#30969-r-MES 2026 S.D. 1
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IN THE MATTER OF THE ESTATE OF JUDITH ANN O’NEILL, Deceased.
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TODD COUNTY, SOUTH DAKOTA
THE HONORABLE BOBBI J. RANK Judge
MICHAEL V. WHEELER of DeMersseman Jensen Tellinghuisen & Huffman, LLP Rapid City, South Dakota
JAMES G. SWORD Hot Springs, South Dakota Attorneys for appellant James Anthony O’Neill.
CLINT SARGENT of Meierhenry Sargent LLP Sioux Falls, South Dakota
JAMES S. SIMKO of Cadwell, Sanford, Deibert & Garry LLP Sioux Falls, South Dakota Attorneys for appellees Sandy Lang, Beth O’Neill, and Richard O’Neill.
CONSIDERED ON BRIEFS OCTOBER 7, 2025 OPINION FILED 01/07/26 #30969
SALTER, Justice
[¶1.] James Anthony O’Neill (Tony), filed a petition for formal probate of his
mother’s last will and testament and a first codicil (collectively the Will) which left
her entire estate to Tony and specifically disinherited her other children. Tony’s
siblings filed an objection, asserting the Will was the product of undue influence. At
the trial of this undue influence claim, the circuit court relied upon the doctrine of
collateral estoppel to admit findings of fact and conclusions of law entered in a prior
civil case involving Tony and his brother, Richard O’Neill (Rick). The court also
instructed the jury that all of the previous findings and conclusions—including
adverse credibility determinations regarding Tony’s testimony—had been
conclusively established. The jury determined that Tony unduly influenced his
mother, and as a result, the Will was invalid. Tony appeals. We reverse and
remand for a new trial.
Factual and Procedural Background
[¶2.] Judith and Dean O’Neill were a married couple who farmed and
ranched in Bennett County and raised their four children, Tony, Rick, Sandy Lang,
and Beth O’Neill. When Tony and Rick became adults, they began their own
farming and ranching operation in the area, and the two brothers worked together
for a number of years.
[¶3.] But beginning in 2011, Tony and Rick began to separate their business
interests and their related real and personal property. As part of the effort, they
attempted to divide their property through written agreements. Eventually,
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however, there was a significant amount of conflict as to the effect and
enforceability of the agreements.
[¶4.] In order to resolve their differences and complete the division of the
two brothers’ property, Tony sought judicial intervention and commenced a civil
action in Bennett County (the prior action). The prior action was tried to the court
in July 2013, and, simply put, Tony lost badly on all issues. The court enforced both
a land separation agreement and an asset separation agreement and divided the
remaining assets in a way that resulted in Rick receiving more property than Tony,
in part, Rick later explained, because Tony had drafted the agreements unwisely.
[¶5.] The court in the prior action entered comprehensive written findings of
fact and conclusions of law related to the brothers’ business dealings and property.
Among these were discrete findings and conclusions about the land separation
agreement, including allegations that Rick forged Tony’s signature and claims that
Tony surreptitiously listed the brothers’ farm and cattle businesses as collateral on
loans for Tony’s own separate ventures.
[¶6.] In connection with its resolution of these issues contrary to Tony’s
positions, the prior court made multiple adverse credibility determinations in which
it found Tony’s version of particular facts relating to his dealings with Rick or their
farming and ranching business were “not credible.” In addition, the prior court
made other findings concerning Tony’s conduct vis-à-vis Rick that were highly
unfavorable, including the following pointed critique:
Tony’s strategy in dealing with Rick has been one of dishonesty and malicious mischief. Tony was not honest with Rick before this lawsuit, and during this lawsuit, in the handling of the corporate financing. In addition, Tony committed fraud on this
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court by lying about the existence of a signed Land Separation Agreement. . . . Tony was also not honest with this court when he denied the existence of the negotiated agreement reached between the parties.1
[¶7.] Seemingly unrelated to her sons’ business dispute, Judith had grown
weary of Dean’s mistreatment, which she stated included years of verbal and
physical abuse. In 2013, she moved from the family’s farm to Rapid City, and she
commenced a divorce action in 2014. During the pendency of the divorce, Judith
executed her Will on August 26, 2016, leaving to Tony 100% of her interest in all
the real estate she and Dean owned. Judith also stated in her Will, “It is my
specific request that Tony receive the family ranch home place upon my death.”
