In re Estate of Pope
| Decision Date | 20 May 2008 |
| Docket Number | No. 2007-CA-00199-COA.,2007-CA-00199-COA. |
| Citation | 5 So.3d 427 |
| Parties | In the Matter of the ESTATE OF Earsel Rayburn POPE, Deceased. Juanita Sharp Anderson Allen Pope, Appellant v. Cathy White, Judy O'Berry and Teresa Williamson, Appellees. |
| Court | Mississippi Court of Appeals |
James A. Williams, attorney for appellant.
Walton Wade White, Philadelphia, Terry L. Jordan, Steven Detroy Settlemires, Philadelphia, attorneys for appellees.
Before MYERS, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.
CARLTON, J., for the court.
¶ 1. This case involves the contest of the will of Earsel Rayburn Pope (Earsel). The contestants, Cathy White, Judy O'Berry, and Teresa Williamson (collectively, "the Contestants"), are the natural daughters of Earsel. The proponent of the will is Juanita Sharp Anderson Allen Pope (Juanita), who was married to Earsel at the time of his death and was named as the sole beneficiary under the purported will. On November 3, 2006, the Chancery Court of Neshoba County entered a judgment in favor of the Contestants pursuant to a jury verdict finding that the will was not the true last will and testament of Earsel.
¶ 2. Aggrieved, Juanita appeals and argues that the chancellor erred in denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We find that the record contains substantial evidence supporting the jury's verdict. Therefore, we find no error and affirm.
FACTS
¶ 3. Earsel passed away on March 29, 2004. He was survived by the Contestants and his wife, Juanita. Before marrying Juanita, Earsel was married to Elizabeth Earlene Vincent Pope (Earlene) for over fifty years, until she passed away in March 2001. The Contestants were born into the marriage between Earsel and Earlene. At the time of Earlene's passing, Earsel was seventy-three years old and suffered from leukemia, Alzheimer's, dementia, heart problems, diabetes, arthritis, and shoulder problems. Earsel's medical condition rendered him dependent on the assistance of others. He took more than twenty-one pills a day and was under hospice care. After Earlene's passing, the Contestants jointly cared for Earsel by helping him with such tasks as: driving, cooking, laying out his medicine, and administering his insulin shots.1 Although the record is unclear, it appears that sometime during 2002, Earsel moved in with Williamson, who became his primary caregiver. In May 2003, Earsel executed a power of attorney in Williamson.
¶ 4. Williamson would occasionally hire others to sit with Earsel when she and her husband were unable to do so. In approximately September 2003, Williamson first contacted Juanita to sit with Earsel. It is unclear how many times Juanita sat with Earsel; however, Williamson testified that she contacted Juanita at least twice. Although Juanita denied ever being paid to sit with Earsel, she admitted that she had received money from Williamson on two occasions. On one of these occasions, Juanita received a check for $100, which was dated September 18, 2003, and contained a notation that the check was made for "sitting." Juanita and Earsel began dating in August 2003, at which time, Juanita moved in with Earsel and became his primary caregiver. After a brief courtship, Juanita married Earsel on October 9, 2003. According to the Contestants, Juanita would not allow them to be alone with Earsel when they came to visit him both during Juanita and Earsel's courtship and after their marriage.
¶ 5. A few days after the marriage, Juanita called attorney Robert Thomas and set an appointment to discuss preparing a will for Earsel. On October 13, 2003, the day of the appointment, Juanita drove Earsel to Thomas's law office and accompanied him inside. According to Thomas, Juanita began asking him about the law in Mississippi regarding the disinheritance of children. Regarding this conversation, Thomas stated that:
When they came in, [Juanita] was with him; and they sat down. She started asking me some questions about the law and — and what could be done with regard — primarily, I think she was concerned or she had knowledge of the law in Texas and Louisiana and what could be done with regard to children and that sort of thing in Mississippi. I advised her that I didn't need to talk with her, that I needed to talk with [Earsel]. I excused her, and she went outside. Then [Earsel] and I talked, and he advised me that he wanted to do [sic] the will leaving everything to [Juanita] and her as executor and revoke the power of attorney [in Williamson], and that's what I did.
Although Thomas testified that Earsel expressed a desire to leave Juanita his entire estate, he stated that no discussion was had as to whether Earsel understood that he was leaving nothing to his daughters. After Juanita and Earsel left, the will was prepared.
¶ 6. The following day, October 14, 2003, Juanita transported Earsel to Thomas's office to execute the will. Juanita was not present in the room when Earsel signed the will; she was standing outside the door. Earsel signed the will in the presence of Heather Irby and Susan Alford, legal assistants in Thomas's law office. Alford recalled that Irby stated that Earsel did not ask anyone to watch him. The will was executed naming Juanita as the sole beneficiary. The document revoking the power of attorney in Williamson was dated October 16, 2003; it is unclear from the record if this document was also executed on October 14, 2003. Although the record is unclear, it appears that the will was given to Earsel at Thomas's office. However, Juanita testified that she placed the will in a locked safe at her house when she and Earsel returned home from Thomas's office.2
¶ 7. Also, the week after the marriage, Terrell Flint, Earsel's financial advisor, met with Earsel and Juanita to remove $50,000 out of an annuity Earsel kept with New York Life. Later, on December 18, 2003, Flint again met with Earsel and Juanita concerning the annuity. On this date, the remaining balance was withdrawn — approximately $200,000. As Flint left this meeting, he asked Juanita if she could use his services to reinvest the money in another account. Flint testified that "she said, no, she was going to put the money somewhere it couldn't be found."
¶ 8. After Earsel's passing, O'Berry and White filed a caveat against probate in common form.3 Juanita filed a petition to probate the will and requested a jury trial, which was held from October 16, 2007, to October 18, 2007. At the close of the evidence, the jury returned a verdict in favor of the Contestants, finding that the will was not the true last will and testament of Earsel. Juanita's post-trial motions were denied. She now appeals.
DISCUSSION
Whether the chancellor erred in denying Juanita's motion for judgment notwithstanding the verdict or, in the alternative, a new trial.
¶ 9. We review the denial of a motion for judgment notwithstanding the verdict (NOV) de novo. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 64(24) (Miss.2004). We "consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that reasonably may be drawn therefrom." Id. at 63(21). This Court must reverse and render "[i]f the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict...." Id. at (22) (quoting Corley v. Evans, 835 So.2d 30, 37(19) (Miss.2003)). However, we will affirm "if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions...." Id. at (23).
¶ 10. We review the trial court's denial of a motion for new trial under the abuse of discretion standard of review. Miss. Transp. Comm'n v. Highland Dev., LLC, 836 So.2d 731, 734(10) (Miss.2002) (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 723(40) (Miss.2001)). On appeal, "we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State, 895 So.2d 836, 844(18) (Miss.2005) (citation omitted).
¶ 11. A presumption of undue influence arises "where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it...." Croft v. Alder, 237 Miss. 713, 722-23, 115 So.2d 683, 686 (1959); see also, Smith v. Averill, 722 So.2d 606, 612(18) (Miss.1998) () (citing Pallatin v. Jones, 638 So.2d 493, 495 (Miss.1994)); Genna v. Harrington, 254 So.2d 525, 529 (Miss.1971) (). The party asserting the existence of a confidential relationship bears the burden of proving it by clear and convincing evidence. Mullins v. Ratcliff, 515 So.2d 1183, 1191-92 (Miss.1987). A confidential relationship "arises when a dominant, over-mastering influence controls over a dependent person or trust justifiably reposed." Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984) (citing Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982)). The factors to be considered in determining whether a confidential relationship exists are:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is...
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