United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1792

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Rita Fix, *

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Appellee, *

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v. *

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First State Bank of Roscoe, *

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Appellant. *

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Appeals from the United States

No. 07-1798 District Court for the

___________ District of South Dakota.

Rita E. Fix, *

*

Appellee, *

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v. *

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John S. Lovald, *

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Appellant. *

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Submitted: January 14, 2008

Filed: March 17, 2009

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Before BYE, BEAM, and GRUENDER, Circuit Judges.

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BYE, Circuit Judge.

This bankruptcy proceeding involves a dispute between Rita Fix and the First

State Bank of Roscoe (the Bank) over Fix's home, which the Bank sold to a third party

despite representing to Fix she could possess the home as long as she lived. The

district court determined Fix enjoyed a homestead right in the property. The district

court also determined she did not – by signing a settlement agreement with the Bank

– release the claims she may have against the Bank for its alleged misconduct related

to selling her home.

The Bank appeals, arguing Fix only had a contractual interest in the property

rather than a homestead, and released all claims she may have had against it. John S.

Lovald, the bankruptcy trustee, also appeals arguing Fix's interest in the home is a

personal property interest which belongs to the bankruptcy estate, and the estate is free

to pursue the claims against the Bank because the estate was not a party to the

settlement agreement. We reverse and remand for further proceedings.

I

Rita Fix lived in the same home for almost sixty years, between 1948 and 2006.

In May 1997, she and her husband signed a contract for deed with their son and

daughter-in-law, Jeff and Marie Fix, to convey the property that included the home

– the NW1/4 NW1/4 of Section 26, Township 120, Range 71, Faulk County, South

Dakota. Fix reserved a life estate "in and to the house, outbuildings, and immediately

surrounding yard." Appellee's App. 161. Two years later, Jeff and Marie approached

the Bank seeking additional financing for their farm operation. The Bank agreed to

give them the financing if they obtained a warranty deed on the property. Fix was

reluctant to give up her life estate interest, however, which was a prerequisite to Jeff

and Marie obtaining a full warranty deed. In order to facilitate the financing, the

Bank wrote a letter to Fix on March 12, 1999, which stated:
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This letter is to memorialize to you that you are deeding NW1/4NW1/4

26-120-71, Faulk County, South Dakota, to Jeffrey F. Fix and Marie Fix.

First State Bank of Roscoe will be taking a real estate mortgage on this

real estate. In the event that for any reason the bank becomes the owner

of the described real estate, you will have full right of possession to the

home on the premises as long as you are living.

Appellant's App. 128. The Bank's president, John Beyers, signed the letter.

As a result of the Bank's letter, Fix gave a warranty deed to Jeff and Marie on

March 15, 1999. The warranty deed used the term "grant," which, under South

Dakota law, carries with it the implied covenant that the grantor has not previously

conveyed the same interest in the property to someone else, and the implied covenant

that, at the time of the instant conveyance, the property is free from all encumbrances

suffered by the grantor or any person claiming under him, e.g., there is no retained life

estate. See S.D. Codified Laws § 43-25-10.

Several years passed, during which time Fix lived in the home. In March 2004,

she filed a Chapter 13 bankruptcy petition. She did not claim a homestead exemption,

nor did she list as personal property her interest based on the March 1999 letter from

the Bank. In June 2005, she converted her petition to Chapter 7. In October 2005,

about the time she received a discharge of her debts, the Bank filed an adversary

complaint against her. Fix's son, Jeff, had granted the Bank a security interest in his

grain. The alleged scheme involved Jeff selling grain – covered by the Bank's

mortgage – in Fix's name. She would thereafter endorse the grain checks, deposit

them in her account, and then write her son a check in the same amount. The Bank

claimed the Fixes diverted over $125,000 of secured proceeds through the scheme.

