Lee v. Hiler, 25635.

• Decision Date: 31 August 2004
• Docket Number: No. 25635.,25635.
• Parties: Edward LEE, Personal Representative of the Estate of Pauline Elizabeth Lee, and Lois England, Public Administrator, as Guardian and Conservator of the Estate of Wesley Marvin Lee and Bobby Lee, Plaintiffs-Respondents, v. Sherman HILER and Connie Hiler, Defendants-Appellants.
• Court: Missouri Court of Appeals

141 S.W.3d 517

Edward LEE, Personal Representative of the Estate of Pauline Elizabeth Lee, and Lois England, Public Administrator, as Guardian and Conservator of the Estate of Wesley Marvin Lee and Bobby Lee, Plaintiffs-Respondents, v. Sherman HILER and Connie Hiler, Defendants-Appellants.

No. 25635.

Missouri Court of Appeals, Southern District, Division Two.

August 31, 2004.

Appeal from the Circuit Court, Texas County, John Clayton, Special Judge.

Steven Privette, Willow Springs, MO, for appellants.

Jacob Y. Garrett, West Plains, MO, for respondents.

JEFFREY W. BATES, Judge.

Sherman and Connie Hiler (referred to collectively as "the Hilers" and individually as "Sherman" and "Connie") appeal from a judgment setting aside a warranty deed executed by Pauline Lee ("Pauline") and her two sons, George Robert Lee ("Bobby") and Wesley Marvin Lee ("Wesley"). This warranty deed conveyed a 360-acre farm valued at $288,000 to the Hilers, who paid nothing for the property other than the expense of preparing the deed and the cost of a meal for the Lees. The trial court concluded the deed was void because all three grantors who signed this instrument were mentally incompetent and unable to understand the nature, scope and consequences of what they were doing. The Hilers appeal, claiming the judgment setting aside the deed is not supported by substantial evidence and is against the weight of the evidence. We affirm.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d).¹ We must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ridgway v. TTnT Development Corp., 126 S.W.3d 807, 812 (Mo.App.2004).² A judgment is presumed correct, and the appellant has the burden of proving it erroneous. Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness. Keller v. Friendly Ford, Inc., 782 S.W.2d 170, 173 (Mo.App.1990). We defer to the trial judge's superior opportunity to assess the witnesses' credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997). Our summary of the evidence presented at trial, which is set forth below, has been prepared in accordance with these principles.

II. Facts and Procedural History

The 360-acre property at issue was purchased by Pauline and her husband, Frank Lee ("Frank"), in 1969. Frank was a farmer, and Pauline was a housewife with an eighth-grade education. They moved onto the farm with two of their children, Bobby and Wesley. These two boys were then 13 and 11 years old, respectively. Another older son, Ed Lee ("Ed"), had already left home to attend college.

Bobby and Wesley, who were described by brother Ed as being "slow," continued to live on the farm with their parents even after they became adults. Neither ever held a job or was able to take care of himself without assistance. Wesley had trouble with his vision and could barely read. Bobby could read somewhat better, but he was not able to understand written material dealing with subjects beyond middle school level. Bobby never learned to operate an automobile because he was terrified of driving. Wesley did learn to drive much later in life. He obtained a driver's license in 2001, but his driving skills were poor. On one occasion, he drove his pickup into the ditch and had to have it towed away. On another occasion, he rear-ended a road grader.

Both Wesley and Bobby had a child-like trust in other people and could be easily manipulated to part with their money or property. Numerous examples of their lack of ability in this regard were presented. During a two-year span, Wesley traded trucks with one used-car dealership seven different times. The trade-ins and purchases stopped only when Wesley ran out of money. Wesley also cut the firewood used to heat the farmhouse. If his chainsaw would not start or the chain got dull, he would simply buy a new one. At one point, he owned eight different chainsaws. A person cutting logs on the farm once talked Wesley and Bobby into giving him a one-year-old garden tiller and a .22 rifle, both of which were later located in a pawnshop.

In 1995, Pauline's mental status began to decline after she suffered a stroke. In 1997, she fell and broke her hip. While hospitalized, she was diagnosed as having vascular dementia. That same year, Frank died. Pauline's mental status declined even further after her husband died. These changes were observed both by her son, Ed, and her treating physician, Dr. John Roberts ("Dr. Roberts").

