IN COURT OF APPEALS
a/k/a Phyllis A. Malm.
Allen I. Saeks, David R. Crosby, Leonard, Street and Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent Estate of Phyllis A. Kronfeld)
Martin H. Fisk, Briggs and Morgan, P.A., W-2200 First National Bank Building, St. Paul, MN 55101 and Harry T. Neimeyer, Stringer & Rohleder, 1200 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101 (for appellant Estate of Carl B. Malm)
Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.*
Appellant estate of Carl Malm challenges the district court's award of summary judgment against it, claiming there is a genuine issue of material fact as to whether the decedents intended to create tenancies in common rather than joint tenancies in two homes and a brokerage account. We affirm.
Carl Malm and Phyllis Kronfeld were married on August 27, 1988. Because both Malm and Kronfeld were in their late 60s and had children from prior marriages, Malm asked his attorney, William Thomson, to prepare an antenuptial agreement. Thomson prepared the agreement, and the parties executed it on August 22, 1988. The agreement provides, in relevant part:
2.4 Survivorship Property, Notwithstanding any contrary provisions of this agreement, any property, the title to which, by operation of law or the terms of the governing instrument, passes to the named surviving party, shall be subject to the following provisions of this paragraph:
* * * *
2.4.3 Upon Death. Upon the death of a party, his or her interest in such property shall pass in accordance with the instrument creating and the law governing succession of interests in such property.
On January 17, 1989, Malm and Kronfeld executed an agreement to open a securities account with Dean Witter Reynolds Inc. The agreement provides, in relevant part:
JOINT ACCOUNT AGREEMENT WITH RIGHT OF SURVIVORSHIP
* * * *
It is the express intention of the undersigned to create an estate or account as joint tenants with rights of survivorship and not as tenants in common. In the event of the death of either or any of the undersigned, the entire interest in the joint account shall be vested in the survivor * * * on the same terms and conditions as theretofore held * * * .
(Emphasis added.) Malm and Kronfeld received periodic statements showing the account name to be "Carl B. Malm and Phyllis A. Malm JTTEN."
On September 10, 1990, and May 8, 1992, Malm and Kronfeld purchased homes in Pima County, Arizona, and Ramsey County, Minnesota. The deeds conveyed each of the homes to Malm and Kronfeld as joint tenants.
In March 1996, Thomson had a series of conversations with Malm regarding the assets Malm and Kronfeld held in joint tenancy. At deposition, Thomson testified that he told Malm he would not advise Malm and Kronfeld to continue to hold their Dean Witter account as joint tenants and that they could instead arrange to own the account as tenants in common, giving each of them an undivided one-half interest. Thomson also testified that Malm told him that although he did not contribute an equal amount to the account, Malm felt he was entitled to half its value because he had been responsible for directing trading in the account since it was created. Although Malm said that he and Kronfeld wanted to meet with Thomson when they returned to Minnesota from Arizona, they did not schedule a meeting, and Thomson had no further conversations with Malm concerning the Dean Witter account. At no time did Thomson speak to Kronfeld personally concerning the account.
Malm died on May 10, 1996, in Arizona, and Kronfeld went into seclusion. On June 3, 1996, Thomson wrote to Kronfeld to request a meeting regarding the joint assets, acknowledging that the assets had passed to her on Malm's death and questioning whether she planned to distribute some of the assets to Malm's children. Kronfeld did not contact Thomson, and she died on July 3, 1996.
Appellant filed a claim against Kronfeld's estate, alleging that Malm and Kronfeld bought their two homes and established the Dean Witter account as joint tenants as a result of a "mutual mistake" because they did not intend to disinherit the children of whoever died first, and, therefore, Malm's estate was entitled to one-half of the jointly held property. Appellant requested that the district court reform the two deeds and the Dean Witter securities account agreement from joint tenancies to tenancies in common. Kronfeld's estate moved for summary judgment, which the court granted. In its memorandum, the court stated that because appellant presented no evidence that Malm and Kronfeld were mutually mistaken when they purchased the Arizona or Minnesota homes as joint tenants, summary judgment was appropriate. The court also concluded that appellant's evidence in support of its argument that Malm and Kronfeld did not intend to establish and maintain the Dean Witter account as joint tenants and therefore did so by mistake "falls far short of the clear and convincing standard required to establish a genuine issue of material fact" and granted summary judgment with respect to the Dean Witter account. This appeal followed.
