#24768-a-RWS 

2008 SD 97 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

In the Matter of the Estate of 

JOSEPH E. OLSON, 

ROGER D. OLSON, Personal Representative 

of the Estate of JOSEPH E. OLSON, MARLYS 

SIDES, KENWOOD OLSON, ROGER OLSON, 

NONA FOSTER, LINDA TORGRUDE and 

RICKY OLSON, Plaintiffs and Appellants, 

 v. 

NORA OLSON, a/k/a NORA A. OLSON, 

and CITIZENS STATE BANK, Sinai, 

South Dakota Branch, Defendants and Appellees. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE THIRD JUDICIAL CIRCUIT 

BROOKINGS COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE DAVID R. GIENAPP 

Judge 

* * * * 

JEROME B. LAMMERS of 

Lammers, Kleibacker & Brown, LLP 

Madison, South Dakota Attorneys for plaintiffs 

and appellants. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 26, 2008 

 OPINION FILED 10/15/08
GARY J. PASHBY 

MICHAEL F. TOBIN of 

Boyce, Greenfield, Pashby & Welk, LLP 

Sioux Falls, South Dakota Attorneys for appellee 

 Citizens Bank. 

ALAN F. GLOVER of 

Glover & Helsper, PC 

Brookings, South Dakota Attorneys for appellee 

Nora Olson. 
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SABERS, Justice 

[¶1.] At the time of Joseph E. Olson’s (“Joe”) death, ten certificates of 

deposit (“CDs”) he purchased were held in joint ownership with his wife, Nora A. 

Olson (“Nora”). Joe’s six children from a previous marriage claim that Joe intended 

the CDs’ proceeds to go to them, rather than to Nora, upon Joe’s death. The circuit 

court held: (1) Nora was a joint tenant with rights of survivorship to the CDs. We 

affirm Issue 1. (2) The court further held that Joe’s children were not permitted 

money damages due to their failure to request them in their complaint. In addition, 

the complaint does not contain a claim against the Bank for negligence or any other 

cause of action. Despite an opportunity to amend the complaint, the opportunity 

was declined by Joe’s children. For these reasons, we also affirm Issue 2. 

FACTS

[¶2.] Joe and Nora were married in May of 1985.1 This was the second 

marriage for each of them and each had six children from their prior marriages. Joe 

and Nora had a very good marriage, and they worked “hand in hand.” After twentyone years of marriage, Joe died on June 3, 2006. 

1. Joe and Nora had a prenuptial agreement dated May 16, 1985. This 

agreement recited that Joe and Nora’s separately owned property would not 

automatically become marital property after marriage. To purchase these 

CDs, Joe placed the proceeds received from selling his separately owned 

property into a joint checking account he held with Nora. Joe and Nora also 

had wills drawn up on October 28, 1997. Joe’s will acknowledged the 

prenuptial agreement, and devised Joe’s household and antique furniture to 

Nora, with a few exceptions for his children. The prenuptial agreement and 

Joe’s will do not change the outcome of this case.
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[¶3.] Beginning in 1997 and over the next four and a half years, Joe 

purchased ten CDs from the Citizens State Bank, Sinai, South Dakota, Branch 

(f/k/a First Bank of Sinai) (“Bank”). The first nine CDs were in the amount of 

$5,000 each, and the tenth one was for $10,000.2 Initially, the first nine were 

issued to “Joseph E. Olson or Nora A. Olson” and required only one endorsement. 

The tenth CD was issued solely to “Joseph E. Olson” and similarly required one 

endorsement. This CD contained a payable on death provision naming Joe’s 

daughter, Linda Torgrude, as the beneficiary. 

[¶4.] On February 15, 2003, Joe and two of his children went to the Bank to 

make changes to the CDs. Joe informed the Bank officer of his intent to establish 

individual ownership of the CDs. Nora’s name was stricken from the ownership 

portion of the CDs, and Joe’s children were named as the beneficiaries in the 

payable on death provisions. These changes were made to both the original CDs 

and to the Bank’s copies of the CDs. Joe signed a notarized document detailing his 

intent to make these changes. The originals were placed in a new safety deposit box 

Joe opened at the Bank. Joe’s children were given the keys to this box. 

