Estate of Tank

998 N.W.2d 109, 2023 S.D. 59

• Court: South Dakota Supreme Court
• Decided: November 21, 2023
• Docket: 29809
• Status: Published

Opinion

#29809-r-JMK 2023 S.D. 59

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

IN THE MATTER OF THE ESTATE OF RUSSELL O. TANK, Deceased. ****

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.

ARGUED OCTOBER 5, 2022 OPINION FILED 11/21/23 #29809

KERN, Justice

[¶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.

Factual and Procedural History

[¶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

-1- #29809

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

-2- #29809

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

-3- #29809

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

-4- #29809

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.

-5- #29809

[¶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

significant ways, such as accompanying him on trips to Ohio where he visited

friends, taking him to Rapid City to visit his brother’s memorial, and burying his

dog Whitey after he had to put it down.

[¶12.] Several neighbors testified that it was often difficult for them to be

alone with Russell. Ben Waldner, a long-time friend from the Hutterite colony,

testified that it appeared to him that Hagenson did not want him to be alone with

Russell. Darin Roehr, a family friend, also testified that Hagenson, another

neighbor of Russell’s, was controlling and would come out of the shop if he came to

visit Russell. Waldner also noticed photographs of children on Russell’s refrigerator

and, when asked, Russell told him Bender or Hagenson put them there and he did

not know who was depicted in the pictures.

[¶13.] In a little over a decade, Russell executed three wills applicable to this

appeal. The first will was prepared by attorney Tom Sannes and executed in 2001.

In preparing this first will, Russell told Sannes that he wanted to disinherit his

three youngest children and leave everything to his daughter Sherri. Foreseeing

litigation, Sannes required Russell to receive a competency evaluation from a local

physician before drafting his will. The physician examined Russell and sent Sannes

-6- #29809

a letter confirming Russell was mentally competent. Sannes then drafted and

Russell executed the 2001 will, which gave Sherri all his real property, valued at

approximately $3.5 million, and left several vintage vehicles to a friend.

[¶14.] The second will, executed in October 2004, disinherited Sherri and

named Bender as the primary beneficiary. Russell told Sannes that he wanted to

remove Sherri and replace her with Bender. Russell told Sannes that Sherri did not

come to see him anymore, even though, unbeknownst to Sannes, Sherri had visited

him just two months earlier. At trial, Sannes testified that he had no impression

that Bender encouraged or was directly involved in Russell’s decision to change his

will. Russell told Sannes that Bender was a good guy who did not know of his

plans. He also conveyed that Bender was in the hospital recovering from a

motorcycle accident and that he had been visiting him. Sannes stated that Russell

clearly expressed his wishes and fully understood what he was requesting. Under

the 2004 will, Russell left all of his property to Bender except for the same vintage

vehicles which he left to friends, including Hagenson.

[¶15.] In 2009, Russell directed Sannes to draft a durable power of attorney

and health care power of attorney naming Bender as his attorney-in-fact with

Bender’s wife as the alternate. Sannes testified that there was no indication of

pressure to execute the powers of attorney.

[¶16.] Russell made his third and final will in 2012. On November 9, Russell

visited Sannes intending to make changes to his will. Sannes testified that he

advised Russell not to make any changes. At the time, it appeared Russell heeded

Sannes’s advice. However, a month later, Russell sought attorney Kari Bartling’s

-7- #29809

services to draft a new will. Russell told Bartling that he was angry with Sannes

because Sannes had changed and was now against him. Bartling agreed to draft

Russell’s third will, which revoked all prior wills and named Bender as the sole

beneficiary and personal representative of Russell’s estate. Again, the will

specifically disinherited Russell’s four children. Bartling testified that she had no

hesitation about Russell’s ability to understand his request, so she proceeded to

draft the will without ordering a competency evaluation. Bartling also

acknowledged that she would have required Russell to see a doctor before drafting

the will if she was aware of a diagnosis indicating cognitive decline or delusion

disorder.

[¶17.] During her testimony, Bartling was shown two exhibits of codicils

handwritten by Bender two weeks after Russell executed his 2012 will with

Bartling. The codicils purported to give John Beaner, Bender’s old college

roommate, and Hagenson six of Russell’s vehicles and $100,000 cash. Bartling

testified that because all property was bequeathed to Bender in the 2012 will, she

was unaware of any circumstances that would make Russell change his mind about

the division of his property within two weeks of drafting a new will. Bartling also

acknowledged that the codicils were invalid because they were in Bender’s

handwriting, not Russell’s.

[¶18.] Russell died on May 25, 2016, at age 84. Upon Russell’s death, Bender

offered the 2012 will into probate on June 6, 2016, as Russell’s last will and

testament. Soon after, Russell’s children (Contestants) petitioned, challenging the

will on the grounds of undue influence, lack of testamentary capacity, and insane

-8- #29809

delusion. In 2018, Bender moved for summary judgment on the Contestants’

petition. The circuit court granted Bender’s motion, concluding that Russell did not

lack testamentary capacity, did not suffer from insane delusion, and there was no

evidence supporting a claim of undue influence. Contestants appealed all three

grounds the circuit court relied upon in granting summary judgment.

