Moosmeier v. Johnson

*888MILLER, Justice.

Appellant seeks reversal of a $10,000 jury verdict which he argues is insufficient. We affirm.

Since this case is principally decided on procedural and legal grounds, a detailed recitation of the facts is not necessary. Briefly stated, appellant Donald Moosmeier (Donald), is the executor of the estate of his maiden aunt Nora Moosmeier (Nora) who died at age ninety-three. As executor, Donald discovered that Nora had made lifetime transfers of assets comprising nearly one-third of her $300,000 estate to appellee Helene Johnson (Helene). Donald commenced suit against Helene in a five-count complaint generally alleging that Helene was guilty of undue influence and conversion, seeking money damages, return of the property, and punitive damages. Helene denied any wrongdoing and alleged that Nora made the gifts because Donald and his family had ignored her in her elderly years and as a result she decided to distribute more of her estate to others ánd less to Donald. Helene testified that she had tried to discourage the gifts but Nora refused. It seems clear from the evidence that Helene was a close friend of Nora, visited her daily, and to a certain degree was involved in her business affairs.

The case was submitted to the jury by special interrogatory. The verdict form individually itemized the assets transferred and required the jury to find whether Helene had exerted undue influence over Nora in relation to each specific asset transferred. The jury returned a verdict for $10,-000 damages only relating to certain municipal bonds. The trial court denied Donald’s motion for judgment n.o.v. and alternative motion for new trial and entered judgment for the $10,000 returned by the jury.

DECISION

The first issue as generally, propounded by Donald is:

WHETHER THE COURT ERRED BY FAILING TO RULE AS A MATTER OF LAW THAT TRANSFERS OF PROPERTY FROM DECEDENT NORA MOOS-MEIER TO DEFENDANT HELENE JOHNSON, WHICH WERE ACTIVELY PARTICIPATED IN BY HELENE JOHNSON AND FROM WHICH HELENE JOHNSON UNDULY PROFITED, ARE VOID AS A MATTER OF LAW.

During the course of trial, the trial court was never asked to rule as a matter of law that undue influence was present. Although Donald did make the post-trial motions for judgment n.o.v. and alternatively for a new trial, he never moved for directed verdict at any stage of the trial.

The denial of the motion for judgment n.o.v. is not properly before us since such motions “can be considered only when the moving party at trial requested a directed verdict and thus the motion in effect brings before the trial court for review a second time the grounds urged in support of the motion for directed verdict.” Kohlman v. Veit, 409 N.W.2d 125 (S.D.1987), citing Parham v. Dell Rapids Township in Minnehaha County, 80 S.D. 281, 284, 122 N.W.2d 548, 550-51 (1963); Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2d Cir.1970); Hubbard v. White, 755 F.2d 692 (8th Cir.1985), cert. denied, 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985). See also Sabag v. Continental South Dakota, 374 N.W.2d 349 (S.D.1985).

Error in denying the motion for new trial was not argued before us, and therefore is deemed waived. SDCL 15-26A-60(6); Arens v. Arens, 400 N.W.2d 900 (S.D.1987); Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1976); Schumacher v. R-B Freight Lines, 73 S.D. 535, 45 N.W.2d 458 (1950).

The second issue presented by Donald is: WHETHER THE COURT ERRED BY GIVING INSTRUCTION NUMBER 15 TO THE JURY, WHICH STATED “THE CLOUD OF UNDUE INFLUENCE MAY BE REMOVED BY SHOWING THAT NORA MOOSMEIER HAD INDEPENDENT ADVICE, THAT WAS NEITHER INCOMPETENT OR PERFUNCTORY,” WHEN THE GIVING OF SUCH INSTRUCTION WAS UNSUPPORTED BY THE EVIDENCE.

*889It is the settled law that a jury should be given only those issues which find support in the record. Kase v. French, 325 N.W.2d 678 (S.D.1982); Black v. Gardner, 320 N.W.2d 153 (S.D.1982); State v. DuBray, 298 N.W.2d 811 (S.D.1980); Egan v. Scheffer, 86 S.D. 684, 201 N.W.2d 174 (1972); Davies v. Toms, 75 S.D. 273, 63 N.W.2d 406 (1954).

