropriate as to both Charles and First

Interstate.

2. Whether the terms of the 2004 Trust waived the
Prudent Investor Rule and absolved Charles and
First Interstate Bank of any duty to invest the 2004
Trust assets.

[¶16.] Even if First Interstate was a general co-trustee, Kelly, in order to

avoid summary judgment, must prevail on her legal claim that the waiver of the

Prudent Investor Rule did not relieve the co-trustees of their fiduciary duty to

invest the 2004 Trust assets in something other than the money market account.

Preliminarily, we note that, since no Investment Advisor has been appointed,

investment powers and responsibilities are entrusted to the trustees by Article IV,

Section B. Article XI, Section K also purports to waive the Prudent Investor Rule

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and “grant the trustee the broadest possible direction in determining what

constitutes an appropriate investment.”

[¶17.] Notwithstanding this apparent waiver, Kelly argues that there is a

statutory “floor [for liability] beneath which the governing trust instrument cannot

go.” In support of this proposition, she cites SDCL 55-4-30, which provides that “[a]

provision of a trust instrument relieving a trustee of liability for breach of trust is

unenforceable to the extent that it relieves the trustee of liability for breach of trust

committed in bad faith or as a result of gross negligence.” Kelly further asserts that

“SDCL 55-5-12 allows the settlor to expand, restrict, eliminate, or otherwise alter

the investment responsibilities imposed on a trustee but further provides that a

trustee remains liable for actions that are unreasonable or taken in bad faith.”

According to Kelly, “while Charles and the Bank may not be held to the Prudent

Investor Rule they nonetheless remain liable . . . if they have engaged in gross

negligence or bad faith.”

[¶18.] Charles and First Interstate respond that their reasonable reliance on

the waiver, which explicitly allows for “nonproductive” investments, precludes any

liability for the supposed lost investment income. First Interstate also argues that

the gross negligence contemplated in SDCL 55-4-30 requires allegations of

misconduct much more serious than the conservative investment strategy at issue

here. First Interstate points out that, by Kelly’s own account, the 2004 Trust assets

did produce income in the money market account, albeit much less than she would

have preferred.

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[¶19.] We have not yet been asked to interpret the terms of SDCL 55-5-12,

which provides that “[t]he provisions of this chapter may be expanded, restricted,

eliminated, or otherwise altered by express provisions of the trust instrument. The

trustee is not liable to a beneficiary for the trustee’s reasonable and good faith

reliance on those express provisions.” Kelly seems to argue that, while this statute

may permit waiver of the Prudent Investor Rule, it also creates liability for “actions

that are unreasonable or taken in bad faith.” However, the statutory text focuses

not on the conduct of the trustee, but rather on the trustee’s “reliance on [the]

express provisions” of a trust. Thus, the statute focuses our attention on whether a

trustee’s actions were based on a good faith, reasonable interpretation of the trust

documents. 1

[¶20.] Here, the 2004 Trust specifically waives the Prudent Investor Rule,

authorizing trustees to make investment decisions “irrespective of any risk,

nonproductiveness, or lack of diversification.” Article XI, Section A gives trustees

the power to “open and maintain one or more savings accounts or checking accounts

and . . . deposit to the credit of such account or accounts all or any part of the trust

property, irrespective of whether such property may earn interest.” Helene

declared in Article XI, Section K that it was her intent to “grant the trustee the

1. Courts in other jurisdictions have interpreted equivalent provisions in a
similar manner. See Culliss v. Culliss as Trustee of Julie A. Culliss Trust,
514 P.3d 376, 384 (Kan. Ct. App. 2022) (noting that a trustee who was also a
beneficiary had “pointed to valid trust provisions he reasonably relied on to
distribute the [trust assets] without breaching his duty of loyalty”); W.A.K. ex
rel. Karo v. Wachovia Bank, N.A., 712 F. Supp. 2d 476, 482 (E.D. Va. 2010)
(holding that, where the Prudent Investor Rule has been waived, a trustee’s
“duty only required that its interpretation of the Trust language be
reasonable and relied on in good faith”).
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broadest possible discretion in determining what constitutes an appropriate

investment.”

