Ho v. Bach
| Decision Date | 04 September 2018 |
| Docket Number | No. 76132-3-I,76132-3-I |
| Parties | ANH-DUONG THI HO, personally and as the personal representative for the Estate of ANH DUNG HO, deceased, Respondents, v. MARY HO-MONG BACH, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
LEACH, J. — Mary Ho-Mong Bach (Bach) appeals from a trial court order quieting title to certain property in her deceased grandmother's successors-in-interest, Ann-Duong Thi Ho (Dee) and the estate of Anh-Dung Ho (Yomi).1 First, Bach claims the trial court admitted testimony in violation of Washington's dead man's statute.2 Second, she claims that the statute of limitations for fraud bars the action. Third, she claims that insufficient evidence supports the trial court's finding that a confidential relationship existed between Bach and her grandparents and the facts do not support the conclusion that the Hos did notintend to gift the property to Bach. Dee cross appeals the trial court's decision not to disinherit Bach.
First, the trial court did not err in admitting any testimony because no party that testified about the transaction was a person in interest under the dead man's statute. Second, because of the confidential relationship between Bach and her grandparents, Bach is equitably estopped from asserting the statute of limitations defense. Third, substantial evidence supports the finding of a confidential relationship. In light of this relationship, the trial court did not err in looking at extrinsic evidence to decide the transfer was not a gift. Finally, the trial court did not err in declining to disinherit Bach because this is not a proper proceeding to do so. We affirm.
FACTS
Andre Linh Tu Ho (Ho) and his wife Hong-Hoc Thi Dang (Dang) (together the Hos) emigrated from Vietnam with their family in 1975 to escape the Communist takeover.3 They spent several months in refugee sites. Then a Catholic church in Renton sponsored the family. The church rented a house in Renton for their residence. In 1979, the Hos purchased the house from its owners. They paid off the mortgage in 1996. The house was the Hos' primary asset.
Except for the Hos' oldest daughter, Mong-Diep Ho, the Ho children grew up in the house. They generally moved out after they married but still lived close to their parents. The Hos also cared for their grandchildren, including Bach, the oldest daughter of Mong-Diep Ho. By 2000, the Hos lived in the house with only Yomi, who had a developmental disability.
When the Hos arrived in the United States, they spoke and understood very little English. Ho took classes in English. But the trial court found that the Hos were far from fluent. They relied on their children and grandchildren to act as interpreters for tasks like filling in information on checks to pay bills, accompanying them to doctor visits, and corresponding with government agencies.
On March 27, 2001, the Hos signed a quitclaim deed transferring the house to Bach for "love and affection." Dang claims that the Hos signed the deed because Bach had told them that the government could take the house to pay for hospital expenses if they ever became seriously ill. They signed the deed to avoid this potential loss. Dang claimed that Bach promised to return the house to them and put a provision stating this in the quitclaim deed. Neither the quitclaim deed nor any of the accompanying documents contains the promised provision. Dang claimed that she and Ho trusted Bach to translate because they did not understand English and could not read the documents.
After delivering the deed, the Hos continued to live in the house. They paid all expenses and taxes related to the house. Sometime later, the Hos began to ask Bach to transfer the house back to them. Several witnesses testified that they saw Bach tell Ho that she would transfer the house back.
Ho died in July 2013. The trial court found that after Ho's death, Dang repeatedly asked Bach to transfer the house back to her. Each time, Bach told Dang that she was too busy. In August 2013, Dang and Dee went to Bach's office at the Veteran's Hospital to have her sign the papers to transfer title. Bach refused to see them. Hospital security escorted them off hospital grounds. One of Dang's children, Dung Ho, testified that after this incident Dang was hyperventilating, visibly shaken, and upset.
