In re Estate of Dabney, 98-CA-00508-SCT.

• Decision Date: 12 August 1999
• Docket Number: No. 98-CA-00508-SCT.,98-CA-00508-SCT.
• Parties: In re the ESTATE OF Eloise W. DABNEY, deceased. David H. Dabney, Eloise Dabney Lautier and Mary Dabney Nicholls v. Freddie D. Hataway, Cheryl Lineberger, Janie Hataway, Rachael Hataway and Fred Dabney.
• Court: Mississippi Supreme Court

740 So.2d 915

In re the ESTATE OF Eloise W. DABNEY, deceased.

David H. Dabney, Eloise Dabney Lautier and Mary Dabney Nicholls v. Freddie D. Hataway, Cheryl Lineberger, Janie Hataway, Rachael Hataway and Fred Dabney.

No. 98-CA-00508-SCT.

Supreme Court of Mississippi.

August 12, 1999.

Kenneth B. Rector, Vicksburg, Attorney for Appellants.

Jamaes D. Bell, Eduardo Alberto Flechas, Jackson, Attorneys for Appellees.

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This case involves the contest of the will of Eloise Dabney. The Contestants include Freddie D. Hataway, daughter of Eloise Dabney, along with her children, Cheryl Lineberger, Janie Hataway, Rachel Hataway, and Fred Dabney. The Proponents of the will are David H. Dabney, Eloise Dabney Lautier and Mary Dabney Nicholls, which are the other children of Eloise Dabney. The Proponents of the will appeal the 12-0 jury verdict in favor of the Contestants from the Warren County Chancery Court.

Statement of the Facts

¶ 2. On April, 17, 1954, F.Y. Dabney purchased a large block of mineral interests in Mississippi, Louisiana, Alabama, and Florida from a George Gilbert and formed a partnership known as the Dabney Company. The original partners were F.Y. Dabney, his wife Eloise Dabney, and his four children Mary Dabney Nicholls, David Dabney, Eloise Dabney Lautier (the "Proponents")and Freddie Dabney Hataway (the "Contestant"). F.Y. Dabney transferred to B.C. Owens 5% of the net cash profits of the Dabney Company. F.Y. Dabney died in 1956 leaving his wife and four children as the surviving partners in the company.

¶ 3. In 1956, Leo Boolos, a Certified Public Accountant in Vicksburg, began assisting Mrs. Dabney with financial and tax matters. Over the years, Boolos became an advisor and confidant to Mrs. Dabney. Oil company checks were mailed to Boolos, who deposited and accounted for the funds. Oil companies even contacted him to arrange leases. When Mrs. Dabney would receive inquiries about the company, she would generally refer those inquiries to Boolos.

¶ 4. In 1960, Boolos obtained two assignments of portions of B.C. Owens's net cash profit participating interest. The effect of these assignments was that Owens would receive 4.5% of the net cash profits derived from royalties, bonuses and similar income, and Boolos would receive .5% of the net cash profits. However, in the event of a sale, Boolos would receive 2.75% of the net cash profits to only 2.25% for Owens.

¶ 5. In May of 1974 a new partnership agreement was prepared. Mrs. Dabney and the four children remained partners, but she also had a special power of attorney to sell or lease Dabney Company properties with David Dabney and Leo Boolos as successors. Through the years, the Contestant had numerous run-ins and disputes with Boolos over financial decisions, powers of attorney. The first such dispute arose in 1981 when a sale of assets took place. When Contestant asked Boolos to produce information regarding his sources of information, Boolos responded that he was not at liberty to produce this information.

¶ 6. In another request for information, the Contestant asked Boolos for a list of the original Dabney Company properties. Boolos responded that the Contestant had requested more than any partner should ask for and that these documents were not readily available. Many other requests were made to Boolos for certain information; however, the information was never obtained by the Contestant.

¶ 7. In 1995, David signed numerous medical records for Mrs. Dabney as "Eloise W. Dabney by David Dabney as her guardian or conservator." Less than a year before Mrs. Dabney's death, David signed a medical record for his mother because she was "unable to sign due to dementia." On September 20, 1995, Dr. Daniel Edney gave Mrs. Dabney a diagnosis of "progressive senile dementia." All of Mrs. Dabney's nurses testified that Mrs. Dabney was confused and agitated.

¶ 8. Mrs. Dabney was completely bedridden the last years of her life and died on August 22, 1996, at the age of 90 years. Ten days before her death, Mrs. Dabney executed a new will prepared for her by Boolos. This new 1996 will omitted the Contestant as a beneficiary.

¶ 9. The Proponents filed the 1996 will for probate in the Warren County Chancery Court, and the Contestant challenged the will. The trial court granted partial summary judgment to the Proponents on the issue of mental capacity. The remaining issues were tried to a jury in January 1998, and the jury returned a 12-0 verdict for the Contestant. A motion for judgment notwithstanding the verdict and for new trial was made by the Proponents and was denied.

