In re Tank
| Docket Number | 29809-r-JMK |
| Decision Date | 21 November 2023 |
| Parties | IN THE MATTER OF THEESTATE OF RUSSELL O. TANK, Deceased. |
| Court | South Dakota Supreme Court |
ARGUED OCTOBER 5, 2022
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT MARSHALL COUNTY, SOUTH DAKOTA THE HONORABLE TONY L. PORTRA Judge
DANIEL K. BRENDTRO ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro & Trzynka, Prof. LLC Sioux Falls, South Dakota Attorneys for Appellant Sherri Castro.
REED RASMUSSEN of Siegel, Barnett and Schutz, LLP Aberdeen, South Dakota Attorneys for Appellee Jason Bender.
[¶1.] For most of his life, Russell Tank farmed a sizeable estate in Britton, South Dakota. Upon his death, Jason Bender Russell's neighbor and long-time farm tenant, offered Russell's last will and testament for probate. The will named Bender as the Estate's sole heir and personal representative. Russell's four children challenged the validity of the will based on a lack of testamentary capacity, insane delusions, and undue influence. The circuit court granted summary judgment against the children on all three grounds. On appeal to this Court, we reversed the circuit court's determination that no material issues of fact existed on the undue influence claim brought by Sherri Castro, Russell's daughter. On remand, Sherri contested the will on the grounds of undue influence. The matter was tried to a jury which returned a verdict for Sherri, finding that Bender unduly influenced Russell's will. Post-trial Bender filed a renewed motion for judgment as a matter of law and, in the alternative, a motion for a new trial. The circuit court granted both, finding that there was insufficient evidence to support the jury's verdict of undue influence. Sherri appeals. We reverse.
[¶2.] Russell Tank met and married his wife Harriet shortly after returning from service in the U.S. Army during the 1950s. Four children were born to the marriage: Sherri Castro, Arlo Tank, Renald (Renny) Tank, and Regina (Gina) Ellingson. Russell and Harriet divorced in 1974, entering into a stipulation resolving custody of their children. They agreed that Arlo would live with Russell on the farm, while the other three children would live with Harriet. Russell's farm consisted of four and a half quarters in Waverly Township about three miles south and a mile east of Britton. Initially, Harriet and the three children moved in with her parents while she recovered her financial footing. Harriet began working in a nursing home and eventually became Horton Industry's first female employee. Harriet and the three kids settled in Britton.
[¶3.] Growing up, Sherri, Renny, and Gina would visit Russell every other weekend during the school year and would spend entire weeks at the farm during summer vacation, especially around baling season. Despite their efforts to form a connection and their attempts to spend time with Russell, the now-adult children testified at trial that Russell never seemed interested in them or their activities, and he failed to show them love or affection. The children described how Russell would not make eye contact with them, rarely talked to them, and would stare off into the distance when they were around. They claimed that Russell's only interests involved his dog Whitey and restoring vintage vehicles.
[¶4.] At the time of his parent's divorce, Arlo was seven and remained with his father and helped him farm. Arlo described growing up in Russell's home as "eerie, quiet, . . . and scary" with "no furniture [and] no food." As Arlo aged, he took on more farm-related responsibilities. Arlo testified that Russell did not like banks, did not trust people and hated the IRS and cops. If he told his father "no" when asked to do something, Russell would fly into a rage. Due to his father's distrust for banks, Russell and Arlo placed the farm operating loans in Arlo's name. In 1985, over Labor Day weekend, when Arlo was 22 years old, Russell kicked him off the farm without warning. Arlo left with nothing but his pickup and the clothes on his back. At trial, Arlo testified that he thought Russell made him leave because Arlo had proposed to his girlfriend. With the farm operation loans still in his name and having little capacity to make the payments, Arlo had to sue his father for the money to satisfy the debt. Arlo continued to live in the area and attempted to reach out to Russell on two occasions, once standing next to him at a funeral and, in another instance, parking his own antique car next to Russell's at a parade. Russell refused to acknowledge him on either occasion. Accordingly, Arlo had little contact with Russell after 1986.