Here, there is ample evidence in the record to warrant the giving of instruction 15. Attorney John DeVany was closely involved with Nora’s financial arrangements and was aware of most of the transactions as they occurred, with the possible exception of the municipal bond transfer upon which the verdict was rendered. He generally testified that his duties to Nora included being

her financial adviser, someone who would take care of her routine financial affairs, take care of her investments, helping collect her rent, farm income, doing her banking for her, and other legal work that might be involved in her affairs, such as drawing contracts for her, renting her house, her property in town, and preparing contracts for those.

The fact that Nora did not consult with Mr. DeVany on each specific transfer or did not agree with or follow all of his advice is not dispositive. Kase, supra. That was something for the jury to consider in light of all of the other evidence in the case in arriving at its ultimate verdict on the specific transfers. The fact remains that she often received independent advice that was neither incompetent nor perfunctory.

The last issue framed by Donald was:

WHETHER THE COURT ERRED AS A MATTER OF LAW IN STRIKING PLAINTIFF’S DEMAND FOR PUNITIVE DAMAGES.

At the close of the evidence, the trial court granted Helene’s motion to strike Donald’s request for punitive damages. Two salient statutes allow punitive damages. SDCL 30-17-8 provides:

In any action now or hereafter pending to recover property of the decedent or his estate ... the judgment may include, in addition to the value of such property, a sum not to exceed the value thereof, as punitive damages, in the discretion of the court or the jury.

SDCL 21-3-2 also provides for punitive damages as follows:

In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, or in any case of wrongful injury to animals, being subjects of property, committed intentionally or by willful and wanton misconduct, in disregard of humanity, the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.

In light of the foregoing statutes standing alone, and Black v. Gardner, supra, the issue of punitive damages could have been submitted to the jury. Since the jury found that undue influence had been exerted over Nora involving the transfer of the municipal bonds, the jury could also have had the opportunity to consider an award of punitive damages on that claim. A finding of undue influence indicates that fraud may have occurred. In re Snowball’s Estate, 157 Cal. 301, 107 P. 598 (1910); In re Shell’s Estate, 28 Colo. 167, 63 P. 413 (1900); Van Ginkle v. Mooy, 104 Ind.App. 282, 10 N.E.2d 759 (1937).* That portion of Donald’s complaint, seeking exemplary damages, alleges undue influence, oppression, and malice. Nowhere in that cause of action, nor for that matter nowhere in the complaint, is there an allegation that Helene committed a fraud. Fraud must be stated with particularity under SDCL 15-6-9(b). The terms “fraud” and “undue influence” are not specifically synonymous. Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971); Daniel v. Etheredge, 191 Ga. 793, 13 S.E.2d 763 (1941); Cooper v. Agee, 222 Ala. 334, 132 So. 173 (1931); In re Shell’s Estate, 28 Colo. 167, 63 P. 413 (1900). In *890order to recover on a civil claim, a party must make the appropriate allegations upon which relief can be based. Schwartz v. First Nat. Bank in Sioux Falls, 390 N.W.2d 568 (S.D.1986); Baker v. Jewell, 77 S.D. 573, 96 N.W.2d 299 (1959); Kindley v. Williams, 76 S.D. 225, 76 N.W.2d 227 (1956); Linder v. Combustion Engineering, Inc., 342 So.2d 474 (Fla.1977); 61A Am.Jur.2d Pleading § 384 (1981); 4 Am. Jur.2d Appeal & Error § 546 (1962).

In our view, because there was no allegation of fraud and because the record is devoid of any showing that Helene was guilty of oppression or malice, the trial court properly struck the claim for exemplary damages.

Affirmed.

WUEST, C.J., and MORGAN, J., concur. HENDERSON, J., concurs in part and dissents in part. SABERS, J., concurs in part and in result in part, and dissents in part.

Helene’s position that in addition to fraud there must be a showing of willful and wanton misconduct, in disregard of humanity, is untenable. Helene simply misreads the statute.