#24741-a-JKK 

2008 SD 91 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

IN THE MATTER OF THE 

ESTATE OF JOSEPH V. 

GINSBACH, Deceased. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE WARREN G. JOHNSON 

Judge 

* * * * 

BRAD P. GORDON of 

Tellinghuisen & Gordon, P.C. Attorneys for appellant 

Spearfish, South Dakota Raymond A. Ginsbach. 

DAVID L. CLAGGETT Attorney for appellees 

Spearfish, South Dakota Estate of Joseph V. Ginsbach, 

 Mary Kay Cheshier, Personal 

 Representative. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON AUGUST 26, 2008 

 OPINION FILED 10/01/08 
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KONENKAMP, Justice 

[¶1.] Ray Ginsbach and his brother, Joe, were partners in a plumbing 

business. According to Ray, they were also partners in J & R Rentals. After Joe 

died, Ray continued to operate J & R Rentals, assuming that certain real estate was 

an asset of the partnership. When a court declared that the real estate was the 

property of Joe’s estate, Ray filed a claim against the estate seeking reimbursement 

for services and materials provided by him to benefit the estate. The personal 

representative denied his claim and Ray failed to timely file a petition in court to 

allow the claim. Because Ray filed his claim beyond the limitations period, the 

court denied his petition. We affirm. 

Background 

[¶2.] Joe Ginsbach operated a plumbing business known as Ginsbach 

Plumbing. In 1961, he brought his brother, Ray, into the business with him. No 

formal partnership agreement was drafted, but Ray testified that he and Joe split 

the profits equally. Ray alleged that sometime later he and Joe formed another 

partnership, J & R Rentals. This arrangement was similarly not reduced to 

writing. 

[¶3.] Beginning in 1975, Ray filed partnership tax returns with the IRS for J 

& R Rentals, signed only by him. The tax returns listed 316 Quincy, Spearfish, 

South Dakota, as a partnership rental property. According to Ray, 316 Quincy was 

a partnership asset, although it was purchased solely in Joe’s name in 1972 and 

listed specifically in Joe’s will as his asset. After 1986, the tax returns Ray filed 

also listed property at 816 10th Street, Belle Fourche, South Dakota, as a 
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partnership asset. Ray alleges the property at 816 10th Street was purchased 

jointly in 1986, and sold in 2004, with the sale proceeds split equally. For the years 

both properties were listed as partnership assets, J & R Rentals paid the real estate 

taxes, insurance, and costs of certain improvements. The partnership also deducted 

the expenses and claimed depreciation on the buildings and improvements. 

[¶4.] Ray maintains that in 1986 he purchased Joe’s interest in Ginsbach 

Plumbing, and Joe retired. There was no evidence documenting this buy out. It 

was not disputed, however, that Ray continued to operate Ginsbach Plumbing from 

an apartment at 316 Quincy. Joe’s son claimed that in 2001, Ray’s attorney sent 

Joe a series of letters demanding that Joe convey title of 316 Quincy to J & R 

Rentals or to Joe and Ray as co-tenants. Although Ray threatened suit, he did not 

follow through. In 2004, Joe informed all concerned that he leased 316 Quincy to 

his son, George Ginsbach, and to Glen and Mary Kay Cheshier. 

[¶5.] Joe died on January 15, 2005. He was survived by his son George and 

daughters, Mary Kay Cheshier and Patty Jo Ragans. Joe’s wife, Mary, had 

predeceased him in 1998. On March 24, 2006, Ray filed an application in court to 

be appointed the personal representative of Joe’s estate and for informal probate. 

The court granted his application. Joe’s will, however, declared that Mary Kay was 

to be the personal representative. In April 2006, Mary Kay filed her petition in 

court for informal probate, determination of heirs, and appointment of personal 

representative. After a hearing, the court removed Ray as personal representative 

and appointed Mary Kay. 
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[¶6.] After Mary Kay was appointed personal representative on May 25, 

2006, she published notice to all creditors for the filing of claims against Joe’s 

estate. The notice informed creditors that claims must be filed within four months 

of the date she was appointed as the personal representative or within sixty days, 

whichever was longer. Ray filed a claim against the estate. The record does not 

contain Ray’s claim or a copy of it. There is no evidence concerning the date of the 

claim or its substance. There is, however, a letter from Mary Kay on September 5, 

2006, providing Ray notice that the personal representative disallowed his claim. 

The letter also informed Ray that he had sixty days to commence legal proceedings 

against the personal representative for his claim, or it would be barred. Ray did not 

file a petition in court for allowance of his claim. 