Ed testified that after Frank's death, Pauline began exhibiting periods of confusion during their conversations. These periods of confusion became more frequent and worsened in character as time progressed. Ed's relationship with his mother, which had been good before Frank's death, deteriorated significantly. On one visit, Pauline would be fine. The next time Ed came to see his mother, she would call the sheriff simply because Ed was there and she did not want him on her property. On one occasion, Pauline even threatened to kill Ed because she was convinced he and his elderly uncle (a stroke victim in his late 50's) had engaged in a drug party in Pauline's driveway.

Dr. Roberts was Pauline's family doctor from 1991 until she died in November 2000. Dr. Roberts testified that he first observed changes in Pauline's mental status after her first stroke in 1995. This deterioration became more evident after her husband died in 1997. A 1999 CT scan revealed that Pauline had suffered at least three additional strokes after her first one in 1995. Between January 1997 and November 2000, Dr. Roberts saw Pauline over 30 times. During a number of these office visits, Dr. Roberts told Pauline she needed to have a guardian appointed to manage her financial affairs. In June 1999, Pauline was developing kidney failure. During an office visit with Dr. Roberts, he and Pauline discussed the fact that she needed someone to help her make decisions. In August of 1999, Pauline had another office visit with Dr. Roberts. They again discussed Pauline's need for someone to help her make decisions. During this office visit, Dr. Roberts had an extended discussion with Pauline concerning a hospital bill she had received for care provided to her late husband. Despite repeated efforts, Dr. Roberts could not get Pauline to understand why she still needed to pay the bill even though Frank was deceased. Pauline became very upset about the matter, which was unusual for her. This caused Dr. Roberts to be concerned about her mental condition. During an office visit on November 17, 1999, Dr. Roberts' office note stated that he "[t]alked with patient at some length that she needed to have a guardian or somebody help her with her financial affairs. Patient relates that she will think about this." Based on Dr. Roberts' clinical judgment, he diagnosed Pauline as having multi-infarct dementia, which is a medical term used to describe the loss of cognitive function in a person who has had several strokes. It was Dr. Roberts' medical opinion, expressed to a reasonable degree of medical certainty, that Pauline lacked the ability to make informed decisions between August 10, 1999, and November 17, 1999, due to mental impairment caused by her series of strokes.

Dr. Roberts' reference in his testimony to the August 1999 through November 1999 time frame is significant because the farm was conveyed to the Hilers in October 1999. The Lee family first became acquainted with the Hilers in the 1960's because they ran the local funeral home. Sherman also hunted on the Lee's farm. After Frank's death, title to the farm was held by Pauline, Wesley and Bobby as joint tenants with a right of survivorship. On October 5, 1999, the Hilers drove Pauline, Wesley and Bobby to a title company in Houston, Missouri. A general warranty deed was prepared which conveyed title to the farm from Pauline, Wesley and Bobby to the Hilers. Each grantor signed the deed. The Hilers paid nothing for the farm, other than the expenses of preparing the deed and buying lunch for the Lees afterwards. Sherman testified that Pauline told him this was good enough. At the time, the farm was worth $288,000.

On December 3, 1999, Ed filed a petition to set aside the deed in the Circuit Court of Texas County, Missouri. In January 2000, Ed filed a petition in the probate division of the same court asking that Pauline be declared incompetent. On February 3, 2000, the petition was granted, and Pauline was declared disabled and incapacitated. Ed and Marie Bell were appointed as Pauline's co-guardians and co-conservators and substituted as plaintiffs in the lawsuit. Ed discussed the real estate transaction with Pauline many times. She appeared confused about what she had done and denied signing any papers transferring ownership of the farm to the Hilers.

In July 2000, Wesley and Bobby also were adjudicated to be incompetent by the probate division of the Texas County Circuit Court. Texas County Public Administrator Lois England ("England") was appointed as their guardian and conservator. At the same time, she took over as Pauline's guardian and conservator, replacing Ed and Marie Bell. As soon as England was appointed, she met with Pauline at the farm. During the meeting, Pauline was very concerned because she had mistakenly conveyed the entire farm to the Hilers. Pauline said she only intended to deed 10 to 40 acres of "junk land" to the Hilers so Sherman would have a place to hunt. At the...