[¶19.] This Court reversed the circuit court’s decision regarding Sherri’s

claim for undue influence. In re Estate of Tank (Tank I), 2020 S.D. 2, 938 N.W.2d

449. This Court determined that summary judgment was not appropriate because

of the existence of issues of material fact regarding “Russell’s decision to give nearly

all his property to Sherri in the 2001 will and then disinherit her completely in the

2004 will, just three years later.” Id. ¶ 44, 938 N.W.2d at 461. Relying on In re

Blake’s Estate, 136 N.W.2d 242, 247 (S.D. 1965), Bender argued that the consistency

between the 2004 and 2012 wills strongly negates the existence of undue influence.

This Court acknowledged that the similarity between the two wills would be

relevant information for a fact finder to consider but would not in and of itself be

determinative of the issue of undue influence. See Tank I, 2020 S.D. 2, ¶ 44, 938

N.W.2d at 461. Sherri claimed that the 2012 will was the result of a continued

multi-year undue influence scheme that pervaded the 2004 will. After remand, the

parties engaged in pretrial proceedings including Bender’s motion in limine which

the court granted, in part, excluding nearly all testimony of events occurring after

2012. 1

1. Some of the testimony referenced in paragraph 42 of Tank I was excluded as irrelevant, including evidence that Russell gave Bender a large amount of (continued . . .) -9- #29809

[¶20.] The circuit court conducted a four-day jury trial on Sherri’s undue

influence claim. Sherri called sixteen witnesses, including Dr. Rodney Swenson, a

neuropsychologist, who testified that in his opinion Russell was cognitively

impaired and subject to undue influence. In preparation for his testimony

regarding Russell’s cognitive abilities, he reviewed Russell’s medical records, brain

MRIs taken in 2003 and 2010, and the depositions of the witnesses. In Dr.

Swenson’s opinion, Russell was mentally ill, suffering from vascular dementia,

persistent delusional disorder, and paranoia, leaving him vulnerable to

manipulation and undue influence.

[¶21.] Dr. Swenson also described the characteristics of “influencers” who use

their relationships with a vulnerable person to “embed themselves with the person

and start the process of . . . predator[y] behavior.” Such “influencers” often feel they

are entitled “to what they’re getting from this person even though it is out of

proportion to what they should get.” Dr. Swenson explained that a mentally ill

person like Russell could be effectively manipulated by playing along “with their

delusional disorder” without confronting them or rocking the boat. In Dr.

Swenson’s opinion, Russell was susceptible to undue influence by Bender.

________________________ (. . . continued) cash in 2009 for safekeeping; that after Russell was placed in a nursing home in 2015, Bender dug up his cash and put it in a safe which he did not inventory or reveal until after Russell’s death; and that after Bender had access to Russell’s cash, he bought a tractor from a neighbor, paying for it with cash that smelled so moldy that the neighbor had to store it outside to let it air out. The circuit court also precluded testimony regarding Bender’s name being added to Russell’s bank accounts, to a sizeable annuity held by Bender’s wife, and testimony regarding Hagenson, who spent significant time with Russell and accompanied him to the bank in 2013 when he made a large cash withdrawal.

-10- #29809

[¶22.] At trial, Bender testified extensively and called five witnesses

including his own expert, Dr. David Travel, a professor of neurology. Dr. Travel

testified that in his opinion Russell was an eccentric but competent, cognitively

intact person who was stubborn and not susceptible to undue influence. After four

hours of deliberation, the jury unanimously concluded that the 2012 will

disinheriting Sherri and naming Bender as the beneficiary was the product of

undue influence.

[¶23.] After trial, Bender filed a renewed motion for judgment as a matter of

law and, in the alternative, a motion for a new trial. At a hearing on these motions,

the circuit court vacated the jury’s verdict and granted Bender’s motion for

judgment as a matter of law and, alternatively, his motion for a new trial. Sherri

appeals, raising several issues which we consolidate and restate as follows:

1. Whether the circuit court erred by granting a renewed post-verdict motion for judgment as a matter of law (Rule 50(b)) on grounds that were not earlier advanced in the motion made during trial per Rule 50(a).

2. Whether the circuit court erred by vacating the jury’s verdict on grounds that there was insufficient evidence to establish the elements of Sherri’s undue influence claim.

3. Whether the circuit court erred by granting, in the alternative, a new trial on grounds that there was insufficient evidence to support the jury’s verdict.

4. Whether Sherri is entitled to post-trial relief, including an order reinstating the verdict, removing Bender as personal representative, and requiring him to repay the attorney fees awarded by the circuit court.

-11- #29809

Analysis and Decision

Renewed Motion for Judgment as a Matter of Law

[¶24.] At the end of her case-in-chief, Sherri moved for judgment as a matter

of law under SDCL 15-6-50(a) on each element of undue influence, arguing that no

reasonable juror could differ on whether the elements had been proven. Aside from

opposing Sherri’s motion, Bender made his own motion for judgment as a matter of

law. Bender argued,

I think there is sufficient evidence to take the case to the jury with regard to the first three elements of the undue influence test. However, that’s not the case for the fourth element. . . . Based on the evidence presented, there’s no way a reasonable jury could conclude that the 2012 will . . . clearly shows the effects of undue influence.

The circuit court denied both parties’ motions stating,

[this court] doesn’t believe that the Supreme Court sent [the case] back to the circuit court level to - - only have the court turn around and then take it away from the jury. This court isn’t being asked to be the final decision maker, that’s for the jury to decide. . . I believe the direction from the Supreme Court was to come back and have the jury listen to the facts and make the decision. So that’s what this court intends to do.

