#24878-rev & rem-JKK

2008 SD 131

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                 * * * *

                       ESTATE OF SCOTT W. DIMOND
                       aka SCOTT DIMOND, Deceased.

                                 * * * *

                  APPEAL FROM THE CIRCUIT COURT
                   OF THE SIXTH JUDICIAL CIRCUIT
                  MELLETTE COUNTY, SOUTH DAKOTA

                                 * * * *

                       HONORABLE LORI S. WILBUR
                               Judge

                                 * * * *

STANLEY E. WHITING                               Attorney for appellant
Winner, South Dakota                             Twila Edwards.

ANITA L. FUOSS                                   Attorney for appellee
Murdo, South Dakota                              Sandhill Oil Co. Inc.

                                 * * * *

                                            CONSIDERED ON BRIEFS
                                            NOVEMBER 3, 2008

                                            OPINION FILED 12/30/08
#24878

KONENKAMP, Justice

[¶1.]        Although never decided in South Dakota, many jurisdictions hold that,

as a general rule, an unexplained transfer of money or property from a parent to a

child creates a rebuttable presumption that the transfer was intended as a gift. In

this case, nine months after a mother gave her son $25,000, he died. Declaring that

the money was a loan, she sought reimbursement from her son’s estate as an

unsecured creditor. In a hearing to resolve the mother’s claim, the circuit court

applied the presumption of a gift and ruled that it could be rebutted only by clear

and convincing evidence. We adopt the presumption, but conclude that the court

erred in setting too high a standard for rebuttal. We reverse and remand.

                                          I.

[¶2.]        Scott Dimond perished in an auto accident on March 6, 2006. He left

three children and assets worth $129,753.42 to cover $245,000.64 in unsecured

debts. His mother, Twila Edwards, and the children’s mother, Julie Dimond,

petitioned the circuit court for settlement of his estate. Under the proposed

settlement, Twila and Sandhill Oil Company, among other creditors, would receive

a percentage of their claims. Twila claimed to have loaned her son $25,000 for “fat

cattle” and listed herself as an unsecured creditor. With accrued interest at 8%, her

claim totaled $27,000.

[¶3.]        Sandhill objected to the proposed settlement. It asked that Twila’s

claim be disallowed for her failure to provide substantiation for the debt. At the

hearing, Twila, her ex-husband, Mark, and Scott Dimond’s daughter, Ashley,

testified in support of Twila’s claim. In denying the claim, the court ruled that


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Twila failed to rebut the presumption of a gift by clear and convincing evidence.

Twila appeals asserting that the court erred when it (1) held that there was a

rebuttable presumption that a gift was intended, (2) found that the transaction

between Dimond and Twila was unexplained, and (3) failed to rule on her

promissory estoppel claim. 1

                                          II.

[¶4.]         Twila argues that the circuit court erred when it held that the money

she gave her son was presumptively a gift. The circuit court espoused the view,

widely held in other jurisdictions, that in these circumstances a gift is presumed.

Although we have never addressed the question, a considerable number of courts

hold that an unexplained transfer of property from a parent to a child raises a

rebuttable presumption, or inference, that a gift was intended. 2 See Charles C.


1.      The circuit court did not rule on Twila’s promissory estoppel claim. She did
        not object to the court’s failure to rule or submit proposed findings and
        conclusions on this issue. Therefore, it is waived. State v. Sickler, 334 NW2d
        677, 679 (SD 1983) (quoting Am. Fed. Sav. & Loan Ass’n v. Kass, 320 NW2d
        800, 803 (SD 1982)).

2.      Ware v. Ware, 161 P3d 1188, 1192-93 (Alaska 2007); First Nat’l Bank of Fort
        Collins v. Honstein, 355 P2d 535, 536 (Colo 1960); Webb v. Blake, 119 SE
        447, 448 (GaCtApp 1923); Almeida v. Almeida, 669 P2d 174, 178-79
        (HawCtApp 1983); Nordlund v. Nordlund, 452 NE2d 18, 21 (IllCtApp 1983);
        Barth v. Severson, 183 NW 617, 623-24 (Iowa 1921); Stiff’s Ex’r v. Stiff, 290
        SW 718, 719 (KyCtApp 1927); Stahn v. Stahn, 256 NW 137, 137-38 (Minn
        1934); Sunflower Farms, Inc. v. McLean, 117 So2d 808, 813 (Miss 1960);
        Fischer v. Wilhelm, 300 NW 350, 351 (Neb 1941); Bankers’ Trust Co. v. Bank
        of Rockville Ctr. Trust Co., 168 A 733, 737 (NJCtEr 1933); Durward v.
        Nelson, 481 NW2d 586, 588 (ND 1992); Brightbill v. Boeshore, 122 A2d 38, 42
        (Pa 1956); Romano v. Romano, 205 A2d 583, 586 (RI 1964); Hayne Fed.
        Credit Union v. Bailey, 489 SE2d 472, 475-76 (SC 1997); In re Estate of
        LaValle, 218 SW3d 834, 836 (TexCtApp 2007); In re Estate of Miller, 143 P3d
        315, 320 (WashCtApp 2006); In re Estate of Rohde, 98 NW2d 440, 441 (Wis
                                                                  (continued . . .)
                                            -2-
#24878

