Thacker v. Timm
| Decision Date | 04 January 2023 |
| Docket Number | #29868 |
| Parties | ESTATE OF Owen A. THACKER, Plaintiff and Appellant, v. Victoria TIMM, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
A. JASON RUMPCA of Riter Rogers, LLP, Pierre, South Dakota, Attorneys for plaintiff and appellant.
ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, LISA LOSANO CARRICO, Watertown, South Dakota, Attorneys for defendant and appellee.
[¶1.] The Estate of Owen A. Thacker appealed the circuit court's dismissal of the Estate's claims against Victoria Timm. We affirm.
[¶2.] Owen Thacker and Victoria Timm met while employed together in the late 1980s. They began a romantic relationship and moved in together at Thacker's residence a short time later. That relationship continued until Thacker died in 2020, but they never married. Each had children from prior marriages. In 2002, Thacker retired and transferred ownership of his solely-owned residence to himself and Timm as joint tenants. Timm retired in 2006. From the beginning of the relationship, the couple shared household expenses informally. In their retirement, the couple purchased three Certificates of Deposit (CDs) using Thacker's funds.
[¶3.] The first was a $20,000 CD issued to Timm in 2006 by Dacotah Bank ($20,000 CD) and made payable on death (POD) to Thacker. Timm continued to renew the CD with Dacotah Bank until 2015, when she withdrew the $20,000 to purchase a new $20,000 CD from Plains Commerce Bank. That CD was issued to Timm, POD to Thacker. The circuit court found that Thacker consented to each of these transactions.
[¶4.] The second was a $15,000 CD issued in 2010 by Dacotah Bank to Timm and Thacker jointly, with rights of survivorship ($15,000 CD). In 2015, Timm withdrew the funds and purchased a new $15,000 CD from Plains Commerce Bank. The new CD was issued to Timm, POD to her son, Steven Cychosz. The circuit court found that Thacker consented to these transactions.
[¶5.] The third was a CD in 2013 for $30,000 issued by Plains Commerce Bank to Timm, POD to Thacker ($30,000 CD). The circuit court found that Thacker consented to this transaction.
[¶6.] In 2013, Thacker added Timm to his checking account as a joint owner with rights of survivorship. The couple then opened a new joint savings account with rights of survivorship. In 2015, Thacker rolled over his 401(k) from his employer into a traditional IRA with the Scott Munger Agency.1 Thacker listed Timm as the death beneficiary on the new IRA account. Timm had referred Thacker to the Scott Munger Agency because she and other former coworkers had converted their 401(k)s to IRAs through that agency.
[¶7.] Thacker inherited a farm from his mother when she died in 2000. Thacker rented the farmland primarily to the Wohlleber brothers, Jim and Johnnylee. Thacker and Jim Wohlleber had been friends for over 30 years. A realtor, Norm Haan, talked with Thacker about selling the farm. In May 2014, Thacker agreed to sell the farm to the Wohllebers through Haan for $2.28 million. Thacker signed a listing agreement and purchase agreement. When Timm became aware of the proposed sale, she notified Thacker's daughter, Theresa Hanson. Hanson called Thacker to convince him not to proceed with the sale. Ultimately, Thacker did not attend the closing.
[¶8.] In June 2014, Hanson, Thacker, and Timm discussed Thacker's plans for his assets. Hanson recorded this conversation with the knowledge of Thacker and Timm. Following the conversation, Thacker and Timm added Hanson as a co-owner to their joint checking and savings accounts. They did this because Hanson explained to them that it would allow her to generate additional income for them by investing the contents in a mutual fund. Furthermore, Hanson explained that adding her would ensure that the funds in the account would go to Thacker's heirs upon the deaths of Thacker and Timm.
[¶9.] In July 2014, the Wohllebers sued Thacker, seeking specific performance of the purchase agreement to sell the farm. Haan joined the lawsuit, seeking commission from the sale. Hanson reacted to that lawsuit by filing a petition for guardianship and conservatorship over Thacker. As part of her efforts to obtain a guardianship and conservatorship, Hanson requested and received a supporting letter from Dr. Hollis Nipe. After hearing about the strife the sale of the farm was causing Thacker's family, Jim Wohlleber met with Thacker and agreed to drop the specific performance suit.
[¶10.] By the end of 2014, Thacker and Timm changed their minds about having Hanson on their accounts. They initially planned to remove Hanson from their accounts. When they learned that would require her consent, they withdrew the funds from those accounts and created new ones. Thacker and Timm owned these new joint accounts with rights of survivorship.