[¶25.] At the close of evidence, Sherri renewed her motion. The circuit court

asked Bender’s counsel, “do you wish to renew your motion,” to which he responded,

“Yes, your Honor. Do you want me to talk for half an hour or just renew it.” He

then said only that he was renewing the earlier motion. The court denied both

motions on the grounds previously expressed. After the jury returned a verdict for

Sherri, Bender filed a post-verdict motion for judgment as a matter of law under

SDCL 15-6-50(b) (Rule 50(b)), previously called a motion for judgment

notwithstanding the verdict. Bender’s motion conceded the second element of

-12- #29809

undue influence, the opportunity to influence, but argued that Sherri failed to

present sufficient evidence at trial to support finding elements one, three, and four

of undue influence, namely, that Russell was susceptible to being influenced, that

Bender had a disposition to exert influence for an improper purpose, and that the

result is one that clearly shows the effects of undue influence. The circuit court

granted Bender’s motion after holding a hearing on the matter on September 8,

2020.

[¶26.] On appeal, Sherri argues that the circuit court committed two errors

related to Bender’s Rule 50(b) motion. First, Sherri argues the court erred by

considering and granting Bender’s Rule 50(b) motion on different grounds than

what was included in his Rule 50(a) motion. Second, Sherri argues that the court

erred by granting Bender’s Rule 50(b) motion based on insufficient evidence

supporting the jury’s verdict. We address each issue in turn.

a. Whether the circuit court erred by granting a renewed post-verdict motion for judgment as a matter of law (Rule 50(b)) on grounds that were not earlier advanced in the motion made during trial per Rule 50(a).

[¶27.] Sherri contends that Bender’s original motion for judgment as a

matter of law was limited to the fourth element of undue influence. To support her

argument, Sherri points to Bender’s language at trial, “I think there is sufficient

evidence to take the case to the jury with regard to the first three elements of the

undue influence test. However, that’s not the case for the fourth element.” Sherri

argues that by conceding that there was sufficient evidence to send the first three

elements to the jury, Bender’s original motion for judgment as a matter of law is

-13- #29809

limited to the fourth element. Sherri therefore argues that Bender’s renewed

motion for judgment as a matter of law was overbroad because it included elements

one and three, which were not included in his original motion.

[¶28.] Bender contends that Sherri waived this argument by failing to object

at the time the Rule 50(b) motion was filed or at the September motions hearing.

Bender also argues that this Court “has the authority to set aside and ignore

procedural defects” should this Court determine that an overly broad renewed

motion for judgment as a matter of law constitutes such a defect.

[¶29.] We start with Bender’s argument that Sherri waived the Rule 50(b)

issue on appeal because, if successful, that argument could resolve Sherri’s first

issue. Under SDCL 15-6-50(b), “[i]f, for any reason, the court does not grant a

motion for judgment as a matter of law made at the close of evidence . . . [t]he

movant may renew its request for judgment as a matter of law by filing a motion no

later than ten days after notice of entry of judgment.” (Emphasis added.) “A [Rule

50(b)] motion. . . is based on and relates back to [the prior Rule 50(a) motion] made

at the close of evidence. Thus, the grounds asserted in support of the [earlier, pre-

verdict motion] are brought before the trial court for a second review.” United

States v. State, 1999 S.D. 94, ¶ 7, 598 N.W.2d 208, 211 (citations omitted).

[¶30.] “A court reviewing a Rule 50(b) motion is limited to consideration of

only those grounds advanced in the original, Rule 50(a) motion.” Nassar v. Jackson,

779 F.3d 547, 551 (8th Cir. 2015). 2 “[A] post-trial motion for judgment ‘may not

2. South Dakota’s Rule 50(b) is modeled after the Federal Rules of Civil Procedure Rule 50(b). See Harmon v. Washburn, 2008 S.D. 42, ¶ 10, 751 (continued . . .) -14- #29809

advance additional grounds that were not raised in the pre-verdict motion.’”

Conseco Fin. Servicing Corp. v. N. Am. Mortg. Co., 381 F.3d 811, 821 (8th Cir. 2004)

(quoting Walsh v. Nat’l Comput. Sys., 332 F.3d 1150, 1158 (8th Cir. 2003)). This is

because “the Rule 50(b) motion is only a renewal of the pre-verdict motion [and] it

can be granted only on grounds advanced in the pre-verdict motion.” Fed. R. Civ. P.

50(b) advisory comm. notes to 2006 amendment.

[¶31.] Rule 50(b), however, must be applied in conjunction with our rules

regarding waiver and failure to preserve issues for appeal.

Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level. The trial court must be given an opportunity to correct any claimed error before we will review it on appeal. To preserve issues for appellate review litigants must make known to trial courts the action they seek to achieve or object to the actions of the court, giving their reasons. Failing to raise an issue, thereby [not] allowing the circuit court an opportunity to correct the claimed error, results in waiver of the issue.

In re M.D.D., 2009 S.D. 94, ¶ 11, 774 N.W.2d 793, 796–97 (quoting State v. Gard,

2007 S.D. 117, ¶ 15, 742 N.W.2d 257, 261); This rule applies with equal force to

Rule 50(a) and Rule 50(b). An appellant’s “challenge to a[n] [appellee’s] failure to

adhere to the procedural prerequisites of Rule 50(a) and (b) is waivable.” Wallace v.

