Mullin v. Brown

Decision Date30 June 2005
Docket NumberNo. 2 CA-CV 2003-0189.,2 CA-CV 2003-0189.
PartiesAndrew MULLIN, a married man in his separate capacity, Plaintiff/Appellee, v. Bradford T. BROWN, Arthur A. Chapa, Richard S. Fields, and Edward A. Linden, Defendants/Appellants.
CourtArizona Supreme Court

Law Office of Ethan Steele, P.C., By Ethan Steele, Tucson, for Plaintiff/Appellee.

Chandler & Udall, LLP, By Edwin M. Gaines, Jr., and Kurt Kroese, Tucson, for Defendants/Appellants.


FLÓREZ, Presiding Judge.

¶ 1 This is a legal malpractice case. Defendants/appellants, Bradford Brown, Arthur Chapa, Richard Fields, and Edward Linden, admitted they were negligent in having failed to timely file a petition contesting the will and trust of Ralph Mullin, plaintiff Andrew Mullin's grandfather. The trial court denied appellants' motions for directed verdict, made at the close of Andrew's case and at the close of evidence. The jury determined that Andrew would have successfully contested the will and trust and awarded him $2,937,125 in damages.1 Following the verdict appellants moved alternatively for a judgment as a matter of law, a new trial, or a remittitur. Those motions were denied as well, and this appeal followed.

¶ 2 On appeal, appellants challenge the aforementioned rulings. We review the denial of a motion for new trial and a motion for remittitur for an abuse of discretion. Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449 (1998). We review de novo the trial court's denial of a motion for judgment as a matter of law, see Roberson v. Wal-Mart Stores, Inc., 202 Ariz. 286, 44 P.3d 164 (App.2002); however, we view all facts in the light most favorable to Andrew. See Hutcherson. "[I]f any substantial evidence could lead reasonable persons to find the ultimate facts sufficient to support the verdict, we will affirm the judgment." Gonzales v. City of Phoenix, 203 Ariz. 152, ¶ 2, 52 P.3d 184, 185 (2002).

Presumption of Undue Influence

¶ 3 Ralph Mullin died on August 3, 1995, leaving the bulk of his estate to Andrew's brother, Chris Jr., under the terms of a will and trust executed on June 10, 1995. In previous wills, Ralph had provided equally for Andrew and Chris Jr. Andrew alleged that the 1995 will and trust were the products of Chris Jr.'s undue influence on Ralph.

¶ 4 A presumption of undue influence arises when one occupies a confidential relationship with the testator and is active in preparing or procuring the execution of a will in which he or she is a principal beneficiary. See In re O'Connor's Estate, 74 Ariz. 248, 246 P.2d 1063 (1952). Appellants concede that at the time Ralph executed the will and trust in 1995, Chris Jr. stood in a confidential relationship with Ralph and that Chris Jr. was the primary beneficiary of the will. But appellants argue that a presumption of undue influence could not have arisen because there was insufficient evidence that Chris Jr. had actively procured the 1995 will. We disagree.

¶ 5 Evidence was presented from which the jury could have determined that Chris Jr. had instructed Ralph's attorney to draft a new will and trust naming Chris Jr. as the primary beneficiary and that he had communicated with the attorney during the drafting process and suggested and/or dictated terms that were eventually included in the documents. Although appellants presented evidence to the contrary, when viewed in the light most favorable to Andrew, the evidence as a whole and reasonable inferences therefrom support a finding that Chris Jr. had actively procured the execution of the will. See In re Estate of Harber, 102 Ariz. 285, 428 P.2d 662 (1967) (collecting cases in which active preparation or procurement of will was found when beneficiary had submitted contents of will to preparer or provided terms to attorney drafting will).

¶ 6 Appellants present a much closer question in their argument on the effect of the presumption once it arises and whether the trial court correctly instructed the jury on the burden of proving undue influence. They rely on a substantial line of Arizona Supreme Court decisions that have described the presumption of undue influence as one that shifts the burden of production of evidence but not the burden of persuasion. The reasoning is best expressed in Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452 (1938), on which the cases appellants cite relied, and in In re Westfall's Estate, 74 Ariz. 181, 245 P.2d 951 (1952).

¶ 7 In Seiler, the court discussed presumptions in general, stating:

There has been much erroneous thinking and more loose language in regard to presumptions. We read of presumptions of law and presumptions of fact, of conclusive presumptions and of disputable presumptions. In truth there is but one type of presumption in the strict legal meaning of the word, and that is merely a general rule of law that under some circumstances, in the absence of any evidence to the contrary, a jury is compelled to reach a certain conclusion of fact.... [W]henever evidence contradicting the presumption is offered the latter disappears entirely, and the triers of fact are bound to follow the usual rules of evidence in reaching their ultimate conclusion of fact....

