In re Conservatorship of McGowen, 97-CA-00457-COA.
| Citation | 752 So.2d 1078 |
| Decision Date | 07 September 1999 |
| Docket Number | No. 97-CA-00457-COA.,97-CA-00457-COA. |
| Parties | In the Matter of the CONSERVATORSHIP OF Clarence W. McGOWEN, Sr. James Clayton Gardner, Sr., Appellant, v. Anne B. McGowen, Vera Lea McGowen, Clarence W. McGowen Jr., Elizabeth Ann McGowen Bond, Rita Kay McGowen Diaz, Myrna Jo McGowen Franklin, and Kecia McGowen Perkins, Appellees. |
| Court | Mississippi Court of Appeals |
Gary L. Roberts, Attorney for Appellant.
W. Lee Watt, R. Bradley Prewitt, Pascagoula, Attorneys for Appellant.
BEFORE KING, P.J., BRIDGES, AND LEE, JJ.
KING, P.J., for the Court:
¶ 1. This case originated with a complaint filed in the Chancery Court of Jackson County by J.C. Gardner, on behalf of Clarence Winslow McGowen, alleging that eleven warranty deeds executed by McGowen were obtained through "deceit, trickery or subterfuge" and without McGowen's knowledge. The complaint named as defendants five of McGowen's children and the notary public who notarized McGowen's signature on the deeds. After the defendants executed quitclaim deeds to McGowen, who executed a second set of warranty deeds again naming his children as grantees, Gardner asserted that McGowen was incompetent and petitioned the chancery court to appoint a conservator for him. The cases were consolidated for trial, and the court appointed a guardian ad litem to protect the interests of McGowen. Following a trial on the issue the chancellor ruled that McGowen was competent when he executed the deeds and refused to declare the deeds void.
¶ 2. On appeal, Gardner presents the following assertions of error, which we quote verbatim:
THE TRIAL COURT EMPLOYED AN INCORRECT LEGAL STANDARD IN ADDRESSING THE ISSUE OF UNDUE INFLUENCE BY A FIDUCIARY. MOREOVER, THE TRIAL COURT WAS MANIFESTLY IN ERROR AND ABUSED ITS DISCRETION IN DETERMINING THAT CLARENCE MCGOWEN WAS COMPETENT WHEN THE DEEDS AT ISSUE WERE EXECUTED AND DELIVERED.
Finding no error, we affirm the judgment of the chancery court.
FACTS
¶ 3. Anne B. McGowen and her husband, Clarence, were married for over fifty years, had six children, and owned thirteen tracts of real property in Jackson County, Mississippi. Anne, aware that she was dying of cancer, discussed the possible disposition of certain property with her husband. In July 1995, the McGowens had their attorney, Eddie Clark Williams, prepare eleven (11) warranty deeds, leaving a blank for the name of each grantee. Both Anne and Clarence McGowen were named as grantors on each of the eleven deeds.1
¶ 4. In August of 1995, at Anne's request, their daughter Kecia brought a coworker, notary public Susan Ladnier, to the McGowens' home. Ladnier notarized the deeds as the McGowens signed them, but the spaces for the grantees' names remained blank. During the 1995 Christmas holidays, the McGowens' son, C.W., visited from his home in California. As his parents instructed him which of their children would receive each piece of property, C.W. wrote the name of the specified grantee in the blank on the deed. Because Anne planned to undergo surgery in early January 1996, she asked C.W. to file the warranty deeds with the chancery clerk of Jackson County. In March of 1996, Anne delivered the executed deeds by mail with a handwritten letter to each child.
¶ 5. J.C. Gardner, a Pascagoula attorney, who was formerly married to the McGowens' daughter, Vera Lea, noticed that the warranty deeds had been filed. When he questioned Clarence McGowen about the conveyances, Clarence said that he did not remember signing any warranty deeds. Gardner represented Clarence in the initial complaint to set aside the eleven warranty deeds which granted various parcels of real property to each of Clarence's six children. Gardner filed the action on March 25, 1996, asserting that the defendants, who included all of Anne and Clarence's children except Vera Lea, obtained the warranty deeds "by an act of deceit, trickery, or subterfuge and without [Clarence's] knowledge and consent." The defendants included Elizabeth Ann McGowen Bond, Myrna Jo McGowen Franklin, Rita Kay (Kay) McGowen Diaz, Clarence Winslow (C.W.) McGowen, Jr., and Kecia McGowen Perkins, and the notary public, Susan Gay Ladnier. Gardner later amended the complaint to allege undue influence by "certain of [defendants]," to assert that Anne McGowen had insufficient mental capacity due to her physical condition and possible medication, and to add Vera Lea as a defendant.