McGlothan, 606 F.3d 410, 419 (7th Cir. 2010) (citing Collins v. Illinois, 830 F.2d

692, 698 (7th Cir. 1987)). If a party believes opposing counsel’s Rule 50(b) motion

exceeds the grounds stated in counsel’s Rule 50(a) motion, the issue should be

________________________ (. . . continued) N.W.2d 297, 300; see also Fed. R. Civ. P. 50(b) advisory comm. notes to 2006 amendment. This Court has recognized that federal court decisions can assist our efforts to interpret our corresponding rules. Abdulrazzak v. S.D. Bd. of Pardons and Paroles, 2020 S.D. 10, ¶ 40 n.6, 940 N.W.2d 672, 682 n.6.

-15- #29809

brought first to the circuit court’s attention, so they may determine whether the

grounds asserted were proper. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th

Cir. 2010). “[If] a party fails to raise the inadequacy . . . that party is precluded

from raising the issue on appeal.” Id. at 1243 (citation omitted).

[¶32.] Here, Bender’s post-verdict Rule 50(b) motion included new grounds

not previously advanced in his Rule 50(a) motion. In his Rule 50(a) motion, Bender

specifically stated, “I think there is sufficient evidence to take the case to the jury

with regard to the first three elements of the undue influence test. However, that’s

not the case for the fourth element.” Yet, after trial, Bender filed a post-verdict

Rule 50(b) motion that challenged the sufficiency of the evidence on elements one,

three, and four. Bender filed his post-verdict Rule 50(b) motion and his supporting

brief with the circuit court on August 24, 2021. Sherri filed her responsive brief,

opposing Bender’s motion, with the circuit court on August 31, 2021. Sherri’s brief

failed to raise the issue that Bender’s Rule 50(b) motion was overly broad and

included grounds not previously raised in his Rule 50(a) motion. Moreover, Sherri

never addressed the issue during the circuit court’s September motions hearing.

Because Sherri failed to raise the issue before the circuit court, despite having

ample opportunity to do so, we determine that Sherri waived the argument that

Bender’s Rule 50(b) motion was overbroad.

[¶33.] In addition, Sherri argues that the statement made by Bender’s

counsel acknowledging there was sufficient evidence to submit the first three

elements to the jury constitutes an admission, citing Tunender v. Minnaert for the

proposition that “counsel admissions ‘may occur at any point during the litigation

-16- #29809

process.’” 1997 S.D. 62, ¶ 35, 563 N.W.2d 849, 856 (quoting Kohne v. Yost, 818 P.2d

360, 362 (Mont. 1991)). Bender contends that his attorney’s comments amounted to

an opinion rather than a substitution of evidence constituting a judicial admission.

[¶34.] This Court defines a judicial admission as “a formal act of a party or

his attorney in court, dispensing with proof of a fact claimed to be true, and is used

as a substitute for legal evidence at trial.” Id. ¶ 21, 563 N.W.2d at 853 (quoting

Harmon v. Christy Lumber, Inc., 402 N.W.2d 690, 692–93 (S.D. 1987)); Judicial

Admission, Black’s Law Dictionary (11th ed. 2019)(“A formal waiver of proof that

relieves an opposing party from having to prove the admitted fact and bars the

party who made the admission from disputing it.”). Although the statements by

Bender’s attorney acknowledged the existence of some evidence, his statements

cannot be equated to an admission. Counsel’s comments were made outside the

presence of the jury and did not function to relieve Sherri’s burden to present

evidence regarding the first three elements of undue influence. Therefore, this

Court determines that Bender’s attorney’s statements do not equate to a judicial

admission.

b. Whether the circuit court erred by vacating the jury’s verdict on grounds that there was insufficient evidence to establish elements three and four of Sherri’s undue influence claim.

[¶35.] An individual may contest a testamentary document on the grounds

that it was unduly influenced by another. “For influence to be undue, it must be of

such a character as to destroy the free agency of the testator and substitute the will

of another for that of the testat[or].” In re Estate of Pringle, 2008 S.D. 38, ¶ 44, 751

N.W.2d 277, 291 (alteration in original) (quoting In re Estate of Schnell, 2004 S.D.

-17- #29809

80, ¶ 21, 683 N.W.2d 415, 421). “The contestant of a testamentary document bears

the burden of ‘proving each of the four elements of undue influence by the greater

weight of the evidence.’” In re Estate of Gaaskjolen, 2020 S.D. 17, ¶ 28, 941 N.W.2d

808, 816 (quoting Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d at 291). The elements

necessary to prove an undue influence claim are: “(1) the decedent’s susceptibility to

undue influence; (2) opportunity to exert such influence and effect the wrongful

purpose; (3) a disposition to do so for an improper purpose; and (4) a result showing

the effects of such influence.” Id. (quoting Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d

at 291).

[¶36.] In granting Bender’s post-verdict motion for judgment as a matter of

law, the circuit court vacated the jury’s verdict, reasoning that insufficient evidence

was presented for rational minds to differ on elements three and four. As to

element three, the circuit court found “the evidence there was non-existent.” On

element four, the circuit court determined that the evidence establishing “a result

clearly showing the effect of undue influence . . . was lacking.”

