#27388-a-LSW

2016 S.D. 4

                              IN THE SUPREME COURT
                                      OF THE
                             STATE OF SOUTH DAKOTA

                                     ****

ESTATE OF JACQUELYN CARD,                     Plaintiff and Appellee,

      v.

CURTIS CARD,                                  Defendant and Appellant.


                                     ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SEVENTH JUDICIAL CIRCUIT
                    FALL RIVER COUNTY, SOUTH DAKOTA

                                     ****

                    THE HONORABLE ROBERT A. MANDEL
                                Judge

                                     ****

PATRICK M. GINSBACH of
Farrell, Farrell & Ginsbach, PC
Hot Springs, South Dakota                     Attorneys for plaintiff
                                              and appellee.



DAVID L. CLAGGETT of
Claggett & Dill Prof., LLC
Spearfish, South Dakota                       Attorneys for defendant
                                              and appellant.

                                     ****

                                              CONSIDERED ON BRIEFS
                                              ON NOVEMBER 30, 2015

                                              OPINION FILED 01/13/16
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WILBUR, Justice

[¶1.]        Decedent opened a savings account in 1989 and, in 2007, included her

son and daughter as additional account owners. When decedent passed away in

2012, son withdrew his share of the account balance relying on SDCL 29A-6-104,

which provides that the proceeds of a joint account automatically pass to the

surviving account holder. The estate brought suit against son to recover the

amount he withdrew. The estate asserted that it rebutted the presumption under

SDCL 29A-6-104 that the proceeds automatically pass to the surviving account

holder because decedent created the savings account for her and her husband’s

benefit. After a bench trial, the court ruled that the estate rebutted the

presumption with clear and convincing evidence that decedent did not intend to

create a joint account with right of survivorship. Son appeals. We affirm.

                                    Background

[¶2.]        Jacquelyn Card died on October 28, 2012, in her daughter’s home in

Virginia. She was survived by her husband Darrell and their four adult children:

Curtis, Kathleen, Craig, and David. Jacquelyn and Darrell had been married for 65

years at the time of her death. They lived in various locations throughout their

marriage, settling in Hot Springs in 1979. Jacquelyn worked as a teller at a local

bank until she retired in 1990. Darrell also worked at a bank, until it sold in 1985.

[¶3.]        In 1989, Jacquelyn’s mother left her a substantial inheritance. The

amount of the inheritance is not known. Kathleen testified that she believed it was

near $100,000. Curtis claimed Jacquelyn inherited approximately $680,000.

Nonetheless, it is undisputed that Jacquelyn placed the inheritance in a savings


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account separate from Darrell. Darrell had a history of managing money poorly,

and Jacquelyn’s family described her to be financially conservative. When

Jacquelyn created the account in 1989, she asked Curtis if he would place his name

on the account with hers. Curtis agreed, and Jacquelyn and Curtis signed a

signature card for savings account #1683 at First Western Bank (1989 Account).

The signature card did not indicate whether the account was a joint tenancy, trust,

or tenancy in common. Curtis testified that his mother wanted his name on the

account so “if anything happened to her, that somebody would be on there so the

money would flow to them,” referring to Darrell and Jacquelyn.

[¶4.]        In 1994, Jacquelyn executed a Will without the assistance of an

attorney. The Will provided:

             I give, devise and bequeath unto my children, Curtis L. Card,
             Kathleen M. Card, Craig A. Card and David A. Card, all my
             interest in and to all the property of which I die seized,
             possessed or entitled to, the same to be their sole and absolute
             property in fee simple forever, be the property real property,
             personal property, or mixed, in equal and undivided interests,
             share and share alike, with the stipulation that my husband,
             Darrell E. Card, have full use, control and enjoyment of the
             properties and all the income therefrom, during his lifetime.

Also in 1994, Jacquelyn asked Kathleen to act as personal representative for her

estate. According to Kathleen, Jacquelyn did not trust Curtis to carry out

Jacquelyn’s wishes upon her death. Curtis, however, described his relationship

with Jacquelyn as “close[.]”

[¶5.]        In 2007, Jacquelyn and Darrell began spending the colder months in

Virginia living with Kathleen. According to Kathleen, Jacquelyn told her that

Curtis asked that his name be removed from the 1989 Account so he could avoid


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potential tax liability. Curtis denied that he ever asked to be removed from the

account. Kathleen further claimed that Jacquelyn asked if Kathleen would place

her name on the account instead of Curtis. Kathleen agreed, and in October 2007,

Kathleen and Jacquelyn executed a new signature card at First Western Bank for

savings account #3200001623 (2007 Account). Curtis also executed a new signature

card for the 2007 Account. He testified that his mother told him he needed to sign

the new card because the bank was assigning a new number to the savings account.