¶ 6. In response to the lawsuit, four of the defendants executed quitclaim deeds conveying the property back to Anne and Clarence McGowen as joint tenants with right of survivorship.2 Eddie Clark Williams drafted eleven new warranty deeds for Anne and Clarence McGowen, each reserving a life estate, with the grantees' names included in the completed documents. Williams had drafted Anne's will in 1993, and the devises of the real property in the will were consistent with the conveyances specified in the first set of deeds and in this second set of warranty deeds.
¶ 7. Due to her deteriorating health, Anne was living with her daughter, Kay Diaz, while Clarence remained at home. On May 2, 1996, Anne called Mike Byrd, a friend of the family and police captain in Gautier, to inquire about getting the second set of warranty deeds notarized. Kay and Kecia drove Anne and Clarence to Byrd's office at City Hall in Gautier, where the McGowens signed the deeds and had them notarized by Shannon Aguilar. Kay and Kecia were not present when the deeds were signed, but Anne's friend Jane Fields and Mike Byrd witnessed the signatures. Fields and Byrd both testified that Clarence seemed to understand what was taking place and did not seem incompetent. Aguilar testified that Clarence repeated the same joke several times.
¶ 8. On May 17, 1996, attorney Joe White met with Anne and Clarence to review power of attorney documents which White prepared at Anne's request. Anne and Clarence signed the powers of attorney, appointing Kay and Kecia as their respective attorneys-in-fact. White testified that both Anne and Clarence appeared to know what they were doing and that he observed no indication of undue influence by anyone.
¶ 9. Gardner filed a "Petition to Establish Conservatorship and Appointment of Conservator" for Clarence McGowen on July 22, 1996. Only Anne and Vera Lea were named as defendants. Myrna Jo, Kay, C.W., and Kecia filed a "Motion for Joinder and for Authority to File a Response on Behalf of Interested Parties." Gardner filed a motion to strike that motion. Attorney Richard Hamilton filed a response to the petition on behalf of Clarence on July 31, 1996. A special chancellor was appointed to hear this case. The court appointed John Kinard as Clarence's guardian ad litem. Pursuant to an agreed order, Susan Ladnier was dismissed from the suit.
¶ 10. Prior to testimony, the parties stipulated that a conservator should be appointed, and the court appointed Mike Byrd. Therefore, the only issue before the court was whether to set aside the deeds. The chancellor determined that the plaintiff failed to carry its legal burden of proving that Clarence was incompetent at the time that the deeds were executed. Thus, the court declined to set aside the deeds. The subsequent motion for reconsideration was overruled.
DISCUSSION
¶ 11. The established standard of review requires that "[w]henever there is substantial evidence in the record to support the chancellor's findings of fact, those findings must be affirmed." Denson v. George, 642 So.2d 909, 913 (Miss.1994). The supreme court has clarified that substantial evidence is "more than a `mere scintilla'" and may be characterized as "such relevant evidence as reasonable minds might accept as adequate to support a conclusion." Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991). In assessing conflicting evidence, the trial judge sitting as the trier of facts retains sole authority to determine the credibility of the witnesses. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). Therefore, the reviewing court will not disturb the chancellor's findings of fact unless they are "manifestly wrong or clearly erroneous." Denson, 642 So.2d at 913; see Leggett v. Graham, 218 So.2d 892, 895 (Miss. 1969)
.
¶ 12. With respect to cases in which competency is an issue, "[t]he same capacity is required to execute a valid deed as is required for making a will." Whitworth v. Kines, 604 So.2d 225, 228 (Miss. 1992). A plaintiff asserting lack of capacity to execute a deed bears the burden of proving lack of capacity by clear and convincing evidence. Mullins, 515 So.2d at 1190. Moreover, the grantor's mental capacity must be evaluated as of the specific time that the grantor executed the deed rather than in regard to the grantor's general physical or mental condition. In re Estate of Mask, 703 So.2d 852 (¶ 17) (Miss. 1997); Whitworth, 604 So.2d at 228; Richardson v. Langley, 426 So.2d 780, 783 (Miss.1983). Mississippi courts recognize that, in spite of a general mental condition, a grantor may experience a lucid interval during which the grantor is competent to execute a deed. Whitworth, 604 So.2d at 229.
¶ 13. The record reveals conflicting testimony as to Clarence's competency at the time that the deeds were executed. The plaintiff adduced testimony from Dr. Roy W. Deal, a psychiatrist, that Clarence was "likely" incompetent one year prior to Dr. Deal's examination on June 12, 1996. However, Dr. Deal acknowledged that this assertion was speculative because he was not actually present to observe Clarence at the time in question. Dr. John A. Stoudenmire, a psychologist, met with Clarence on August 4 and August 12, 1996, and conducted tests to determine Clarence's intellectual, academic, and mental...
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