[¶21.] Here, the undisputed facts reveal no evidence that Charles’ and First

Interstate’s reliance on these provisions was unreasonable or in bad faith. Charles

and First Interstate were specifically authorized to make investment decisions

regardless of risk or nonproductivity of the investment. By placing the 2004 Trust

assets in a money market account, yielding conservative interest income, the co-

trustees were operating as authorized. Freidel’s after-the-fact conclusion that this

decision was “egregiously unreasonable” does not generate a question of fact

regarding whether the co-trustees were reasonably relying on the 2004 Trust

provisions. There is also no indication that Charles or First Interstate operated in

bad faith or had ulterior motives that would call their actions into question.

[¶22.] However, Kelly argues that, even if the Prudent Investor Rule was

waived, SDCL 55-4-30 creates an alternative source of liability. According to the

statute, “[a] provision of a trust instrument relieving a trustee of liability for breach

of trust is unenforceable to the extent that it relieves the trustee of liability for

breach of trust committed in bad faith or as a result of gross negligence.” The

circuit court determined that this provision did not apply because “the terms of the

2004 Trust merely restricted Charles’s duty to invest but did not eliminate it.”

However, we do not read the statute to apply only where a duty has been entirely

eliminated. The statute centers on whether an instrument relieves a trustee of

liability “to the extent” of bad faith or gross negligence. Regardless of whether a

duty is limited or eliminated, the statute, acting as a liability floor, will render a

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waiver partially invalid to the extent it shields trustees from liability for bad faith or

gross negligence. We thus conclude that SDCL 55-4-30 prevents the 2004 Trust

from waiving liability for gross negligence and bad faith and that Charles and First

Interstate remain liable for any such potential misconduct. 2

[¶23.] Kelly asserts that “[t]he question whether the Co-Trustees’ conduct in

allowing $3 million in cash to sit in a money market account rises to the level of

gross negligence or bad faith is an issue for the jury.” While acknowledging that

“breach of fiduciary duty is a question of fact generally reserved for the jury,” the

circuit court found persuasive Nelson v. First Nat’l Bank and Trust Co. of Williston,

where the Eighth Circuit Court of Appeals granted summary judgment on the basis

of trust language waiving the Prudent Investor Rule. See 543 F.3d 432 (8th Cir.

2008). The Eighth Circuit specifically found that the plaintiff had not alleged

sufficient facts to establish bad faith. Id. at 436–37. Here, similar reasoning

persuades us that summary judgment is appropriate in this case as to the claim of

breach of fiduciary duty.

[¶24.] “We require ‘those resisting summary judgment to show that they will

be able to place sufficient evidence in the record at trial to support findings on all

the elements on which they have the burden of proof.’” Foster-Naser v. Aurora

Cnty., 2016 S.D. 6, ¶ 11, 874 N.W.2d 505, 508 (citation omitted). “A sufficient

2. Notably, the Trust document contains language similar to that contained in
SDCL 55-4-30, at least with regard to the liability of non-corporate trustees.
Article XI, Section X of the Trust states that a “non-corporate trustee shall
not be liable for any loss occasioned by acts in good faith in the
administration of such trust . . . and in any event a non-corporate trustee
shall be liable only for willful wrongdoing, or gross negligence, but not for
honest errors of judgment.”
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showing requires that ‘[t]he party challenging summary judgment . . . substantiate

his allegations with sufficient probative evidence that would permit a finding in his

favor on more than mere speculation, conjecture or fantasy.’” Godbe v. City of

Rapid City, 2022 S.D. 1, ¶ 21, 969 N.W.2d 208, 213 (alteration in original) (omission

in original) (citation omitted). “Mere speculation and general assertions, without

some concrete evidence, are not enough to avoid summary judgment.” Id. (citation

omitted).