She left the remainder of her estate to Tony and her daughter Sandy, in equal
shares.
[¶8.] As explained by her former divorce lawyers during their testimony in
the undue influence trial, Judith’s effort to obtain a divorce was protracted. She
believed the reason was, at least in part, attributable to delay tactics orchestrated
by Dean. As time went by, Judith also attributed some of the blame to Sandy, who
sought a conservatorship for Judith only days before the scheduled divorce trial.
Judith and Dean ultimately settled their divorce in April 2018, and the resulting
decree required Dean to make an equalization payment to Judith in the amount of
$605,000.
1. Tony appealed the judgment in the prior action, and we affirmed it in a published decision, with the exception of a punitive damage award imposed against Tony, which we vacated. See O’Neill v. O’Neill, 2016 S.D. 15, 876 N.W.2d 486.
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[¶9.] Prior to this, though, Judith executed the first codicil to the Will on
July 26, 2017, which removed Sandy from her estate plan. Under the first codicil,
Judith left all her real estate, as well as the entirety of the remainder of her estate,
to Tony and excluded her other children by stating, “As it relates to Richard O’Neill,
Beth O’Neill, and Sandy Lang f/n/a [sic] Sandy O’Neill, they are specifically and
intentionally omitted form [sic] this Will and shall not receive anything from my
Estate.”
[¶10.] Judith died on November 28, 2018, and Tony filed a petition for formal
probate of the Will on March 20, 2019. His siblings—Rick, Sandy, and Beth (the
Respondents)—filed an objection, alleging that Judith’s Will was the product of
undue influence, lack of capacity, fraud, duress, mistake, and revocation.
[¶11.] Prior to the undue influence trial, the Respondents moved for an order
declaring the factual findings from the prior action as conclusively established
pursuant to the doctrine of collateral estoppel. In their written submissions to the
circuit court, the Respondents described the prior action as “a tense, lengthy, and
deeply personal case that centered on document validity (partnership separation
agreements and land separation agreements) and fiduciary duties owed to the
brothers’ farm corporations.”
[¶12.] The Respondents alleged a relationship between the outcome of the
prior litigation involving business issues between Tony and Rick and the undue
influence case, but more in terms of a case theory—not particular common issues.
For instance, the Respondents claimed that the prior litigation left Tony in a
perilous financial condition which, in turn, led him to exert undue influence over
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Judith through deception about Rick. But, critically, the Respondents did not
identify particular issues from the prior litigation that were identical to the ones in
the undue influence case.
[¶13.] Rather, the effort by the Respondents to use collateral estoppel to
admit the findings and conclusions from the prior litigation seemed more of an
effort to establish an unflattering aspect of Tony’s conduct or character. They
claimed, in this regard, that “Tony’s conduct in his business separation with Rick,
Tony’s defiance of court orders and witness oaths, and Tony’s cascading financial
condition are all so blended and connected with the elements of undue influence
that [the prior court’s] findings are part of the res gestae of Tony’s overall scheme.”
(Emphasis added.)
[¶14.] Tony opposed the admission of the findings and conclusions on several
bases and maintained that credibility determinations were for the finder of fact in
the undue influence trial. And as it related to specific areas that the Respondents
believe were conclusively established by the prior action, Tony argued the
Respondents were required to “identify each finding of fact it would intend to offer
so that it may be properly scrutinized by the court and counsel prior to its use at
trial.”
