#27919-a-SLZ

2017 S.D. 9

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                  ****

                 ESTATE OF LESTER BRONSON, Deceased.

                                  ****

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

                                  ****

                   THE HONORABLE CARMEN MEANS
                              Judge

                                  ****


LEE SCHOENBECK
JOSHUA G. WURGLER of
Schoenbeck Law, PC
Watertown, South Dakota                    Attorneys for appellants
                                           Debra Mills and Gloria
                                           Sichmeller.


THOMAS F. BURNS
Watertown, South Dakota                    Attorney for appellee
                                           Leslie Bronson, Personally and
                                           as Personal Representative of
                                           the Estate.

                                  ****



                                           CONSIDERED ON BRIEFS
                                           ON JANUARY 9, 2017

                                           OPINION FILED 03/22/17
#27919

ZINTER, Justice

[¶1.]        Lester Bronson executed a power of attorney appointing his son, Leslie

“Butch” Bronson, as his attorney-in-fact. Several years later, at Lester’s request,

the bank added Butch as a joint owner on one of Lester’s bank accounts. On the day

of the transaction, Lester was allegedly physically unable to sign his name to the

required bank form, so Butch signed Lester’s name while they were together in the

bank employee’s office. After Lester died, his daughters brought claims on behalf of

his estate against Butch to recover the account balance together with exemplary

damages. The daughters contended that in signing Lester’s name, Butch was

exercising his power of attorney and had engaged in impermissible self-dealing.

After a court trial, the circuit court dismissed the daughters’ claims. The court

found that Butch signed Lester’s name as an amanuensis rather than exercising the

power of attorney. The daughters appeal. We affirm.

                            Facts and Procedural History

[¶2.]        In 2003, Lester executed a power of attorney appointing Butch as his

attorney-in-fact. At that time, Lester and his wife were the joint owners of a

checking account. Lester’s wife died in 2004, and in November 2010, he went by

himself to the bank where the account was located to remove her name from the

account. He met with Nancy Byer, a banker who had worked with him for many

years. Lester informed Byer that he also wished to add Butch to the account.

Because Butch’s signature was needed to be an account holder, Byer called Butch

and told him to come to the bank. When he arrived, Byer prepared the form

necessary to add him to the account as a joint owner, and she explained the form to


                                         -1-
#27919

Lester and Butch. Byer explained that Butch would be able to write checks on the

account and that he would be the sole owner of the money in the account upon

Lester’s death. Lester confirmed that those were his intentions. Byer left Lester

and Butch alone in her office for a brief time while she made a deposit. When she

returned, the form appeared to have been signed by both Lester and Butch.

[¶3.]         Lester died in December 2014. He was survived by his son, Butch, and

two daughters, Gloria Sichmeller and Debra Mills. Lester’s estate included

substantial land and certificates of deposit.∗ He also had $124,643 in the joint

checking account at the time of his death.

[¶4.]         After Lester’s death, Sichmeller and Mills (Petitioners) brought these

claims against Butch for breach of fiduciary duty and conversion. They sought

recovery of the checking account balance and exemplary damages. Petitioners

asserted that Butch had signed Lester’s name on the bank form, which they

contended was an act of self-dealing that was not specifically authorized by the

power of attorney. Although both Butch and Byer testified in their depositions that

Lester had signed the bank form, they were apparently unaware that a handwriting

expert had opined that Butch had in fact signed Lester’s name. Byer, upon being

shown the expert’s report at the end of her deposition, then stated that she could

not remember who signed Lester’s name. Butch continued to believe that Lester

signed the form.



∗       Under Lester’s will, which he executed in 2013, all of his personal property
        was to be equally divided among all three children, and the real property was
        divided approximately equally. The will nominated, and the circuit court
        appointed, Butch as the personal representative.

                                          -2-
#27919

[¶5.]        The case proceeded to a court trial to determine ownership of the

account. The parties stipulated that Butch had signed Lester’s name. Over

Petitioners’ objection, the court admitted oral extrinsic evidence of Lester and

Butch’s visit to the bank. Butch testified that while at the bank, Lester informed

Byer that he wanted Butch on the account so that the balance would go to Butch.

