Berzett v. Berzett

• Decision Date: 24 May 1991
• Citation: 584 So.2d 799
• Parties: Fred Erdie BERZETT and Larry Berzett v. Eddie BERZETT, as administrator of the Estate of Naomi Park, deceased. 1900023.
• Court: Alabama Supreme Court

Page 799

584 So.2d 799

Fred Erdie BERZETT and Larry Berzett v. Eddie BERZETT, as administrator of the Estate of Naomi Park, deceased.

1900023.

Supreme Court of Alabama.

May 24, 1991.

Rehearing Denied Aug. 2, 1991.

Dan C. Totten of Malone & Totten, Athens, for appellants.

Jimmy Alexander and Linda B. Lloyd of Alexander, Corder & Plunk, Athens, for appellee.

STEAGALL, Justice.

Naomi Park, an incompetent person, by and through her son and next friend, Eddie Berzett, sued Fred Erdie Berzett (her son) and Larry Berzett (Fred's son), claiming $41,509.43 for money had and received. Park also alleged that she had transferred $41,509.43 to Fred and Larry Berzett while she lacked the mental capacity to enter into such a transaction and/or was acting under undue influence exercised by Fred and Larry. After the complaint was filed, Park died intestate and Eddie Berzett was appointed administrator of her estate. On behalf of Park's estate, Eddie Berzett, as administrator, filed an amended complaint substituting himself as the plaintiff.

The case was tried before a jury. At the close of the plaintiff's evidence, defendant Larry Berzett moved for a directed verdict, which was denied. At the close of all the evidence, Larry Berzett again moved for a directed verdict, and it was again denied. The jury returned a verdict against both defendants in the amount of $53,426.17. Both defendants filed a motion for new trial, which was denied. Larry Berzett appeals. ¹

On November 28, 1986, Fred checked Park out of a hospital in Pulaski, Tennessee, and brought her to Athens, Alabama, to live with him. Fred lived in a house owned by his son, Larry. On December 1, 1986, Fred took Park to Pulaski to withdraw her money from two banks. Fred was with Park when she withdraw $14,464.72 from the Union Bank in Pulaski; the teller put the $14,464.72 in cash into a money pouch and handed it to Fred, who put the money in his pocket. Fred was also with Park when she withdrew $27,044.71 from First Federal Savings and Loan Association of Giles County; he was given a check in the amount of $27,044.71 made payable to Park. After Fred and Park returned to Fred's home in Athens, Fred had Park endorse the $27,044.71 check. Larry then endorsed the check, cashed it at the First Alabama Bank of Athens, and took the cash to Fred and Park. Park gave $8,000 to Fred to be used to pay for an addition to the house she was living in, which belonged to Larry. Park lived with Fred until June 1987, when she went to live with her niece, Norma Jean Goddard. Goddard testified that Park had no money at the time she left Fred's home.

On appeal, Larry argues 1) that there is no evidence of a transfer of funds from Park to Larry and, therefore, that the trial court erred in refusing to grant his motions for directed verdict and his motion for new trial; and 2) that the trial court erred in instructing the jury that Park had transferred funds to Larry.

At the close of the trial court's instructions to the jury, the...