[¶15.] The circuit court admitted nearly all of the findings and conclusions as
a trial exhibit that spanned 44 pages, excepting only a portion relating to a punitive
damage award we reversed on appeal.2 See supra n.1. The court concluded en
2. The circuit court also admitted a six-page order reflecting the division of the land and assets between Tony and Rick, as well as a subsequently entered, (continued . . .) -5- #30969
masse “that the elements of issue preclusion have been met with respect to the
foregoing findings and conclusions” and that the Respondents were “not required to
put on evidence to re-litigate any of those issues, nor can Tony O’Neill re-litigate
any of those issues.” However, the court ordered that the prior action findings and
conclusions were subject to other evidentiary challenges such as relevancy. The
court ordered Tony to raise any such “additional evidentiary objections . . . in
writing and identified by paragraph number with appropriate authority supporting
the objection[.]”
[¶16.] Although the undue influence trial was rescheduled several times,
Tony never submitted written objections to further challenge the admission of the
findings and conclusions other than the objections he identified initially. Tony’s
counsel renewed those objections prior to the beginning of the undue influence trial
and again during Tony’s testimony.
[¶17.] The prior action findings and conclusions featured prominently in the
Respondents’ case during the undue influence trial. However, the findings and
conclusions were used principally as a means of reopening specific collateral topics
related to the brothers’ prior business dealings and then juxtaposing Tony’s
discredited views of the underlying facts against the prior court’s adverse findings
relating to his credibility and conduct. The following exchange between the
Respondents’ counsel and Tony is emblematic:
________________________ (. . . continued) three-page contempt order that included the finding that “Tony is . . . guilty of [c]ontempt of [c]ourt for failure to comply with the [c]ourt’s [o]rder.”
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Counsel: So in Finding of Fact 39, [the prior court] states, Rick made a copy of the written agreement signed by both he and Tony. A copy of the Land Separation Agreement is Exhibit C. Tony’s testimony to the contrary is not credible.
Again, you’re disputing that still today?
Tony: I don’t agree with it but I’ve learned to live with it.
Counsel: Finding of fact 40, the judge found that Tony took the original of Exhibit C with him at the conclusion of the meeting. Tony’s testimony to the contrary is not credible.
Again, you’re disputing that you took the original with you that day?
Tony: I don’t agree with it but I’ve learned to live with it.
[¶18.] The circuit court later instructed the jury that they were to consider
the findings and conclusions as “conclusively established facts that you must accept
as true. Such findings and conclusions carry the same weight as all the evidence
you heard in this trial.”
[¶19.] The jury ultimately determined that Judith’s Will was invalid due to
Tony’s undue influence of Judith. Tony appeals, asserting that the circuit court
erred when it admitted the findings of fact and conclusions of law from the prior
action.
Analysis and Decision
Collateral Estoppel
[¶20.] Collateral estoppel, also known as issue preclusion, is one of two
preclusion concepts encompassed by the doctrine of res judicata. Healy Ranch, Inc.
v. Healy, 2022 S.D. 43, ¶ 40, 978 N.W.2d 786, 798. The first type—issue
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preclusion—“refers to the effect of a judgment in foreclosing relitigation of a matter
that has been litigated and decided.” Id. (citation omitted).
[¶21.] The second type of res judicata, known as claim preclusion, is broader
than issue preclusion and “refers to the effect of a judgment in foreclosing litigation
of a matter that never has been litigated, because of a determination that it should
have been advanced in an earlier suit[.]” Id. (alteration in original) (citation
omitted). Here, we are concerned only with issue preclusion, which when
applicable, prevents relitigation of issues actually litigated in a prior proceeding.
Id. ¶ 41.
[¶22.] We noted in Mendenhall v. Swanson, that principles of issue preclusion
can apply to prior factual findings, explaining:
Under the judicially-developed doctrine of [issue preclusion], once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. . . . This doctrine relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication. . . . A party may invoke issue preclusion either offensively or defensively.
2017 S.D. 2, ¶ 10, 889 N.W.2d 416, 419–20 (internal citations omitted) (emphasis
added).
