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Larson v. Larson

Supreme Court of Montana

December 5, 2017

FLORENCE J. LARSON and DWIGHT W. LARSON, Plaintiffs and Appellants,
v.
DOUG E. LARSON, Defendant and Appellee.

          Submitted on Briefs: September 13, 2017

         APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Toole, Cause No. DV 09-037 Honorable Robert G. Olson, Presiding Judge

          For Appellant: Kirk D. Evenson, Marra, Evenson & Bell, P.C., Great Falls, Montana

          For Appellee: W. Scott Green, Daniel L. Snedigar, Patten, Peterman, Bekkedahl & Green, P.L.L.C., Billings, Montana

          OPINION

          James Jeremiah Shea, Justice

         ¶1 Plaintiffs Dwight W. Larson ("Dwight") and Florence J. Larson ("Florence"), through her Conservator Joyce Wuertz ("Wuertz"), appeal the December 29, 2015 Findings of Facts, Conclusions of Law and Judgment by the by the Ninth Judicial District Court, Toole County. We address the following issues:

Issue One: Whether the District Court erred in finding no undue influence by Doug over Florence.
Issue Two: Whether the gift of stock certificates was actually a contract for which Doug furnished no consideration.
Issue Three: Whether the District Court erred in finding Florence made a valid gift of D & D Land Co. stock certificates to Doug.

         ¶2 We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 This case concerns whether Florence, mother of Dwight and Doug Larson ("Doug"), properly and without undue influence, gifted her shares in the family farm corporation, to Doug.

         ¶4 In 1964, Florence and Edward Larson ("Ed") began farming in Toole County. In 1973, Ed and Florence formed D & D Land Company ("D & D") as the operating entity for the family farm. Originally, Ed held 31, 200 shares, Florence held 8, 800 shares, and D & D retained 10, 000 shares. In 1984, Ed and Florence executed their wills, providing the surviving spouse would own 51% "of the total voting rights of D & D Land Company" with the remaining balance going to sons, Dwight and Doug, in equal shares. At that time, Ed held 20, 005 shares and Florence held 19, 995 shares. Since 1987, D & D has employed Doug as the full-time farm manager. Dwight lives in Billings, where he is a teacher. In 1999, Ed gifted 10 shares to Doug, leaving Ed with 19, 995 shares and Florence with 19, 995 shares.

         ¶5 Ed passed away on March 16, 2006. Florence served as the Personal Representative of Ed's estate and hired attorney Gary Bjelland ("Bjelland") to probate the estate. Florence continued to keep the books for the farm's operations while Doug took over the primary operations of the farm. Over the next two years, Florence met with Bjelland and Denise Frigge ("Frigge")-Florence's long-time friend and an accountant with the firm of Brown, Fitchner and Associates in Conrad-to discuss her husband's estate and her own estate. Dwight attended some of these meetings. Doug attended all of these meetings.

         ¶6 During a December 2007 meeting, Frigge explained that Florence would need D & D assets out of her name for five years if Florence wanted to avoid D & D assets being depleted to pay for her future nursing care. Florence expressed her desire that D & D remain a viable family farm, which she believed would not be possible if the property was divided equally between Dwight and Doug upon her death. Florence also expressed her strong desire to stay on the farmstead she built with her husband and to assist in D & D operations for as long as possible.

         ¶7 In early 2008, after Florence expressed interest in giving her shares to Doug, Dwight began calling Florence. Dwight taped at least four long calls, and testified that he called his mother more than the calls he taped. Dwight would keep Florence on the phone for an hour at a time and repeatedly tell her that she should not change her will and should leave things as "Dad left them." Dwight complained that he would not get his fair share if she changed her will and that Doug had enough land. On March 12, 2008, after Dwight ...


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