Bongiovi v. Jamison

• Decision Date: 19 March 1986
• Docket Number: No. 15744,15744
• Citation: 110 Idaho 734,718 P.2d 1172
• Parties: Mary BONGIOVI, Plaintiff-Respondent, v. S.M. JAMISON, Sr., and Neita Jamison, husband and wife, and Larry L. Jamison, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1172

718 P.2d 1172

110 Idaho 734

Mary BONGIOVI, Plaintiff-Respondent, v. S.M. JAMISON, Sr., and Neita Jamison, husband and wife, and Larry L. Jamison, Defendants-Appellants.

No. 15744.

Supreme Court of Idaho.

March 19, 1986.

Rehearing Denied May 19, 1986.

Charles W. Hosack, Coeur d'Alene, for defendants-appellants.

Terrence W. Hannon, Janet E. Jenkins, Coeur d'Alene, and Dock Blanchard, Ocala, Fla., for plaintiff-respondent.

HUNTLEY, Justice.

On June 11, 1981, George Vittoria deeded one hundred ten acres of timber land (Blue Creek property) to Larry Jamison in exchange for Jamison's five year, $30,000 unsecured note. Vittoria also by related will bequeathed the remainder of his estate (a few thousand dollars in cash and jewelry) to Jamison. This happened nine days after Vittoria learned he had a recurrence of cancer, which cancer had been diagnosed in 1979 as having a 65% likelihood of being terminal and which had required a colostomy in the same year. In light of the recurrence, Vittoria submitted to chemotherapy which began June 17, 1981. He died August 25, 1981, at age 64.

This action, by Mary Bongiovi, the adoptive step-mother of Vittoria, resulted in a jury verdict setting aside the transfer as having been procured through the undue influence of the Jamisons on Vittoria. The Jamisons appeal from the verdict and the denial of post-trial motions.

Vittoria purchased the Blue Creek property in the mid 1950's. He lived alone there until his death. For twenty years he worked for Y-J's, a food company owned by the Jamisons, until 1975 when he either retired or was laid off and not rehired. From 1975 until his death he visited the Jamisons and former co-workers at Y-J's about two days a week and certain neighbors three days a week. During the same period he received one visit and occasional cards and phone calls from his mother. Mrs. Bongiovi's health limited her ability to travel from her Florida home to visit Vittoria in person. During the last year of his life, Vittoria believed his mother was financially well off.

On June 11, 1981, the parents of Larry Jamison brought Vittoria to attorney Herbert Sanderson, who drafted Vittoria's will and deed. At the time, Sanderson sat on Y-J's board of directors and had represented the Jamisons in prior matters. He also represented the Jamisons in the original defense of this law suit.

The Jamisons had met alone with Sanderson two days before bringing in Vittoria, who apparently executed the deed and will during his first meeting with Sanderson. Sanderson had never previously represented Vittoria. The Jamisons were always present when Vittoria met with Sanderson. Sanderson testified Vittoria was definite that he wanted Larry Jamison to get all Vittoria's property. Sanderson testified at trial that when he drafted the papers he was under the impression that the property was valued at $30,000 according to the latest Kootenai County assessor's statement of the market value. However, other evidence placed the value at $200,000. The Jamisons' contacts with Vittoria increased greatly during the final three to four months of Vittoria's life, according to S.M. Jamison, Sr.

For example, on July 29, 1981, Vittoria gave a ring to Neita Jamison for her birthday. Yet, some testimony indicated the Jamisons did not ordinarily celebrate birthdays with Vittoria.

The jury found the Jamisons exercised undue influence over Vittoria with respect to the deed, will, and gift. The Jamisons argue on appeal that the district court erred in instructing the jury on a presumption of undue influence. Instruction 9 defined undue influence. Instruction 13 stated a presumption of undue influence would arise upon the jury's finding of a confidential relationship between the testator/grantor and the beneficiary coupled with participation by the beneficiary in the procurement of the conveyances. Instruction 20 directed the jury to weigh the presumption as evidence and gave the Jamisons the burden of rebutting the presumption. The full text of each instruction appears below. ¹

The Jamisons focus on Instruction 13, which they claim contradicted the rule in Keenan v. Brooks, 100 Idaho 823, 606 P.2d 473 (1980). Bongiovi responds that McNabb v. Brewster, 75 Idaho 313, 272 P.2d 298 (1954) permitted the instruction.