[¶23.] Despite its utility, collateral estoppel may not lead to the preclusion of
all facts in all subsequent cases; rather, it “bar[s] relitigation of an essential fact or
issue involved in the earlier suit” and only if a four-part test is satisfied:
(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior
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adjudication? (4) Did the party against whom the plea is asserted have a full and fair opportunity to litigate the issue in the prior adjudication?
Hamilton v. Sommers, 2014 S.D. 76, ¶ 34, 855 N.W.2d 855, 866 (alteration in
original) (citation omitted) (emphasis added).
[¶24.] The challenge in this appeal implicates two particular collateral
estoppel rules. The first, from the four-part test set out in Hamilton, requires us to
consider whether the factual issues decided in the prior action relating to the
division of farmland and assets between Tony and Rick are identical to those
presented in the undue influence trial. And, second, as a fundamental requirement
of collateral estoppel, we must consider whether the prior court’s adverse credibility
determinations relating to Tony’s testimony were essential to its judgment. “We
review a circuit court’s application of collateral estoppel de novo.” Id. (citation
omitted).3
1. Identical issues.
[¶25.] Tony maintains in this appeal that because the dispositive issues in
the prior case and the present case are not identical, the circuit court erroneously
applied collateral estoppel to the prior action findings and conclusions. The
Respondents claim that Tony’s conduct toward Rick as related in the findings and
conclusions in the prior action, his defiance of court orders in the prior action, and
3. In his appellate brief, Tony views the issue of admission of the findings and conclusions from the prior action as an evidentiary ruling to be reviewed under our abuse of discretion standard. But the fundamental issue presented here is whether the circuit court correctly applied collateral estoppel principles—a legal issue we review de novo.
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his failing financial condition were all so blended and connected with the elements
of undue influence that the issues in the two actions are identical.
[¶26.] We believe that the comparison the Respondents make between the
two cases is more figurative, or thematic, than literal. The claims addressed in the
prior action are much different than those in the undue influence action, and the
constituent factual issues are not identical. Indeed, the Respondents have not
identified the existence of any discrete issues that were litigated to completion in
the prior action that were identical to those presented in the undue influence trial.
See Madalena v. Zurich Am. Ins. Co., 532 P.3d 776, 783 (Colo. Ct. App. 2023) (“An
‘issue’ may be one of evidentiary fact, ultimate fact, or law.”) (citing Restatement
(Second) of Judgments § 27 cmt. c).
[¶27.] As the undue influence litigation played out, it appears the
Respondents sought to apply collateral estoppel to allow “factual findings” from the
prior court, not so much to establish distinct facts about the merits of the prior
action, but to support their assertion that Tony was not credible, had not followed
the court’s orders, and had mistreated Rick. In this way, the findings were part of a
broader theory of the case for the Respondents, as explained by their counsel in his
brief on the collateral estoppel issue:
Starting in the summer of 2011, Tony set upon a scheme to bully his brother/business partner and gain financial advantage over him. Even before Tony commenced litigation against Rick, Tony portrayed himself to his mother as the victim. Tony convinced his mother that Rick was getting an unfair split of the partnership assets and that Dean had completely sided with Rick. Tony convinced Judith that Dean would disinherit Tony when Dean died. Tony convinced his mom that Rick has convinced his dad to disinherit Tony. Many of these facts were previously litigated and found to be untrue by [the prior court].
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However, Tony’s allegations of Rick and Dean’s conspiring against Tony were effective in convincing Judith to divorce Dean and to eventually disinherit all of her children and grandchildren except Tony.
[¶28.] Despite counsel’s statement that “many of these facts . . . were found to
be untrue,” the prior court did not determine whether Tony had lied to his mother
or tried to unduly influence her. The factual issues that were litigated in the prior
action were simply not identical to those in the undue influence trial, which is not
surprising given the vastly different nature of the two actions. The prior action was
an effort to divide land and assets between Tony and Rick as former business
partners; the undue influence case, predictably, featured different factual issues
relating to Tony’s conduct and alleged deception relating to Judith, not Rick.
