Hayes v. Apperson

• Decision Date: 08 February 2002
• Citation: 826 So.2d 798
• Parties: Elizabeth HAYES et al. v. Gordon W. APPERSON, individually and as executor of the Estate of Louise Foshee Apperson, deceased.
• Court: Alabama Supreme Court

826 So.2d 798

Elizabeth HAYES et al. v. Gordon W. APPERSON, individually and as executor of the Estate of Louise Foshee Apperson, deceased.

1001605.

Supreme Court of Alabama.

February 8, 2002.

Bill Speaks, Clanton, for appellants.

Andrew T. Mayfield, Clanton, for appellee.

HOUSTON, Justice.

Elizabeth Hayes, Nancy G. Shannon, and Martha Alice Cowan (representatives of the estate of Calhoun Foshee, Jr.), the plaintiffs in the underlying action,¹ appeal from a judgment for Gordon W. Apperson (the executor of Louise Apperson's estate), the defendant in this will contest and action challenging a deed. The plaintiffs argue that Gordon Apperson (hereinafter "Gordon") exerted undue influence on Louise Apperson (hereinafter "Louise") in the execution of her will and of a deed. We reverse and remand.

Gordon is Louise's stepson. He testified that he was retired but that he had previously worked as a bailiff in the Chilton Circuit Court for 12 years. His father, Charles Apperson, married Louise in 1962. The couple had no children together. Charles Apperson died in 1982. He left his entire estate to Gordon, although he had nine other children.²

In 1964, during Louise's marriage to Gordon's father, Louise and her brother, Calhoun Foshee, Jr. (hereinafter "Calhoun"), executed a joint will with their mother, in which each left his or her entire estate to the survivors or survivor, with the estate going to the Maplesville United Methodist Church upon the death of the last of Louise, Calhoun, and their mother. Their mother died in 1973. In 1987, Louise and Calhoun executed joint wills in which they left their entire estates to the survivor, with the estate going to the Maplesville United Methodist Church on the survivor's death. Louise and Calhoun had a very close relationship and lived together in their family home after Charles Apperson's death. At the time of her death, Louise was 85 years old. She had amassed approximately $170,000, which was held in several bank accounts, and she owned a one-half interest in approximately 340 acres of land.

Gordon took care of both Louise and Calhoun after his father's death. He had dinner with Louise every Sunday night. He took both Louise and Calhoun to the doctor, because they were not very mobile. He made repairs to their house and handled all of Louise's business and financial affairs, including collecting rentals on her properties and managing her bank accounts. At trial, Gordon testified that both Louise and Calhoun depended on him fully.

In 1996, both Louise and Calhoun executed a power of attorney in favor of Gordon. Using this power of attorney, Gordon began putting his name on several of Louise's bank accounts. He also gained access to her safety-deposit box, where she kept her will. In January 1999, Louise's health began to fail. She was hospitalized on January 21, 1999, with renal failure. Ultimately, she refused treatment, and she was released from the hospital on February 2, 1999. However, during her stay in the hospital, a handwritten will was produced by Gordon, purportedly signed by Louise, and dated January 25, 1999. Gordon and his wife, Nelly Apperson, had drafted the will. The instrument left Calhoun a life estate in Louise's property, with the remainder to Gordon. According to the plaintiffs' brief, with this will, coupled with the power of attorney, Gordon was able to have his name placed on more of Louise's bank accounts. A handwriting expert who testified at trial indicated that the signature on this handwritten will appeared to be written by someone trying to imitate the writing of a disabled person, and that "Louise" was spelled incorrectly.

In late January 1999, Gordon approached Morgan Reynolds, the attorney who had drafted Louise's 1987 will, on two occasions, asking him to draft another will for Louise. However, Reynolds testified that Louise never contacted him to ask him to draft another will and he never drafted another will.

Subsequently, Gordon drafted additional wills for both Louise and Calhoun, as well as a deed giving Gordon an interest in land owned jointly by Louise and Calhoun. The deed purported to create a joint tenancy with the right of survivorship between Gordon, Louise, and Calhoun. The wills and the deed were typed by James McGowin, a friend of Gordon. Gordon maintains that both Louise and Calhoun instructed him to draft the instruments. Calhoun, however, in a deposition taken shortly before his death, indicated that he had not asked Gordon to draft a will for him. Both wills left the testators' entire estates to Gordon.

