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Estate of Bronson

Supreme Court of South Dakota

March 22, 2017




          LEE SCHOENBECK JOSHUA G. WURGLER Attorneys for appellants

          Debra Mills and Gloria Sichmeller. THOMAS F. BURNS Attorney for appellee Leslie Bronson


          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 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.

         [¶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 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 ...

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