(dissenting).
Tucek brought this action against Mueller for fraud, deceit, and conversion. Tucek alleged in a separate count that Hieb, Bank, Adjuster, Adjusting Company and Insurer were liable for fraud and deceit. This action was commenced some twenty months after she deposited the settlement proceeds into her bank accounts.
Choice of Remedies
Tucek argues that the trial court is obligated to allow her a choice of either rescission or monetary damages as her remedy for fraud. Her argument is somewhat unclear in that the trial court did precisely what she is requesting. After the hearing on the motion for summary judgment, the trial court sent a letter to the parties setting forth its proposed ruling.1 The letter stated that Tucek could elect either rescission or monetary damages. The letter provided:
1. If the plaintiff desires to elect rescission as her remedy, summary judgment will not be allowed as there are disputed facts.
2. If the plaintiff desires to proceed as the pleadings recite, summary judgment will be granted as to the allegation of fraud or deceit as no evidence exists to prove fraud, Garrett v. BankWest, Inc., 459 N.W.2d 833, 847 (S.D.1990), but not as to the allegations of negligence.
I do not find this statement by the trial court to be inconsistent with our previous holdings.
A victim of fraud has an election of remedies available to him. Holmes v. Couturier, 452 N.W.2d 135, 137 (S.D.1990). “He can either rescind the contract, restore what he received and recover back what he paid, or he may affirm the agreement and sue for monetary damages.” Id.; see also O’Connor v. King, 479 N.W.2d 162, 165 (S.D.1991). Tucek was given her choice of remedies and elected to affirm the agreement and sue for monetary damages. Tucek’s election, however, resulted in summary judgment.
Summary Judgment — Hieb and Bank
Tucek asserts that the trial court erred in granting an order for summary judgment dismissing her claims of fraud and deceit against Hieb and Bank. “Questions of fraud and deceit are generally questions of fact and as such are to be determined by the jury.” Garrett, 459 N.W.2d at 847. However, when considering a motion for summary judgment, the issues presented in the pleadings are not controlling and a party may not rest upon the mere allegations contained therein. Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 223 (S.D.1988). “The party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.” Id. We must determine whether there exists any basis supporting the trial court’s ruling. Id.
“One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” SDCL 20-10-1. To prove fraud, there must be a representation that was: (1) “made as a statement of fact, which was untrue by the party making it, or else recklessly made”; (2) “made with intent to deceive and for the purpose of inducing the other party to act upon it”; and (3) relied on by the innocent party, inducing that party “to act to his injury or damage.” Croes Family Trust v. Small Business Admin., 446 N.W.2d 55, 57 (S.D.1989). See also Sperry Corp. v. Schaeffer, 394 N.W.2d 727, 730 (S.D.1986).
Hieb’s notarization of the release form was a representation that was made as a statement of fact which was untrue. Hieb’s notarization represented that Tucek had signed the release form in his presence when, in fact, she had not. The notarization thus violated SDCL 18-1-112 and qualifies as a *839misrepresentation under the first element of fraud.
The second element of fraud is that the misrepresentation be “made with intent to deceive and for the purpose of inducing the other party to act upon it.” Croes Family, 446 N.W.2d at 57. Fraudulent intent is an essential element of deceit under South Dakota law. SDCL 20-10-1. Tucek’s complaint itself asserts that Hieb “knowingly and intentionally participated with Mueller in effecting a fraud” against Tucek. However, no facts were presented to indicate any fraudulent intent on the part of Hieb in the underlying settlement transaction. In fact, Tu-cek’s sworn testimony clearly indicates that there is no genuine issue of material fact regarding intent to deceive her or reliance by her.3
When Mueller presented the unsigned release form to Hieb at Bank, Hieb informed Mueller that Tucek would need to sign the form before he could notarize it. Mueller said that Tucek was outside in his van. Hieb looked out his window and believed he saw Tucek in the van. In his deposition, Hieb states that it was his intention to accompany Mueller to the van to obtain Tucek’s signature. Unfortunately, Hieb was interrupted at this time. When he returned to Mueller, the release form bore what he assumed to be Tucek’s signature. Believing that it bore Tucek’s signature, Hieb notarized the release form even though it had not been signed in his presence. Hieb’s actions may have been negligent and in violation of SDCL 18-1-11, but they do not rise to the level of intentional fraud. Summary judgment is proper if there is no evidence of deceitful intent on the part of the defendant. Garrett, 459 N.W.2d at 847; Famous Brands, Inc. v. David Sherman Corp., 814 F.2d 517, 522 (8th Cir.1987). These facts, which are not disputed, clearly provide the basis for upholding the trial court in this case. ■
Moreover, the third element of fraud is not met. Tucek did not rely on Hieb’s misrepresentation. Adjuster, Adjusting Company and Insurer are the parties who relied on the validity of the notarization. Hieb’s notarization of the release form resulted in Adjuster providing the $70,000.00 settlement check to Mueller, but it did not cause Tucek to cash the check nor did it cause Mueller’s subsequent conversion of those funds. Tucek, in fact, accepted and deposited her $70,000 settlement check from Insurer. She was not upset with the settlement until more than six months later when she discovered that Mueller had subsequently converted a portion of the settlement funds in her account to his own use. This was discovered after she had reviewed her monthly bank statements. Tu-cek’s initial reaction was to advise Mueller to refrain from making any further withdrawals.