[¶29.] The Respondents appear to argue that Tony’s credibility or his
duplicity, or both, were central issues pervading both cases, such that the credibility
and misconduct findings from the prior action could be conclusive in the undue
influence action. But this looks less like collateral estoppel and much more like
other acts evidence. See SDCL 19-19-404 (Rule 404) (providing that character
evidence is generally not admissible subject to certain exceptions). In fact, the
Respondents have alluded, at various points in the case, to the evidentiary concept
of res gestae—or intrinsic evidence—which is often associated with other acts
evidence. See State v. Stark, 2011 S.D. 46, ¶ 25, 802 N.W.2d 165, 173
(distinguishing between res gestae and other acts evidence under Rule 404(b)). This
excerpt from the Respondents’ brief to the circuit court illustrates the point:
Tony’s conduct in his business separation with Rick, Tony’s defiance of court orders and witness oaths, and Tony’s cascading financial condition are all so blended and connected with the
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elements of undue influence that [the prior court’s] findings are part of the res gestae of Tony’s overall scheme.
[¶30.] However, the circuit court admitted the prior action findings and
conclusions under the doctrine of collateral estoppel—not res gestae or Rule 404.
And using collateral estoppel to conclusively establish credibility or litigation
misconduct issues from a prior action in a different later action is not sustainable.
2. Issues necessary or essential to the prior judgment.
[¶31.] In addition to erroneously determining widespread identity of issues
between the prior action and the undue influence case, the circuit court’s decision to
admit the prior action findings and conclusions also failed to account for the
fundamental design of the collateral estoppel doctrine—the findings were essential
to the prior judgment. See Mendenhall, 2017 S.D. 2, ¶ 10, 889 N.W.2d at 419–20
(holding that issue preclusion requires the prior findings or conclusions were
necessary or essential to the prior judgment); Hamilton, 2014 S.D. 76, ¶ 34, 855
N.W.2d at 866 (same). An issue was necessarily decided in an earlier action when it
was “actually litigated” and was “essential to the prior decision.” Riverwood Com.
Park, L.L.C. v. Standard Oil Co., Inc., 729 N.W.2d 101, 109 (N.D. 2007).
[¶32.] Here, when the circuit court adopted the findings and conclusions from
the prior action, it made a general finding that the four-part collateral estoppel test
from Hamilton was satisfied, but the court did not make specific findings on any of
the enumerated requirements, including whether the prior action findings and
conclusions were necessary or essential to the prior judgment. And from our review
of the findings and conclusions, most or all of what the Respondents sought to
establish through collateral estoppel were adverse credibility determinations
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concerning Tony, which were decidedly not necessary or essential to the prior
judgment.
[¶33.] The Louisiana Court of Appeals’ decision in Rao v. Rao, 927 So. 2d 356
(La. Ct. App. 2005), supports this conclusion. In Rao, the wife in a divorce action
argued that the trial court’s prior credibility determination on an unrelated issue—
fault for purposes of final spousal support—also supported her assertion that an
agreement was the product of a fraudulent scheme. Id. at 361. The wife argued
that the “trial court’s prior credibility determination in the context of resolving a
different legal issue affords her the benefit of issue preclusion under the doctrine of
collateral estoppel.” Id. The appellate court rejected the claim and explained:
While it is true that credibility is essentially a fact issue, it is not generally the dispositive issue before the trier of fact, but rather a preliminary issue or factor in the determination of the ultimate dispositive issue. As one court has stated, “[i]ssue preclusion requires the issue to be precluded to have been a dispositive issue which the prior court must have considered in a contest between the same parties.” It is well settled that in reaching its conclusions, the trier of fact need not accept all of the testimony of any witness as being true or false and may believe and accept any part or parts of a witness’s testimony and refuse to accept any other part or parts thereof.