McNabb held that if a grantor and grantee have a confidential relationship, and the grantor reposes trust in the grantee, and the evidence otherwise creates an inference of fraud or overreaching, then the burden of persuasion shifts to the proponent (beneficiary) of the conveyance to show by clear and convincing evidence that no undue influence was exercised. McNabb, 75 Idaho at 320-23, 272 P.2d at 302-04. McNabb involved a mother-daughter confidential relationship. Evidence suggested the daughter dominated her mother through verbal abuse. The daughter breached her promise to care for her mother, which promise had been made in exchange for the mother's property. This breach created an inference of fraud. The daughter also participated in the procurement of the conveyance, creating an inference of overreaching. McNabb, 75 Idaho at 316, 319-20, 272 P.2d at 299, 301-02. Bongiovi concludes that the holding and facts of McNabb permitted the district court's Instruction 13 on a presumption of undue influence which justified permitting the jury to weigh the presumption as evidence as provided by Instruction 20.

The Jamisons argue Instruction 13 contradicted Keenan, a case decided after McNabb. In Keenan a mother conveyed her property to her daughters for whom she apparently had affection. In Keenan the existence of a confidential relationship was assumed since the grantor received no independent advice regarding the conveyance and the beneficiary participated in the procurement of the conveyance. This Court nevertheless held no presumption of undue influence arose. Keenan, 100 Idaho at 826, 606 P.2d at 476.

Keenan distinguished McNabb on three factual grounds. In McNabb the conveyance left the grantor impoverished, it disinherited one of two children, and the beneficiary breached her promise to care for the grantor, a promise made to induce the conveyance. Keenan, 100 Idaho at 826, 609 P.2d at 476. Therefore, Keenan did not prohibit the use of presumptions of undue influence, but merely restricted their use to cases factually similar to McNabb.

Another Idaho case which refused to invoke a presumption also distinguished McNabb. There it was noted the grantor in McNabb disliked the grantee and did not receive independent advice in preparing the conveyance. Kelley v. Wheyland, 93 Idaho 735, 738-39, 471 P.2d 590, 593-94 (1970).

In the instant case the evidence indicated the conveyances did not impoverish George Vittoria during his life. Neither did it appear that fraudulent promises by the Jamisons induced the conveyances. On the other hand, Vittoria disinherited his adoptive step-mother even though on June 7, 1981, ten days prior to commencing chemotherapy, he said to a neighbor that his step-mother would get all his property upon his death. Vittoria received no independent advice on the conveyance. The record also suggests Vittoria got along with the Jamisons. In short, this case seems to fall somewhere between McNabb and Keenan/Kelley.

Even if this case were factually similar to McNabb, we question the wisdom of instructing juries on presumptions. By restricting the use of presumptions to cases factually similar to McNabb, both Keenan and Kelley have virtually defeated the purpose of presumption as espoused by McNabb. McNabb's purpose was intended to bring a presumption to the aid of the conveyance contestant, who lacked access to the evidence of the proponent-beneficiary's contacts with the grantor. However, under McNabb, as limited by Keenan and Kelley, a contestant must now come forward with so much evidence of overreaching to obtain the presumption of undue influence that, were that quantum of evidence available, the contestant would almost certainly prevail without the presumption.

The district court resolved this dilemma by taking a middle ground. Instruction 13 allowed the jury to find and utilize a presumption. However, Instruction 20 did not shift the burden of persuasion by clear and convincing evidence as McNabb had done. Instead, the court directed the jury to weigh the presumption as it would any other evidence; evidence which the Jamisons could supposedly rebut with something less than a preponderance of the evidence.

The difficulty with Instruction 20, however, is that it amounted to a comment on the evidence. The court effectively commented to the jury that a confidential relationship coupled with the beneficiary's activity in procurement of a conveyance creates an especially strong inference of undue influence. This instruction departed from the meaning McNabb attached to the word presumption. There, the term shifted the burden of persuasion and raised the standard of proof to clear and convincing evidence.

The efficacy of the use of presumptions is widely debated in the literature. The controversy's source lies in the fact that courts have often (sometimes indiscriminately) used the word presumption to reach four quite different basic evidentiary objectives (1) to shift the burden of production, (2) to shift the burden of persuasion, (3) to comment on the weight of the evidence, or (4) to conclusively establish a fact through a rule of decision. Allen, Presumptions in Civil Actions Reconsidered, 66 Iowa L.Rev. 843, 845 (1981).

Professors Thayer and Wigmore have argued courts should use the word presumption to describe only shifts in the burden of production. They reasoned that the remaining evidentiary effects to which courts sometimes apply the label presumption have well-established, more descriptive names. J. Thayer, Preliminary Treatise on Evidence at the Common Law, 336-37 (1898); 9 J. Wigmore, Evidence § 2490 at 287-88 (3d.ed. 1940). In short, co...