Man who dug up neighbor's buried cash loses estate case on appeal

Judge vacated jury ruling but Supreme Court reverses

Photo by Tingey Injury Law Firm on Unsplash

A circuit court judge abused his discretion when he vacated a jury verdict and instead ruled in favor of the losing party, the South Dakota Supreme Court has ruled.

In a unanimous 5-0 decision, the Court reversed Judge Tony Portra, a Brown County judge who vacated the jury verdict and ruled instead for a man who was accused of using undue influence to have himself named as the beneficiary to an estate. It was the second time the circuit court had been reversed by the Supreme Court in this case.

The case centered on a lawsuit brought by Sherri Castro, the daughter of Russell Tank. Castro accused Jason Bender of taking advantage of her father’s mental state to have himself named Tank’s beneficiary. After a jury ruled in favor of Castro, finding that Bender did wield undue influence, Portra vacated the verdict, ruling there was insufficient evidence to support the jury’s verdict, and instead ruled for Bender.

But the Supreme Court found there was enough evidence for the jury to support its decision.

“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,” wrote Justice Janine Kern in a 31-page opinion. “Accordingly, the circuit court erred by concluding that the evidence on this element ‘was non-existent.’”

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