[¶7.] Previous to this, on November 8, 2005, George Ginsbach, Joe’s son, had 

brought a civil suit against Ray in circuit court for “turnover of funds, vacation of 

property and, if necessary, to dissolve and wind up a partnership.” According to 

George, 316 Quincy was solely Joe’s property, deeded only in his name, and was 

property that passed to Joe’s children after Joe’s death. George disputed Ray’s 

claim to a partnership interest in the property. Ray filed an answer and submitted 

a counterclaim asking the court to declare that 316 Quincy was in fact a 

partnership asset. 

[¶8.] After a hearing, the court issued findings of fact and conclusions of law 

and a judgment on February 22, 2007. It recounted the history of Joe and Ray’s 

business relationship and the lack of documentation evidencing their purported 

partnerships. The court noted that Ray knew 316 Quincy was titled solely in Joe’s 
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name and that he never brought suit to resolve the dispute. The fact that 316 

Quincy was solely in Joe’s name, according to the court, was evidence that it was 

Joe’s property and not a donated partnership asset. The court further noted that 

Ray did not present evidence that he contributed to the purchase of the property, 

and therefore, failed to rebut the presumption that it was not a partnership asset. 

On this evidence, the court concluded that the property and improvements at 316 

Quincy were the sole property of the estate. 

[¶9.] On June 22, 2007, Ray filed another claim against the estate in 

probate proceedings. He sought payment of $115,099.90 for services and materials 

he provided to the estate that benefitted 316 Quincy. He claimed reimbursement 

for yard work, maintenance, improvements, and other miscellaneous tasks. On 

June 27, 2007, Mary Kay served Ray with a notice of disallowance of the claim. On 

July 11, 2007, Ray filed a petition with the court for allowance of his claim. A 

hearing was held and the court denied his petition. The court held that Ray failed 

to file his petition within the time allowed after the notice to creditors was 

published as required by statute. The court also rejected Ray’s claim that he was a 

creditor entitled to written notice under SDCL 29A-3-801(b) because Ray previously 

filed a similar claim that was rejected and at all times had been involved in the 

estate proceedings. 

[¶10.] Ray appeals asserting that his claim did not arise until after Joe’s 

death, and therefore, his claim is not barred by statute. He also contends that to 

avoid injustice the facts and circumstances warrant an extension of the time limit 

under SDCL 29A-3-804(c). We review the circuit court’s conclusions of law and 
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rulings on statutory interpretation de novo. In re Estate of Holan, 2004 SD 61, ¶5, 

680 NW2d 331, 333 (citing Osloond v. Osloond, 2000 SD 46, ¶¶6-7, 609 NW2d 118, 

121). 

Analysis and Decision 

[¶11.] Ray contends that he could not file his claim against the estate until 

resolution of his civil suit on whether 316 Quincy was a partnership asset. 

According to Ray, until he knew 316 Quincy was not a partnership asset, he had no 

claim against the estate for reimbursement on the services he performed benefiting 

what he thought was his property. Therefore, he believes the limitation period in 

SDCL 29A-3-803(a) does not apply to bar his claim against the estate. 

[¶12.] South Dakota’s statute dealing with a claim against an estate requires 

that unless a creditor’s claim is filed “within the time set in the published notice to 

creditors” 

[a]ll claims against a decedent’s estate which arose before the 

death of the decedent, including claims of the state and any 

subdivision thereof, whether due or to become due, absolute or 

contingent, liquidated or unliquidated, founded on contract, tort, 

or other legal basis, if not barred earlier by another statute of 

limitations or nonclaim statute, are barred against the estate, 

the personal representative, and the heirs and devisees of the 

decedent. . . . 

SDCL 29A-3-803(a)(1). The published notice in this case provided that “[c]reditors 

of decedent must file their claims with-in [sic] four months after the date of the first 

publication of this notice or their claims may be barred.” The notice was first 

published on October 4, 2006, and last published on October 25, 2006. 

[¶13.] Nonclaim statutes are applied strictly. See Hurlimann v. Bank of 

American Nat’l Trust and Sav. Ass’n, 297 P2d 682, 685-86 (CalCtApp 1956); Nelson 
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v. Nelson, 162 P3d 43, 51 (KanCtApp 2007); In re Estate of Powers v. Powers, 552 

NW2d 785, 786-87 (ND 1996); Priestman v. Elder, 646 NE2d 234, 237 (OhioCtApp 

1994); Lewis v. Knight, 144 NE2d 551, 554-55 (OhioCtApp 1955). As one court 

remarked, 

Public policy requires that estates of decedents be speedily and 

finally determined. It is pursuant to this policy that statutes of 

non-claim have been enacted by the legislature. It is not the 

purpose of the [statutes] to unreasonably restrict the rights of 

creditors, but the object of the [statute] is to expedite and 

facilitate the settlement of estates in the interest of the public 

welfare and for the benefits of those interested in decedent’s 

estates. 