Id. (citations omitted) (alteration and emphasis in original) (italics added).
[¶34.] We think this reasoning is sound. In this case, the prior court’s
credibility determinations relating to Tony were not necessary or essential to the
prior judgment. The court could have made the same determinations based simply
upon the relative weight of the evidence, even rejecting certain evidence without
holding, as it did, that Tony had been dishonest. Indeed, the credibility issues in
the prior action are so remote to the issues in this undue influence case that they
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created the not-so-subtle message that Tony was a liar in the undue influence case
because he had been found not credible in the prior action involving Rick.
[¶35.] Allowing the prior court’s credibility determinations to be used in this
preclusive way is inconsistent with the well-settled rule that credibility
determinations are exclusively within the province of the jury. Estate of Tank, 2023
S.D. 59, ¶ 47, 998 N.W.2d 109, 124 (noting “[i]t is within the province of the jury as
the ultimate trier of fact to weigh conflicting evidence and decide upon the
credibility of witnesses.”) (citation omitted); State v. Rouse, 2025 S.D. 29, ¶ 19, 23
N.W.3d 467, 474 (“The jury is the exclusive judge of the credibility of the
witnesses[.]” (citation omitted)); 75A Am. Jur. 2d Trial § 955 (“In charging the jury,
a trial judge may not interfere with the province of the jury in determining the
credibility of witnesses, and the trial court’s commenting on the witnesses’
credibility may constitute prejudicial error.”). For these reasons, the circuit court
incorrectly applied the principles of collateral estoppel, and we must consider
whether the error was prejudicial.4
4. The Respondents claim that because Tony did not file specific written objections to particular findings as directed by the circuit court, “Tony has waived his right to contest the admission of [the findings and conclusions] on any basis other than the proper application of the doctrine of collateral estoppel and issue preclusion.” But this argument suggests a distinction that does not exist; the proper application of the collateral estoppel rules is the issue Tony identifies on appeal. And as it relates to the prior court’s adverse credibility findings in particular, Tony objected on the basis of relevance which is contained within the collateral estoppel showing of identity of issues, i.e., if the issues presented at the earlier and later actions are, indeed, identical, evidence of the prior adjudication is not merely relevant to the later one—it is the same thing. Cf. Megaro v. McCollum, 66 F.4th 151, 160 (4th Cir. 2023) (collateral estoppel bars litigation of claims where four factors are met, including that “the issues were material and relevant to the disposition (continued . . .) -14- #30969
Prejudice
[¶36.] We have recognized that the circuit court’s error in the application of
collateral estoppel “is subject to the harmless-error rule.” Mendenhall, 2017 S.D. 2,
¶ 13, 889 N.W.2d at 420–21 (court’s erroneous treatment of facts as conclusively
established analyzed for harmless error) (citing SDCL 15-6-61). Under this rule, “if
one cannot say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that substantial
rights were not affected.” Id. (citing Voorhees Cattle Co., LLP v. Dakota Feeding
Co., LLC, 2015 S.D. 68, ¶ 17, 868 N.W.2d 399, 408 (in determining whether
evidence admitted to conclusively prove issues at trial was reversible error, court
applied prejudicial error analysis, stating that error “is prejudicial if it ‘most likely
has had some effect on the verdict and harmed the [party’s] substantial rights.’”
(citation omitted))).
[¶37.] The credibility of the witnesses is important in all cases, but perhaps
particularly so in an undue influence case due to the nature of the evidence and
difficulty in defending against such a claim. As we have noted, in such cases, the
testator is not available to testify, the influence is not usually exercised in the open,
and there is often no direct proof of undue influence. In re Metz’ Estate, 100 N.W.2d
393, 397 (S.D. 1960); Thomas E. Simmons, Testamentary Incapacity, Undue
________________________ (. . . continued) of the prior action”); Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995) (collateral estoppel test includes requirement that “relevant issues were actually litigated and decided in the prior proceeding”).
