#29432-r-MES

2021 S.D. 49

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE ESTATE OF

MARLENE PETRIK, a/k/a ELLEN MARLENE PETRIK,

Deceased.

* * * *

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

Sioux Falls, South Dakota 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.

* * * *

CONSIDERED ON BRIEFS

APRIL 26, 2021

OPINION FILED 08/18/21
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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 (SE1⁄4 NW1⁄4) 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 
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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 

 

1. Marlene’s two daughters received smaller cash gifts, but the second codicil

stated that each had previously received lifetime gifts of real property.

2. David states in his reply brief that the second codicil “struck out Dale’s 

property gift.” Based upon the limited record before us, we are uncertain 

whether this statement is accurate. The second codicil revised only the 

residuary clause of Marlene’s will, a clause separate and apart from the 

provision concerning Dale’s real estate gift. However, that factual issue is 

not before us, and our recitation of the facts should not be viewed as a 

definitive interpretation of Marlene’s will and the two codicils.
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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 

(E1⁄2 NW1⁄4), 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 

 

3. The parties’ submissions on appeal describe a 2005 deed as the basis for the 

joint tenancy claim, though this fact is not established in the record.
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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 
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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 immediatelyvested 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 terminate the joint tenancy without notice or a 

hearing.

2. Whether any resulting error was rendered harmless 

under the circumstances presented in the record.

Appellate Jurisdiction

[¶15.] Before addressing the merits of the issues presented here, we first 

reaffirm our earlier decision denying the motion to dismiss the appeal. The 

sustained effort by Dale’s estate to challenge appellate jurisdiction centers on its 
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argument that the circuit court’s order terminating the joint tenancy of Marlene 

and Dale was not a final order. A related and persistent feature of the effort to 

defeat appellate jurisdiction is the claim by Dale’s estate that David should first 

seek to litigate his claims either in Marlene’s probate case or the separate civil 

action David has commenced against Dale’s estate. We think these arguments 

overlook our decisional law and the nature of a discrete proceeding in a probate 

action.

[¶16.] Indeed, the claim that we lack jurisdiction because Marlene’s probate 

action remains pending is unmistakably foreclosed by our precedent. In In re Estate 

of Geier, 2012 S.D. 2, ¶ 10, 809 N.W.2d 355, 358, we adopted a “more expansive 

determination of the finality of probate orders than” our earlier decisions had 

suggested. Interpreting SDCL 29A-3-107 and the corresponding provision of the 

UPC, we held that orders determining individual petitions for relief in probate 

actions can constitute final orders when they dispose of all issues relative to a 

particular petition and leave nothing for decision. Id. ¶ 11, 809 N.W.2d at 358.

[¶17.] Citing persuasive authority from other jurisdictions, we recognized 

that the drafters of the UPC sought to “avoid the result . . . that no order in a 

probate case was final until there had been full administration and closing of the 

estate.” Id. ¶ 11, 809 N.W.2d at 358 (quoting In re Estate of Newalla, 837 P.2d 

1373, 1377 (N.M. Ct. App. 1992)). We specifically relied upon the Colorado Supreme 

Court’s explanation relating to the finality of orders resolving individual motions or 

petitions in probate actions:

Once a petition is filed, it defines a proceeding. Further 

pleadings relating to the same subject matter, whether labeled 
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motions or petitions, are part of the same proceeding. When the 

subject matter of two petitions overlap, it would generally be 

appropriate to consider both petitions as belonging to the same 

proceeding . . . . [A]n order of the probate court is final if it ends 

the particular action in which it is entered and leaves nothing 

further for the court pronouncing it to do in order to completely 

determine the rights of the parties as to that proceeding.

Geier, 2012 S.D. 2, ¶ 13, 809 N.W.2d at 359 (quoting Scott v. Scott, 136 P.3d 892, 

896-97 (Colo. 2006)) (internal citations and quotation marks omitted).

[¶18.] Here, the circuit court’s order ended any question relating to the 

petition to terminate the joint tenancy between Marlene and Dale. The order’s 

express terms provided “that title to the above described property is hereby vested 

absolutely and in its entirety to Dale A. Petrik, the surviving joint owner[.]” 