Butch also indicated that Lester had severe gout and that parts of the fingers on

Lester’s right hand were amputated in 2005 or 2006. According to Butch, Lester

had difficulty holding a pen whenever his gout flared up. Butch further indicated

that Lester’s gout was bad on the day the bank form was signed.

[¶6.]        Byer also testified at trial, and she described Lester as a man who was

meticulous with his money and who knew exactly where he wanted it to go. She

testified that it was Lester who wanted to add Butch to the account, that Lester did

not want anyone else except Butch on the account, and that Lester wanted the

account to go to Butch after Lester died. According to Byer, Butch signed the bank

form when all three of them were in her office. She then left her office to deposit

money for Lester. While outside her office, she observed Butch trying to put a pen

in Lester’s hand. When she returned to her office, Lester appeared to have signed

the form, but she testified that she did not see Lester sign it. Byer also confirmed

that Lester had problems with gout and would occasionally complain about pain in

his hands.

[¶7.]        After hearing the evidence, the circuit court ruled that Butch was the

owner of the funds in the account. Although the parties stipulated that Butch had

signed Lester’s name on the form, the court found that Butch did not act pursuant


                                          -3-
#27919

to the power of attorney. Instead, the court found that Butch had acted as “a mere

instrument or [amanuensis]” at Lester’s request. Petitioners appeal, arguing that

Butch obtained joint ownership of the account by engaging in impermissible acts of

self-dealing. Petitioners also argue that the evidence was insufficient to support a

finding that Butch acted as an amanuensis. Additionally, Petitioners request this

Court to require the estate to pay their appellate attorney’s fees.

                                       Decision

Amanuensis Doctrine

[¶8.]        Petitioners’ arguments focus primarily on legal principles governing

self-dealing by an agent acting pursuant to a power of attorney. Specifically, they

contend that: Butch’s power of attorney did not authorize him to sign Lester’s name

on the bank form; signing Lester’s name was an impermissible act of self-dealing;

and the circuit court erred when it based its ruling on oral extrinsic evidence of the

circumstances surrounding the signing.

[¶9.]        It is undisputed that the power of attorney in this case did not give

Butch the power to self-deal. We also agree with Petitioners that: “a power of

attorney must be strictly construed and strictly pursued,” Bienash v. Moller,

2006 S.D. 78, ¶ 13, 721 N.W.2d 431, 435; “if the power to self-deal is not specifically

articulated in the power of attorney, that power does not exist,” id. ¶ 14; and oral

extrinsic evidence is inadmissible to show that “the attorney-in-fact [had] the power

to self-deal when the power of attorney does not explicitly provide such,” Hein v.

Zoss, 2016 S.D. 73, ¶ 10, 887 N.W.2d 62, 66. But these legal principles do not apply

here because Butch did not seek to admit oral extrinsic evidence to show that he


                                          -4-
#27919

had the power to self-deal. Further, Butch did not claim ownership of the money in

the account based on a power granted in the power of attorney. Instead, he relied

on the amanuensis doctrine and asserted that he signed Lester’s name in Lester’s

presence and at Lester’s direction.

[¶10.]       It is “well settled, that where the name of a party is signed to an

instrument in the presence of the party, and by his authority, and where he knows

the contents of the same, the signature will be regarded as the signature of the

party whose name purports to be signed to the instrument . . . .” Hickox v. Bacon,

17 S.D. 563, 97 N.W. 847, 847 (1903); see also Nw. Loan & Banking Co. v. Jonasen,

11 S.D. 566, 79 N.W. 840, 842 (1899) (“The signature of a mortgagor . . . made in his

immediate presence by another, with his intelligent acquiescence, is as much his act

as though he held the pen.”); Estate of Stephens v. Williams, 49 P.3d 1093, 1098

(Cal. 2002) (“The attorney in such case, so far as the signature to the instrument is

concerned, is a mere amanuensis of the grantor, and in the affixing of the seal is

only the instrument, the hand, as it were, of the grantor.”); In re Estate of Moore,

No. 115,628, ___ P.3d ___, ___, 2017 WL 656130, at *7 (Kan. Ct. App. Feb. 17, 2017)

(“It is familiar law that where a person’s name is signed for him at his direction and

in his presence by another, the signature becomes his own, and has precisely the

same validity as if he had written it himself.”); Gaspard v. Iberia Bank, 953 So. 2d