[¶5.] On December 8, 2003, Joe returned to the Bank with Nora and one of 

her daughters to again change the CDs. This time the changes consisted of 

reinstating Nora’s joint ownership to the first nine CDs and to add her name to the 

tenth CD originally issued in Joe’s name. Joe informed Bank officer William Buck 

that he intended the CDs to be survivorship documents with Nora. Upon signing a 

2. As of the date of trial, the ten CDs totaled $78,504.82 in value with accrued 

interest.
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document evidencing this intent, the CDs were changed to indicate ownership as 

“Joseph E. Olson and Nora A. Olson.” Because Joe’s children had possession of the 

key to the safety deposit box containing the originals, these changes were made only 

to the Bank’s copies of the CDs.3 In light of these changes, Buck did not alter the 

requirement of one endorsement for each CD. Moreover, the CDs were left as 

individual accounts rather than changed to joint accounts, and the payable on death 

provisions naming Joe’s children as beneficiaries were not deleted. 

[¶6.] In early February 2004, Joe and two of his children consulted with 

their attorney, Richard Ericsson. Ericsson urged Joe to return to the Bank and 

request the CDs be changed by once again removing Nora’s name as a joint owner. 

Joe and another son returned to the Bank on February 9, 2004, and again met with 

Buck. Joe requested that Nora’s name be removed from the CDs. Buck refused to 

make any further changes upon recognizing the tug-of-war that was occurring. 

Buck told Joe and Joe’s son that Buck first wanted to consult with the Bank’s 

attorney, because he believed that Nora’s endorsement was necessary since the CDs 

ownership was now titled as “Joseph E. Olson and Nora A. Olson.” 

[¶7.] On February 19, 2004, the attorneys for Joe and his children, Nora and 

her children, and the Bank entered into an agreement that the CDs would remain 

in their current state reflecting the joint ownership, until there was an agreement 

3. According to the testimony of the Bank officers, the Bank’s copies of the CDs 

were paramount to any other document, including the original CDs; 

therefore, it was important only that the requested changes were accurately 

reflected on the Bank’s copies. 
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by all the parties or a court ordered otherwise. By letter, Ericsson informed Joe’s 

children of this agreement to maintain the status quo. 

[¶8.] Throughout the year and a half following the agreement, the parties 

attempted to resolve their disputes. Their efforts were unsuccessful. The Olson 

family became frustrated with attorney Ericsson, and engaged attorney Jerome 

Lammers to represent them. Lammers contacted the Bank to have the CDs reflect 

Joe’s sole ownership. The Bank refused Lammers’ oral request, as well as Joe’s 

request when he visited the Bank again with two of his children in July of 2005. 

More than two years passed between the date of the agreement and Joe’s death on 

June 3, 2006. At Joe’s death, the agreement was still in place and the CDs 

remained jointly owned with Nora. 

[¶9.] On August 21, 2006, Joe’s children commenced this declaratory 

judgment action seeking a declaration of the ownership of the ten certificates of 

deposit. All the parties filed motions for summary judgment, which were denied. 

The case was tried on November 1, 2007. In its December 4, 2007 memorandum 

decision, the circuit court held that Joe intended to create joint ownership of the 

CDs with Nora, and she was entitled to the proceeds from the CDs. The court 

further refused to award Joe’s children money damages from the Bank due to the 

children’s failure to request money damages in their complaint. Joe’s children 

appeal raising the following issues: 

1. Whether the circuit court was clearly erroneous in holding that 

Joe’s children failed to meet their burden of proving by clear and 

convincing evidence that Joe did not intend to establish joint 

tenancies with rights of survivorship. 
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2. Whether the Bank was liable for negligence in failing to honor Joe’s 

intentions. 

STANDARD OF REVIEW 

We review the circuit court’s findings of fact under the clearly 

erroneous standard. Under this standard we will only reverse 

when we “are left with a definite and firm conviction that a 

mistake has been made” after a thorough review of the evidence. 

We review conclusions of law under the de novo standard 

without deference to the circuit court. 

In applying the clearly erroneous standard, our function is not to 

decide factual issues de novo. 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. 

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.” 

Osman v. Karlen and Associates, 2008 SD 16, ¶15, 746 NW2d 437, 442-43 (quoting 

Fin-Ag, Inc. v. Feldman Bros., 2007 SD 105, ¶19, 740 NW2d 857, 862-63 (additional 

citation omitted)). 

[¶10.] 1. Whether the circuit court was clearly erroneous in 

holding that Joe’s children failed to meet their burden of 

proving by clear and convincing evidence that Joe did 

not intend to establish joint tenancies with rights of 

survivorship. 