Nothing remained for the circuit court to decide concerning the ex parte petition to 

terminate the joint tenancy, and therefore, the order was appealable. Cf. In re 

Estate of Fox, 2018 S.D. 35, 911 N.W.2d 746 (finding a lack of appellate jurisdiction 

to review a circuit court’s decision to revoke the initial appointment of a personal 

representative because the court’s ultimate resolution of the appointment issue 

remained pending).

[¶19.] The additional argument suggesting that David was obligated to seek 

reconsideration of the circuit court’s order is unsound, principally because the order 

was final under Geier. But beyond this, waiting to file a notice of appeal until after 

an unsuccessful effort to obtain reconsideration may well have precluded review if 

the circuit court’s determination of the motion for reconsideration extended beyond 

the deadline for filing a notice of appeal. See SDCL 15-26A-6 (stating that appeals 

must generally be taken within 30 days after notice of an order’s entry is served). 
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Requests for reconsideration or relief from an adverse final order under SDCL 15-6-

60(b) are not listed among the motions that will toll the time period for filing a 

notice of appeal. See Canton Concrete Products Corp. v. Alder, 273 N.W.2d 120, 123 

(S.D. 1978) (holding that a Rule 60(b) motion “does not affect the finality of the 

judgment; and hence does not toll the time for appeal from the final judgment”). 

Indeed, SDCL 15-26A-6 lists only motions made for judgment as a matter of law 

and for a new trial pursuant to SDCL 15-6-50 and SDCL 15-6-59, respectively, as 

methods by which a party may toll the 30-day appeal period.

[¶20.] We have appellate jurisdiction to review the circuit court’s order 

terminating the joint tenancy.

Notice of the Petition to Terminate the Joint Tenancy and Harmlessness

[¶21.] David argues that he should have received notice of the petition to 

terminate the joint tenancy of Marlene and Dale under the requirements of the 

UPC and the provisions of the statutory procedure for terminating joint tenancies. 

As to the UPC requirements, David relies upon SDCL 29A-3-105, which states in 

relevant part:

Persons interested in decedents’ estates may apply to the clerk 

of court for determinations in the informal proceedings provided 

in this article, and may petition the court for orders in formal 

proceedings within the court’s jurisdiction including but not 

limited to those described in this article. The court may hear 

and determine formal proceedings and distribution of decedents’ 

estates after notice in conformity with § 29A-1-401. Persons 

notified are bound though less than all interested persons may 

have been given notice.

(Emphasis added.); see also SDCL 29A-1-401 (listing methods of notice).
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[¶22.] As the statute indicates, the UPC distinguishes informal from formal 

proceedings, and their notice requirements, based upon whether a request for relief 

is directed to a court or the clerk. “Informal proceedings” simply refer to “those 

conducted without notice to interested persons by the clerk of court.” SDCL 29A-1-

201(22) (emphasis added). “Formal proceedings[,]” by contrast, refer to 

“proceedings conducted before a judge with notice to interested persons.” SDCL 

29A-1-201(18) (emphasis added); see also In re Estate of Ricard, 2014 S.D. 54, ¶ 12, 

851 N.W.2d 753, 757 (noting the distinction between informal proceedings and 

formal proceedings).

[¶23.] Applying these uncomplicated statutory definitions, we conclude the 

petition to terminate the joint tenancy between Marlene and Dale was a formal 

proceeding. The petition was filed in Marlene’s pending probate action and sought 

a decision from the court. Dale’s estate should have provided notice.

[¶24.] For its part, Dale’s estate acknowledges the absence of notice and a 

hearing, but argues the joint tenancy procedure did not require notice or a hearing 

or, in any way, implicate the UPC. It argues, alternatively, that any failure to 

comply with the notice requirements was harmless because Marlene’s will gifted the 

same real estate to Dale that was the subject of the joint tenancy. For several 

reasons, we are not convinced in either regard.

[¶25.] First, the sweeping argument that the termination procedures for joint 

tenancies do not implicate the UPC overlooks the unique aspects of this case. The 

record here suggests that at least some of the land Dale’s estate claims was held in 

a joint tenancy with Marlene was also included as a testamentary gift to Dale in 
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Marlene’s will. Whether or how the land passes to Dale cannot be determined 

without involving the pending probate action relating to Marlene’s will. In fact, 

Dale’s estate seemed to acknowledge as much when it presented the petition to 

terminate the joint tenancy to the circuit court presiding in this probate action.4

[¶26.] In addition, the harmless error argument, which contemplates that the 

land subject to the joint tenancy is the same land included in Marlene’s gift to Dale, 

rests upon an as-yet-uncertain premise. Although both Marlene’s will and the joint 

tenancy warranty deed describe real property located in the northwest quarter of 

section 6, the legal descriptions are not identical,5 and the record does not include 

sufficient information to establish that the parcel described in Marlene’s will is, in 

fact, the same parcel described in the joint tenancy. For this reason alone, we 

cannot say that the failure to provide notice was harmless.

