Krueger v. Ary
| Citation | 220 P.3d 923 |
| Decision Date | 13 December 2007 |
| Docket Number | No. 06CA2142.,06CA2142. |
| Parties | Mary K. KRUEGER, personal representative of the Estate of Iver M. Villa, a/k/a Iver Martin Villa, and a/k/a Martin Villa, deceased, Plaintiff-Appellant, v. Marlyn L. ARY, Defendant-Appellee. |
| Court | Court of Appeals of Colorado |
Hanes & Schutz, LLC, Timothy J. Schutz, January D. Barrett, Colorado Springs, CO, for Plaintiff-Appellant.
James D. Osborne, Craig, CO, for Defendant-Appellee.
Opinion by Judge LOEB.
In this action for the rescission of gifts, plaintiff, Mary K. Krueger, acting as personal representative of the estate of decedent, Iver M. Villa, appeals the judgment entered upon a jury verdict in favor of defendant, Marlyn L. Ary. We affirm.
Ary began working for decedent in 1989 as a part-time housekeeper. As decedent's health declined, Ary became more involved with decedent's personal and business affairs. In 2003, Ary became heavily involved in his personal affairs when she became his primary caregiver.
From 2003 until he passed away in 2005, decedent's vision declined, and he needed assistance to identify people, to drive, and to read. Ary provided much of the required assistance as she handled decedent's mail, paid his bills with authority to draw on his checking account, and drove him to meetings with his doctors and lawyers.
In April 2003, decedent conveyed a house and ten acres to himself and Ary in joint tenancy, and in November 2004, decedent gave Ary a check for $5,000 (the subject transfers). The subject transfers are the contested transactions at issue in this case.
Krueger, who is also decedent's daughter and sole surviving child, filed this action shortly after decedent's death in April 2005. She claimed the subject transfers were the result of Ary's breach of her fiduciary duty, fraud, and undue influence. Ary responded that the subject transfers were valid gifts.
At trial, the parties presented conflicting evidence as to whether the subject transfers resulted from a breach of fiduciary duty, fraud, and undue influence. During trial, Krueger tendered jury instructions similar to two pattern instructions on the presumptions of undue influence and unfairness created by evidence showing that parties to a fiduciary or confidential relationship entered a transaction from which the fiduciary benefited. The trial court refused to instruct the jury on these presumptions. The jury returned a verdict in favor of Ary, and this appeal followed.
Krueger contends the trial court reversibly erred by refusing to instruct the jury on two presumptions regarding the subject transfers. Specifically, she contends the court erred by refusing to instruct the jury that the subject transfers were presumed to be (1) the product of undue influence because Ary and decedent shared a fiduciary or confidential relationship, and Ary actively participated in the creation of the documents under which the transfers were made; and (2) unfair, unjust, and unreasonable because of the confidential relationship between decedent and Ary. We disagree because we conclude these presumptions "disappear" from the case when rebutting evidence is presented.
The trial court has discretion to determine the form and style of the instructions to be given to the jury. We will not overturn a trial court's decision on a jury instruction absent an abuse of discretion. Woznicki v. Musick, 119 P.3d 567, 573 (Colo. App.2005). If the instructions properly inform the jury of the law, no reversible error can be found. Id.
Here, on Krueger's claim regarding the transfer of real property, the trial court gave the following elemental instruction:
For the plaintiff, Mary K. Krueger as Personal Representative of the Estate of Iver M. Villa decedent, to recover from the defendant, Marlyn L. Ary, on her claim for return of real property conveyed into joint tenancy, you must find all of the following (item 1, item 2a or 2b, and item 3a or 3b) have been proved by a preponderance of the evidence:
1. The decedent, Iver M. Villa, by warranty deed, conveyed real property into joint tenancy between himself and defendant Marlyn Ary;
2. At the time, the decedent and the defendant were either (a) in a confidential relationship in which the defendant was the dominant member of that relationship or (b) in a fiduciary relationship;
3. Either (a) the warranty deed was procured from the decedent by the defendant's exercise of undue influence upon the decedent, or (b) the conveyance was unfair, unjust or unreasonable.