¶ 10. Aggrieved by the trial court's judgment, the Proponents appeal an assign three errors, as follows:

I. DID THE TRIAL JUDGE ERR BY FAILING TO GRANT A DIRECTED VERDICT OR A PEREMPTORY INSTRUCTION TO THE APPELLANTS (a) ON THE ISSUE OF THE EXISTENCE OF A CONFIDENTIAL RELATIONSHIP BETWEEN THE TESTATRIX AND DAVID DABNEY AND/OR LEO BOOLOS OR (b) ON THE ISSUE OF WHETHER OR NOT THE WILL WAS PROCURED BY UNDUE INFLUENCE?

II. WAS THE 1996 LAST WILL AND TESTAMENT OF ELOISE DABNEY A PRODUCT OF FRAUD OR MISREPRESENTATION?

III. DID THE TRIAL JUDGE ERR BY FAILING TO GRANT PROPONENTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR NEW TRIAL?

STANDARD OF REVIEW

¶ 11. "In reviewing a jury verdict, this Court resolves all conflicts of evidence in the appellee's favor and determines all reasonable inferences from testimony given towards the appellee's position. Reversal occurs only where the facts presented are so overwhelming in the appellant's position that reasonable jurors could not have found for the appellee." Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 151-52 (Miss. 1997) (citations omitted). When an appellant challenges the sufficiency of evidence to support a jury's verdict, the appellate court's scope of review is limited. Parker v. Thornton, 596 So.2d 854, 857 (Miss. 1992). All evidence must be reviewed in the light most favorable to the appellee. Id. An appellate court may only reverse a jury verdict when the facts considered in that light point so overwhelmingly to the appellant's position that reasonable men could not have arrived at a contrary verdict. Wilmoth v. Peaster Tractor Co. of Lexington, Inc., 544 So.2d 1384, 1386 (Miss.1989). In the event that evidence is conflicting, a jury is the sole judge of the credibility of witnesses and the weight of their testimony. Wilmoth, 544 So.2d at 1386 (citing Dixon v. State, 519 So.2d 1226 (Miss.1988)).

LEGAL ANALYSIS

I. DID THE TRIAL JUDGE ERR BY FAILING TO GRANT A DIRECTED VERDICT OR A PEREMPTORY INSTRUCTION TO THE APPELLANTS (a) ON THE ISSUE OF THE EXISTENCE OF A CONFIDENTIAL RELATIONSHIP BETWEEN THE TESTATRIX AND DAVID DABNEY AND/OR LEO BOOLOS OR (b) ON THE ISSUE OF WHETHER OR NOT THE WILL WAS PROCURED BY UNDUE INFLUENCE OR MISREPRESENTATION?

¶ 12. A confidential relationship exists 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). It is well established that the contestant has the burden of establishing the existence of a confidential relationship. Norris v. Norris, 498 So.2d 809, 813 (Miss.1986). Factors to be considered in determining if and when a confidential relationship exists, include: (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 provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another. See In re Estate of Grantham, 609 So.2d 1220, 1224 (Miss. 1992)

; Costello v. Hall, 506 So.2d 293 (Miss.1987); Hendricks v. James, 421 So.2d 1031 (Miss.1982).

¶ 13. One of the first factors in determining a confidential relationship is whether one person has to be taken care of by others. David Dabney and Leo Boolos did take care of the testatrix, on both personal and business levels. Also, the testatrix had to be taken care of by other individuals due to being bedridden. Mrs. Dabney had many nurses over the years. The last two years of her life, Mrs. Dabney was visited twice daily by nurses' aides. Also, according to David's testimony, he would often run errands for his mother, and before she became bedridden, he would drive her places. David also testified that, to the best of his knowledge, on two occasions he signed checks on his mother's account. He would deposit money for and on behalf of his mother and also pay bills for her. There was also testimony by Angela Jordan, one of Mrs. Dabney's nurses, that David signed several documents for his mother while she was in the hospital because she was unable to sign for herself. With regard to Leo Boolos, testimony showed that Boolos tended to the Dabney business finances. According to information showed at trial, Mrs. Dabney did have to be taken care of both physically by her nurses, and she also had help with her business affairs.

¶ 14. Another factor in determining a confidential relationship is whether the testatrix is physically or mentally weak. According to the records, the testatrix was diagnosed with progressive senile dementia and cerebral atrophy, and there was testimony relating to the fact that she was forgetful, depressed, agitated, and easily confused. Three months before she died, she complained of losing her mind. With regard to being physically weak, the testatrix was confined to a bed for the last two years of her life. Testimony from her daughter Mary indicated that three days before her death, Mrs. Dabney was not able to write a check.

¶ 15. Next, and a third factor to consider, the testatrix...