Howe v. Another1

• Citation: 80 Mass.App.Ct. 736,956 N.E.2d 249
• Decision Date: 31 October 2011
• Docket Number: No. 10–P–295.,10–P–295.
• Court: Appeals Court of Massachusetts
• Parties: Virgil D. HOWEv.Ronald F. PALMER & another.1

80 Mass.App.Ct. 736

956 N.E.2d 249

Virgil D. HOWE

v.Ronald F. PALMER & another.1

No. 10–P–295.

Appeals Court of Massachusetts, Franklin.

Argued April 5, 2011.Decided Oct. 31, 2011.

Mark A. Tanner, Northampton, for the defendants.Michael R. Rawson, Boston, for the plaintiff.Present: TRAINOR, SMITH, & MEADE, JJ.TRAINOR, J.

The defendants, Ronald F. Palmer and Jeanette M. Palmer (collectively, Palmers), appeal from a jury verdict finding that a 2000 deed from the plaintiff, Virgil D. Howe, to the Palmers was the product of undue influence and that the Palmers had intentionally inflicted emotional distress on Howe. In answer to special questions, the jury found that Howe did not know nor should he reasonably have known prior to March 1, 2003, that he had been harmed (for purposes of applying the discovery rule and the statute of limitations) and that he did not unreasonably delay bringing suit so as to prejudice the Palmers. Judgment entered rescinding the deed and awarding damages for emotional distress in the amount of $60,000 plus interest and costs. The Palmers appeal the judgment, arguing that the trial judge should have allowed their motions for a directed verdict as to the two claims, as well as their motion for judgment notwithstanding the verdict. We affirm.

Background. We recite the facts the jury could have found. Howe owned a farm in Deerfield, an inheritance from his mother. His wife, Esther, was not on the deed. By all accounts, Howe is a simple man with severe dyslexia and slow mental processing. These issues contributed to a difficult childhood where he was treated harshly and subjected to severe discipline by school administrators, as well as being teased and bullied by his peers and classmates. As an adult, he was easily intimidated; in fact, Ronald Palmer (Palmer) testified that because Howe is “who he is,” “he could be made to go along with things he may not really want to go along with.”

The Palmers befriended the Howes in the mid–1990s and Palmer became Howe's only friend. Howe confided in Palmer concerning his (Howe's) weak financial position and his fear that he would lose his farm, “his inheritance.” Palmer offered to help and advised Howe to pray on it. In the fall of 1998, the Palmers spent one week on the farm with the Howes. The Palmers asked a lot of questions about expenses and about Esther's children from her two previous marriages. After the Palmers spent their “trial” week with the Howes, Palmer told a friend, “[G]ive me a year and I'll have my retirement.” Ultimately, by agreement, the Palmers moved into the Howes' home in January or February of 1999 to share expenses for a period of six months to one year. The inside of the house was cluttered and dirty, and the outside was littered with abandoned and rusting vehicles and other machine parts. Apparently the house was uninsurable.

In the spring of 1999, the parties started cleaning up the property, but Howe was a somewhat reluctant participant. During “house meetings,” Palmer intimidated Howe about the cleaning, forced him to part with items he desired to keep, and yelled at him to keep his word and to speed up his work. Howe became uncomfortable living with Palmer and found it difficult to face him when he came home from his job working on the adjacent farm. Although Palmer professed that he never expected to be paid for the work he did cleaning up the Howe home and property, he decided unilaterally to take a “commission” on the profits of a tag sale the parties held in the summer of 1999. Jeanette Palmer kept the balance of the proceeds for household expenses. In addition to the tag sale, more than fifteen tons of “junk” was removed by a junk hauler. Howe never was informed how much, if any, money was realized from that transaction. Howe, fearful of Palmer, did not protest.

Despite the fact that there was no such agreement before moving on to the farm, after six months, Palmer convinced Howe that he owed him $20,000 to $25,000 for his (Palmer's) assistance in cleaning up the property, and that the only way Howe could settle his debt was to sell the farm or convey a fifty percent interest in it to the Palmers. Howe agreed to do so because he “felt like there was no other option.” Jeanette Palmer contacted a lawyer, and on March 7, 2000, Howe signed a deed giving the Palmers a fifty percent interest in the property as his joint tenants by the entirety,² subject to a life estate for Esther Howe. Although the lawyer inquired as to separate representation for Howe, Howe did not have the money for such representation. Howe had ongoing feelings of “fear and intimidation” at the time the deed was executed.

