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Wilkinson v. Native American Rights Fund

Court of Appeals of Missouri, Western District, Second Division

November 21, 2017

JOSEPH WILKINSON AND DONNA L TWEEDIE, AS SUCCESSOR CO-TRUSTEES OF THE NELVADA DEAN TRUST, Respondents,
v.
NATIVE AMERICAN RIGHTS FUND, ET AL., Appellants.

         Appeal from the Circuit Court of Lafayette County, Missouri The Honorable Dennis A. Rolf, Judge.

          Before: Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton, Judge, and Gary D. Witt, Judge.

          OPINION

          ANTHONY REX GABBERT, JUDGE.

         Native American Rights Fund, et al. ("Appellants") appeal a trial court's entry of summary judgment in favor of Joseph Wilkinson and Donna L. Tweedie ("Respondents"), who are the successor co-trustees of the Nelvada Dean Trust ("Trust"). Appellants raise two points on appeal. Both points contend the court erred, because it relied on extrinsic evidence to interpret an unambiguous trust provision. We affirm.

         Background

         The Trust owns a 300-acre tract of land. Following the death of Nelvada Dean ("Trustor") on December 9, 2012, Respondents hired a land surveyor to except out of the 300 acres a rectangular tract ("Rectangle") containing Native American mounds and other sacred sites, per the amended trust document. Respondents offered to deed the Rectangle to Appellants, but Appellants refused, insisting on an archaeological survey of the 300 acres to determine whether additional Native American sites exist.

         On March 16, 2016, Respondents filed a petition for declaratory judgment, alleging the Rectangle satisfied the Trust's bequest. Appellants filed an answer and three counterclaims to Respondents' petition. Appellants' answer argued Trustor never intended to restrict the Rectangle to sites known to Trustor. Appellants' counterclaims argued for declaratory judgment (requiring an archaeological survey), removal of successor co-trustees, and attorney fees. The parties then executed a joint stipulation of material facts. Among those stipulations was the identification of several mounds and other sites Trustor believed to be Native American. The parties later filed individual motions for summary judgment on the petition and counterclaims.

         On November 29, 2016, the court granted Respondents' and denied Appellants' motions for summary judgment. The court concluded, "[t]he trust document does not direct the Trustee … to locate any additional Native American mounds or sacred sites … it was the intent of the Trustor to direct the Trustee to obtain a land survey which would allow the transfer of a rectangular shaped section of land containing Native American sites that she was aware of." We affirm.

         Point I

         Appellants first argue the trial court erred in granting summary judgment on the declaratory judgment action, because the court relied on extrinsic evidence to interpret a trust provision both parties agree is unambiguous. In reviewing a declaratory judgment action decided by summary judgment, our Supreme Court has stated:

The propriety of a grant of summary judgment is an issue of law that this Court reviews de novo … This Court reviews the record in the light most favorable to the party against whom judgment was entered. Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Because this case concerns declaratory judgment, the trial court's decision will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.

American Federation of Teachers v. Ledbetter, 387 S.W.3d 360, 362-63 (Mo. banc 2012) (citations omitted). We conclude the trial court did not erroneously rely on extrinsic evidence in determining Trustor's intent.

         At issue is Article 3.1(b) of the trust document's Fifth Amendment, which reads:

… the trustee shall have the real estate legally described above surveyed to except out … all land that contains a Native American mound and/or other Native American sacred sites. The excepted piece of land shall be surveyed so that the boundaries can be legally described for said piece of land. The newly surveyed land shall be in the shape of a ...

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