Furrow v. Helton

• Decision Date: 24 October 2008
• Docket Number: 1070667.
• Parties: Etole C. FURROW v. Gregory HELTON.
• Court: Alabama Supreme Court

13 So.3d 350

Etole C. FURROW v. Gregory HELTON.

1070667.

Supreme Court of Alabama.

October 24, 2008.

Rehearing Denied January 16, 2009.

Robert M. Galloway and J. Willis Garrett III of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellant.

Thomas R. Boller, Mobile, for appellee.

SMITH, Justice.

Etole C. Furrow is the proponent of a will her mother, Jewell B. Malone, executed in 2003. Gregory Helton is a grandson of Malone who contested the 2003 will. After a trial before the Mobile County Probate Court, a jury returned a verdict in favor of Gregory, and Furrow appeals from a judgment entered on that verdict. We reverse and remand.

Facts and Procedural History

Malone, a resident of Mobile County, had three daughters: Furrow; Sarah C. Lott; and Dorothy June C. Helton, who was Gregory's mother. Malone had grandchildren by each daughter.

Malone executed a will in 1995 devising her estate to her three daughters in equal shares. If a daughter predeceased Malone, that daughter's share under the 1995 will would pass to the daughter's children per stirpes. The 1995 will named Furrow as the executrix of Malone's estate; in the event Furrow could not serve, Lott and Helton were to be co-executrixes.

After a protracted illness, Malone's daughter Helton died on November 30, 2003. Malone executed a new will on December 16, 2003, devising her estate equally between Furrow and Lott, Malone's two remaining living daughters. The 2003 will made no provision for any of Malone's grandchildren; instead, it provided that if either Furrow or Lott preceded Malone in death, the surviving daughter would receive Malone's entire estate. The 2003 will named Furrow as the executrix or, alternatively, Lott, if Furrow could not serve.

Malone died on June 20, 2006. Furrow sought to have the 2003 will probated in the Mobile County Probate Court, and Gregory filed a will contest alleging, among other things, that the 2003 will was the result of Furrow's undue influence.

The will contest was tried before a jury. Before the matter was submitted to the jury at the conclusion of the trial, the probate court entered a judgment as a matter of law ("JML") against Gregory on all claims except the claim alleging that Furrow had exercised undue influence over Malone regarding the 2003 will. The jury returned a verdict in Gregory's favor on his claim of undue influence, and the probate court entered a judgment on the verdict in favor of Gregory and against the 2003 will. Furrow filed a renewed motion for a JML under Rule 50(b), Ala. R. Civ. P., which the trial court later denied. Furrow appealed to this Court. See § 12-22-21, Ala.Code 1975 (authorizing an appeal to this Court from an order, judgment, or decree of the probate court "on a contest as to the validity of a will").

Discussion

Furrow contends she was entitled to a JML as to Gregory's claim that the 2003 will was the result of Furrow's allegedly exercising undue influence over Malone.

"`When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling.'"

City of Birmingham v. Brown, 969 So.2d 910, 915 (Ala.2007) (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003)).

Gregory, as the contestant, had the burden at trial of proving the elements of undue influence. Clifton v. Clifton, 529 So.2d 980, 983 (Ala.1988) ("It is well established that the contestant who challenges a will on the basis of undue influence bears the burden of proving such allegations." (citing Kelly v. Donaldson, 456 So.2d 30, 33 (Ala.1984))). As the proponent of the will, Furrow opposed Gregory's claim of undue influence; therefore, the following is relevant to our review of the trial court's denial of Furrow's motion for a JML:

"JML in favor of a movant who does not assert the claim or affirmative defense but who only opposes it, and who therefore does not bear the burden of proof, is appropriate in either of two alternative cases. One is that the claim or affirmative defense is invalid in legal theory. See Harkins & Co. v. Lewis, 535 So.2d 104 (Ala.1988). The other is that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence. See Banks v. Harbin, 500 So.2d 1027 (Ala.1986), and McKerley [v. Etowah-DeKalb-Cherokee Mental Health Bd., Inc., 686 So.2d 1194 (Ala.Civ.App. 1996) ]. If either alternative be true, JML is appropriate. See Harkins, supra, Banks, supra, and McKerley, supra. If, however, the nonmovant's claim or affirmative defense is valid in legal theory and is supported by substantial evidence on every contested element, JML is inappropriate irrespective of the presence or weight of countervailing evidence. See Driver [v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala. 1995) ], and First Financial [Ins. Co. v. Tillery, 626 So.2d 1252 (Ala.1993) ]."