Marvel, Unexplained Gratuitous Transfer of Property from One Relative to Another

as Raising Presumption of Gift, 94 ALR3d 608 (1979) (updated 2008). Like many

presumptions, this one exists to “correct the imbalance resulting from one party’s

superior access to the proof” and to overcome “the difficulties inherent in proving

that the more probable event in fact occurred.” Edward W. Cleary, McCormick on

Evidence § 343, 806-807 (2ded 1972).

[¶5.]        We adopt the majority view that transfers of property or money from

parent to child are presumptively gifts. Consequently, as the party seeking

repayment of a loan against the estate, Twila had the burden of going forward with

evidence sufficient to overcome the presumption, as well as the ultimate burden of

proving the validity of the loan. See Matter of Howard, 434 SE2d 254, 258 n7 (SC

1993) (citing In re Estate of Krueger, 455 NW2d 809 (Neb 1990)). Evidence offered

at the hearing showed that Twila voluntarily gave her son $25,000 by personal

check without notation on the check or other documentation. The check was

processed at Twila’s bank on June 30, 2005. Stamped on the back of the check was

the following: “PAY TO THE ORDER OF WELLS FARGO BANK, NA WHITE

RIVER, SD FOR DEPOSIT ONLY SCOTT DIMOND DBA DIMOND OIL. . . .”

                                         III.

[¶6.]        In its ruling, the circuit court, relying on appellate decisions from

Illinois and Washington, declared that the “presumption [of a gift] can only be



__________________
(. . . continued)
         1959); Kelsey v. Anderson, 421 P2d 163, 164 (Wyo 1966); see also In re Hall, 5
         BR 120, 122 (BankrMDTenn 1980).

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#24878

overcome by clear and convincing evidence.” See In re Marriage of Wanstreet, 847

NE2d 716, 721 (IllCtApp 2006); In re Estate of Miller, 143 P3d 315 (WashCtApp

2006). Under this standard, courts require proof that is certain, definite, reliable,

and convincing, leaving no doubt on the intention of the parties. Estate of Miller,

143 P3d at 320 (citation omitted); Daly v. Lanucha, 81 A2d 826, 828 (NJSuperCt

1951) (citations omitted). While we have said that “when a claim of a gift is not

asserted until after the death of the alleged donor, the evidence must be clear and

convincing of every element requisite to constitute a gift,” such rule will not apply to

the presumption here. See In re Estate of Fiksdal, 388 NW2d 133, 135 (SD 1986)

(emphasis added) (citation omitted). Twila seeks not to prove a gift, but to overcome

the presumption of one.

[¶7.]        South Dakota’s rule on presumptions in civil cases provides:

             In all civil actions and proceedings, unless otherwise provided
             for by statute or by chapters 19-9 to 19-18, inclusive, a
             presumption imposes on the party against whom it is directed
             the burden of going forward with evidence to rebut or meet the
             presumption, but does not shift to such party the burden of
             proof in the sense of the risk of nonpersuasion, which remains
             throughout the trial upon the party on whom it was originally
             cast. When substantial, credible evidence has been introduced
             to rebut the presumption, it shall disappear from the action or
             proceeding, and the jury shall not be instructed thereon.

SDCL 19-11-1 (Rule 301). A subject of strong criticism, the “substantial, credible

evidence” language in the last sentence was appended by South Dakota to what was




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essentially the federal version of Rule 301. 3 According to Professor Larson, this

undefined phrase “injects added uncertainty into the interpretation of the rule.”

John W. Larson, South Dakota Evidence § 301.1 (1991).