[¶11.] SDCL 29A-6-101(4) (2004) defines a “joint account” as “any account 

payable on request to one or more of two or more parties whether or not mention is 

made of any right of survivorship[.]” In determining whether a joint account exists, 

however, the intent of the original depositor is paramount. Matter of Estate of 

Steed, 521 NW2d 675, 678 (SD 1994); Farmers State Bank of Winner v. Westrum, 
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341 NW2d 631, 634 (SD 1983) (citing Wagner v. Wagner, 83 SD 565, 571, 163 NW2d 

339, 342 (1968)). Moreover, there is a rebuttable presumption that an account with 

more than one owner has rights of survivorship. Steed, 521 NW2d at 678; Estate of 

Kuhn, 470 NW2d 248, 250 (SD 1991); Wagner, 83 SD at 571, 163 NW2d at 342. 

“The principle is the same whether the asset is a bank account or a C.D.” Kuhn, 

470 NW2d at 250 (citing Estate of Pfeifer, 85 NW2d 370, 372 (Wis 1957); SDCL 

51A-10-1). Thus, any “[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.” SDCL 29A-6-104 (2004). In fact, 

The presumption that an asset held in joint tenancy passes to 

the second party upon the death of the first can be rebutted only 

by a showing with clear and convincing evidence that the 

original depositor or purchaser did not intend rights of 

survivorship to attach to the joint asset, but merely intended the 

arrangement for her own convenience. 

Kuhn, 470 NW2d at 250 (citing Roth v. Pier, 309 NW2d 815, 816 (SD 1981); Kirsch 

v. First Nat’l Bank of Watertown, 298 NW2d 71, 72 (SD 1980); Wagner, 83 SD at 

571, 163 NW2d at 342). 

[¶12.] The first nine CDs purchased by Joe were issued to “Joseph E. Olson or 

Nora A. Olson.” On the documentation, they were designated as joint accounts with 

survivorship. The tenth CD was issued solely in Joe’s name, with his daughter 

Linda Torgrude named as the beneficiary upon death. Subsequently on February 

15, 2003, Nora’s name was stricken from the first nine CDs, the account status was 

changed from a joint account to an individual account, and Joe’s children were 

added as POD beneficiaries. Nearly ten months later on December 8, 2003, 
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however, Joe returned to the Bank and essentially reversed all of these changes by 

having the Bank officer affix “and Nora Olson” to not only the first nine CDs, but 

also to the tenth one. Joe intended to reinstate Nora’s joint ownership of the first 

nine CDs, and also to convert the tenth CD from an individual account into a joint 

account in accordance with his signed statement of intention to add “and Nora 

Olson” to all ten CDs. These were the final changes made to the Bank’s copies of 

the CDs before Joe’s death. The circuit court found that these changes indicate 

Joe’s desire to jointly own the CDs with Nora. 

[¶13.] A party’s intention will not be absolved by the failure to strictly comply 

with the formalities involved in creating a joint account. See Farmers State Bank of 

Winner, 341 NW2d at 633-34 (affirming Karlen v. Karlen, 89 SD 523, 534, 235 

NW2d 269, 275 (1975)). In fact, this Court has held that one’s “‘[r]ights ought not to 

be jeopardized by the somewhat lax methods used by the bank in transacting its 

business and keeping its records.’” Id. (quoting Karlen, 89 SD at 534, 235 NW2d at 

275 (quoting Equitable & Central Trust Co. v. Zdziebko, 244 NW 505, 507 (Mich 

1932))). At the December 2003 visit to the Bank, the individual account status 

boxes were not changed back to indicate the reinstated joint account status. 

Furthermore, the beneficiaries’ names listed in the POD provisions were not 

deleted. However, adding “and Nora Olson” to the issuance line of each CD implies 

that the previously individually-held account is now a joint account and, along those 

same lines, that upon the death of the joint owner, the surviving spouse will accede 

to full ownership of the account regardless of the POD provision. This is especially 

evident when considering Joe’s signed and witnessed statement of intention: “I, 
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Joseph E. Olson, want the Certificate[s] of Deposit[ ] that I have with [the Bank], 

changed to Joseph E. Olson and Nora A. Olson.” Joe’s intent is clear and 

convincing. Therefore, failure to check the boxes indicating joint accounts and 

failure to delete the POD beneficiaries did not preclude the validity of the joint 

accounts with rights of survivorship in Nora, the sole surviving joint account holder. 

[¶14.] When Joe and his son Kenwood returned to the Bank in February 2004 

to remove Nora’s name from the CDs a second time, the Bank officer would not 

allow the changes for two reasons. First, because the ownership of the CDs was 

designated as “Joe and Nora Olson,” the Bank officer notified Joe that Nora’s 

signature was necessary before making any changes. (Emphasis added). The 

circuit court impliedly held that this was a reasonable precaution given that it 

found Nora to be a joint owner of the CDs. 