Ex parte Helms, 873 So.2d 1139, 1143-44 (Ala.2003).

Furrow contends that the second scenario described in Helms applies in the present case, i.e., "that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence." 873 So.2d at 1143. Furrow argues that the burden of proof never shifted to her and that the trial court erred in denying her motion for a JML on the undue-influence claim. We agree.

As the contestant, Gregory was required to offer substantial evidence showing

"(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the part of the dominant party in procuring the execution of the will."

Clifton, 529 So.2d at 983 (citing Penn v. Jarrett, 447 So.2d 723, 724 (Ala.1984); Reed v. Walters, 396 So.2d 83, 86 (Ala. 1981)). See also Hubbard v. Moseley, 261 Ala. 683, 686-87, 75 So.2d 658, 661 (1954).

In the present case, Gregory failed to offer substantial evidence suggesting that Furrow exercised a dominant or controlling influence over Malone or that Furrow engaged in undue activity in procuring the execution of the will. Thus, Gregory failed to meet his burden of proof on at least two of the three elements of his undue-influence claim.¹

The presumption is that the parent (Malone) was dominant over the child (Furrow). Clifton, 529 So.2d at 984 (citing Nottage v. Jones, 388 So.2d 923, 926 (Ala. 1980) (where the party in a will contest alleged to have exerted undue influence over the testatrix is the child of the testatrix, it is ordinarily presumed that the parent is dominant over the child)). Thus, Gregory had the burden of offering substantial evidence to the contrary. Wilson v. Wehunt, 631 So.2d 991, 993-94 (Ala. 1994). See also Clifton, 529 So.2d at 983-84.

Gregory correctly notes that the issue of dominance may be proved by circumstantial evidence. See Ex parte Helms, 873 So.2d at 1148; Allen v. Sconyers, 669 So.2d 113, 118 (Ala.1995). However, the circumstantial evidence offered to show dominance must nevertheless be substantial evidence. See, e.g., Wilson, 631 So.2d at 993-94. "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). See also § 12-21-12(d), Ala.Code 1975.

Gregory contends that "the jury accepted the testimony of [Gregory], [Gregory's father, Winfred Helton, Sr.], and [Gregory's brother, Winfred Helton, Jr. (`Bubba') ], that [Malone] was feeble, hallucinating, and vulnerable" around the time she executed the 2003 will.² Bubba testified that Malone "probably took over 10 pills a day" in the two- to three-year period before June Helton died in November 2003. He testified that "on a few occasions" he saw her take the medication Haldol, which he testified his ex-wife thought was for the treatment of Alzheimer's disease.³

Gregory also argues that the jury rejected most of or all Furrow's testimony because, he says, the jury found it lacking in credibility. He contends that the jury's rejection of Furrow's testimony and the jury's acceptance of his testimony and the testimony of Winfred, Sr., and Bubba "was in and of itself [substantial evidence from which] the jury could have inferred [Furrow] was dominant in her exercise of a confidential relationship at the time the contested will was procured." Gregory contends, therefore, that the facts in the present case present a jury question on the issue of undue influence as did the facts in Ex parte Helms, supra, in which this Court held that a summary judgment was improper on an undue-influence claim. 873 So.2d at 1148-49.

In Ex parte Helms, this Court found that the contestants had presented substantial evidence of dominance and control and undue activity in procuring the execution of the will being contested. The testator in Ex parte Helms executed a second will in 1997, approximately 12 days after her doctor...