[¶8.]         We demurred on venturing a definition of “substantial, credible

evidence” in Bell v. East River Electric Power Cooperative, Inc., 535 NW2d 750, 755

(SD 1995). We did, however, accept Professor Larson’s view that such language

“‘was intended to give a presumption greater strength by requiring much more to

defeat it than a mere “tapping on the window.”’” Id. (quoting John W. Larson,

South Dakota Evidence § 301.1 (1991)); see also Hinds v. John Hancock Mut. Life

Ins. Co., 155 A2d 721, 730 (Me 1959) (quoting Hildebrand v. Chicago, B.&Q.R.R., 17

P2d 651 (Wyo 1933)). Indeed, the words “substantial, credible evidence” in SDCL

19-11-1 (Rule 301) were ostensibly added to meet the criticism of the federal rule

that a scintilla of evidence—enough merely to burst a bubble—is all that is required

to overcome a presumption. 4 From that perspective, the added language makes

sense. 5



3.      Known as the vanishing or “bursting bubble” rule, it was adopted in Federal
        Rule of Evidence 301, which provides:
              In all civil actions and proceedings not otherwise provided for by Act of
              Congress or by these rules, a presumption imposes on the party
              against whom it is directed the burden of going forward with evidence
              to rebut or meet the presumption, but does not shift to such party the
              burden of proof in the sense of the risk of nonpersuasion, which
              remains throughout the trial upon the party on whom it was originally
              cast.
4.      One of the major opponents of the “bursting bubble” theory of presumptions,
        Professor Morgan, noted in a law review article that “it is a little short of
        ridiculous to allow so valuable a presumption to be destroyed by the
        introduction of evidence without actual persuasive effect.” E. Morgan,
                                                                    (continued . . .)
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#24878

[¶9.]         Still, going forward with “substantial, credible evidence” should not

ordinarily be equated with meeting any particular burden of proof. 6 Otherwise, the

burden of producing evidence shifts to become the burden of persuasion,

contradicting the explicit provisions of the rule. 7 A presumption “does not shift . . .

the burden of proof in the sense of the risk of nonpersuasion[.]” See SDCL 19-11-1

(Rule 301). Reading this statute as a whole, therefore, we deduce that the

substantial, credible evidence requirement means that a presumption may be

__________________
(. . . continued)
         Instructing the Jury Upon Presumptions and Burden of Proof, 47 HarvLRev
         59, 82 (1933), as cited in 9 Wigmore, Evidence § 2493c, at 315 n3 (Chadbourn
         rev 1981).

5.      This language may also have been intended to salvage, at least in part, the
        law before the adoption of SDCL 19-11-1 (Rule 301), as recited in King v.
        Johnson Bros. Construction Co.,

              Courts have differed in stating the quality and quantity of
              evidence required to remove a legal presumption. Frequently
              they say the evidence must be substantial. Sometimes it is
              termed as ‘credible’, or ‘positive’, or ‘satisfactory’ evidence. See
              Annot. 5 ALR3d, § 6, pp 55, 56. South Dakota in the Peters [v.
              Lohr, 24 SD 605, 124 NW 853, 855 (1910)] case said prima facie
              evidence is necessary, but the Lunde [v. Dwyer, 74 SD 559, 56
              NW2d 772 (1953)] case makes it evident that there must be
              enough evidence to serve as the basis for a logical inference
              contrary to the presumption.
        83 SD 69, 77, 155 NW2d 183, 187 (1967).

6.      Some South Dakota statutes, however, specifically require proof by clear and
        convincing evidence to overcome a presumption. See, e.g., SDCL 12-4-36
        (presumption certain electors not qualified); SDCL 60-4-12 (presumption of
        good faith disclosure of employment information).

7.      Not to be confused with prima facie evidence, a presumption disappears once
        it is rebutted, whereas prima facie evidence will not disappear when it is
        contradicted, but remains to be given such weight as the trier of fact
        determines.

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#24878

rebutted or met with such evidence as a trier of fact would find sufficient to base a

decision on the issue, if no contrary evidence was submitted. 8 But mere assertions,

implausible contentions, and frivolous avowals will not avail to defeat a

presumption. What may suffice as substantial, credible evidence will, of course,

vary depending on the nature of the presumption. A presumption implementing

vital public policy, like the presumption of legitimacy, for instance, would require

weighty evidence to surmount it. SDCL 25-4-48; SDCL 25-8-57. Conversely, a

presumption established primarily as a procedural device may require some lesser

quantum of substantial, credible evidence for rebuttal.