[¶25.] Kelly makes the general assertion that Charles and First Interstate

were grossly negligent and acted in bad faith by not aggressively investing the 2004

Trust assets. She relies on Freidel’s analysis of lost investment returns and his

conclusion that placing the assets in a money market account was “egregiously

unreasonable.” However, co-trustees of the Trust were authorized to invest the

assets “irrespective of . . . nonproductiveness,” including in a checking or savings

account “irrespective of whether such property may earn interest.” Kelly also

admits in a footnote that Freidel’s analysis is likely based on an incorrect time

frame because Charles and First Interstate “did begin to slowly invest the Trust

assets into the market in 2021.” 3

[¶26.] Kelly’s allegations of bad faith and gross negligence, at their core, seem

to rest on a belief that Charles and First Interstate should have started investing

sooner and more aggressively. Even if Friedel’s analysis on this point was

completely accurate, we cannot say the mere loss of potential investment returns

3. Friedel’s analysis assumed that the 2004 Trust assets were exclusively
invested in the money market account from March 31, 2021 to December 31,
2021.
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constitutes gross negligence or bad faith on the record before us. We have

previously clarified that gross negligence consists of willful or wanton misconduct.

See Fischer v. City of Sioux Falls, 2018 S.D. 71, ¶ 8, 919 N.W.2d 211, 215. That

standard is simply not met in this case.

[¶27.] Charles and First Interstate were not required to invest the money in

any particular way under the 2004 Trust documents. Indeed, they were authorized

to do exactly what they did—keeping the entirety of the trust assets in a checking

or savings account, irrespective of the rate of interest. We also note that the 2004

Trust was designed as a last recourse for Helene’s children should all other

financial resources fail. Charles and First Interstate did not commit willful or

wanton misconduct by keeping the assets in a conservative money market account,

earning modest but consistent interest income without any risk from the inherent

volatility of the stock market.

[¶28.] Kelly’s bare assertions of gross negligence and bad faith invite us to

engage in speculation as to the co-trustees’ intentions and decision-making process.

But speculation cannot save Kelly from summary judgment where, as here, none of

the proffered factual allegations would be sufficient to establish a breach of

fiduciary duty at trial. Though our summary judgment standard requires us to

draw all reasonable inferences in favor of the non-moving party, there must be some

evidence from which a favorable inference may be drawn. We therefore conclude

that Charles and First Interstate were entitled to summary judgment in that they

did not breach their fiduciary duties under either the 2004 Trust or SDCL 55-4-30

by investing the assets in a money market account. Since this determination is

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dispositive, it is unnecessary to address whether First Interstate was a general

trustee.

3. Whether there are disputed questions of fact
regarding whether Charles and First Interstate
Bank breached their fiduciary duties.

[¶29.] Kelly’s arguments on this issue center on supposed communications

between Charles and First Interstate regarding the bank’s trustee status and the

decision to invest the 2004 Trust assets in a money market account. She claims

that SDCL 15-6-56(f) entitles her to conduct further discovery. But, as First

Interstate points out, such relief requires Kelly to “show[ ] how further discovery

will defeat the motion for summary judgment.” Davies v. GPHC, LLC, 2022 S.D. 55,

¶ 51, 980 N.W.2d 251, 265 (alteration in original). By Kelly’s own account, the

communications, if they existed, would at most clarify whether First Interstate was

acting as a co-trustee and which party had taken the initiative to invest the assets.

Since we have already held that placing the assets in the money market account

was not a breach of fiduciary duty, additional discovery would not save Kelly from

summary judgment. The circuit court did not abuse its discretion in denying the

motion for further discovery.

Conclusion

[¶30.] We affirm the circuit court’s decision granting summary judgment to

Charles and First Interstate. Because the 2004 Trust specifically waives the

Prudent Investor Rule and authorizes trustees to invest “irrespective of . . .

nonproductiveness,” Charles and First Interstate reasonably relied on the 2004

Trust documents in placing the assets into a money market account. Based on the

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record before us, we conclude that this conservative investment approach does not

rise to the level of gross negligence or bad faith necessary to impose default liability

under SDCL 55-4-30. Summary judgment is appropriate because there are no facts

to suggest that Charles or First Interstate breached their fiduciary duty in

managing the 2004 Trust.

[¶31.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

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