In re Tinklenberg
| Citation | 716 N.W.2d 798,2006 SD 52 |
| Decision Date | 14 June 2006 |
| Docket Number | No. 23704.,23704. |
| Parties | In the Matter of Steven J. TINKLENBERG, Appellant. |
| Court | Supreme Court of South Dakota |
Patricia de Hueck of deHueck Law Firm, Pierre, South Dakota, Shannon Rigsby of Samp Law Office, Sioux Falls, South Dakota, for appellant.
Neil Fulton of May, Adam, Gerdes & Thompson, Pierre, South Dakota, for appellee.
[¶ 1.] Steven Tinklenberg (Tinklenberg) appeals the decision of the South Dakota Division of Insurance (Division) to revoke his insurance producer's license. The circuit court affirmed the revocation making additional findings of fact and conclusions of law and rejecting Tinklenberg's claim of improper ex parte communications within the Division. Tinklenberg appeals. We affirm.
[¶ 2.] Tinklenberg became a licensed insurance producer in the State of South Dakota in 1979. In 1980 Tinklenberg sold a life insurance policy from Pennsylvania Life Insurance Company (Pennsylvania Life) to Albert Klein (Albert). Because the policy was designed to allow money to pass outside the insured's estate, Pennsylvania Life encouraged making someone other than the insured the owner of the policy. Albert designated his sister, Mary Klein (Mary), as the owner. The beneficiaries of the policy were Mary and his two other siblings. The death benefit under the policy was $25,000.
[¶ 3.] Albert and Mary were raised on a farm in Waverly, South Dakota. Mary was born in 1912 and was the oldest of six children. Albert was born in 1926 and was the youngest child. Albert and Mary lived their entire lives together, first on the family farm and then in an apartment in Watertown, South Dakota for the last few years of their lives. Mary was a caregiver for Albert. Albert was physically disabled from farm injuries and arthritis and he needed Mary's assistance with his daily needs, including dressing. In 1961 Albert was committed for a time to the State Hospital in Yankton, South Dakota. He was diagnosed with schizophrenia and with having limited intelligence, likely in the mild mental retardation range. A psychological evaluation in 1998 confirmed this diagnosis.
[¶ 4.] Tinklenberg resigned as an agent for Pennsylvania Life in 1984. However, he continued to assist Albert with various matters. Albert's life insurance policy included a waiver of premium for disability. Albert paid the first premium and was thereafter considered disabled. He periodically had to verify his continued disability in order to receive the premium waiver. Tinklenberg assisted Albert with this paperwork. Tinklenberg also attempted to assist Albert and Mary in getting long term care insurance. When Albert had problems with receiving disability checks from another unrelated disability policy, Tinklenberg assisted him. Eventually the disability checks were sent directly to Tinklenberg who forwarded them to Albert upon receipt. Evidence was introduced at the hearing that Albert made numerous calls to Tinklenberg over the years both at home and at the office.
[¶ 5.] Tinklenberg claims that during a visit to the farm in late 1993 Albert said he wanted Tinklenberg to have his life insurance policy with Pennsylvania Life. Tinklenberg testified that he obtained the necessary forms from Pennsylvania Life. Tinklenberg testified that he returned to the farm on October 29, 1993, where the form transferring ownership was signed by Mary and witnessed by Albert. Tinklenberg submitted the form to Pennsylvania Life. It was approved by the company and ownership and beneficiary designations were changed to Tinklenberg.
[¶ 6.] In February 1999 Albert and Mary's niece, Mary Ann Brennan (Mary Ann) was appointed conservator over Albert's affairs. After her appointment, Albert told Mary Ann that he had two disability policies and a life insurance policy. He gave Tinklenberg's phone number to Mary Ann. In March 1999 Mary Ann contacted Tinklenberg to discuss Albert's insurance. Mary Ann testified that Tinklenberg told her that the life insurance policy was in effect and that Albert's siblings were named as beneficiaries. Mary Ann contacted Tinklenberg again on or about February 16, 2000, to notify him that Albert's health was deteriorating. Mary Ann testified that during the conversation Tinklenberg confirmed the status of the policy and that the policy's beneficiaries were Albert's siblings. The administrative law judge (ALJ) found that Tinklenberg deliberately concealed the fact that ownership of the policy had been transferred to him in 1993 and that he had named himself as the beneficiary. On February 25, 2000, Mary Ann called to notify Tinklenberg that Albert had died. Mary Ann testified that Tinklenberg said that he would start the paperwork for the payment of the death benefit proceeds. Tinklenberg did not tell Mary Ann that he was both the owner and beneficiary of the policy. He did not attend Albert's funeral or send any acknowledgment to the family.