[¶6.]        The signature card for the 2007 Account designated the account as a

joint account with right of survivorship and listed the “Account Holder Name(s):” as

“JACQUELYN J CARD, CURTIS CARD or KATHLEEN M CARD.” From 2007

until Jacquelyn’s death in 2012, Jacquelyn and Darrell continued to spend the

colder months living with Kathleen. After Jacquelyn died, Darrell remained in

Virginia until Kathleen and her siblings determined that Darrell needed long-term

care. Kathleen and Darrell returned to Hot Springs in May 2013, and Darrell

moved into an assisted living facility. Kathleen intended to continue to use

Jacquelyn’s assets to provide for Darrell’s care.

[¶7.]        In June 2013, Kathleen instituted formal probate proceedings. It was

at this time that Kathleen learned that the 2007 Account was a joint account with

right of survivorship. She informed Curtis. According to Kathleen, Curtis

responded that he was unaware that his name was on any of Jacquelyn’s accounts.

Kathleen further claimed that upon her request Curtis agreed to disclaim his

interest in the account. Curtis disputed this and contended that he believed

Kathleen was speaking to the interest generated by the account, not his ownership


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interest in the account balance. When Jacquelyn died, the 2007 Account had a

balance of $35,107.87. After Kathleen and Curtis exchanged emails on June 5,

2013, related to Curtis’s interest in the 2007 Account, Curtis informed Kathleen

that he had visited with an attorney and intended to remove his share of the

proceeds from the 2007 Account. On June 20, 2013, Curtis withdrew $17,553.94

from the 2007 Account and placed the funds in a certificate of deposit in his name.

[¶8.]        In July 2013, the Estate of Jacquelyn Card brought a civil suit against

Curtis. The Estate alleged that Jacquelyn placed her inheritance in the 2007

Account “in an implied trust for the benefit of [herself] and her husband Darrell

Card.” The Estate further claimed that Curtis “converted $17,553.94” for “his own

personal use.” The Estate requested a judgment against Curtis for $17,553.94,

prejudgment interest, and attorney’s fees and costs. Curtis answered and claimed

that he could not, as a joint owner of the account, “convert” the funds for his own

use. He further asserted that SDCL 29A-6-104 barred the Estate’s claims.

[¶9.]        During a trial to the court in January 2015, the parties stipulated to

the admission of all exhibits, and Kathleen and Curtis testified. They both testified

that Jacquelyn opened the 1989 Account because Darrell could not manage money.

Curtis offered no definitive opinion to what he believed Jacquelyn intended when

she placed his name on the account in 1989. In response to questions from the

court, Curtis testified as follows:

             Court: The savings account was opened in 1989. Correct?
             Curtis: Yes.
             Court: What was your understanding at the time it was
             opened, why was your name put on it?


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             Curtis: Because my mother had just inherited a large amount
             of money and she wanted somebody on there to - - in case
             anything happened to her, and she didn’t want my dad’s name
             on it.
             Court: So suppose something happened to her the next day.
             What was your understanding as to what you were supposed to
             do with the money in there?
             Curtis: We didn’t really discuss what it was. I guess she
             trusted me - - I felt she trusted me to do what needed to be done.
             Court: Would you think what needed to be done was for you to
             just take all the money then, at that point?
             Curtis: No. I - - I may have been - - probably, when I look back
             on it in hindsight, I feel that it was naïve not to even ask about
             your name being put on a joint account. I mean, I’ve learned a
             lot from this trial - - or litigation process, if - - when you put
             somebody’s name on a joint account, there’s a significant right
             that that other person has to the account, should something
             happen to the original person.
             Court: But my question really is, what was your understanding
             what you were to do with what was in that account if something
             happened to your mother?
             Curtis: There hadn’t been any discussion.
             Court: So what would you have done if that had happened the
             next day?
             Curtis: What would I have done with the money? Well, at that
             time, I probably would have talked to my brothers and sisters
             and tried to figure out - - my dad and figure out what we should
             do with the money. Because my understanding was it was quite
             significant at that time.