[¶37.] Sherri argues that she “presented ‘substantial evidence’ on all four

elements of undue influence,” and the circuit court’s decision stemmed from several

errors, such as discounting much of her evidence, giving weight to Bender’s

testimony, ignoring inferences favoring the verdict, and attributing the jury’s

verdict to “passion” or “sympathy.”

[¶38.] This Court reviews a circuit court’s grant or denial of a motion for

judgment as a matter of law de novo. Ctr. of Life Church v. Nelson, 2018 S.D. 42,

¶ 18, 913 N.W.2d 105, 110 (citing Magner v. Brinkman, 2016 S.D. 50, ¶¶ 11–13, 883

-18- #29809

N.W.2d 74, 80–81). “And because our review is de novo, we give no deference to the

circuit court’s decision.” Id. ¶ 18, 913 N.W.2d at 110 (quoting Steineke v. Delzer,

2011 S.D. 96, ¶ 7, 807 N.W.2d 629, 631).

[¶39.] “Ultimately, we apply the same standard as the circuit court: we view

the evidence in the light most favorable to the verdict or to the nonmoving party.

Then, ‘[w]ithout weighing the evidence, the court must . . . decide if there is

evidence that supports [the] verdict.’” Id. ¶ 18, 913 N.W.2d at 110 (alteration in

original) (citation omitted) (quoting Magner, 2016 S.D. 50, ¶ 14, 883 N.W.2d at 81).

“If sufficient evidence exists so that reasonable minds could differ, judgment as a

matter of law is not appropriate.” Id. (quoting Magner, 2016 S.D. 50, ¶ 14, 883

N.W.2d at 81). As explained in Klarenbeek v. Campbell, 299 N.W.2d 580, 581 (S.D.

1980), a Rule 50(a) motion, which is renewed by the Rule 50(b) motion, should be

granted only when the evidence is so one-sided that reasonable minds can reach no

other conclusion. “In our review of the sufficiency of the evidence supporting a jury

verdict, ‘we are not to speculate or query how we would have viewed the evidence

and testimony, or what verdict we would have rendered had we been the jury.’”

Wright v. Temple, 2021 S.D. 15, ¶ 28, 956 N.W.2d 436, 446 (quoting Knecht v.

Evridge, 2020 S.D. 9, ¶ 37, 940 N.W.2d 318, 329). Rather it is the jury’s

responsibility, as the ultimate trier of fact, to “weigh the conflicting evidence or

decide upon the credibility of the witnesses.” Id. ¶ 37, 956 N.W.2d at 448 (citation

omitted). Lastly, a jury’s verdict should be affirmed if it can be explained with

reference to the evidence, “rather than passion, prejudice, or mistake of law.” Id.

¶ 34, 956 N.W.2d at 447–48 (citation omitted).

-19- #29809

[¶40.] This Court will first look to whether sufficient evidence exists to

support the jury’s verdict that Bender had a disposition to influence Russell for an

improper purpose. A disposition to unduly influence for an improper purpose “is

‘evident from persistent efforts to gain control and possession of the testator’s

property.’” Gaaskjolen, 2020 S.D. 17, ¶ 33, 941 N.W.2d at 817 (quoting In re Estate

of Borsch, 353 N.W.2d 346, 350 (S.D. 1984)). This Court has noted that keeping

transactions secret and leasing land for less than fair market value may be evidence

of a disposition to influence for an improper purpose. See Neugebauer v.

Neugebauer, 2011 S.D. 64, ¶¶ 23–24, 804 N.W.2d 450, 456.

[¶41.] Here, the trial record contains sufficient evidence to support a jury

finding that Bender had a disposition to influence Russell for an improper purpose.

Throughout the trial, the jury heard testimony from several witnesses describing

Russell’s lack of trust in banks. Jean Cole testified that Russell “took a lot of cash.

He always took a lot of cash. . . He would ask how much he could take before the

government would have to know.” At the time of his death, Russell had buried

approximately $150,000 in various locations around his property. Bender, whom

Sherri called as an adverse witness, testified that, after he learned of the cash and

its different locations, he created a map for two reasons: “One, I didn’t want to

forget what he told me. And two, if something happened to me. . . [the cash] doesn’t

get lost in time.” Yet, when asked, Bender acknowledged that he did not tell anyone

else about the map or cash. Further, he agreed that the map contained neither a

label, nor any information that would allow a third-party to discern its significance.

-20- #29809

[¶42.] Aside from the large amount of cash, which only Bender knew was

buried on the property, Bender had a significant financial stake in retaining his

below market leases for Russell’s land. Starting in 2002, Bender began leasing

Russell’s land for $50 an acre. The jury heard evidence that in 2002 the average

rental rate was $52.60 an acre. Bender testified that the below market rate

reflected a lack of productivity resulting from Russell letting his land lie fallow in

2001, after he kicked Renny off the farm. However, even as the land returned to its

previously productive state, Bender continued to pay $50 an acre until Russell’s

death in 2016. By then, the market rental rate for farmland had increased by a

factor of four to approximately $200 an acre. Bender claimed that he talked to

Russell about increasing the rental rate and that Russell always rebuffed his

suggestions to increase the amount. Bender also testified that he kept the rental

rate secret, asserting the lease amount was between Russell and himself. But

Bender later stated that he discussed the rental rate with Russell in the presence of

his old college roommate and a friend. When asked why he never talked about the

low rental rate with Renny or why he did not bring Renny along to witness the

signing of the yearly lease, Bender acknowledged that he “had a financial incentive

not to tell Renny.” Bender admitted that talking to Renny about the lease or

including him could have led to Renny’s reconciliation with Russell which may have

resulted in Renny leasing the land.