If you find that one or more of these three (3) statements has not been proved, then your verdict must be for the defendant.
On the other hand, if you find that all of these three (3) statements have been proved, then your verdict must be for the plaintiff.
Similarly, on Krueger's claim regarding the $5000 check, the court instructed the jury as follows:
For the plaintiff, Mary K. Krueger as Personal Representative of the Estate of Iver M. Villa, decedent, to recover from defendant, Marlyn L. Ary, on her claim for money conveyed by check from decedent to defendant, you must find all of the following (item 1, item 2a or 2b, and item 3a or 3b) have been proved by a preponderance of the evidence:
1. The decedent, Iver M. Villa, conveyed money by check to defendant;
2. At the time, the decedent and the defendant were either (a) in a confidential relationship in which the defendant was the dominant member of that relationship or (b) in a fiduciary relationship;
3. Either (a) the check was procured from the decedent by defendant's exercise of undue influence upon the decedent, or (b) the conveyance was unfair, unjust or unreasonable.
If you find that one or more of these three (3) statements has not been proved, then your verdict must be for the defendant.
On the other hand, if you find that all of these three (3) statements have been proved, then your verdict must be for the plaintiff.
The trial court also gave instructions to the jury defining fiduciary and confidential relationships and undue influence. None of those instructions is challenged on appeal.
Krueger first contends the trial court erred by refusing to instruct the jury that the subject transfers were presumed to be the product of undue influence if the jury found that Ary was in a fiduciary relationship with decedent and actively participated in preparing the documentation of the transfers. She further contends that, because the jury was not instructed to consider this presumption along with the evidence presented, she was substantially prejudiced by the trial court's error and the judgment should, therefore, be reversed. We disagree, because we conclude the trial court followed the applicable Colorado law, including binding precedent from the supreme court, when it rejected Krueger's tendered jury instruction on the presumption of undue influence.
To warrant setting aside a conveyance on the ground of undue influence, "the undue influence must be such as to overcome the will of the grantor to the extent that he is prevented from voluntary action and is deprived of free agency." Anderson v. Lindgren, 113 Colo. 401, 406, 157 P.2d 687, 689 (1945). The trial court's instruction here on undue influence was consistent with this test.
Once a fiduciary relationship and a transfer of property to the fiduciary have been established by the plaintiff, a rebuttable presumption is created that requires the defendant to go forward with some evidence to show the transaction was not procured through undue influence. Eads v. Dearing, 874 P.2d 474, 477 (Colo.App.1993); see Judkins v. Carpenter, 189 Colo. 95, 97-98, 537 P.2d 737, 738 (1975); Lesser v. Lesser, 128 Colo. 151, 157-58, 250 P.2d 130, 133-34 (1952).
The status and strength of a rebuttable presumption vary according to the strength of the policies which motivate a court or a legislature to create it. Cline v. City of Boulder, 35 Colo.App. 349, 353, 532 P.2d 770, 772 (1975). When a party introduces evidence rebutting such a presumption, the presumption is treated in one of two ways. First, if the presumption is one that remains in the case as "some evidence" of the presumed fact even when there is evidence rebutting the presumption, the fact finder considers the presumption together with all the evidence in the case when determining its ultimate finding of fact. See, e.g., Ravin v. Gambrell, 788 P.2d 817, 822 (Colo.1990) (); Cline, 35 Colo.App. at 354, 532 P.2d at 773 (); see also CJI-Civ. 4th 3:5 (1998) (CJI 3:5) (version 2). Second, if the presumption is one that "disappears" from the case when rebutting evidence is introduced, the case goes to the fact finder free from the presumption. See, e.g., City & County of Denver v. DeLong, 190 Colo. 219, 223, 545 P.2d 154, 157 (1976) (); Schenck v. Minolta Office Sys., Inc., 802 P.2d 1131, 1133-34 (Colo.App.1990) (); 1st Charter Lease Co. v. McAl, Inc., 679 P.2d 114, 116 (Colo.App.1984) (); see also A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed.Cir.1992) (...
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