In re Estate of Petrik, 081821 SDSC, 29432-r-MES

CourtSupreme Court of South Dakota
JudgeJENSEN, Chief Justice, and DEVANEY and MYREN, Justices, concur. KERN, Justice, deeming herself disqualified, did not participate.
Writing for the CourtSALTER, Justice
PartiesIN THE MATTER OF THE ESTATE OF MARLENE PETRIK, a/k/a ELLEN MARLENE PETRIK, Deceased.
Docket Number29432-r-MES

2021 S.D. 49

IN THE MATTER OF THE ESTATE OF MARLENE PETRIK, a/k/a ELLEN MARLENE PETRIK, Deceased.

No. 29432-r-MES

Supreme Court of South Dakota

August 18, 2021

CONSIDERED ON BRIEFS APRIL 26, 2021

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CHARLES MIX COUNTY, SOUTH DAKOTA THE HONORABLE BRUCE V. ANDERSON Judge

DANIEL K. BRENDTRO ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro & Trzynka, Prof. LLC Attorneys for appellant David L. Petrik, individually and as personal representative

TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for appellees Audrey Petrik and Estate of Dale A. Petrik

SALTER, Justice

[¶1.] This appeal follows the circuit court's decision granting a petition to terminate a joint tenancy filed within the estate action of one of the deceased joint tenants, without notice or a hearing. We vacate the court's order terminating the joint tenancy and remand the case for further proceedings.

Facts and Procedural History

[¶2.] Marlene Petrik died in Wagner in October 2017. Her 1994 will, a first codicil from 1999, and a second codicil executed in 2011 were all filed with the Charles Mix County Clerk of Courts as part of an informal probate application.

[¶3.] The application also listed as "heirs and devisees" Marlene's five children, who included David Petrik and Dale Petrik, both of whom received gifts of real estate in Marlene's will. The will contained a provision devising to David portions of three sections of land in Charles Mix County. Another provision in the will gave the following real estate to Dale: Lots 3, 4, & 5 and the Southeast Quarter of the Northwest Quarter (SE¼ NW¼) of Section six (6), Township 96N, Range 63 West of the 5th P.M., Charles Mix County, State of South Dakota.

Marlene's will also contained a residuary clause, which named her five children as per capita residuary beneficiaries.

[¶4.] The first codicil to Marlene's will revised and reduced David's real estate gift. However, Marlene made no other changes, and the first codicil expressly stated her intent to "ratify and confirm" the original will.

[¶5.] The second codicil revoked the original residuary clause and replaced it with five specific provisions relating to each of Marlene's children. Four of the children received cash gifts funded by separate life insurance policies, including $150, 000 cash gifts to Dale and a third son.[1] David did not receive a specific gift under the terms of the second codicil, but he was named the sole beneficiary of all remaining property, "whether real, personal or mixed[.]" The second codicil did not otherwise change the terms of the will or the first codicil, which Marlene again "ratif[ied] and confirm[ed]." It appears that the separate section of the will that provided for Dale's real estate gift was left intact.2

[¶6.] After Marlene's death, David was appointed as the personal representative of Marlene's estate and published notice to creditors for three weeks in August 2018. The clerk's record indicates no further activity for the next two years.

[¶7.] Submissions from the parties beginning in August 2020 indicate that Dale passed away during the interim and that his estate began an effort to terminate a joint tenancy in real estate held by Marlene and Dale. Acting as his personal representative, Dale's surviving wife, Audrey Petrik, engaged counsel who assisted in her effort to file a petition to terminate the joint tenancy within Marlene's pending probate action. Though the petition did not state when the joint tenancy commenced, 3 it alleged the land was worth $746, 139 and included 160.46 acres, and listed the legal description as: The Northwest Quarter, less Lot H-1, Section Six (6), Township Ninety-six (96), Range Sixty-three (63) West of the 5th P.M., Charles Mix County South Dakota; also described as Lots Four (4) and Five (5) and the East One-half of the Northwest Quarter (E½ NW¼), Section Six (6), Township Ninety-six (96) North, Range Sixty-three (63) West of the 5th P.M., Charles Mix County, South Dakota.

The petition included a prayer for relief, which asked "that the [c]ourt enter its order terminating [Marlene's] joint interest . . . judicially establish the death of [Marlene], and declare [Dale] . . . the owner in fee simple[.]"

[¶8.] Though counsel for Dale's estate served notice of his appearance in Marlene's probate action, he did not serve Marlene's estate or any of her surviving children with the petition to terminate the joint tenancy or Audrey's accompanying affidavit. Both documents were dated August 12, 2020, and filed with the clerk on August 20, 2020. The circuit court issued an order terminating the joint tenancy without a hearing on August 25, 2020. The order stated, among other things, that Marlene's interest in the joint tenancy real estate was terminated and "that title to the above described property is hereby vested absolutely and in its entirety to Dale A. Petrik, the surviving joint owner[.]"

[¶9.] Counsel representing David as an interested party and the personal representative of Marlene's estate filed a notice of appeal on September 23, 2020, seeking review of the order terminating the joint tenancy. David's attorneys also filed a notice of pending claims with the circuit court, indicating that the ownership of the joint tenancy land was disputed and was also the subject of David's simultaneously-initiated declaratory judgment action, naming Dale's estate as a defendant. Attached to the notice of pending claims was a copy of the complaint in the declaratory judgment case, listing additional claims for breach of contract and specific performance and alleging that Marlene and Dale entered into an agreement under which Dale would receive proceeds from a life insurance policy in lieu of the joint tenancy land.

[¶10.] During the pendency of this appeal, Dale's estate moved to dismiss, arguing a lack of appellate jurisdiction. In its view, the circuit court's order was not a final appealable order, and David's challenge to termination of the joint tenancy should be litigated exclusively in the separate declaratory judgment action. The motion to dismiss asserted "the issues regarding the order on appeal herein have not been fully litigated as [the] same are the subject of the lawsuit pending in Charles Mix County." David resisted the motion, which we considered and denied prior to submission of the appeal.

[¶11.] David's arguments on appeal focus on the notice requirements he identifies in South Dakota's version of the Uniform Probate Code (UPC) and the statutory procedure for terminating joint tenancies. See SDCL 29A-1-104(a) (requiring 14-day notice for petitions filed in probate actions requiring a hearing); SDCL ch. 21-44 (establishing procedures and requirements for terminating joint tenancies). David argues that the circuit court overlooked the notice and hearing requirements and made a final determination of ownership for the joint tenancy land without any opportunity for objections.

[¶12.] In its appellate brief, Dale's estate continues to press its appellate jurisdiction argument, claiming that "David's rights have not been adversely affected" and that his failure to seek reconsideration of the circuit court's order precludes review. On the merits, Dale's estate acknowledges that the court's order terminating the joint tenancy was entered without notice or hearing. However, Dale's estate contends that any failure to comply with these procedural requirements was harmless because they were unnecessary for two asserted reasons: 1) the land passed instantly to Dale after Marlene's death, and the court's order merely confirmed this fact; and 2) Marlene's will gifted the same land to him in any event.

[¶13.] By way of a reply, David challenges the correctness of the immediately- vested argument and the claim that any error was harmless because Dale was the beneficiary of the land under the terms of Marlene's will.

[¶14.] We review two issues in this appeal: 1. Whether the circuit court erred when it granted the petition to...

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