[¶10.]         Here, in the face of the presumption of a gift, Twila bore the burden of

going forward with substantial, credible evidence—that is, evidence that if

uncontradicted would be sufficient to sustain a finding of the nonexistence of the

presumed fact. If rebutted, the presumption would vanish and the case would

proceed without regard to the presumption. Twila was not required to go forward

with clear and convincing evidence, as the trial court erroneously held.

                                           IV.

[¶11.]         Although it is not entirely clear from our examination of the court’s

findings, in addition to concluding that Twila failed to overcome the presumption of



8.       Florida, apparently the only other state to include the term “credible” in its
         presumption statute, uses a similar standard. Berwick v. Prudential Prop. &
         Cas. Ins. Co., 436 So2d 239, 240 (FlaCtApp 1983); see also Hlad v. State, 565
         So2d 762, 776-77 (FlaCtApp 1990) (Cowart, J., dissenting). Florida’s statute
         requires the “the trier of fact to assume the existence of the presumed fact,
         unless credible evidence sufficient to sustain a finding of the nonexistence of
         the presumed fact is introduced[.]” FSA 90.302(1).

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#24878

a gift by clear and convincing evidence, it appears the circuit court may also have

applied the clear and convincing burden of proof to the evidence offered on the

ultimate issue whether Twila loaned the money to her son. If the court indeed

applied this standard, it was in error. We have held that a service contract hinging

on parol evidence, sought to be enforced after the death of the other contracting

party, must be proved by clear and convincing evidence. In re Malone’s Estate, 249

NW2d 757 (SD 1977) (citing Mahan v. Mahan, 80 SD 211, 121 NW2d 367 (SD

1963)) (additional citation omitted). Malone’s Estate, and its predecessor cases,

dealt particularly with claims for payment after death for services rendered while

the decedents were alive. In those cases, the claimant must prove entitlement to

payment by clear and convincing evidence. The clear and convincing standard has

also been imposed by other jurisdictions when a claimant requests reimbursement

for services rendered. See In re Shirk’s Estate, 399 P2d 850, 854-55 (Kan 1965);

Keller v. Keller, 263 A2d 578, 580-81 (Md 1970); Richards v. Pac. Nat’l Bank of

Washington, 519 P2d 272, 274-75 (WashCtApp 1974); see also Daly v. Blinstrubas,

2002 WL 31898259 (ConnSuperCt 2002) (unpublished). This high standard is

imposed, as “claims of this nature must be closely scrutinized, being objects of

suspicion, and must be established by greater quantum of proof than in ordinary

actions.” Mahan, 80 SD at 215, 121 NW2d at 369.

[¶12.]       Here, on the other hand, Twila was not seeking reimbursement for

services she rendered. Rather, she contended that she loaned her son money.

South Dakota has not directly addressed the question of the burden of proof in such

cases. In other jurisdictions, courts have imposed the preponderance of the


                                          -8-
#24878

evidence burden for these claims. In re Freundlich’s Estate, 116 NYS2d 757, 759

(NYSurCt 1952); In re Matter of Estate of Hill, 492 NW2d 288, 293 (ND 1992);

Lappin v. Lucurell, 534 P2d 1038, 1045 (WashCtApp 1975). The preponderance

burden is used despite the fact that the loan sought to be enforced is based on an

oral agreement. See Estate of Hill, 492 NW2d at 293. Because a claim seeking

reimbursement for services is more problematic than a claim for enforcement of a

loan, the clear and convincing evidence standard should not be imposed in

establishing the validity of a claimed loan. Twila should only be required to prove

her claim by a preponderance of the evidence.

[¶13.]       Sandhill Oil argues that even if the court erred in applying the gift

presumption, the court still ruled that the claim should be denied for lack of

evidence to establish its validity. In its findings of fact and conclusions of law, the

circuit court noted that “[t]here is no credible evidence that [Dimond] made any

agreement to repay moneys he received from [Twila], and there [is] no enforceable

contract for the repayment of those moneys or interest.” Evidence on whether the

check was intended as a loan was contradictory. On the one hand, Twila testified

that she intended the money to be a loan and that her son understood that. One

witness recalled her son speaking of a loan from his mother, but no date could be

nailed down. On the other hand, Twila had also given her daughter $15,000, but

the word “loan” was noted on the check. No such language was on her son’s check.

[¶14.]       Certainly the trial court could reach the same conclusion on remand,

but we think it should examine the evidence under the proper standards. We will




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not speculate on whether under the correct standards the court might reach a

different conclusion.

[¶15.]       Reversed and remanded.

[¶16.]       GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.




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