Jones v. Pizon
| Decision Date | 29 August 2018 |
| Docket Number | Appeal No. 2017AP2024 |
| Citation | 2018 WI App 62,384 Wis.2d 271,921 N.W.2d 3 (Table) |
| Parties | Raymond JONES, Sr. BY His Guardian Troy JONES, Plaintiff-Respondent, v. Brian PIZON, Defendant-Appellant, New Title Services, Inc., Coldwell Banker the Real Estate Group, Inc. and Wisconsin Department of Revenue, Defendants. |
| Court | Wisconsin Court of Appeals |
¶ 1 A jury concluded that Raymond Jones, Sr., was incompetent when he entered into two contracts to sell real estate to Brian Pizon. Pizon appeals from a judgment invalidating the transfers on several grounds. Most notably, he argues that incompetency to enter a contract must be proven by clear and convincing evidence, not by the greater weight of the credible evidence as the jury was instructed. Pizon also takes issue with the court’s decision to allow certain testimony regarding Jones’ competence and the court’s denial of a motion for mistrial. We find no error in the proceedings and affirm.
¶ 2 Jones owned two parcels of land in Oshkosh—a thirty-acre parcel and a five-acre parcel. Jones listed the parcels for sale in late 2014 for $689,000 and $199,000 respectively.1 The thirty-acre parcel had an appraised value of $155,000, and the five-acre parcel had an appraised value of $38,000. The first offer Jones received was from Pizon on May 14, 2015, who offered to buy the thirty-acre parcel for $100,000—substantially lower than the appraised value and list price. Jones initially rejected the offer, but changed his mind after a few days. Pizon closed on the thirty-acre parcel on June 4, 2015. While the parties were still in the title building, Pizon also offered to purchase the five-acre parcel for $16,500—again, substantially below both the appraised value and the list price. Jones accepted this offer, and the parties closed on June 16, 2015.
¶ 3 Less than two weeks after the sales closed, Jones was placed under emergency protective placement due to dementia. His son was eventually appointed as his guardian and brought this lawsuit to undo the transactions. Jones argued that he did not have "sufficient mental ability to know what he was doing when he signed the offers to purchase, deeds, closing statements and other documents related to the transfer of the" properties.
¶ 4 The action proceeded to a two-day jury trial where numerous witnesses testified. Jones presented evidence of a number of incidents calling into question his mental capacity around the time of the contracts. The following are some of the noteworthy incidents:
• On April 24, 2015, police performed a welfare check prompted by Jones showing up at a hospital in a confused state to look for a friend who was not there. During the check, Jones identified his internet modem as his phone and could not explain how to use his telephone.
• On May 13, 2015—one day prior to Pizon’s first offer—Jones went to the sheriff’s department to report he thought someone had broken into his home and stolen his wallet. The deputy who took the report testified that Jones "was somewhat hard to understand meaning that he was kind of confused." Upon investigating Jones’ residence, the deputy found no signs of break in, and the wallet was found in the bathroom.
• On May 26, 2015, Jones’ next-door neighbor became concerned and contacted social services. She testified that Jones had exhibited some strange behavior around late April through May. Jones had wrapped his phone in aluminum foil and put it in the refrigerator "[a] couple times," had pulled wires out of a working television, and would visit the neighbor several times a day to report that his wife was having heart surgery. Once, Jones came to the neighbor’s house and brought over a wad of cash. The neighbor also testified that Jones had barricaded himself in his garage.
• On June 5, 2015, the day after closing on the thirty-acre parcel, Jones caused an accident by failing to yield. When questioned about the accident, Jones misstated the date as April 18, 2005. Jones could not remember who the president was or his ethnicity.
• On June 22, 2015, five days after closing on the five-acre parcel, a neighbor reported that Jones was outside and confused. Police assisted Jones in getting back inside his home.
• On June 27, 2015, police were again called due to Jones visiting a neighbor’s home in an agitated state four to five times worried that someone was stealing his mail.
• On June 29, 2015, police were called for another welfare check because neighbors had seen Jones climbing in and out of his front window.