It is unclear exactly when, but at some point in 2000, the parties and Esther Howe decided to create a Christian ministry on the farm, and called it “Shepherds Haven.” Through a correspondence course, the Palmers became ministers of Full Gospel International of Pennsylvania. They had a “spiritual board” of four to five people at the farm.

On November 9, 2000, Howe signed a document agreeing to be counseled by Reverend Carol Pomeroy. He also agreed that if he could not “change” himself by March 31, the ministry would be disbanded. Those who wished to continue the ministry to God would leave the farm, and Howe would reimburse them financially for all the time, effort, and work they put into the farm.

Howe's stepdaughter, who was concerned when she learned about the deed to the Palmers, had a discussion with Howe around the time the deed was signed. During the discussion, he told her that he “had been having a bad attitude about everything that was going on at the farm” and asked her to “pray that his attitude would change.” He also told her he was “in counseling” with Pomeroy, a friend of the Palmers, and “that he now felt that what was happening out there was okay.” The Palmers told Howe that his prior pastor was not “Holy Spirit filled” and, therefore, would not be an appropriate counselor. In addition, they forbade Howe to tell anyone outside of the ministry what went on at Shepherds Haven. Palmer yelled at Howe if Howe did not support him without question, and the jury could have found that the counseling was designed to change Howe's behavior and his resistance to cooperating with, and being “loyal” to, Palmer. Esther testified that she and Howe were “learning to submit,” to be “loyal,” and to “[go] along with [Palmer's] leadership.” Pomeroy reported to Palmer upon completing each session with Howe.

John Morris, a friend of Palmer who spent several months on the farm in 2001, described Palmer's treatment of Howe as “constant intimidation, belittlement—degradation.” Tensions continued between Howe and Palmer from 2002 through 2005. Palmer told Howe he had the attributes of “Satan,” which caused Howe to become depressed. Palmer eventually suggested that Howe ask his boss if he could live in a camper on the boss's farm. On July 16, 2005, Howe packed his things, asked his wife if he could use her trailer, and moved to the neighboring farm. Shortly before he left, he resigned from the board of Shepherds Haven, stating that he had let fear control his life. Palmer made him rewrite the resignation letter eliminating any reference to fear.

Some months later, Howe and his wife reconciled despite the Palmers' efforts to keep them apart by telling Esther that Howe had abandoned her. Esther eventually left the property as well, and this action was commenced on March 1, 2006, less than one year after Howe left the property.

Discussion. Undue influence. It is well established that the obligations of documents such as deeds, wills, and contracts can be avoided by showing that they were procured by means of fraud or undue influence. See, e.g., Brodie v. Evirs, 313 Mass. 741, 744–745, 49 N.E.2d 218 (1943); Henchey v. Cox, 348 Mass. 742, 746–747, 205 N.E.2d 715 (1965); Bruno v. Bruno, 384 Mass. 31, 33–34, 422 N.E.2d 1369 (1981); Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464, 681 N.E.2d 1189 (1997). Fraud and undue influence are separate and distinct grounds for invalidating such documents, and their proof proceeds from different theories. See generally Wellman v. Carter, 286 Mass. 237, 253, 190 N.E. 493 (1934). In the case of fraud, the victim proceeds of his own free will but is affected by a false representation of a fact that induced the execution of the document. Ibid. Undue influence, however, creates a situation where the victim's own free will is destroyed or overcome such that what he does, his action, is contrary to his true desire and free will. Neill v. Brackett, 234 Mass. 367, 369–370, 126 N.E. 93 (1920). Wellman, supra. Rood v. Newberg, 48 Mass.App.Ct. 185, 191–192, 718 N.E.2d 886 (1999). We are dealing here with a claim of undue influence. The party challenging the validity of the document, on the ground that it was procured and executed as a result of undue influence, bears the burden of proving the allegation by a preponderance of the evidence.³ See, e.g., Cleary v. Cleary, 427 Mass. 286, 290, 692 N.E.2d 955 (1998).

Undue influence has been defined to mean “whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammelled desire.” Neill, 234 Mass. at 369, 126 N.E. 93. There are numerous means by which undue influence may be exerted upon an individual. The means may be overt or subtle, and one method is no more determinative of the outcome than another. Undue influence “may be caused by physical force, by duress, by threats, or by importunity. It may arise from persistent and unrelaxing efforts in the establishment or maintenance of conditions intolerable to the particular individual. It may result from more subtle conduct designed to create an irresistible ascendancy by imperceptible means. It may be exerted either by deceptive devices, or by material compulsion without actual fraud. Any species of coercion, whether...