[¶ 7.] Shortly after Albert's death, Tinklenberg submitted a death benefit claim to Pennsylvania Life. On March 23, 2000, Tinklenberg received a check from Pennsylvania Life for $34,398.96, after the deduction of a remaining balance of $1,170.52 from a loan Tinklenberg had earlier taken against the policy. Tinklenberg deposited the check on March 30, 2000. Tinklenberg paid Albert's funeral expenses in the amount of $6,766.58 without telling the family. The family was later notified by the funeral home that the bill had been paid. When Albert's family did not receive any proceeds from the life insurance policy, Mary Ann contacted Attorney Tom Burns (Burns) who spoke with Tinklenberg to find out the necessary steps to collect on the policy. Tinklenberg did not disclose to Burns his ownership of the policy, but instead referred Burns to Pennsylvania Life. When Burns contacted Pennsylvania Life, he was notified that Tinklenberg was the owner of the policy and had already collected the death benefit proceeds.
[¶ 8.] Burns obtained a copy of the form changing ownership and beneficiary from Pennsylvania Life and showed it to Mary. While it appeared to have Mary's signature, she did not remember signing it. She claimed that she never had an intention to transfer ownership to Tinklenberg. A complaint against Tinklenberg was filed with the Division. The Division began an investigation which eventually led to the criminal prosecution of Tinklenberg for grand theft. He was found not guilty in the criminal case.
[¶ 9.] The Division commenced an administrative proceeding to revoke Tinklenberg's license. The Division alleged that Tinklenberg converted a life insurance policy and death benefit proceeds belonging to Mary and in doing so failed to meet the standards for licensure. It further alleged that Tinklenberg gave Mary Ann the false impression that the Klein family would receive the death benefit proceeds of the policy. During the investigation, an inquiry was made regarding Tinklenberg's residence. Tinklenberg verified his address as 747 South Third Avenue, Sioux Falls, South Dakota. However, a letter sent to that address was returned to the Division as undeliverable and the post office reported a current address of 3120 East Claudette Drive, Sioux Falls, South Dakota. The Division claimed that Tinklenberg failed to provide notice of his change of address as required by statute.
[¶ 10.] A contested hearing was held on October 16, 17, and November 10, 2003. The ALJ proposed the revocation of Tinklenberg's insurance producers license. The Division adopted the ALJ's proposed findings of fact, conclusions of law and decision and ordered the revocation of Tinklenberg's license. Tinklenberg appealed the Division's decision to the circuit court. On appeal to the circuit court, Tinklenberg raised a new issue alleging ex parte contact by the acting Division Director and Division personnel working on Tinklenberg's case. The circuit court held a supplemental evidentiary hearing on this issue. The circuit court affirmed the Division's decision. Tinklenberg appeals.
[¶ 11.] Our standard of review of an administrative appeal is the same as that of the circuit court. Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (). "`Our standard of review is controlled by SDCL 1-26-37.'" Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465). The Division's factual findings and credibility determinations are reviewed under the clearly erroneous standard. Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83 (citing Tieszen v. John Morrell Co., 528 N.W.2d 401, 403-04 (S.D.1995))). "We will reverse those findings only if we are definitely and firmly convinced a mistake has been made." Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247 (citing Gordon v. St. Mary's Healthcare Center, 2000 SD 130, ¶ 16, 617 N.W.2d 151, 157). "Questions of law are reviewed de novo." Kuhle, 2006 SD 16, ¶ 16, 711 N.W.2d at 247 (). "Mixed questions of law and fact are also fully reviewable." Id. In matters involving the revocation of a professional license, the agency's burden of proof is clear and convincing evidence. In re Setliff, 2002 SD 58, ¶ 13, 645 N.W.2d 601, 605.
[¶ 12.] Whether it was error to revoke Tinklenberg's license for a violation of SDCL 58-30-106 when the statute was repealed before administrative proceedings to revoke his license were commenced.
[¶ 13.] Tinklenberg's alleged violations of SDCL 58-30-106 took place between December 1993 when he transferred the policy to himself and March 2000 when he collected the death benefit proceeds and kept them. The administrative proceeding to revoke...
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St. Pierre v. State ex rel. S.D. Real Estate Comm'n
...revocation of a professional license, the Commission was required to prove dishonesty by clear and convincing evidence. See In re Tinklenberg, 2006 S.D. 52, ¶ 11, 716 N.W.2d 798, 802. [¶ 16.] The Commission argues that St. Pierre was dishonest because she initially failed to disclose to Fir......