Appellant argues that there is a genuine issue of material fact as to whether the deeds and the securities account agreement failed to express Malm and Kronfeld's real intentions and whether the failure was due to their mutual mistake. In an appeal from summary judgment, this court must determine whether a genuine issue of material fact exists and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The court must view the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But to successfully oppose a motion for summary judgment,
a party cannot rely upon mere general statements of fact but rather must demonstrate at the time the motion is made that specific facts are in existence which create a genuine issue for trial.
Erickson v. General United Life Ins. Co., 256 N.W.2d 255, 259 (Minn. 1977); Minn. R. Civ. P. 56.05.
A written instrument can be reformed by a court if the following elements are proved: (1) there was a valid agreement between the parties expressing their real intentions; (2) the written instrument failed to express the real intentions of the parties; and (3) this failure was due to a mutual mistake of the parties * * * . These facts must be established by evidence which is clear and consistent, unequivocal and convincing.
Manderfeld v. Krovitz, 539 N.W.2d 802, 805 (Minn. App. 1995) (quoting Nichols v. Shelard Nat'l Bank, 294 N.W.2d 730, 734 (Minn. 1980)) (emphasis added), review denied (Minn. Jan. 25, 1996).
Appellant has provided no evidence showing that the deeds to the Arizona and Minnesota properties failed to express Malm's and Kronfeld's intentions. The deeds are not ambiguous or subject to more than one interpretation and clearly show that Malm and Kronfeld purchased the properties as joint tenants. See Resolution Trust Corp. v. Kahn, 501 N.W.2d 703, 705 (Minn. App. 1993) (stating that intent of parties to written instrument relevant only when language of instrument is ambiguous or reasonably subject to more than one interpretation), review denied (Minn. Aug. 16, 1993). We conclude that the district court did not err in granting summary judgment to Kronfeld's estate with respect to the Arizona and Minnesota properties.
Appellant also contends that Malm did not understand the legal significance of holding the securities account in joint tenancy and that Malm and Kronfeld did not intend to do so; therefore, they executed the agreement as a result of a mutual mistake. The written agreement establishing the security account on its face shows that Malm and Kronfeld "express[ly] inten[ded] * * * to create an * * * account as joint tenants with rights of survivorship and not as tenants in common." The only evidence appellant presented to support its claim that the securities account agreement failed to express Malm and Kronfeld's real intent and that the failure was due to their mutual mistake was the conversations in March 1996 between Malm and Thomson. But the conversations are not evidence that Malm and Kronfeld were mutually mistaken at the time they opened the account. At best, the conversations between Malm and Thomson are evidence that Malm and Kronfeld considered changing title to the account more than seven years after it was opened. Viewing the evidence in a light most favorable to appellant, there is no genuine issue of material fact regarding whether the securities account agreement failed to express Malm and Kronfeld's real intent and whether the failure was due to a mutual mistake. We conclude that the district court did not err in granting summary judgment against appellant.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant argues that Manderfeld does not apply here because "the establishment of joint tenancy ownership is not a contractual transaction." But in Johnson v. Giese, the Minnesota Supreme Court applied the same test that is described in Manderfeld to a circumstance where property owners intended to change title to all their property from a tenancy in common to a joint tenancy, but one deed was omitted because of a scrivener's error. Johnson v. Giese, 231 Minn. 258, 261-63, 42 N.W.2d 712, 715-16 (1950).
 Appellant claims that the district court erroneously relied on Minn. Stat. § 524.6-213, subd. 1 (1996) (the Minnesota multiparty accounts act), to conclude that Malm and Kronfeld held the securities account in joint tenancy and not as tenants in common. Section 524.6-213, subd. 1(b), provides that if the language of an agreement to establish an "account" includes the statement that the depositors' "intend and agree that the balance in [the] account, upon the death of any party to this account, shall belong to the surviving party," the language is "conclusive evidence" of the depositor(s) intent to establish a survivorship account. Appellant argues that section 524.6-213 does not apply to securities accounts. But we need not address this argument because it is clear on the face of the written agreement that Malm and Kronfeld executed it as joint tenants.