"A presumption is not evidence of anything, and only relates to a rule of law as to which party shall first go forward and produce evidence sustaining a matter in issue.... [A] presumption should never be placed in the scale to be weighed as evidence."

52 Ariz. at 548-49, 84 P.2d at 454-55, quoting Peters v. Lohr, 24 S.D. 605, 124 N.W. 853, 855 (1910). In Westfall's Estate, the court applied this theory of presumptions to a will contest, stating: "A presumption, in the strict legal meaning of the word, is a rule of law that in the absence of any evidence to the contrary the trier of fact is compelled to reach." 74 Ariz. at 186, 245 P.2d at 955.

¶ 8 The supreme court also applied this view of the presumption of undue influence in subsequent cases. Estate of Harber (recognizing that presumption shifts only burden of production and not burden of persuasion); In re Estate of Pitt, 88 Ariz. 312, 317, 356 P.2d 408, 411 (1960) (legal presumption of undue influence "`dissolved'" on denial by one presumed to have exerted undue influence "`even if neither the judge nor the jury believed the denial to be true'"), quoting O'Connor's Estate, 74 Ariz. at 260, 246 P.2d at 1071. But see In re Estate of McCauley, 101 Ariz. 8, 11, 415 P.2d 431, 434 (1966) ("[M]arital relationship existing between testatrix and proponent is not one of the confidential relationships giving rise to the presumption of undue influence. Accordingly,... the burden of proving undue influence remained with the contestants.") (citations omitted).

¶ 9 If this authority were controlling, once appellants produced any evidence that Chris Jr. had not exerted any undue influence, no matter how credible, the presumption disappeared, and the jury should have been instructed that Andrew had the burden of proving undue influence by clear and convincing evidence. The trial court instead relied on the supreme court's more recent decision in In re Estate of Shumway, 198 Ariz. 323, 9 P.3d 1062 (2000), and instructed the jury as follows:

If Chris Mullin Jr. and/or Dr. David Mullon had a confidential relationship with Ralph Mullin; was/were active in procuring the execution of the 1995 will; and was/were a principal beneficiary under its terms, then the 1995 will is presumptively invalid and the defendants must prove by clear and convincing evidence that Chris Mullin Jr. and/or Dr. David Mullon did not unduly influence Ralph Mullin.

¶ 10 "We review challenged jury instructions to determine whether the trial court gave the jury `the proper rules of law to apply in arriving at its decision.'" Crackel v. Allstate Ins. Co., 208 Ariz. 252, ¶ 68, 92 P.3d 882, 900 (App.2004), quoting Durnin v. Karber Air Conditioning Co., 161 Ariz. 416, 419, 778 P.2d 1312, 1315 (App.1989). In Estate of Shumway, the testator's assistant, Rodriguez, prepared the will and received twenty-five percent of the estate. The will included a penalty clause requiring beneficiaries to forfeit their share of the estate if they challenged the will. Section 14-2517, A.R.S., invalidates a penalty clause when there is probable cause to challenge a will. Shumway's daughters challenged the will on the ground of undue influence. After a bench trial, the trial court found the will valid and enforced the penalty clause. Division One of this court affirmed the judgment, concluding (1) that the trial court had not abused its discretion in finding Rodriguez had met her burden of proving, by clear and convincing evidence, that she had not exerted undue influence over Shumway, and (2) that the contestants had lacked probable cause to challenge the will. In re Estate of Shumway, 197 Ariz. 57, 3 P.3d 977 (App.1999), vacated in part, 198 Ariz. 323, 9 P.3d 1062 (2000).

¶ 11 The supreme court granted review on a single issue: whether the legal presumption of undue influence, which had arisen because of Rodriguez's confidential relationship with the testator, her participation in creating the will, and her status as beneficiary, was sufficient to establish probable cause to challenge the will. The court concluded it was and based its conclusion, in part, on what it called Rodriguez's burden of proof. The court explained the effect of the presumption of undue influence, stating: "`[W]here a confidential relationship is shown the presumption of invalidity can be overcome only by clear and convincing evidence that the transaction was fair and voluntary.'" Id. ¶ 16, 9 P.3d 1062 (alteration in Shumway), quoting Stewart v. Woodruff, 19 Ariz.App. 190, 194, 505 P.2d 1081, 1085 (1973). The court noted that "[t]his is a difficult standard of proof ... [t]hough Rodriguez met it to the trial judge's satisfaction after presentation of all evidence." Id. The supreme court did not criticize the trial court's...

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