Curtis and Kathleen testified that they were unaware the 2007 Account was a joint

account and that neither contributed money to the account balance at any time.

Kathleen claimed that Jacquelyn told her that the money in the 2007 Account was

to be distributed equally between her and her siblings after Darrell no longer

needed support or care. Curtis claimed that Jacquelyn intended to create a joint

account with right of survivorship because Jacquelyn had years of banking

experience and had given money to her son Craig while she was still alive.
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[¶10.]       At the conclusion of the trial, the court directed the parties to submit

proposed findings of fact and conclusions of law. The court remarked, “Well, as I sit

here, I think that the core of this case is really around Paragraph 1 of 29A-6-104[.]”

The court did not address the Estate’s claim in its complaint that an implied trust

existed. On January 30, 2015, the court issued findings of fact, conclusions of law,

and a judgment. It ruled “[t]hat there has been clear and convincing evidence

presented that Jacquelyn Card intended to create savings account number

3200001623 for her own convenience and not for the benefit of the non-depositing

joint payees, Kathleen Card and Curtis Card.” It further ruled that “[t]he

circumstances and evidence presented establish that there was an inference that

the decedent intended to transfer to Kathleen Card and Curtis Card bare legal title

and not to convey the beneficial interest in savings account number 3200001623.”

The court held that Curtis “had no right to withdraw any funds from savings

account number 3200001623 for his own personal enrichment.” Therefore, it

declared that Curtis “has a duty to convey any funds taken from savings account

number 3200001623 back to the estate.” The trial court ordered that “any money

withdrawn by [Curtis] should be disgorged into the decedent’s estate.” It granted a

judgment against Curtis in favor of the Estate for $17,553.94, plus prejudgment

interest.

[¶11.]       Curtis appeals and raises the following issues for our review:

             1.     Whether the trial court clearly erred when it held that the
                    Estate met its burden of proof that Jacquelyn did not
                    intend to establish a joint tenancy with right of
                    survivorship.



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             2.       Whether the trial court clearly erred when and if it held
                      that the Estate met its burden of proof to establish that
                      an implied trust existed and that a conversion occurred.

                                 Standard of Review

[¶12.]       “We review the [trial] court’s findings of fact under the clearly

erroneous standard of review.” Wiseman v. Wiseman, 2015 S.D. 23, ¶ 6, 863 N.W.2d

243, 245.

             In applying the clearly erroneous standard, our function is not to
             decide factual issues de novo. . . . This Court is not free to
             disturb the lower court’s findings unless it is satisfied that they
             are contrary to a clear preponderance of the evidence. Doubts
             about whether the evidence supports the court’s findings of fact
             are to be resolved in favor of the successful party’s “version of
             the evidence and of all inferences fairly deducible therefrom
             which are favorable to the court’s action.”

Fin-Ag, Inc. v. Feldman Bros., 2007 S.D. 105, ¶ 19, 740 N.W.2d 857, 862-63 (quoting

Am. Bank & Trust v. Shaull, 2004 S.D. 40, ¶ 11, 678 N.W.2d 779, 783) (internal

citations omitted).

                                        Analysis

[¶13.]       Curtis avers that “[s]tatutory and case law make it clear that the

[2007] account passes to the surviving joint tenants by operation of law.” He

further claims Kathleen admitted that the 2007 Account is a joint account with

right of survivorship. Because he has not disclaimed his interest, Curtis argues he

is legally entitled to his share. Although Curtis is correct—the 2007 Account is a

joint account with right of survivorship—the issue in this case is whether the Estate

rebutted the presumption of joint tenancy with clear and convincing evidence. See

SDCL 29A-6-104; In re Estate of Kuhn, 470 N.W.2d 248, 250 (S.D. 1991).



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[¶14.]       Under SDCL 29A-6-104(1), “[s]ums remaining on deposit at the death

of a party to a joint account belong to the surviving party or parties as against the

estate of the decedent unless there is clear and convincing evidence of a different

intention at the time the account is created.” The controlling inquiry is Jacquelyn’s

intent at the time she created the account. See Barbour v. First Citizens Nat’l Bank,

77 S.D. 106, 112, 86 N.W.2d 526, 529 (1957). However, “[i]t is not essential to the

creation of a joint bank account with right of survivorship that the beneficiary

depositor have knowledge of the account; that he have possession of the passbook;

that he sign a signature card; or make withdrawals therefrom.” Id. Nor should a

party’s rights “be jeopardized by the somewhat lax methods used by the bank in

transacting its business and keeping its records.” Karlen v. Karlen, 89 S.D. 523,

534, 235 N.W.2d 269, 275 (1975) (quoting Equitable & Cent. Tr. Co. v. Zdziebko, 244

N.W. 505 (Mich. 1932)). “However, these are all important factors and competent

evidence bearing on the question of intention.” Barbour, 77 S.D. at 113, 86 N.W.2d

at 529.