[¶43.] Eventually, Bender approached Russell about buying the land, to

which Russell said he would need to consider the capital gains tax. After a period of

not hearing anything, Bender followed up with Russell. Russell said he would not

-21- #29809

sell because he did not want “to pay that much in capital gains tax.” Bender

testified that he asked Russell if there was “another way instead, that we can

mitigate these taxes, I’d really like to buy this land.”

[¶44.] Other evidence relevant to this issue included testimony that within

weeks of Bender leasing Russell’s land, Russell started investing with Bender’s wife

at Edward Jones. By the end of 2012, Russell had invested over $117,000.

Considering the extensive testimony describing Russell’s distrust for banks to the

degree that he withdrew and buried large amounts of cash and the reduced rental

rate paid by Bender, the jury could have reasonably inferred that Bender had a

disposition to wrongfully influence Russell.

[¶45.] Furthermore, the jury is uniquely charged with assessing the

credibility and demeanor of the witnesses. Bender testified twice, describing in

extensive detail his relationship with Russell. When asked, Bender steadfastly

denied ever telling a lie throughout his life—even a white lie. And Bender denied

even having the opportunity to influence Russell, a point his counsel conceded,

despite spending hundreds of hours at his shop and ingratiating himself with

Russell through the years. Bender also denied that Russell showed any signs of

mental illness, cognitive decline, or susceptibility to influence, despite testimony

from two experts establishing that Russell had, at least, some deficits. 3 The jury, in

3. There was conflicting testimony with respect to Russell’s mental health. Dr. Swenson testified that Russell was mentally ill and highly susceptible to being influenced and manipulated by others. He described certain characteristics identified in the scientific literature as common among influencers, some of which fit Bender’s profile. Dr. Travel, who was rigorously cross-examined, disagreed that Russell had pervasive delusional (continued . . .) -22- #29809

its prerogative, may have discounted Bender’s testimony or rejected it completely,

finding more persuasive the testimony that Bender unduly isolated, manipulated,

and influenced Russell in the disposition of his estate.

[¶46.] Based on our review of the trial testimony, there was sufficient

evidence in the record to allow rational minds to differ as to whether Bender had a

disposition to influence Russell for an improper purpose. Accordingly, the circuit

court erred by concluding that the evidence on this element “was non-existent.”

[¶47.] We turn next to whether there was sufficient evidence for a reasonable

jury to find that Russell’s 2012 will clearly shows the effects of undue influence. In

reviewing the evidence, this Court keeps in mind that “[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.” Wright, 2021 S.D. 15, ¶ 37, 956 N.W.2d at 448. So

long as sufficient evidence exists so that reasonable minds could differ, judgment as

a matter of law on this issue is improper. Ctr. of Life Church, 2018 S.D. 42, ¶ 18,

913 N.W.2d at 110. A sufficient basis exists unless the evidence is so one-sided that

reasonable minds could reach no other conclusion. See Klarenbeek, 299 N.W.2d at

581. Upon review, this Court will not entertain a party’s attempts to relitigate the

trial. Magner, 2016 S.D. 50, ¶ 14, 883 N.W.2d at 81.

________________________ (. . . continued) disorder or mental illness. Yet, he acknowledged having previously testified in his deposition that Russell had vascular dementia or Alzheimer’s dementia, but then clarified his testimony by stating that Russell’s condition was not advanced enough to impair his cognition. It was ultimately up to the jury to weigh these opinions.

-23- #29809

[¶48.] In Tank I, this Court determined that summary judgment was not

appropriate on Sherri’s claim of undue influence because issues of material fact

existed on all elements of undue influence. On issue four, this Court stated, “while

the consistency between the 2004 and 2012 wills may be relevant, a fact finder

could also consider the circumstances involving Russell’s decision to give Sherri all

his property in 2001 and completely disinherit her in 2004.” The fact finder could

also consider the circumstances surrounding the execution of the 2012 will,

including Bender’s attempt to hand draft two codicils giving a large chunk of

Russell’s property to two of Bender’s friends, Beaner and Hagenson.

[¶49.] In Borsch, this Court acknowledged that some of the most damaging

evidence of a result showing the effect of undue influence are the wills. 353 N.W.2d

at 351. And while Bender is correct that the consistency between the 2004 and

2012 will is relevant, the consistency of these wills is just one part of the totality of

the circumstances. In previous cases, this Court has acknowledged that

circumstantial evidence from the time before and after the execution of a will is

relevant to the jury’s analysis. See In re Estate of Nelson, 330 N.W.2d 151, 155

(S.D. 1983) (stating how it is important to know the testator’s mental condition a

reasonable amount of time before and after the will’s execution). This is especially

true when, like here, the beneficiary claims to have had zero knowledge of the

testator’s will. In such circumstances, an individual with a disposition to exert

undue influence is likely to continue exerting influence until they can ensure they

have succeeded. Our rule reflects the pernicious nature of undue influence being a

special type of theft that begins while the testator is alive and continues until their

-24- #29809

death. Based on this, the jury was free to consider all relevant evidence pertaining

to the 2001 will, the 2004 will, and the circumstances of the execution of the 2012

will. This Court cannot second guess how the jury balanced this evidence while

making its decision, but we do not find that the evidence was so deficient that

reasonable minds could not differ as to the outcome.