Finally, Tucek asserts that Hieb and Bank worked with Mueller in perpetrating the fraud against Tucek. However, Tucek admits in her deposition that she has no facts to support her accusation of Hieb and Mueller working together. Rather, Tucek said she just believed they were probably working together, but did not know for sure. Tucek cannot claim a better version of facts than what she testified to. Parsons v. Dacy, 502 *840N.W.2d 108 (S.D.1993). Tucek asserts that every person who assists another in the perpetration of fraud is liable to the injured party citing Kaas v. Privette, 12 Wash.App. 142, 529 P.2d 23 (1974). However, in Kaas, each of the liable stockholders had made an active misrepresentation to the injured party unlike the facts before us. More than a mere participation is necessary to be liable for fraud; that participátion must be knowing with the intent to induce the other party’s actions. SDCL 20-10-1; Sperry Corp., 394 N.W.2d at 730. Although Hieb notarized the release form and Bank established joint accounts for Mueller and Tucek, there is no evidence that Hieb or Bank were active knowing participants in Mueller’s fraudulent conversion of Tueek’s funds.
Summary Judgment? — Adjuster, Adjusting Company, and Insurer
Tucek asserts that Adjuster, Adjusting Company, and Insurer “knowingly and intentionally participated with Mueller in defrauding” Tucek. As discussed above, to prove fraud there must be a representation that was: (1) “made as a statement of fact, which was untrue by the party making it, or else recklessly made”; (2) “made with intent to deceive for the purpose of inducing the other party to act upon it”; and (3) relied on by the innocent party, inducing that party “to act to his injury or damage.” Croes Family, 446 N.W.2d at 57; see also Sperry Corp., 394 N.W.2d at 730.
There is not one scintilla of evidence bringing the actions of Adjuster, Adjusting Company, and Insurer within the parameters of fraud and deceit. Tucek has not been diligent in presenting facts which show where Adjuster, Adjusting Company, or Insurer made any representations as statement of fact which were untrue with the intent to deceive Tucek. Adjuster did negotiate Tu-cek’s claim with Mueller instead of Tucek. Adjuster’s uncontroverted testimony was that it was not unusual in the industry to deal with the parent when negotiating the claim of a child. Mere negotiations do not rise to the level of proof necessary to constitute fraud. Midland Nat’l Bank v. Perranoski, 299 N.W.2d 404, 413 (Minn.1980) (banker not liable to answering partners for fraudulent misrepresentation where he had made no false representations in convincing them to make investment). More than a passing participation is necessary to constitute fraud; each element of fraud must be supported by evidence. Selvidge v. McBeen, 230 Mont. 237, 750 P.2d 429, 433 (1988). There has been no evidence presented in resistance to the motion which show active participation with Mueller in converting the settlement funds to his personal use. There can be no dispute as to who is the scoundrel in this transaction, i.e., Mueller, the father.
Likewise, when Koepke asserted that Tu-cek’s signature on the release form was a forgery, Adjuster immediately called Hieb to verify the notarization. Hieb assured Adjuster that the signature was Tucek’s. Adjuster acted prudently to insure the release was valid. Furthermore, Tucek, even if she did not sign the settlement and release, accepted the settlement funds and was not upset with the settlement until she learned that Mueller had converted part of the settlement funds in her bank account to his own use. There has been no showing that Adjuster knowingly and intentionally participated in Mueller’s fraud or conversion. In her deposition, Tucek admits that she has no information showing Adjuster’s participation with Mueller. Again, Tucek can claim no better version of the facts than she testified to in her deposition. Parsons, 502 N.W.2d at 111.
In considering this case, one could easily identify with the position of Tucek, since it is evident that she was taken advantage of by her father. On the other hand, jurors are regularly instructed that sympathy is not to play a role during their consideration of the case. The villain in this case is the father and this court should not open up the vaults of the bank or the insurance company to pay for his despicable conduct in converting his daughter’s settlement for his personal use. Lest we not forget, Tucek, after receiving the settlement proceeds, did agree to loan a portion of it to her father. Thereafter, he tapped her accounts without her consent and was told to stop, but did not. Further, Tu-*841cek has a judgment against Mueller for $230,400.00 which no one has contested.
I would affirm the trial court.
. The letter was not filed with the clerk by the trial court but later was filed as an exhibit to "Plaintiff's Motion to Reconsider Re: Proposed Ruling on Defendant's Motion for Summary Judgment” and is part of the settled record.
. SDCL 18-1-11 provides:
It is a Class 2 misdemeanor for any notary public to affix his official signature to docu*839ments when the parties have not appeared before him.
. Tucek’s responses to questions propounded in her deposition show the following:
Q. Do you have any reason to believe that Maynard Hieb benefitted personally from this transaction?
A. I don't have anything behind it to back me up if I did, and I don’t know whether — I don’t think he did.
Q. Do you have any reason to believe that the bank benefitted as a result of this?
A. No.
Q. Do you have any reason to believe that Maynard and Garlan were acting together to tty to rip you off?
A. I believe that Maynard believed whatever my dad told him. I mean, he notarized it. I can't help but wonder. I. mean, he took his word for it and I was not there to sign it. So I don’t know if, you know, what they were thinking, if they were together, or I don’t know what to really assume about it.
Q. You don’t have any facts that lead you to believe that Maynard was doing that?
A. No, I don’t have any facts that would support my accusing them of working together, if that’s what you mean. But he notarized it and I wasn't there, so I guess it leads me to believe that they probably were working together, but I don't know for sure.