[¶15.]       As the party challenging the presumption, the Estate must present

clear and convincing evidence that Jacquelyn “did not intend the usual rights of

survivorship to attach to the joint asset, but instead intended the arrangement for

her own convenience.” See In re Estate of Steed, 521 N.W.2d 675, 678 (S.D. 1994).

“Whether the joint accounts in question were created by decedent for her own

convenience or for the benefit of the nondepositing joint payees is a question of fact

to be determined from all the facts and circumstances in the case.” Id. We,

therefore, review the trial court’s determination that Jacquelyn did not intend to


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create a joint account with right of survivorship for clear error. See Estate of Kuhn,

470 N.W.2d at 251. “The question is not whether this Court would have made the

same findings that the trial court did, but whether, on the entire evidence, we are

left with a definite and firm conviction that a mistake has been committed.” Id.

(quoting Kirsch v. First Nat’l Bank, 298 N.W.2d 71, 73 (S.D. 1980)).

[¶16.]       From our review of the record and the trial court’s findings of fact, we

are not left with a definite or firm conviction that the court erred when it

determined that Jacquelyn did not intend to create a joint account with right of

survivorship in 2007. There is little evidence besides the signature card indicating

a joint account with right of survivorship when compared to the more significant

evidence that Jacquelyn intended to create the account for her convenience.

Jacquelyn placed her inheritance in an account separate from Darrell to protect the

funds from Darrell’s inability to manage money.

[¶17.]       Curtis does not dispute that Jacquelyn wanted to ensure the money’s

existence for Darrell’s care and support. In his brief to this Court, Curtis merely

invites us to reweigh the evidence and assess witness credibility. Yet “it is within

the prerogative of the trial court to resolve conflicts of evidence, judge the credibility

of witnesses, and weigh the testimony of witnesses.” Schieffer v. Schieffer, 2013

S.D. 11, ¶ 22, 826 N.W.2d 627, 635; In re Nelson Living Trust, 2013 S.D. 58, ¶ 32,

835 N.W.2d 874, 884.

[¶18.]       We decline to address Curtis’s claim that the court’s factual findings

are clearly erroneous because the findings refer to Kathleen’s testimony about

“uncorroborated statements” made by Jacquelyn. Curtis did not object to these


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statements when Kathleen testified. We also reject Curtis’s assertion that the trial

court ruled that the 1994 Will revoked the status of the 2007 Account as a joint

account. The court considered the 1994 Will as evidence of Jacquelyn’s intent when

she opened the 2007 Account. Lastly, we need not address Curtis’s argument that

the court clearly erred “if” it determined that the Estate met its burden of proof that

an implied trust existed. The trial court did not rule on the Estate’s claim that an

implied trust existed.

[¶19.]       The Estate moved for $3,066 in appellate attorney’s fees under SDCL

15-26A-87.3. SDCL 15-26A-87.3 authorizes an award of appellate attorney’s fees

when fees are awardable at the trial level. The Estate relies on SDCL 29A-3-720 as

authorization for an award of attorney’s fees. That statute provides:

             Any personal representative or person nominated as personal
             representative who defends or prosecutes any proceeding in good
             faith, whether successful or not, is entitled to receive from the
             estate necessary expenses and disbursements including
             reasonable attorney’s fees.

Id. (emphasis added). The plain and unambiguous language of this statute

authorizes an award of attorney’s fees from the estate, not from Curtis. See, e.g., In

re Guardianship of G.T.C., 2014 S.D. 65, ¶ 8, 854 N.W.2d 343, 345 (interpreting

similar statutory language and ruling that “the attorney for the guardianship and

conservatorship was entitled to her fees from the estate rather than guardians and

conservators personally”). The Estate directs this Court to no law authorizing an

award of attorney’s fees against Curtis at the trial level. We, therefore, deny the

Estate’s motion for an award of appellate attorney’s fees against Curtis.

[¶20.]       Affirm.


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[¶21.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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