[¶50.] Additionally, Sherri argues that the circuit court erroneously

determined that the jury’s verdict rested on passion and sympathy instead of the

evidence presented. Upon granting the motion, the circuit court pointed to Sherri’s

closing arguments as the source for provoking juror sympathy and passion by

improperly calling upon the conscience of the community to invalidate the will. 4

Sherri argues that the circuit court erred for two reasons. First, Bender failed to

object to Sherri’s closing argument at trial; and second, the evidence supports the

jury’s verdict, so the court should not have reversed based on the court’s speculation

that the jury was swayed by passion or sympathy.

[¶51.] “There is no doubt that, in the excitement of an argument, counsel do

sometimes make statements which are not fully justified by the evidence. . . It is

the duty of the [opposing] counsel at once to call the attention of the court to the

objectionable remarks, and request his interposition, and, in case of refusal, to note

4. Sherri’s counsel told the jury in surrebuttal: “You have a chance to send a message to this county. You say, yes, you’re going to undo the will and everybody in the future will be on the look-out for things like that. If you say no, it will be pretty easy for people just to kind of ignore the Russell Tanks in the future. That’s not the result that this community needs. That’s not what a small town would do . . . The Tank family doesn’t want your sympathy. Sherri Castro wants you to send a message. The message is, yes, this Will was the product of undue influence and the message is dated the 22nd of July, 2021,” referencing the verdict form.

-25- #29809

an exception.” Schlagel v. Sokota Hybrid Producers, 279 N.W.2d 431, 434 (S.D.

1979) (quoting Crumpton v. United States, 138 U.S. 361, 364, 11 S. Ct. 355, 356, 34

L. Ed. 958, 960 (1891)). A party’s failure to “object to argument of counsel at trial

. . . deprives the trial court the opportunity to rule on the issue and admonish the

jury or give a curative instruction.” Veith v. O’Brien, 2007 S.D. 88, ¶ 67, 739

N.W.2d 15, 34 (citing State v. Janklow, 2005 S.D. 25, ¶ 47, 693 N.W.2d 685, 701).

“When a party deprives the trial court of an opportunity to rule on the issue by

failing to object to argument at the time the objectionable comments are made, he

waives his right to argue the issue on appeal.” Id. (citing Janklow, 2005 S.D. 25,

¶ 47, 693 N.W.2d at 701).

[¶52.] Here, Bender failed to object or call the court’s attention to the

statements at the time Sherri’s attorney made them. Indeed, his only objection to

the statement occurred in a single sentence in his post-verdict Rule 50(b) motion.

This failure to timely draw the objectionable remarks to the circuit court’s attention

deprived the court of the ability to address the objections with a curative instruction

directing the jury not to consider this improper statement by Sherri’s counsel. For

this reason, we conclude that Bender failed to preserve the issue for review.

[¶53.] Even if Bender had properly preserved the issue, a verdict should be

affirmed if it “can be explained with reference to the evidence, rather than by

passion, prejudice, or mistake of law.” Wright, 2021 S.D. 15, ¶ 34, 956 N.W.2d at

447–48 (quoting Morrison v. Mineral Palace Ltd. P’ship, 1999 S.D. 145, ¶ 14, 693

N.W.2d 193, 197). As this Court explained above, the jury’s verdict was supported

by sufficient evidence. Thus, the circuit court erred by vacating the verdict based on

-26- #29809

its assumption that the jurors made their decision, not because of the evidence

before them, but out of sympathy and passion.

Motion for a new trial

[¶54.] Along with his motion for a judgment as a matter of law, Bender

moved in the alternative for a new trial on the basis of insufficient evidence, which

the circuit court granted, also in the alternative. Sherri appeals, arguing that there

was sufficient evidence to support the jury’s verdict, and that the court erred in

granting a new trial.

[¶55.] Under SDCL 15-6-50(b), in addition to renewing their motion for

judgment as a matter of law, a litigant “may alternatively request a new trial . . .

under SDCL 15-6-59.” “A new trial may be granted to all or any of the parties and

on all or part of the issues for any of the following causes . . . (6) [i]nsufficiency of

the evidence to justify the verdict[.]” SDCL 15-6-59(a).

[¶56.] A motion for a new trial is reviewed under an abuse of discretion

standard. Selle v. Tozser, 2010 S.D. 64, ¶ 14, 786 N.W.2d 748, 753. “However,

deference to the circuit court is not without its limits.” Lewis v. Sanford Med. Ctr.,

2013 S.D. 80, ¶ 16, 840 N.W.2d 662, 666. No court “may set aside a jury verdict

unless it is clearly ‘unreasonable, arbitrary, and unsupported by the evidence.’”

Zahn v. Musick, 2000 S.D. 26, ¶ 31, 605 N.W.2d 823, 830 (quoting Kusser v. Feller,

453 N.W.2d 619, 621 (S.D. 1990)). “[A] motion for a new trial will not be granted if

the jury’s verdict can be explained with reference to the evidence, and the evidence

is viewed in a light most favorable to the verdict.” Selle, 2010 S.D. 64, ¶ 14, 786

N.W.2d at 752–53 (quoting Alvine Fam. Ltd. P’ship v. Hagemann, 2010 S.D. 28,

-27- #29809

¶ 18, 780 N.W.2d 507, 512). “[I]f competent evidence exists to support the verdict, it

will be upheld.” Surgical Inst. of S.D., P.C. v. Sorrell, 2012 S.D. 48, ¶ 9, 816 N.W.2d

133, 137 (quoting Baddou v. Hall, 2008 S.D. 90, ¶ 33, 756 N.W.2d 554, 562).