[¶15.] Secondly, the Bank realized the influence both sides were inflicting 

upon Joe in this tug-of-war over the CDs. Thus, the Bank informed Joe that it 

would not make any revisions until the Bank had a chance to consult with its 

counsel. Shortly thereafter, counsel for all parties entered into the agreement that 

the CDs would remain in the ownership of Joe and Nora, unless there was an 

agreement by all the parties or a court order otherwise. Joe’s children were 

informed of this agreement in a letter from their attorney. This agreement to freeze 

the status of the CDs was dated February 19, 2004. Joe died on June 3, 2006. 

During this time, the parties attempted to settle their differences, but in the two 

years before Joe’s death there was no suit filed to challenge the agreement or to 

obtain a court order to change the ownership of the CDs. There was time to force 
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the issue or bring an appropriate suit if Joe had that desire. Failure to act by Joe 

and his children during his lifetime caused the CDs to remain in joint ownership at 

the time of Joe’s death, resulting in Nora’s full ownership of the CDs in accordance 

with her rights of survivorship. 

[¶16.] There is some evidence in the record suggesting that Joe may have 

intended to change the ownership status of the CDs during the final years of his 

life. However, that is not the test. Nora and her children do not have the burden of 

proving with clear and convincing evidence that Joe intended the joint account he 

created to have rights of survivorship. Rather, it is Joe’s children who must carry 

that burden by proving that Joe did not intend the rights of survivorship to attach 

to the account. The court was not clearly erroneous in finding that Joe’s children 

failed to meet this burden. Accordingly, we affirm. 

[¶17.] 2. Whether the Bank was liable for negligence in failing to 

honor Joe’s intentions. 

[¶18.] The circuit court held that Joe’s children could not be granted money 

damages due to the children’s failure to request them in their complaint. 

Furthermore, in their complaint, Joe’s children never claimed that the Bank was 

even liable for negligence. The only relief Joe’s children prayed for was a 

“declaration of rights and responsibilities as to all parties herein pertaining to the 

ownership of said certificates of deposit . . . .” 

[¶19.] The complaint was filed on July 21, 2006. Subsequently, all parties 

filed Motions for Summary Judgment. In their motion, Joe’s children argued in the 

alternative that: 
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[I]f the Court should find in favor of Nora . . . summary 

judgment should be awarded to Plaintiffs against the Bank for 

the full amount of all CDs plus accrued interest, due to the 

Bank’s wrongful refusal to permit Joe to change the CDs back 

into his own name alone, payable on death to his children . . . . 

In the circuit court’s June 7, 2007 decision denying summary judgment to all 

parties, the court specifically stated, “The bank also states that Plaintiff should not 

be allowed to claim damages against the bank. Presently the Plaintiff is not 

making a specific damage claim against the bank, and to determine whether or not 

an amendment, if requested, would be allowed is premature.” On June 22, 2007, 

Joe’s children sent the Bank a letter with a proposed amended complaint. However, 

on July 6, 2007, attorney Lammers sent the Bank’s attorney a letter stating: 

Pursuant to our telephone conversation on June 29, and 

responding to your letter of July 2, please be advised that after a 

discussion with our client, we have decided that we will not 

serve and file an amended complaint. We will simply proceed on 

the pleadings as they now exist. 

 

The reason the complaint was not amended has not been explained. The record is 

clear that the summary judgment decision provided Joe’s children with notice that 

their complaint failed to request money damages, and there is evidence that 

amending the complaint was considered. Ultimately, however, no amendment was 

filed or served. Now, Joe’s children are appealing the issue after the circuit court 

refused to award money damages when the complaint failed to request them. 

[¶20.] It is established law in South Dakota that “[c]ivil actions founded on 

negligence or fraud require damages as an essential element.” Kobbeman v. Oleson, 

1998 SD 20, ¶6, 574 NW2d 633, 635 (citing Lien v. McGladrey & Pullen, 509 NW2d 

421, 423 (SD 1993) (additional citations omitted)). Furthermore, “South Dakota law 
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requires that damages be pled with reasonable certainty.” United Fire & Cas. Co. v. 

P & C Ins. Servs., Inc., 488 NW2d 661, 666 (SD 1992) (citations omitted). Here, 

Joe’s children provided no indication in their declaratory judgment pleadings that 

they would be suing the Bank for negligence or any other cause of action, or 

requesting damages if the Bank was deemed liable. Due to not pleading their 

damages with reasonable certainty or amending their complaint in this declaratory 

judgment action to include a request for money damages, negligence, or other cause 

of action, Joe’s children are precluded from raising the issue on appeal. 

Accordingly, the circuit court is affirmed for all of these reasons. 

[¶21.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, concur.