Gates Learjet Corp. v. Moyer, 459 So2d 1082, 1084 n1 (FlaCtApp 1984) (quoting In 

re Browns Estate, 117 So2d 478, 480 (Fla 1960)). Courts cannot broaden the 

opportunity for creditors to make claims against an estate beyond that allowed by 

statute. See id. The statute requires that all claims “whether due or to become due, 

absolute or contingent, liquidated or unliquidated, founded in contract, tort or other 

legal basis” must be brought within the limitation period. SDCL 29A-3-803(a). 

Creditors bear the burden to take action to protect their interests within the time 

limitation. 

[¶14.] Although Ray insists his claim did not arise until after the civil suit 

was decided, he was aware while Joe was alive that 316 Quincy was solely in Joe’s 

name, Joe had no intention to transfer partial ownership to Ray, and Joe leased the 

property to George Ginsbach and Glen and Mary Kay Cheshier. Ray could have 

brought a claim against Joe during Joe’s lifetime for the services and materials he 

provided to manage and improve the property. Ray’s claim was not dependent on 

resolution of the civil suit brought by George against Ray after Joe died. We 
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conclude that Ray’s claim is the type of claim contemplated in SDCL 29A-3-803(a). 

There is no dispute that it was not presented within the time limitation, and 

therefore, the court did not err when it barred Ray’s claim. See In re Estate of 

Bachand, 307 NW2d 140, 142 (SD 1981) (if a claim is not timely presented, it is 

barred). 

[¶15.] Ray next asserts that to avoid injustice he should be granted an 

extension under SDCL 29A-3-804(c) to file a late petition for allowance of his claim 

against the estate. SDCL 29A-3-804(c) only applies when a creditor has not yet 

filed a petition for allowance of a claim after the personal representative has issued 

a notice of disallowance. After the personal representative denied Ray’s second

claim, Ray filed a petition for allowance within sixty days. Thus, the statute is 

inapplicable. 

[¶16.] On the other hand, Ray did not file a petition for allowance in court for 

his first claim against the estate. Whether Ray is asking this Court to determine if 

an extension should be granted on his first claim is not clear from his argument. In 

his appellate brief, he states that the estate acknowledged that the second claim 

was founded on the same information as the first, and that “[t]he record reflects 

that [his] prior claim against the estate, which it denied, was similar in nature to 

the present claim[.]” Then he asserts that the circumstances of this case, with the 

ancillary civil case, are unusual and that he has not been dilatory in his actions. 

With these contentions, Ray requests an “extension of time to file his petition for 

allowance of his claim against the estate of Joseph V. Ginsbach.” 
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[¶17.] Regardless of which claim Ray is seeking to file late, he never 

petitioned the court for an extension of the statutory time. The first time Ray 

requested an extension was in his appellate brief. The statute is clear: “to avoid 

injustice the court, on petition, may order an extension of the sixty-day period[.]” 

SDCL 29A-3-804(c) (emphasis added). Ray’s failure to petition the court for an 

extension leaves us with no decision to review. Without a decision to review, we 

cannot say the court erred. See Primeaux v. Dooley, 2008 SD 22, ¶17, 747 NW2d 

137, 142 (quoting State v. Sickler, 334 NW2d 677, 679 (SD 1983) (citing American 

Fed. Sav. & Loan Ass’n v. Kass, 320 NW2d 800, 803 (SD 1982)) (citing State v. 

Nelson, 1998 SD 124, ¶7, 587 NW2d 439, 443 (citations omitted) (“Issues not 

advanced at trial cannot ordinarily be raised for the first time on appeal.”)). 

[¶18.] Mary Kay Cheshier moved for appellate attorney’s fees as the personal 

representative of the estate. She relies on SDCL 15-17-38 and SDCL 29A-3-720, 

asserting that “[i]n the present case, the attorney’s services are beneficial to the 

estate and necessary due to Appellant’s claim and appeal[.]” Under SDCL 29A-3-

720, a court may award reasonable attorney’s fees to “[a]ny personal representative 

. . . who defends or prosecutes any proceeding in good faith, whether successful or 

not.” We grant Mary Kay’s request in the amount of $2,607 in attorney’s fees. 

[¶19.] Affirmed. 

[¶20.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur.