In re the Billie V. Darkenwald Revocable Trust, dated January 21, 1983, restated February 5, 1999, as amended, Casey Darkenwald, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1298

In re the Billie V. Darkenwald Revocable Trust, dated January 21, 1983, restated
February 5, 1999, as amended, Casey Darkenwald,
Respondent,

vs.

Thomas Darkenwald, trustee of the Billie V. Darkenwald Trust dated January 21, 1983,
Restated February 5, 1999, as amended,
Appellant.

Filed June 1, 2020
Affirmed
Bryan, Judge

Wright County District Court
File No. 86-CV-17-802

Michael J. Mergens, Ken R. Hall, EntrePartner Law Firm, PLLC, Minneapolis, Minnesota
(for respondent)

Clifford S. Anderson, Clifflaw, PLLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judg e; Reyes, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
Appellant challenges the district court’s denial of his motion s for new trial , for
judgment as a matter of law, and for summary judgment. We conclude that the district
court did not abuse its discretion in making evidentiary rulings, instructing the jury, or

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denying appellant’s motions for new trial. We also conclude that the evidence supports
the jury’s verdict regarding lack of testamentary capacity and a ffirm the denial of
appellant’s motion for judgment as a matter of law . We do not consider appellant’s
challenge of the district court’s denial of his summary judgment motion because such
decisions are outside the proper scope of review after a trial on that issue has occurred.
FACTS
Gilbert M. Darkenwald Sr. ( Mr. Darkenwald ) and Bille V. Darkenwald (Ms.
Darkenwald) had four children and nine grandchildren. Appellant Thomas Darkenwald,
and respondent Casey Darkenwald are grandchildren of Mr. and Ms. Darke nwald. T he
Darkenwald family built a series of real estate companies, including the Riverbend
Manufactured Home Park (Riverbend Entities) and a group of businesses located in
Rogers, Minnesota (Rogers Entities). Mr. and Ms. Darkenwald held the majority of their
assets in two trusts, th e Gilbert M. Darkenwald trust ( GMD trust) and the Billie V.
Darkenwald trust (BVD trust). Mr. Darkenwald died in 2010 and Ms. Darkenwald died in
2016. Prior to July 26, 2013, all of the children and grandchildren were included in both
trusts. On July 26, 2013, however, Ms. Darkenwald amended the BVD Trust by removing
respondent, respondent’s father, and respondent’s siblings from the list of beneficiaries to
her trust. In addition, Ms. Darkenwald made a new will , disinheriting respondent,
respondent’s father, and respondent’s siblings . At that time, appellant was the trustee for
both the GMD and the BVD trusts.
After Ms. Darkenwald died, respondent contested the new will and the BVD trust
amendment on two grounds: that Ms. Darkenwald lacked the mental capacity to take these

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actions and that Ms. Darkenwald made the change s as a result of undue influence.
Appellant moved for summary judgment, but the district court denied the motion,
identifying questions of fact for a jury on both grounds. The case proceeded to trial and
the jury found that respondent proved by clear and convincing evidence that on July 26,
2013, Ms. Darkenwald: “lacked testamentary capacity to make a new will and amend her
trust.” In addition, the jury found by clear and convincing evidence that on that same date,
“the new will and Eighth Amendment of [the BVD Trust] was the product of undue
influence by Thomas R. Darkenwald.” The district court issued an order directing entry of
judgment in respondent’s favor in light of the jury’s verdict. Appellant moved for
judgment as a matter of law (JMOL) and new trial, but the district court denied both
motions. This appeal followed. Appellant challenges these orders from the district court,
arguing that the trial evidence does not support the jury’s verdict on either question 1 and
that the district court made several errors in its evidentiary rulings at trial.
A. Evidentiary Rulings
The district court made several evidentiary rulings at issue in this appeal, including
admitting evidence regarding bank statements as substantive exhibits (exhibits 32, 33, 34,
48, 49, and 50), excluding demonstrative exhibits (exhibits 182, 183, and 184)2 that related

1 In light of our conclusions regarding testamentary capacity, we need not address the
alleged errors regarding the undue-influence claim. See, e.g., Moorhead Econ. Dev. Auth.
v. Anda, 789 N.W.2d 860, 888 (Minn. 2010) (“[I]f the plaintiff is entitled to recover on one
ground, a court need not consider the other grounds.”).
2 Initially, appellant offered two charts as exhibits 180 and 181, but the district court
excluded them. Appe llant revised the charts and o ffered the revised versions as e xhibits
182 and 183. The district court also excluded the revised exhibits. Appellant contests the
exclusion of exhibits 182 and 183.

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to the bank statements , and excluding six other exhibits ( exhibits 14, 28, 120, 122, 139,
and 143). The bank statement exhibits and the demonstrative exhibits both relate to the
undue-influence claim.3 Similarly, four of the remaining six exhibits in question relate to
the undue-influence claim .4 Only t wo of the exhibits in question concern Ms.
Darkenwald’s mental capacity: e xhibits 139 and 143. Exhibit 139 is an email dated
September 15, 2015, by Ms. Darkenwald’s nurse informing the recipient that Ms.
Darkenwald “has advanced with her disease of D ementia,” and due to an increase in
“resistive behaviors,” Ms. Darkenwald would be transferred to a different part of the
residential facility where staff cou ld better care for her. Exhibit 143 is a letter dated
February 8, 2018, to respondent’s counsel from Health Information Management Services
on Mayo Clinic letterhead. The letter states that they did not have any medical records
regarding Ms. Darkenwald’s mental health, dementia, or competency.

3 The bank statements memorialized transactions from a bank account holding Ms.
Darkenwald’s personal social security payments and the cash assets of the two trusts. The
district court admitted the bank statement exhibits, concluding that how that money was
spent by appellant (the trustee) related to specific undue influence factors . The district
court excluded appellant’s demonstrative exhibits regarding the account on the grounds
that they asserted facts that were better left to testimonial evidence. In addition, the district
court concluded that exhibit 184 would confuse the jury and left out necessary data.
4 Exhibit 14 is a letter regarding a dispute over payments due from the Riverbend Entities.
The district court excluded exhibit 14 based on relevancy and hearsay, noting that the
exhibit did not refer to the BVD trust, the trust amendment, or the new will, and the letter
was discussed in exhibit 15, which was admitted. Exhibit 28 is a letter regarding breaches
of “Riverbend’s Partnership agreement.” Exhibit 120 is a “cease contact” letter directing
respondent and his parents to cease contact with Ms. Darkenwald. Exhibit 122 is an
undated Valentine’s Day card to Ms. Darkenwald from respondent’s parents. The district
court excluded exhibits 28, 120, and 122 on hearsay grounds.

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B. Ms. Darkenwald’s Testamentary Capacity
The parties do not dispute that Ms. Darkenwald suffered from dementia. Instead,
they presented competing evidence regarding the effect of her dementia on her ability to
form a rational judgment regarding disposition of her property. Both parties presented
expert testimony regarding Ms. Darkenwald’s mental capacity at the time that she amended
her trust and executed a new will in July 2013.
Both parties’ experts agreed that Ms. Darkenwald suffered from moderate dementia
and impairment of cognition when she signed the trust amendment and new will in July
2013. Both parties also agreed that she was diagnosed with Alzheimer’s disease 17 months
later. Appellant’s expert described a sliding scale of cognitive impairment, explaining that
people with dementia will have both good days and bad days, during which they seem very
confused. As dementia progresses, there are more and more days when those patients
appear forgetful, con fused or lost. Ultimately, appellant’s expert c oncluded that Ms.
Darkenwald understood the nature and extent of her property when she signed the trust
amendment and new will . Respondent’s expert disagreed, given the complexity of Ms.
Darkenwald’s estate . In addition, respondent’s expert testified that Ms. Darkenwald
exhibited cognitive impairment during her deposition5 less than two months after amending
her trust and executing a new will. During the deposition, she was unable to answer
questions about even basic matters, was unable to name all of her nine grandchildren,

5 The deposition was tak en as part of discovery in a separate legal dispute involving the
family members.

6
rambled off topic, forgot to put her reading glasses on when reading documents, and at one
point incorrectly stated that all of the trust would go to her daughter.
Appellant also presented testimony from Ms. Darkenwald’s attorney who drafted
the trust amendment and the new will in 201 3. The attorney satisfied himself that Ms.
Darkenwald was competent when he asked her to review and sign the documents at issue.
At trial, however, the attorney also conceded that he has no training on mental impairment
or cognition. In addition, he acknowledged that he asked mostly yes-or-no questions. On
cross-examination, he stated that he did not realize that peopl e suffering from dementia
will answer yes -or-no questions regardless of whether they know the answer to the
question. In hindsight, the attorney stated he would have obtained a medical opinion
regarding competency before having her sign the trust amendmen t and new will . The
attorney acknowledged that during this time, litigation attorneys at his firm represented
appellant in a dispute among Darkenwald family members. These attorneys prepared an
affidavit for Ms. Darkenwald, explaining her decision to dis inherit respondent,
respondent’s father, and respondent’s siblings. Ms. Darkenwald signed this affidavit on
the same day that she signed the trust amendment and the new will. The attorney testified
that in hindsight, it would have been prudent for Ms. Darkenwald to have been represented
by a lawyer outside his firm, instead of him.
C. Contested Jury Instructions
The district court completely or partially declined to provide f ive of appellant’s
proposed jury instructions, numbered as jury instructions 15, 17, 19, 21, and 23.

7
Appellant’s proposed jury instruction 15 follows the model instruction, except that
it also includes this statement: “It is the generally recognized rule that testamentary
capacity requires only that the testator have capacity to know and understand the nature
and extent of her bounty, as distinguished from the requirement that she have actual
knowledge thereof.” The dis trict court provided the model instruction, noting that the
requested language was superfluous.
Appellant’s proposed jury instructions 17 and 21 would have informed the jury that
the law presumes sufficient testamentary capacity and presumes that a will di d not result
from undue influence. Appellant’s proposed jury instruction 19 included language
comparing undue influence to using a testator as a “mere puppet.” Appellant’s proposed
jury instruction 23 follows the language of the model instruction regarding the applicable
standard of proof, with one exception. Appellant requested that the district court include
the following additional language: “In order to prove a claim by clear and convincing
evidence, a party’s evidence should be unequivocal and uncon tradicted, and intrinsically
probable and credible.” The district court did not give proposed jury instructions 17, 19,
21, or 23. Instead, the district court provided the model instructions r egarding the
definition and elements of undue influence and te stamentary capacity, and regarding the
burden and standard of proof, which state that “[c]lear and convincing evidence is shown
where the truth of the facts asserted is highly probable.”

8
D E C I S I O N
I. Motion for New Trial under Rule 59.01(f)
Appellant argues that the district court erred in admitting some evidence, excluding
other evidence, and determining what instructions to give the jury. We conclude that the
district court did not abuse its discretion when it made the various contested decisions
during the trial.
A. Evidentiary Rulings
Rule 59.01(f) of the Minnesota Rules of Civil Procedure permits a district court to
grant new trial on the basis of erroneous admission of evidence. E.g., Kedrowski v.
Lycoming Engines, 933 N.W.2d 45, 62 (Minn. 2019) . “The admission of evidence rests
within the broad discretion of the [district] court and its ruling will not be disturbed unless
it is based on an erroneous view of the law or constitutes an abuse of discretion.” Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quotation omitted). “In
the absence of some indication that the [district] court exercised its discretion arbitrarily,
capriciously, or contrary to legal usage, the appellate court is bound by the result.” Id. at
46. In addition, appellant must demonstrate that the error “changed the result of the trial.”
George v. Estate of Baker , 724 N.W.2d 1, 9 (Minn. 2006) (“An evidentiary error is
prejudicial if it might reasonably have influenced the jury and changed the result of the
trial.”); see also Kedrowski, 933 N.W.2d at 62; City of Moorhead v. Red River Valley Co-
op. Power Ass’n, 830 N.W.2d 32, 39–40 (Minn. 2013).
In this case, appellant argues that the district court erred when it admitted evidence
regarding bank statements offered as substantive exhibits (exhibits 32, 33, 34, 48, 49, and

9
50) and when it excluded demonstrative exhibits ( exhibits 182, 183, and 184) that related
to the bank statements. Appellant also challenges the exclusion of six other exhibits that
do not relate to bank statements (exhibits 14, 28, 120, 122, 139, and 143). All but two of
these contested rulings exclusively relate to the undue -influence claim .6 Appellant
acknowledges that both exhibits 139 and 143 are hearsay, but argues that both documents
satisfy the hearsay exception for statements relating to medical diagnoses. 7 See Minn. R.
Evid. 803(4).
The medical treatment exception to the hearsay rule applies to “[s]tatements made
for purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id. The
rationale behind the rule is “the patient’s belief that accuracy is essential to effective
treatment.” 2 Charles T. McCormick, McCormick on Evidence § 277, at 432 (Robert P.
Mosteller, et al. eds., 8th ed. 2020) . Neither exhibit 139 nor exhibit 143 satisfie s the
requirements of this exception.

6 Because we affirm the district court’s denial of appellant’s motion for JMOL regarding
Ms. Darkenwald’s testamentary capacity, we need not address the evidentiary rulings for
the exhibits that concern the undue-influence claim.
7 At trial, appellant’s counsel offered the two exhibits “under the medical exception.” In
his brief, however, appellant refers to medical diagnoses, but cites to the hearsay exception
for business records , perhaps inadvertently: “both exhibits . . . were reliable reports of
‘diagnoses’ of [Ms. Darkenwald’s] condition and may come in ‘any form.’ Minn. R. Evid.
803(6).” Because of the arguments before the district court and because neither exhibit
meets the requirements of a business record, w e consider the exception for statements
relating to medical treatment.

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The first document, exhibit 139 , is an email dated September 15, 2015, by Ms.
Darkenwald’s nurse informing the recipient that Ms. Darkenwald “has advanced with her
disease of Dementia,” and due to an increase in “resistive behaviors,” Ms. Darkenwald
would be transferred to a different part of the residential facility where staff could better
care for her. Exhibit 139 is not a statement made by Ms. Darkenwald. The declarant, a
nurse, is not the subject of any medical treatment. In addition, the statement was not made
for purposes of determining a medical diagnosis or a course of treatment. We conclude
that the district court did not abuse its disc retion when it determined that e xhibit 139 did
not satisfy Rule 803(4). The second document, exhibit 143, is a letter dated February 8,
2018, to respondent’s counsel from Health Information Management Services on Mayo
Clinic letterhead. The letter states that they did not have any medical records regarding
Ms. Darkenwald’s mental health, dementia, or competency . The district court did not
abuse its discretion when it determined that the letter did not satisfy Rule 803(4).
Moreover, even assuming that the district court had erred, appellant has not
established that the error was prejudicial. Both experts agreed that Ms. Darkenwald
suffered from moderate dementia when she signed the trust amendment and the new will
in July 2013. Neither exhibit relates to Ms. Darkenwald’s mental capacity in July 2013
and we cannot conclude that their exclusion changed the result of the trial. See George,
724 N.W.2d at 9.
B. Jury Instructions
Paragraph (f) of rule 59.01 also permits a new trial if a district court erred in its
instructions to the jury or in its verdict form. Halla Nursery, Inc. v. Baumann -Furrie &

11
Co., 454 N.W.2d 905, 910-11 (Minn. 1990). District courts generally have “considerable
latitude” in choosing jury instructions, Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d
154, 159 (Minn. 2002), and denying a motion for a new trial on the ground of erroneous
jury instruction rests within the district court ’s discretion. Paulson v. Lapa, Inc. , 450
N.W.2d 374, 378 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990). W e will not
reverse absent a clear abuse of that discretion . Id. In this case, appellant challenges the
district court’s decisions not to provide five separate proposed jury instructions, numbered
as 15, 17, 19, 21, and 23. Although appellant lists these five instructions, appellant makes
no argument regarding proposed jury instructions 15 and 23. We will not consider these
two instructions and instead address proposed jury instructions 17, 19, and 21.8
Appellant argues that the district court failed to instruct the jury regarding a
presumption of capacity (proposed jury instruction 17) and a presumption of a lack of
undue influence (proposed jury instruction 21). We disagree. Minnesota statutes establish
prima facie burdens of proof and burdens of persuasion for proponents and challengers to
a will. Minn. Stat. § 524.3-407 (2018); In re Estate of Novotny , 385 N.W.2d 841, 843
(Minn. App. 1986). The district court properly instructed the jury regarding the burdens
and standards of proof, requiring respondent to prove undue influence and lack of capacity

8 Appellant waived the challenges relating to proposed jury instructions 15 and 23. An
assignment of error in a brief based on “mere assertion” and not supported by argument or
authority is waived unless prejudicial error is obvious on mere inspection. Ganguli v. Univ.
of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declin ing to address allegations
unsupported by legal analysis or citation); see also Schoepke v. Alexander Smith & Sons
Carpet Co., 187 N.W.2d 133, 135 ( Minn. 1971); see State v. Anderson, 871 N.W.2d 910,
915 (Minn. 2015) (applying this aspect of Schoepke).

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by clear and convincing evidence . These instruction did not inadequately or improperl y
state the law. We conclude that the district court did not abuse its discretion in declining
to provide proposed jury instructions 17 and 21.
Appellant also argues that the district court erred when it declined to provide
proposed jury instruction 19. Appellant’ s proposed jury instruction modified the model
instruction to include the imagery of a puppet master controlling the testator like a puppet.
We conclude that the law does not require the jury instruction to include an evocative
puppet analogy to accurately state the law. The district court did not abuse its discretion
when it provided the model instruction instead of the one proposed by appellant.
II. Motion for New Trial under Rule 59.01(g) and Motion for JMOL
Appellant challenges the denial of his motions for new trial and for JMOL, arguing
that the verdict is contrary to the evidence presented. Because the evidence supports the
verdict, we conclude that the district court did not abuse its discretion when it denied the
motion for a new trial and we affirm the denial of the motion for JMOL.
Motions for a new trial and for JMOL both require this court to review whether the
evidence supports the verdict, although we apply different standards of review to the
district court’s disposition of each motion. “We review a district court’s decision to grant
or deny a new trial for an abuse of discretion.” Christie v. Estate of Christie, 911 N.W.2d
833, 838 (Minn. 2018) (citation omitted) . “We review de novo a district court’s decision
to deny a motion for judgment as a matter of law.” Id. at 838 n.5 (quotation omitted). An
appellate court “will not set aside a jury verdict on an appeal from a district court’s denial
of a motion for a new trial unless it is manifestly and palpably contrary to the evidence

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viewed as a whole and in the light most favorable to the verdict.” Navarre v. S. Wash. Cty.
Sch., 652 N.W.2d 9, 21 (Minn. 2002) (quotations omitted) . Appellate courts “neither
reconcile conflicting evidence nor decide issues of witness credibility, which are
exclusively the province of the factfinder.” Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn.
App. 2004) . Instead, a ppellate courts defer to district court credibility determinations.
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Similarly, when reviewing motions
for JMOL, we “view[] the evidence in the light most favorable to [the nonmoving party],”
Christie, 911 N.W.2d at 838 n. 5, and grant JMOL only when “there is no legally sufficient
evidentiary basis for a reasonable jury to find for that p arty on that issue.” Minn. R. Civ.
P. 50.01(a).
Testamentary capacity exists if the testator can form a rational judgment concerning
her property and the claims of others on her property. In re Estate of Torgersen , 711
N.W.2d 545, 552 (Minn. App. 2006) review denied (Minn. June 20, 2006 ). We have
established the following four factors to consider in determining whether a testator
possesses the requisite testamentary capacity: (1) r easonableness or naturalness of the
property disposition; (2) the t estator’s conduct within a reasonable time before and after
execution of the disputed will; (3) prior adjudication involving testator’s mental capacity;
and (4) expert testimony pertaining to the mental and physical condition of the testator. In
re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986).
The record is not manifestly contrary to the verdict and contains a legally sufficient
basis for a reasonable jury to find in favor of respondent regarding testamentary capacity.
The parties agree that the trust amendment and new will significantly changed the

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disposition of the Darkenwald estate. B oth parties’ experts agreed that Ms. Darkenwald
suffered from moderate dementia and impairment of cognition when she signed the trust
amendment and new will in J uly 2013. Both parties also agreed that she was diagnosed
with Alzheimer’s disease 17 months later. Respondent’s expert concluded that Ms.
Darkenwald exhibited cognitive impairment during her deposition two months after
signing the trust amendment and ne w will. Ms . Darkenwald was unable to answer
questions about even basic matters, unable to state the names of all of her grandchildren,
rambled off topic, forgot to put her reading glasses on when reading documents, and at one
point incorrectly stated that all of the trust would go to her daughter. Although the attorney
who drafted the trust amendment and the new will testified that he was satisfied that Ms.
Darkenwald was competent, the attorney also explained that he had no training on mental
impairment or cognition and acknowledged that he asked mostly yes-or-no questions. On
cross-examination, he stated that he did not realize that people suffering from dementia
will answer yes -or-no questions regardless of whether they know the answer to the
question. The attorney stated that, in hindsight, he should have obtained a medical opinion
regarding competency.
Based on this evidence, a reasonable jury could find that respondent established
clear and convincing evidence that Ms. Darkenwald lacked the requisite testamentary
capacity to amend the trust and execute a new will. The district court did not abuse its
discretion in denying the motion for new trial. In addition, reviewing the evidence in the
light most favo rable to the verdict, we conclude th at the record supports the verdict, and
we affirm the denial of the motion for JMOL.

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III. Denial of Appellant’s Motion for Summary Judgment
Appellant also challenges the denial of his motion for summary judgment. Such
decisions, however, fall outside the prop er scope of review after a jury verdict. Bahr v.
Boise Cascade Corp., 766 N.W.2d 910, 918-19 (Minn. 2009) (“We therefore hold that the
denial of respondents’ motion for summary judgment is not properly within the scope of
review on appeal from the judgment and we will not consider it.”). “[T]he [district] court’s
conclusion at the summary judgment stage that there was a genuine dispute of fact becomes
moot once the jury reaches a verdict on that issue.” Id. at 918.
Affirmed.