Gordon arranged for Louise and Calhoun to execute these two new wills and the deed on February 11, 1999. James McGowin, who typed the wills and deed at Gordon's direction; James's wife, Pauline; and Gordon's wife, Nelly, were to be witnesses. At one point after they arrived at Louise's home, Nancy Shannon, a friend of Louise's, came by to visit. When the notary, Joan Fuqua, arrived, Gordon told Fuqua to leave, and that he would telephone her when he needed her to return. After Shannon left, Fuqua returned. During the trial, Gordon maintained that Louise had contacted Fuqua to serve as the notary; however, Fuqua testified that Gordon was the only person who had contacted her. Fuqua testified she did not know until after the litigation began that she had notarized two wills and a deed that day.

Louise and Calhoun signed the wills and the deed in the presence of Gordon, Nelly, Fuqua, and James and Pauline McGowin. At one point, Gordon instructed Fuqua to ask Louise if she knew what she was doing. Gordon left the room, and Fuqua asked Louise if she knew what she was doing; Louise responded affirmatively, although she did not indicate that she knew she was signing a will or a deed. No one read the wills or the deed to Louise or Calhoun. Louise died on March 13, 1999. Subsequently, Gordon began probating her February 11 will. When Calhoun learned that the will of Louise's that was being probated was not the joint will she had executed in 1987, he revoked his February 11 will and executed a new will that, like his 1987 will, left his entire estate to the Maplesville United Methodist Church. He also executed a new deed, purporting to revoke the survivorship feature of the estate created in the February 11 deed. He then filed this contest, challenging Louise's February 11 will and the deed, claiming that the signatures on both were forged and, alternatively, that Louise lacked the requisite capacity to execute the instruments. The plaintiffs also argued at trial that both the will and the deed were products of undue influence exerted by Gordon over Louise.

After a bench trial, the trial court found for Gordon, and held that both the will and the deed were valid, finding that Louise was competent to execute the will and the deed and that Gordon had not exerted undue influence over Louise to get her to execute the will and the deed. The trial court issued its order on February 27, 2001. On March 8, 2001, the plaintiffs filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. A hearing on the motion was held on May 2, 2001, and the trial court issued an amended order on August 10, 2001, some five months after the motion to alter, amend, or vacate was filed.³ The record does not indicate whether the parties consented to, or whether the court ordered, an extension of time in which to rule on the plaintiffs' motion. When a trial court does not rule on a postjudgment motion within 90 days, it is deemed denied by operation of law under Rule 59.1, Ala. R.Civ.P., and the trial court loses jurisdiction to rule on that motion. Ex parte Hornsby, 663 So.2d 966, 967 (Ala.1995); Ex parte Johnson Land Co., 561 So.2d 506 (Ala.1990). Therefore, the August 10, 2001, order is a nullity.

"Where the trial court hears ore tenus evidence, a presumption of correctness exists as to the court's findings of fact based on that ore tenus evidence; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment."

Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993) (citations omitted).

We affirm the trial court's holding that Louise was competent when she executed the will and the deed; however, we hold that the trial court's finding that Louise's execution of the deed and the will was not the product of Gordon's undue influence is against the great weight of the evidence. We, therefore, reverse the trial court's judgment as to that issue.

A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the testator, (2) the influence of the beneficiary is dominant and controlling in that relationship, and (3) there is undue activity by the beneficiary in procuring the execution of the will. Burns v. Marshall, 767 So.2d 347, 352 (Ala.2000); Ex parte Henderson, 732 So.2d 295, 298 (Ala.1999). The trial court held that the plaintiffs failed to meet their burden of proof in that they submitted no convincing evidence indicating that Gordon had a dominant or controlling influence over Louise, or that there was any undue activity on his part in procuring the execution of the will and the deed. The plaintiffs argue on appeal that the trial court erred in not finding that the plaintiffs met their burden as to these two elements of undue influence.

This Court has noted:

"`[I]t is next to impossible to produce direct evidence of the exercise of undue influence over another person. Frequently the best evidence which can be offered for either [the] proponent [of a will] or [the] contestant is circumstantial, tending only to support inferences which can be drawn therefrom.' Smith v.

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