¶ 5 Pizon countered by producing four witnesses who had observed Jones around the time of the contested real estate transactions. Jones’ real estate listing agent testified she did not "notice anything unusual or erratic or uncommon" about Jones’ behavior from late 2014 through early to mid June 2015. She was present at both closings. Two closing agents similarly testified they did not observe anything out of the ordinary with Jones’ behavior during the closings; both testified that Jones had no trouble understanding the closing process. Finally, a lifelong friend of Jones who accompanied him to both closings testified that Jones seemed excited to make the deal. She averred that she observed nothing suggesting Jones was not in possession of his faculties.
¶ 6 Both Pizon and Jones introduced expert testimony regarding Jones’ mental condition at the time he entered into the contracts to sell the parcels, setting up a battle of the experts. Pizon presented the testimony of Dr. Deborah Collins. After reviewing Jones’ history, Collins testified there was no "support for a conclusion that at the times in question Mr. Jones was not competent." Jones presented the testimony of Dr. Allen Hauer; it is this testimony Pizon challenges on appeal. Hauer offered a contrary view to that of Collins, stating that Jones was "definitely incompetent" long before June 2015 due to dementia. He explained that Jones’ dementia, apparent when he was placed under emergency protective placement on June 29, "did not appear overnight" or "in the last month" but was "a persistent and deteriorating condition that has an onset" of at least one year prior. When asked about Jones’ seemingly normal behavior at times, Hauer dismissed those instances as mere "apparent lucidity." Hauer opined that Jones could not make rational decisions due to his condition despite appearing lucid at times. Hauer explained that around the time of the transactions "any lucid, rational moment was brief and that [Jones’] actions during that time ... were not products of rational and considered thought and planning."
¶ 7 At the close of evidence, Pizon sought a jury instruction to the effect that incompetency must be proven by "clear, convincing, and satisfactory evidence." The circuit court did not give Pizon’s desired instruction. Rather, the jury was instructed that the burden of proof was the greater weight of the credible evidence. The jury concluded Jones was mentally incompetent when he signed the contracts to sell the two parcels. The circuit court entered judgment accordingly, ordering the parcels returned to Jones and the purchase price refunded. Pizon appeals.
¶ 8 We address three arguments.2 First, Pizon argues the circuit court incorrectly instructed the jury regarding the burden of proof. Second, he maintains that the court erroneously exercised its discretion by allowing Hauer to testify. And finally, he insists the court should have granted his motion for mistrial when Jones had to be removed from the courtroom for being disruptive. None of these arguments are availing, and we affirm.
¶ 9 "Wisconsin has long recognized a cause of action to rescind a contract or conveyance based upon the lack of mental competency at the time of the transaction." Hauer v. Union State Bank of Wautoma , 192 Wis. 2d 576, 588, 532 N.W.2d 456 (Ct. App. 1995). The law presumes every person is fully competent to enter into contracts until proof to the contrary is presented. First Nat’l Bank of Appleton v. Nennig , 92 Wis. 2d 518, 529-30, 285 N.W.2d 614 (1979). The party seeking to void the contract or conveyance bears the burden to prove incompetency. Hauer , 192 Wis. 2d at 589. "The test of competency is, did the person involved have sufficient mental ability to know what he was doing and the nature of the act done." Nennig , 92 Wis. 2d at 530. Almost any conduct on the part of the person whose competency is being questioned may be relevant, in addition to lay and expert testimony and prior and subsequent adjudications of incompetency. Hauer , 192 Wis. 2d at 590.
¶ 10 Pizon argues we should "establish that, in cases challenging competency to contract (including executing deeds), the clear and convincing burden of proof must be satisfied." Pizon claims that "there is no appellate case in Wisconsin that specifically establishes the proper burden of proof in a case in which one contends that a contract is void due to a lack of mental capacity." Accordingly, he appeals to competency assessments in other areas, like testamentary capacity, guardianship, and civil commitment, which require clear and convincing proof of mental incapacity. Pizon further asserts, "Numerous other jurisdictions and at least one leading treatise also have adopted the heightened" burden of proof. Because the circuit court instructed the jury that the burden of proof was "the greater weight of the credible evidence," Pizon maintains that we must reverse the judgment.
¶ 11 Our cases have long established the general rules...
To continue reading
Request your trial
-
Eclipse Serv. v. SolarCode LLC
...is being questioned may be relevant, in addition to lay and expert testimony and prior and subsequent adjudications of incompetency.” Id. (emphasis In at least one Wisconsin case, the trial court “relied on [] medical records and daily progress notes” to ascertain a patient's “mental status......