2017 S.D. 9 ESTATE OF LESTER BRONSON, Deceased.
CONSIDERED ON BRIEFS ON JANUARY 9, 2017
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CARMEN MEANS
SCHOENBECK JOSHUA G. WURGLER Attorneys for appellants
Mills and Gloria Sichmeller. THOMAS F. BURNS Attorney for
appellee Leslie Bronson
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.
and Procedural History
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 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.
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.
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.
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
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.
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 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 ...