[¶11.] In early 2015, the Wohlleber lawsuit was officially settled, with the Wohllebers dropping the case in exchange for a five-year lease agreement. Haan settled as well, receiving a commission of $30,000 from Thacker. Thacker executed a trust agreement and placed the farm in trust to the benefit of Hanson and Thacker's other daughter, Angelina Gadd. Hanson did not pursue the guardianship and conservatorship efforts any further.
[¶12.] In 2017, Timm withdrew all funds from the $20,000 CD and the $15,000 CD, and she used the proceeds to open a new account with Edward Jones that was owned solely by her and listed Cychosz as the death beneficiary. Around the same time, Timm and Thacker moved their IRAs from Vision Point Advisory Group to Edward Jones. In November 2017, Timm and Thacker transferred funds from their joint savings account with rights of survivorship and funded two new joint accounts with rights of survivorship at Edward Jones. Ultimately, all the funds from those two accounts were combined into one account, leaving only one funded joint account. In 2018, Timm used the funds from the $30,000 CD to open another investment account with Edward Jones, solely owned by Timm, with Cychosz as the death beneficiary.
[¶13.] In 2008, Thacker experienced a cerebellar bleed and was diagnosed with a small acoustic neuroma
.2 Thacker remained healthy until he began to have balance issues several years later. In early 2014, because of these balance issues, Thacker consulted with Timm's internal medicine physician, Dr. Nipe. Dr. Nipe referred Thacker to the Department of Neurology at Mayo Clinic in Rochester, Minnesota, where he was evaluated by Dr. Cory Kogelschatz and Dr. Joseph Matsumoto. Dr. Kogelschatz's medical records indicate that Thacker exhibited mild cognitive impairment, but his functionality remained normal and did not meet the criteria for dementia. Dr. Matsumoto's medical records indicate that besides gait and balance issues, Thacker's neurological exam did not reveal any defects.
[¶14.] Toward the end of 2014, while the Wohllebers’ real estate lawsuit was pending and Hanson was still pursuing the guardianship over Thacker, Hanson emailed Dr. Nipe and proposed language for a letter recommending the appointment of a guardian and conservator for Thacker. Dr. Nipe issued a letter that used Hanson's language nearly verbatim and said a guardianship and conservatorship were necessary due to Thacker's acoustic neuroma
and possible normal pressure hydrocephalus.3 As previously noted, when the litigation over the farm was dropped and the farmland was placed in a trust, Hanson abandoned her efforts to obtain conservatorship and guardianship over Thacker.
[¶15.] In 2015, Thacker signed a non-springing power of attorney appointing Timm as attorney-in-fact to have broad authority to act on his behalf, with Hanson as contingent attorney-in-fact. Before and after the power of attorney, Timm helped Thacker schedule his appointments and made sure he attended them, kept him up to date on his medically prescribed exercises, made sure he stayed in touch with his daughters (often calling them and handing the phone to Thacker), and took care of miscellaneous household duties.
[¶16.] Thacker's relatively good health continued until June 2018, when he entered a nursing home after suffering an aortic aneurysm
.4 For the first couple of months after he entered the nursing home, Timm used the joint checking account to pay the cost of the nursing home. In August, Thacker signed paperwork to transfer funds from his IRA to their joint checking account monthly to pay the nursing home's cost. Timm obtained this paperwork and brought it to Thacker.5
[¶17.] In January 2019, Hanson and Gadd filed a petition to be appointed co-guardians and co-conservators for Thacker. Timm objected to the petition. In that guardianship and conservatorship case—separate from the case before us on appeal—a different circuit court found that Thacker was unable to take care of his own daily needs and appointed Hanson and Gadd as his co-guardians and co-conservators in October 2019.
[¶18.] After they were appointed co-guardians and co-conservators, Hanson and Gadd filed this suit on behalf of Thacker against Timm, alleging breach of fiduciary duty, conversion, and undue influence. When Thacker died, Hanson was appointed as personal representative to Thacker's estate. After Thacker's death, the parties agreed that Thacker's estate (Estate) could be substituted to replace Hanson and Gadd as the Plaintiff.
[¶19.] This case proceeded to a bench trial, during which the Estate added a claim for breach of duty as trustee of implied trust. The circuit court issued a bench ruling, followed by written findings of fact and conclusions of law, which incorporated the bench ruling. The circuit court determined: (1) Timm did not owe a fiduciary duty to Thacker concerning the CDs, bank accounts, and retirement accounts; (2) Timm did not convert Thacker's assets; (3) Timm did not exert undue influence upon Thacker; and (4) the joint bank accounts were not implied trusts....
To continue reading
Request your trial