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Influence, and Insane Delusions, 60 S.D. L. Rev. 175, 203 (2015) (“Direct evidence of
undue influence is frequently unavailable because the testator is (obviously)
deceased, the wrongdoer cannot be expected to provide helpful testimony, and most
acts of undue influence occur in a private setting where the only observers were the
testator and the wrongdoer, one of whom is dead and the other uncooperative.”).
[¶38.] Further, proof of the claim relies almost entirely on inference—the
testator’s susceptibility to influence, the opportunity to exert influence, the
disposition to do so, and a result clearly showing the impact of influence. Estate of
Tank, 2020 S.D. 2, ¶ 33, 938 N.W.2d 449, 459. This is undoubtedly why Tony’s
credibility was the centerpiece of the Respondents’ case.
[¶39.] Indeed, Tony’s lack of credibility was the theme of much of opening
statement and closing argument of counsel for the Respondents. During his
opening statement, the Respondents’ counsel claimed that “Tony lied to his mom.
He cheated his brother. He committed fraud against his brother.” Counsel also
stated that the prior court concluded Tony was not credible and quoted portions of
the findings and conclusions relating to the prior court’s credibility determinations.
[¶40.] In his closing argument, counsel for the Respondents told jurors that
they must “conclusively accept” the findings and conclusions and, most significantly,
connect Tony’s credibility in the prior action to the current one by association—i.e.,
because Tony had not disavowed his former testimony relating to his business
dealings with Rick, he was lying in the undue influence case:
It is a fact you must accept. Tony lied in court. Tony tried to defraud [the prior court]. . . . Now that’s relevant . . . to instruction 14 where the Court says, if you believe that any witness testifying in this case has knowingly sworn falsely to
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any material fact in this case, then you may reject all of the testimony of the witness.
One of the first questions I asked Tony, do you stand by all of the stuff that you told [the prior court] ten years ago. Right? I gave him a chance to say no, she caught me. Right? I was lying back then and I admit it, I apologize to Rick, I shouldn’t have done that. But no, he’s here lying to you as well.
He’s still claiming that he believes Rick forged that document. He’s still claiming that there was never a written signed agreement between the two of them.
[¶41.] But this sort of heads-I-win/tails-you-lose argument represents a
disordered view of the credibility determination that the jury was required to make
in this case. In our view, the circuit court’s decision to admit the findings and
conclusions and then instruct the jury that they were conclusive proof very likely
had a massive impact on how the jury viewed Tony’s testimony.5 The jury was
effectively advised that Tony’s testimony was not credible, which we believe most
likely had an effect on and substantially swayed the verdict, and therefore, affected
Tony’s substantial rights. See Mendenhall, 2017 S.D. 2, ¶ 13, 889 N.W.2d at 420–
21; Vorhees, 2015 S.D. 68, ¶ 17, 868 N.W.2d at 408.
Conclusion
[¶42.] The circuit court erred in wholesale admitting findings of fact and
conclusions of law regarding issues that were not identical to issues in the present
case and not necessary or essential to the prior judgment. By then instructing the
5. The jury was instructed that Tony and his mother were in a confidential relationship (Tony was Judith’s attorney in fact), and the circuit court further instructed that if it found that Tony actively participated in the preparation of Judith’s Will and he unduly profited therefrom, Tony bore the burden to show he did not take unfair advantage of his mother.
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jury that all of the findings—including credibility determinations and specific
statements that Tony had been dishonest with Rick and the court—and instructing
the jury to consider those findings and conclusions as established, the court
effectively foreclosed the jury’s ability to undertake its own independent assessment
of the witnesses’ credibility on the issues more closely connected to the Respondents’
undue influence claim. We reverse and remand for a new trial.
[¶43.] JENSEN, Chief Justice, and DEVANEY, and MYREN, Justices, and
KERN, Retired Justice, concur.
[¶44.] GUSINSKY, Justice, not having been a member of the Court at the
time this action was considered by the Court, did not participate.
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