In November 2005, about a month after the Bank brought the fraud claim

against Fix, Jeff and Marie conveyed the home and the property on which it sits to the

Bank pursuant to a non-merger deed in lieu of foreclosure. The transfer of the home
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and property was part of a settlement between the Bank and Jeff and Marie in their

own bankruptcy proceeding.

Meanwhile, the Bank tried to reach a settlement with Fix regarding the fraud

complaint against her. After being told by its attorney that a global settlement had

been reached with Fix, the Bank sold the home in question outright to James and

Pamela Baer. The deed was recorded on December 9, 2005. Fix was still living in the

home at the time.

On February 16, 2006, Fix's bankruptcy attorney signed a "Settlement

Agreement" on her behalf resolving the Bank's fraud claim against her. Fix signed

the agreement on March 8, 2006, and a Bank representative signed it on March 14,

2006. Two days later, the Bank presented the agreement to the bankruptcy court for

approval, and the bankruptcy court approved it. The agreement contained a release

clause which provided:

As a part of this agreement, and in consideration for the mutual

covenants contained herein, [Fix] hereby releases, acquits and forever

discharges [Bank] and all of [Bank's] officers, directors, employees,

representatives, agents and assigns, past or present, from any and all

liability whatsoever, whether presently existing, known or unknown,

contingent or liquidated, including all claims, demands, and causes of

action of every nature which [Fix] has, or may claim to have, by reason

of any transactions occurring between [Fix] and the above institution or

persons. [Fix] hereby acknowledges that no outstanding loan

commitments have been made to [Fix] by [Bank].

Appellant's App. 138-39.

On March 17, 2006, the day after the bankruptcy court approved the settlement,

the Baers' attorney wrote Fix stating the Baers were "quite anxious to take possession"

of the home, and asking "when you anticipate your departure so they can arrange for
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the utilities to be transferred and propane delivered." Id. at 60. According to Fix, this

was the first notice she had that the Bank sold her home.

On March 30, 2006, Fix filed a complaint against the Bank in South Dakota

circuit court. The complaint alleged five causes of action: 1) the right to possession

of her home; 2) breach of fiduciary duty; 3) intentional infliction of emotional

distress; 4) deceit in getting her to deed away her home; and 5) fraudulent

misrepresentation in deceiving her into deeding away her home. The complaint also

included a request for exemplary damages. Her counsel represented to the bankruptcy

trustee that the suit was a million dollar case. Shortly thereafter, Fix amended her

bankruptcy schedules to claim a homestead exemption for the first time. She

represented the value of her home as $34,605.

The Bank filed another adversary proceeding in bankruptcy court seeking an

injunction of the state court lawsuit. The bankruptcy court entered a preliminary

injunction preventing Fix from going forward with the suit. After the adversary

proceeding was tried to the bankruptcy court, it entered a permanent injunction

preventing Fix from pursuing the state court action against the Bank.

Fix appealed the bankruptcy judge's order to the district court. The district

court reversed the bankruptcy court, concluding: 1) Fix retained a life estate interest

in real property as a consequence of the promise from the Bank in the March 1999

letter; 2) the life estate interest entitled Fix to a homestead exemption in her

bankruptcy proceeding; 3) the settlement agreement did not waive or destroy the

homestead or life estate interest; 4) Fix had no notice of a potential claim against the

Bank until it breached its agreement in March 2006, which occurred after Fix had

received her bankruptcy discharge; 5) the state court lawsuit belonged to Fix, not to

the bankruptcy trustee; and 6) the fraud claim settlement did not release the claims Fix

had against the Bank related to the sale of her home. As a result of the district court's

order, Fix's state court lawsuit against the Bank was allowed to proceed. The state
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court circuit judge determined the request for exemplary damages was appropriate and

granted a motion to pursue discovery and a motion for a trial of that claim.

Both the Bank and the bankruptcy trustee filed timely appeals of the district

court's order. The issues on appeal relate to: 1) the nature of Fix's interest in her home

as the result of the Bank's letter stating she could live there until her death; 2) whether

any possible causes of action against the Bank belong to Fix or her bankruptcy estate;

and 3) the effect on those causes of action, if any, of the release Fix signed as part of

the fraud claim settlement.