997, 999 (La. Ct. App. 2007) (“Where a person’s name is signed for him at his

direction and in his presence by another, the signature becomes his own, and is

sufficient to give the same validity to an instrument as though written by the

person himself.”); Jones v. Minton, 141 So. 2d 564, 565 (Miss. 1962) (“A person may


                                          -5-
#27919

adopt the writing of another as his individual signature.”); Graff v. Graff,

138 N.W.2d 644, 650 (Neb. 1965) (“Where a person’s name is signed to an

instrument for him, at his direction and in his presence, by another, the signature

becomes his own.”). This doctrine is significant because if it applies, the signing is

“not deemed the act of an agent, but is the direct act of the person by whose

direction it was done.” United Bonding Ins. Co. v. Banco Suizo-Panameno, S.A.,

422 F.2d 1142, 1147 (5th Cir. 1970) (applying Florida law); accord Estate of Moore,

___ P.3d at ___, 2017 WL 656130, at *15; 80 C.J.S. Signatures § 14, Westlaw

(database updated Dec. 2016) (“Where a signature is made in this manner, the

person writing the name is regarded as a mere instrumentality, by which the

person whose signature is written exercises his own discretion and acts for himself,

and not through an agent.”). The circuit court did not err in recognizing the

amanuensis doctrine.

[¶11.]       Nevertheless, Petitioners insist that our law of agency and fiduciary

self-dealing must govern this case, or else the law protecting principals will be

subverted. We disagree. Applying only the laws of agency and fiduciary self-

dealing in a case like this would create an irrebuttable presumption that once a

power of attorney is granted, every subsequent act of the attorney-in-fact involves a

fiduciary duty of that agent—even if it is an act regarding a matter unconnected to

the agency. Petitioners cite no law for such a presumption, and we decline to adopt

one. After all, “[t]he law will imply such duties only where one party to a

relationship is unable to fully protect its interests and the unprotected party has

placed its trust and confidence in the other.” Bienash, 2006 S.D. 78, ¶ 11, 721


                                          -6-
#27919

N.W.2d at 434. “We recognize no ‘invariable rule’ for ascertaining a fiduciary

relationship, ‘but it is manifest in all the decisions that there must be not only

confidence of the one in the other, but there must exist a certain inequality,

dependence, weakness of age, of mental strength, business intelligence, knowledge

of the facts involved, or other conditions giving to one advantage over the other.’”

Id. (quoting Ward v. Lange, 1996 S.D. 113, ¶ 12, 553 N.W.2d 246, 250). But here,

none of the factors necessary for a fiduciary relationship were present in this

banking transaction. The evidence undisputedly indicates that Lester was

independently and competently handling his own financial affairs when he went to

the bank to request the creation of the joint account.

[¶12.]       We do, however, acknowledge concerns that may arise where the

person acting as an amanuensis also has an interest in the transfer or is a fiduciary

for the other. We find the California Supreme Court’s resolution of those situations

instructive. In Estate of Stephens, a daughter held a power of attorney for her blind

father, whom she cared for and who was dependent on her. 49 P.3d at 1095. The

father had a deed drafted to convey real property to the daughter, and he instructed

the daughter to sign his name on the deed. Id. Because the daughter had an

interest in the transfer and had no express written authority to self-deal, the court

held that “the signing of a grantor’s name by an interested amanuensis must be

presumed invalid.” Id. at 1100. To rebut the presumption, the interested

amanuensis had “to show that his or her signing of the grantor’s name was a

mechanical act in that the grantor intended to sign the document using the




                                          -7-
#27919

instrumentality of the amanuensis.” Id. at 1100-01. We agree with the California

Supreme Court’s concerns and adopt these requirements.

Sufficiency of the Evidence

[¶13.]       Petitioners contend that because there was no direct evidence that

Lester asked Butch to sign for him, and because the circuit court only found that

Lester “in some manner” asked Butch to sign, the evidence was insufficient to

support a finding that Butch signed as an amanuensis. Petitioners also emphasize

discrepancies between Butch’s and Byer’s deposition and trial testimony. We

acknowledge that there was no direct evidence that Lester requested Butch to sign

for him. But “[d]irect and circumstantial evidence have equal weight.” State v.