Dee and Dung Ho e-mailed Bach again, demanding that she transfer the house. Bach responded, stating she did not intend to "steal" the home, that her busy schedule at work made it difficult to take time off work, and asserting, "I have no bad intentions and will try to get this done as soon as I can." She later told Dung Ho, "I am arranging like I told you and will do it as soon as I can." She told Dee,
Dang filed this lawsuit in December 2013. She died without a valid will in July 2014. Dee submitted Dang's holographic will to the probate court.According to this document, Dang wished to leave all her property to Dee to be used in the care of Yomi. The probate court found the will was not valid. Then seven of Dang's children assigned their interests to Dee, ostensibly to honor Dang's wishes. Yomi did not assign her interest. Mong-Diep Ho assigned any interest in the property to her daughter, Bach.
After a five-day bench trial, the court found that the Hos did not intend to gift the property to Bach and that they signed the quitclaim deed without understanding the nature or consequences of the document. The trial court set aside the quitclaim deed. It quieted title in Dang's successors-in-interest. Thus, the trial court determined that Dee was entitled to an undivided 80 percent interest, Yomi was entitled to an undivided 10 percent interest, and Bach was entitled to an undivided 10 percent interest.
Bach appeals the trial court's decision to void the quitclaim deed. Dee appeals the trial court's decision that Bach has a 10 percent interest in the property.
ANALYSIS
Dead Man's Statute
First, Bach contends that the trial court improperly considered testimony in violation of Washington's dead man's statute. The parties assert that the appropriate standard of review for this issue is abuse of discretion. The deadman's statute involves the admission of evidence, and this court reviews evidentiary issues for abuse of discretion.4 But the issue here—whether the witnesses were parties in interest—is a legal question that we review de novo.5
At trial, three of the Hos' children testified about the transaction: Xuan (Sue) Kinzler, Anh-Tuyet Thi Ho, and Dung Ho. Bach claims that the dead man's statute barred their testimony about the transaction because they are parties in interest. The dead man's statute prevents a person from testifying about a transaction with a deceased person if they have an interest in that transaction:
[I]n an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, . . . then a party in interest or to the record, shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased . . . person.6
"The purpose of the dead man's statute is to prevent interested parties from giving self-serving testimony regarding conversations and transactions with the deceased."7 A party in interest is one who stands to gain or lose by the action in question.8 Interest means pecuniary interest.9 In addition, the interest must be adirect interest, "the test being whether the witness will gain or lose by the direct legal operation and effect of the judgment."10 These witnesses originally had an interest in the property but assigned those interests to Dee before trial. Thus, Dee claims that they were no longer parties in interest. We agree.11
Bach contends that the witnesses acquired an interest in the litigation when Dang died without a valid wilt. She asserts that from that time they were interested parties and that they could not later change their status by assigning their interests to Dee. Bach primarily relies on an 1895 Washington Supreme Court case, Gilmore v. H.W. Baker Co.12 We distinguish Gilmore. Gilmore held that a witness who was a party to a transaction with the deceased could not testify about the transaction after he had assigned his interest to a corporation in which he held stock and of which he was the president.13
The facts that the present corporation (appellant) succeeded to the business . . . and that the witness became its president and one ofits stockholders, did not remove the disability which the law imposes upon him as a party in interest. To hold otherwise would, for practical purposes, be to ignore the spirit of the statute, by permitting one, whom the law, from considerations of public policy requires to remain silent as to any transaction had by him with a deceased person, to evade the statute and avoid the disability imposed by it and become an effective witness merely by assigning his interest in the subject matter of the action, or by forming a corporation in which he might be the president and only stockholder, and thus by indirection accomplish that which the law prohibits to be done.14
Unlike in Gilmore, the witnesses here retained no interest, either direct or indirect, in the house and thus no pecuniary stake in the outcome of the litigation.
Bach also relies on Lee v. Northwest Trust & Savings Bank.15 Lee and others sued the Bank, as executor, to reconvey mortgaged property, claiming that the secured debt had been paid.16 Lee was one of the persons who signed the note, the mortgage, and the trust deed.17 The court decided he was a party in interest even though he "disclaimed all interest in the case so far as he was concerned and stated that Lee was testifying for the other parties, not for himself."18 The court found that Lee's "declaration of...
To continue reading
Request your trial