II

"When a bankruptcy court's judgment is appealed to the district court, the

district court acts as an appellate court and reviews the bankruptcy court's legal

determinations de novo and findings of fact for clear error." In re Falcon Prods., Inc.,

497 F.3d 838, 840-41 (8th Cir. 2007) (quoting In re Fairfield Pagosa, Inc., 97 F.3d

247, 252 (8th Cir.1996)). "As the second court of appellate review, we conduct an

independent review of the bankruptcy court's judgment applying the same standards

of review as the district court." Id.

Although the facts giving rise to this dispute are somewhat convoluted, we

believe the legal questions presented are relatively straightforward. The primary

question raised on appeal is whether, after conveying by warranty deed the property

in question to her son and daughter-in-law in March 1999, Fix retained an interest in

real estate upon which to claim a homestead exemption. The bankruptcy court

concluded she did not. We agree.

South Dakota law requires an ownership interest in property to claim a

homestead exemption. See S.D. Codified Laws § 43-31-2 ("The homestead must

embrace the house used as a home by the owner thereof[.]") (emphasis added); see
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also United States through Farmers Home Admin. v. Nelson, 969 F.2d 626, 631 (8th

Cir. 1992) ("Homestead rights under South Dakota state law accrue only to owners

who use the property as a home[.]") (emphasis added). When Fix deeded the property

to Jeff and Marie by outright warranty deed, she gave up the life estate interest she had

in the property. In exchange, she received from the Bank a future contingent right to

possession of the home for the rest of her life in the event the Bank became the owner

of the home. This interest was not an interest in real estate, but rather a personal

property interest. See Foster v. Foster, 673 N.W.2d 667, 671-72 (S.D. 2003) (holding

an agreement granting an option to purchase real estate was personal property and

belonged to the bankruptcy estate). The absence of an interest in real estate is

demonstrated by the fact that the Bank, when it wrote the letter in March 1999, had

no present interest in the real property at issue, and thus could not convey such an

interest to Fix.

In deciding Fix did not retain an interest in real property upon which to claim

a homestead exemption, we are focusing solely upon the nature of the interest she

retained. Her interest was in the nature of personal property, not real property. In so

holding, we express no opinion on the validity or enforceability of the interest Fix

obtained from the Bank.

III

The next question we must address is whether the five causes of action Fix

brought against the Bank in March 2006 belong to her or to her bankruptcy estate. If

the causes of action belong to the bankruptcy estate, we need not address the Bank's

contention that Fix released the claims as part of the fraud claim settlement because

the bankruptcy estate was not a party to that settlement. If, on the other hand, we

determine all or some of the causes of action belong to Fix, we must go on to address

whether she released the claims in her settlement agreement with the Bank.
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As stated above, the contingent interest in the home that Fix received from the

Bank via the March 1999 letter was in the nature of personal property, not real

property. All legal and equitable interests of a debtor in personal property become

property of the bankruptcy estate as of the commencement of a bankruptcy. Whetzal

v. Alderson, 32 F.3d 1302, 1303 (8th Cir. 1994). This includes a contractual right of

the type Fix obtained from the Bank in March 1999. Cf. Westmoreland Human

Opportunities, Inc. v. Walsh, 246 F.3d 233, 242 (3rd Cir. 2001) (noting the broad

definition of estate property encompasses rights arising from ordinary contracts). In

addition, when Fix's bankruptcy proceeding was converted from Chapter 13 to

Chapter 7, any property that was part of the bankruptcy estate at the time of the

original filing remains the property of the bankruptcy estate after the conversion. See

11 U.S.C. § 348(f)(1)(a). Thus, at the time the bankruptcy was filed, and later when

the bankruptcy was converted from Chapter 13 to Chapter 7, Fix's rights against the

Bank were part of the bankruptcy estate.