[¶57.] As this Court addressed above, Sherri presented sufficient evidence to

support and explain the jury’s verdict. Because there is sufficient evidence in the

record to support the jury’s verdict, we do not conclude that it was unreasonable or

arbitrary. We, therefore, conclude that the circuit court abused its discretion by

alternatively granting a new trial based on its view that there was insufficient

evidence to support the verdict. Moreover, it is not clear what would change if this

matter were retried. In moving for a new trial, Bender did not claim that he was

deprived of a fair trial resulting from evidentiary error or deprived of the

opportunity to present his case. Rather, it appears Bender presented his best case.

He prevailed in his motion to exclude all evidence post-2012, much of which was

damaging to his case. 5 Further, Bender testified twice, once for each party, and was

successful in having many of his objections sustained at trial. The jury had the

opportunity and responsibility to weigh Bender’s credibility, demeanor, and the

reasonableness of his testimony.

5. This evidence included testimony about Hagenson and Bender accompanying Russell to the bank and requesting they be added to a $20,000 cashier’s check and Russell’s bank account, respectively. Additionally, the court excluded evidence that Bender dug up Russell’s cash after he was placed in a nursing home and failed to inventory or account for it until sometime after Russell’s death.

-28- #29809

Motion to Remove Personal Representative

[¶58.] Following the jury’s verdict, Sherri motioned to remove Bender as

personal representative. Consistent with the circuit court’s decision to grant

Bender’s motion and vacate the jury’s verdict, the court denied Sherri’s motion.

Sherri now argues on appeal that Bender should not continue as personal

representative because he unduly influenced Russell’s will and proceeded to defend

the will in bad faith.

[¶59.] The decision to remove an individual as a personal representative is

reviewed for abuse of discretion. See In re Estate of Unke, 1998 S.D. 94, ¶ 29, 583

N.W.2d 145, 150. In light of our conclusion that there was sufficient evidence to

support the jury’s verdict that Bender unduly influenced Russell’s will, it would be

unsuitable for Bender to continue to serve as personal representative for Russell’s

estate. Therefore, we remand for an order removing Bender from serving as

personal representative of Russell’s estate.

Motion for Intestacy

[¶60.] After the jury’s verdict, Sherri submitted a proposed order declaring

Russell intestate. In response, “Bender sought to ‘re-offer’ Russell’s 2004 will.” The

circuit court refrained from ruling on Sherri’s proposed order, concluding the issue

was moot after it granted Bender’s renewed motion for judgment as a matter of law.

On appeal, Sherri argues that Bender’s attempt to offer the 2004 will following the

jury’s verdict should be prohibited for two reasons: first, Bender has waited five

years to assert the validity of this will, exceeding the permissible statute of

limitations period; second, Bender waived the argument by removing the 2004 will

-29- #29809

from a 2016 responsive pleading and subsequently communicating to counsel that

he was not pursuing that argument. In response, Bender argues that a trial court

should be given the opportunity to rule on the matter before the issue is reviewed by

this Court. We agree. Because the circuit court has not had the opportunity to

consider these claims, we conclude the issue is not properly before this Court for

review.

Motion for Attorney Fees

[¶61.] Under SDCL 29A-3-720, “[a]ny personal representative or person

nominated as personal representative who defends or prosecutes any proceeding in

good faith, whether successful or not, is entitled to receive from the estate necessary

expenses and disbursements including reasonable attorney’s fees.” (Emphasis

added.) Sherri argues that Bender is not entitled to receive attorney’s fees from the

estate because he was not acting in good faith by defending a will he unduly

influenced. Bender contends that he was acting in good faith, and he is entitled to

attorney’s fees because the statute allows for fees, irrespective of success.

[¶62.] This Court reviews an award of fees under SDCL 29A-3-720 for an

abuse of discretion. See In re Estate of Finch, 2017 S.D. 15, ¶ 20, 893 N.W.2d 783,

788. Here, the circuit court approved the personal representative’s request for

attorney fees after overturning the jury’s determination that the 2012 will was

unduly influenced and admitting the 2012 will for probate. The circuit court was

not presented with the question whether any fees may be awarded to the personal

representative after his unsuccessful attempt to defend the 2012 will. Given the

Court’s ruling in this appeal reinstating the jury’s verdict, we vacate the existing

-30- #29809

order approving these fees. However, in accord with our decision to remand to the

circuit court the question of whether to declare Russell intestate or allow another

will to be offered for probate, we likewise remand the matter of whether the prior

personal representative is entitled to any of the requested attorney fees.

[¶63.] We reverse, reinstate the jury’s verdict, and remand for proceedings

and an order consistent with this opinion.

[¶64.] JENSEN, Chief Justice, and SALTER and DEVANEY, Justices, and

KNOFF, Circuit Court Judge, concur.

[¶65.] KNOFF, Circuit Court Judge, sitting for MYREN, Justice, who deemed

himself disqualified and did not participate.

-31-