[¶27.] Dale’s estate offers an additional argument that posits he was 

immediately vested with the joint tenancy land either by this right of survivorship 

or the provisions of the UPC. We cannot accept either argument as a basis for 

affirming the court’s order terminating the joint tenancy.

[¶28.] Initially, the claim that Dale’s survivorship right was entirely selfexecuting upon filing Marlene’s death certificate is not consistent with the 

provisions of SDCL chapter 21-44, which describe the procedure for terminating 

 

4. Doing so, Dale’s estate now claims, was “a mistake.”

5. Marlene’s will described the specific gift to Dale as “Lots 3, 4, & 5 and the 

Southeast Quarter of the Northwest Quarter” of section 6. The joint tenancy 

deed described the real estate as “[t]he Northwest Quarter, less Lot H-1” of 

section 6.
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joint tenancies to real property. Although a surviving joint tenant can record with 

the register of deeds a certified copy of a death certificate for the deceased joint 

tenant and an affidavit containing a legal description of the subject property, this 

serves only as “prima facie evidence” of the joint tenancy’s termination. SDCL 21-

44-2. The procedure set out in SDCL 21-44-2 is not the court adjudicated 

determination terminating “all right, title, interest, lien, or claim” of the joint 

tenant that Dale’s estate sought in its petition. See SDCL 21-44-19 (describing the 

effect of a court’s judgment terminating a joint tenancy).6

[¶29.] The argument that Dale was immediately vested with title to the land 

Marlene specifically gifted to him in her will is also unpersuasive. The claim is 

based upon SDCL 29A-3-101, which provides, in part, that “[u]pon the death of a 

person, that person’s real and personal property devolves to the persons to whom it 

is devised by will . . . .” However, the statute does not authorize immediate and 

unconditional transfer as Dale’s estate suggests. Instead, SDCL 29A-3-101 states 

that the devolves-upon-death text is “subject to” a number of restrictions, including 

“administration” of the estate. We have recognized that this qualifying language 

serves to temper the provision upon which Dale’s estate relies. See In re Estate of 

Laue, 2010 S.D. 80, ¶ 21, 790 N.W.2d 765, 770 (per curiam) (holding that reading 

the devolves-at-death text of SDCL 29A-3-101 in absolute terms would “violat[e] 

rules of statutory construction”); In re Estate of Olson, 2008 S.D. 4, ¶ 15, 744 

 

6. A different rule applies where the decedent’s spouse is the sole surviving joint 

tenant. See SDCL 21-44-27. In those instances, the joint tenancy may be 

terminated “by furnishing the register of deeds” with an affidavit complying 

with the requirements of SDCL 21-44-27 and attaching a certified copy of the 

death certificate.
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N.W.2d 555, 560 (recognizing the decedent’s specific real estate devise that vested 

in the beneficiary at the time of the decedent’s death was “subject only to the 

probate of the estate” (citing In re Estate of Roehr, 2001 S.D. 85, ¶ 6, 631 N.W.2d 

600, 602)).

[¶30.] Here, David asserts that “sometime after the 2005 [joint tenancy] deed, 

Dale agreed to relinquish his joint tenancy interest, but for some reason a record of 

this relinquishment was never filed with the Register of Deeds.” The claim may 

ultimately be successful, or not, and we express no opinion on the merits of the 

issue. We hold simply that David as an interested person and the personal 

representative of Marlene’s estate must have an opportunity to test the strength of 

the argument before the circuit court determines, as its order indicates, “that title 

to the above described property is hereby vested absolutely and in its entirety to 

Dale A. Petrik[.]”

[¶31.] We therefore vacate the court’s order terminating the joint tenancy 

and remand the case for further proceedings.

[¶32.] JENSEN, Chief Justice, and DEVANEY and MYREN, Justices, concur.

[¶33.] KERN, Justice, deeming herself disqualified, did not participate.