The more difficult question is whether this potential contractual interest was

still part of the bankruptcy estate when Fix's causes of action accrued, that is, when

the Bank allegedly breached the agreement by selling the home in December 2005.

The Bank's alleged breach occurred after Fix had already received a discharge under

Chapter 7. Thus, while this case involves a pre-petition interest, the claims at issue

did not accrue until post-petition. The bankruptcy trustee contends in such a situation,

where the contract interest was property of the estate at the time the bankruptcy

petition was filed, but the breach occurs post-petition (even post-discharge), the

breach relates back such that any causes of action arising from the breach constitute

property of the estate. See In re Strada Design Assocs., Inc., 326 B.R. 229, 236

(S.D.N.Y. 2005) ("[A] cause of action will be 'property of the estate' if it has sufficient

roots in the debtor's pre-bankruptcy activities and is not entangled with the debtor's

'fresh start,' regardless of when the claim accrues under state law") (citing Segal v.

Rochelle, 382 U.S. 375, 380 (1966)); see also Drewes v. Vote (In re Vote), 276 F.3d

1024, 1026-27 (8th Cir. 2002) (applying Segal).
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Here, all five causes of action against the Bank arose from the March 1999

letter it wrote purporting to allow Fix to live in her home until she died. Her

reluctance to relinquish her life estate interest occurred in 1999, the Bank wrote the

letter to induce her to give up her life estate interest in 1999, and Fix's decision to

warranty deed the home to Jeff and Marie in exchange for the Bank's letter occurred

in 1999. These activities were not related to Fix's bankruptcy, or the fresh start she

received when her debts were discharged in October 2005. Thus, we believe at least

four of the five causes of action Fix brought against the Bank in March 2006 (the

right-to- possess claim, the breach-of-fiduciary-duty claim, the deceit claim, and the

fraudulent-misrepresentation claim) have sufficient roots in Fix's pre-bankruptcy

activities to be considered property of the bankruptcy estate, even though the Bank's

alleged breach of its promise occurred post-petition.

The intentional infliction of emotional distress claim presents a closer question.

The elements of a prima facie claim for intentional infliction of emotional distress are:

1) the defendant committed an act amounting to extreme and outrageous conduct; 2)

with the intent to cause severe emotional distress; 3) the act must be the cause in-fact

of the distress; and 4) the plaintiff must suffer an extreme disabling emotional

response to the conduct. Nelson v. WEB Water Dev. Ass'n, 507 N.W.2d 691, 698

(S.D. 1993). The act Fix alleges was extreme and outrageous on the part of the Bank

was sale of the home to the Baers in December 2005. Fix's alleged emotional distress

did not occur until she learned about the sale in March 2006. Thus, all of the prima

facie elements of Fix's alleged claim occurred post-petition. While Fix's claim for

intentional infliction of emotional distress, like her other claims, relates to the Bank's

March 1999 letter, we do not believe it is sufficiently rooted in the pre-bankruptcy

past to be considered part of her bankruptcy estate.
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IV

Because we conclude the intentional infliction of emotional distress claim

belongs to Fix, it is necessary to address whether the release she signed in favor of the

Bank as part of the fraud settlement bars that claim. We conclude the release does not

apply to this alleged tort claim. South Dakota law prohibits a release which attempts

to "exempt anyone from responsibility for his own fraud or willful injury to the person

. . . of another[.]" S.D. Codified Laws § 53-9-3; see also Holzer v. Dakota Speedway,

Inc., 610 N.W.2d 787, 793 (S.D. 2000) ("[R]eleases that are construed to cover . . .

intentional torts are not valid and are against public policy."). A claim for intentional

infliction of emotional distress is an intentional tort claim, and thus would not be

affected by the release Fix signed.

V

The order of the district court is reversed, and this case is remanded for further

proceedings consistent with this opinion.

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