[¶5.] Around the time Russell kicked Arlo off the farm, Renny, who was then 17 years old, moved to the farm to help his father. Renny testified that his father was distrustful of banks and paranoid, keeping guns all over the house including above the doors, under his pillow, in the bathroom, mounted under the kitchen table, and in his vehicles. He also kept large amounts of cash in the house. Russell was prone to fits of rage and would scream and throw things when angry. Around 1995, Russell built a new shop where he continued to rebuild and restore antique cars. Within the shop, Russell built a small apartment-like unit, which he moved into full time. Through the years, Russell made comments to Renny referencing the quarters of land he had picked out for each child. Arlo was to receive the quarter across the road, and Renny was to get the quarter that was inherited from his grandfather.
[¶6.] By the late 1990s, several neighbors, including Jason Bender and Boyd Hagenson, started to frequent the shop to play cards in the evening. Around this same time, Bender could often be found at Russell's shop. Renny testified that during this time it became harder to talk to and reason with Russell and that Bender was with him "more and more."
[¶7.] Jean Cole, who worked for First State Bank from 1988 to 2014, testified that she had frequent contact with Russell as a bank customer. In the early years, she described him as confident and knowing his business. As the years progressed, he seemed a "little more confused on why he was there and what he was going to be doing." He once told her that "maybe his mind wasn't clicking like he wanted it to be." Cole testified that by 1998, Hagenson often accompanied Russell and would peer over his shoulder watching him intently. Russell took out tens of thousands of dollars in cash which he subsequently buried in various locations on his farm. Cole testified that, as time went on, she could tell Russell was confused.
[¶8.] Renny continued to live and work on the farm until 2001, when Russell abruptly told Renny he had to leave. Jerry Smith, a family acquaintance, testified that he was at a card game at Russell's shop a few months before Russell kicked Renny off the farm. Smith testified that Bender and his wife Tammy, a financial advisor, were also present. During the card game, a general conversation started in which everyone began making negative remarks about Renny, which lasted the entire evening. Outraged by this conversation, Smith left the shop because, in his view, Renny was not the type of guy who deserved it. After Renny was kicked off the farm, Smith tried to intervene with Russell, but he was unwilling to change his mind. Smith described Russell as distrustful of others, often believing he had been "screwed" by people. He also stated that Russell never forgot someone who had done him wrong. After getting ejected from the farm, Renny rented and farmed a place nearby and got a job selling seed. Meanwhile, Russell let his tillable acres lay fallow, resulting in "hundreds of acres of weeds . . . close to eight, nine feet tall[.]" Through the years, Renny would continue to have occasional interactions with Russell.
[¶9.] Sherri and Gina left Britton after high school. Gina moved to the Minneapolis area but made frequent trips home throughout her twenties. The trips became less frequent as her career and family grew and she moved farther away from Britton. She testified that her father refused to interact with her and she had not spoken to him since 1993. Sherri left Britton in 1982 and settled in Arizona. Sherri continued to visit her father at least six times between 1995 and 2001. Sherri testified that she last saw her father during the summer of 2004, and she could tell that he was getting weaker mentally and physically. Both daughters testified about how they had continued their attempts to foster a relationship with their father through the years by sending him letters, cards, and invitations to special events. But Russell never responded.
[¶10.] With the farmland lying fallow, in 2002, Bender began leasing Russell's land for $50 an acre, which at the time was close to market value. Two months later, Russell also began investing funds with Edward Jones through Bender's wife. Bender continued to lease Russell's land up until Russell's death in 2016. The price never exceeded $50 an acre, despite the market rental value increasing to around $200 an acre over the course of the next ten years. Bender acknowledged the rate was far below market value but insisted that Russell refused to accept more per acre.
[¶11.] As the years passed, Bender and Russell grew closer, and Bender provided him with more assistance. Bender bought a Model A car which he worked on in Russell's shop. He also mowed his lawn, sprayed around the outbuildings, cut wood and stocked meat in Russell's freezer. Bender testified that he would bring his little girls to Russell's shop and let them run around while he and Russell tinkered with cars. Bender also testified about how he would assist Russell in more...
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