Webster, 2001 S.D. 141, ¶ 13, 637 N.W.2d 392, 396. Additionally, “[t]he credibility

of the witnesses, the import to be accorded their testimony, and the weight of the

evidence must be determined by the trial court, and we give due regard to the trial

court’s opportunity to observe the witnesses and examine the evidence.” Baun v.

Estate of Kramlich, 2003 S.D. 89, ¶ 21, 667 N.W.2d 672, 677. This Court will only

overturn findings of fact on appeal for clear error; i.e., “when a complete review of

the evidence leaves the Court with a definite and firm conviction that a mistake has

been made.” Aguilar v. Aguilar, 2016 S.D. 20, ¶ 9, 877 N.W.2d 333, 336.

[¶14.]       Here, the circuit court did not clearly err in finding that Butch acted as

a mere amanuensis. It is significant that there is no claim that Butch obtained

ownership of the account through fraud, duress, or undue influence; and there is no

claim that anyone other than Lester desired to add Butch as a joint owner. Indeed,

Lester was described as a man who was very meticulous with his money and who


                                          -8-
#27919

knew exactly what he had and where he wanted it to go. Additionally, there was

evidence that Lester wanted to add Butch to the account as a joint owner, Lester

went to the bank alone to do so, and Lester directed the bank to prepare the

paperwork necessary to accomplish his wishes. Butch then went to the bank only

after Byer called him and told him to come because all joint-account holders’

signatures were required on joint accounts. Once Butch arrived, Byer explained the

bank form to Lester and Butch, and Lester confirmed that he wanted Butch to be

the sole owner of the account upon Lester’s death. There was also evidence that

Lester had gout, which made it difficult for him to use a pen. This circumstantial

evidence, together with the testimony that both Lester and Butch were present, side

by side in Byer’s office, when the form was signed, supports the circuit court’s

decision. The evidence supports a finding that Butch’s “signing of [Lester’s] name

was a mechanical act in that [Lester] intended to sign the document using the

instrumentality of the amanuensis.” See Estate of Stephens, 49 P.3d at 1100-01. It

also supports a finding that the form was signed in the “presence of [Lester], and by

his authority, and where he [knew] the contents of the same.” See Hickox, 97 N.W.

at 847.

[¶15.]       We conclude that the circuit court did not clearly err in finding that

Butch was not exercising his power of attorney when he signed Lester’s name;

rather, he was acting as an amanuensis. Thus, the circuit court did not err in

rejecting Petitioners’ claims and ruling that Butch was the owner of the funds in the

account.




                                          -9-
#27919

Appellate Attorney’s Fees

[¶16.]       Petitioners move this Court for an order requiring their appellate

attorney’s fees be paid from the estate. “SDCL 15-26A-87.3 permits an award of

appellate attorney’s fees if they are otherwise allowable.” In re Estate of Laue,

2010 S.D. 80, ¶ 42, 790 N.W.2d 765, 774. Under SDCL 29A-3-720, a personal

representative “who defends or prosecutes any proceeding in good faith, whether

successful or not, is entitled to . . . reasonable attorney’s fees”; all other persons may

receive attorney’s fees only if they “prosecuted or defended an action that resulted

in a substantial benefit to the estate.”

[¶17.]       Because Petitioners’ action did not result in a substantial benefit to the

estate, they are not entitled to fees under the “all other persons” portion of the

statute. However, Petitioners contend that because they brought this action on

behalf of Lester’s estate, they are entitled to attorney’s fees whether successful or

not under the “personal representative” portion of the statute. Petitioners contend

that in suing the appointed personal representative on behalf of the estate, they

“stepped into the shoes of the personal representative.” But the circuit court never

appointed Petitioners as personal representatives or special administrators of

Lester’s estate. Under SDCL 29A-3-601 and SDCL 29A-3-614(2), personal

representatives or special administrators of the estate must be appointed by the

court. Although the parties stipulated that Petitioners could bring this action

against Butch on behalf of the estate, that private-party stipulation did not make

them “personal representatives” within the meaning of SDCL 29A-3-720.

Therefore, we deny Petitioners’ motion for appellate attorney’s fees.


                                           -10-
#27919

[¶18.]       Affirmed.

[¶19.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




                                   -11-
