Okken v. Okken, 10190

• Decision Date: 22 October 1982
• Docket Number: No. 10190,10190
• Citation: 325 N.W.2d 264
• Parties: Myron OKKEN, Plaintiff and Appellant, v. Martha OKKEN Estate, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 264

325 N.W.2d 264

Myron OKKEN, Plaintiff and Appellant, v. Martha OKKEN Estate, Defendant and Appellee.

Civ. No. 10190.

Supreme Court of North Dakota.

Oct. 22, 1982.

Charles L. Chapman of Chapman & Chapman, Bismarck, for plaintiff and appellant.

Robert V. Bolinske of Zuger & Bucklin, Bismarck, for defendant and appellee.

VANDE WALLE, Justice.

Myron Okken appealed from a judgment of the district court of Grant County granting a motion for judgment notwithstanding the verdict and conditionally granting a new trial. We reverse in part and affirm in part.

Myron Okken and his brother, Clifford, are the two surviving children of Martha Okken, who died on June 18, 1980. Martha left a will dated July 11, 1975, in which she named Clifford sole beneficiary. Doris Okken, Clifford's wife, was named contingent beneficiary in the event Clifford did not survive Martha; and Roxanne and Annette Okken, the children of Clifford and Doris, were named contingent beneficiaries in the event neither Clifford nor Doris survived Martha.

Clifford applied in county court for informal probate of the will and for the appointment of himself as personal representative of Martha's estate. Subsequently, Myron filed a petition with the county court for a formal adjudication of intestacy and for the appointment of himself as personal representative of Martha's estate. In the petition, Myron objected to the informal probate of Martha's will and advanced as reasons in support of the objection that Martha's execution of the will was not her free and voluntary act; in short, that it was the result of undue influence by Clifford and members of his family.

The county court held a hearing on Clifford's application for informal probate and at the same time heard Myron's objections to the informal probate of Martha's will. On the basis of evidence presented at the hearing, the court issued an order directing that Martha's will be admitted to probate. Myron appealed from the decision of the county court to the district court and demanded a trial by jury. A trial was had to a jury with the only issue being whether or not Clifford or members of his family exercised undue influence over Martha in the execution of her will. The jury found that there had been undue influence, and, on the basis of this finding, the trial judge issued an order denying the probate of Martha's will.

In an effort to have the jury verdict set aside, Clifford moved the district court for judgment notwithstanding the verdict (judgment n.o.v.) and, in the alternative, for a new trial on the ground that the evidence presented at trial was insufficient to support the jury's finding of undue influence. The trial court in a memorandum opinion granted both motions; it granted the motion for judgment n.o.v. for the reason that "there is absolutely no evidence to justify the overturning of this Will on the grounds of undue influence," and it conditionally granted the motion for a new trial--in the event we reverse the judgment n.o.v.--for the reason that "there is insufficient evidence to justify the verdict of the jury." This procedure is in accordance with Rule 50, N.D.R.Civ.P.

In his appeal from the judgment of the district court Myron claims that the trial court improperly granted Clifford's motion for judgment n.o.v. because

(1) Clifford did not move for a directed verdict at the close of the evidence offered by Myron, and

(2) There was sufficient evidence offered by Myron to support the jury's verdict.

Myron also claims that the trial court erred in conditionally granting Clifford's alternative motion for a new trial because here, too, the evidence was sufficient to support the jury's verdict.

I. MOTION FOR A DIRECTED VERDICT

Rule 50(b), N.D.R.Civ.P., requires that a motion for a directed verdict precede a motion for judgment notwithstanding the verdict. At the close of Myron's evidence, Clifford's attorney moved to dismiss the action against Clifford. Myron now argues that because Clifford's attorney did not use the words "directed verdict" in his motion, the motion did not constitute a motion for a directed verdict, and therefore the trial court erred in granting the motion for judgment n.o.v.

Our review of the record shows that the motion to dismiss was made at the time a motion for a directed verdict would be made, and that the motion was treated as a motion for a directed verdict by counsel for both parties as well as by the trial court. We have held in similar circumstances that a motion to dismiss is equivalent to a motion for a directed verdict. Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352 (N.D.1968). There are no significant differences between this case and Christensen which would compel a different conclusion here, and accordingly we hold that the motion to dismiss was tantamount to a motion for a directed verdict and that the Rule 50(b) requirement in question has been satisfied in this case.

II. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

In his memorandum opinion granting Clifford's motion for judgment notwithstanding the verdict, the trial judge stated that there was no evidence presented at trial from which the jury could have concluded that Clifford or members of his family exercised undue influence over Martha in the execution of her will.

The existence or nonexistence of undue influence is a question of fact; and in a trial by jury, it is a question of fact for the jury. Matter of Estate of Thomas, 290 N.W.2d 223 (N.D.1980); Matter of Estate of Wagner, 265 N.W.2d 459 (N.D.1978). When a party moves for judgment n.o.v. on the ground that the evidence is insufficient to show undue influence, the party is, in effect, claiming that the evidence is insufficient to create a question of fact for the jury. And whether or not the evidence is sufficient to create a question of fact for the jury is itself a question of law to be decided by the trial court. See South v. National R.R. Passenger Corp., 290 N.W.2d 819 (N.D.1980); 9 Wright & Miller, Federal Practice and Procedure, Civil 2524. If the trial court determines that the evidence does not present a question of fact for the jury, the moving party is entitled to judgment on the merits as a matter of law [see South, supra, 290 N.W.2d at 842], and only then should the motion for judgment n.o.v. be granted.

In determining if the evidence is sufficient to create an issue of fact, and hence in determining if judgment n.o.v. should be granted, the trial court must employ a rigorous standard with a view toward preserving verdicts. Riebe v. Riebe, 252 N.W.2d 175 (N.D.1977). The test is whether or not the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Staiger v. Gaarder, 258 N.W.2d 641 (N.D.1977). In employing this standard, the trial judge is not free to consider the weight of the evidence or to judge the credibility of witnesses; on the contrary, he is required to accept the truth of the evidence presented by the party opposing the motion and the truth of all reasonable inferences from that evidence which support the jury verdict. Riebe, supra, 252 N.W.2d at 177; 9 Wright & Miller, Federal Practice and Procedure, Civil 2524. The trial court must give proper deference to the jury's evaluation of the evidence and its judgment of the credibility of witnesses under a motion for judgment n.o.v.

In order to determine whether or not the trial court erred in granting Clifford's motion for judgment n.o.v., we must examine the trial record and then apply the same standard that the trial court was required to apply initially. See Riebe, supra, 252 N.W.2d at 177. Turning our attention to the record of the trial, we discover after careful consideration that we cannot agree with the trial court's determination that there was insufficient evidence for the jury to find undue influence.

At the close of the evidence, the trial court instructed the jury that before it could find that Martha's will was the result of undue influence, it must first find by the greater weight of the evidence that (1) the testator was subject to undue influence; (2) the opportunity to exercise it existed; (3) there was a disposition to exercise it; and (4) the result appears to be the effect of such influence. The trial court further instructed the jury:

"To be undue the influence must operate at the time the will is made and must dominate and control the making of the will. The influence must be such as to make the will express the purpose and intent of the person exercising the influence and not the purpose and intent of the testator."

These instructions were given without objection and, in fact, correspond with the general rule defining the elements necessary to establish undue influence that we have adopted in our case law. In re Burris' Estate, 72 N.W.2d 884 (N.D.1955). See also Kronebusch v. Lettenmaier, 311 N.W.2d 32 (N.D.1981).

It is impossible for us to recreate the exact reasoning process that led the jury to conclude from the evidence that Martha Okken was unduly influenced in making her will. However, guided as we are in our examination of the trial transcript by the rule that when we review the granting of a motion for judgment n.o.v., we must accept the truth of the evidence and all reasonable inferences therefrom which support the jury's verdict, we are satisfied that the jury could reasonably find from the evidence the existence of undue influence as defined above.

To begin with, ¹ our review of the evidence in the light most favorable to the jury verdict shows that on or about June 14, 1975, Clifford and Doris came from their home in Oregon to visit Martha in North Dakota; that about ten days later Martha transferred three quarters of land to Clifford, reserving a life estate in herself; and that approximately two weeks after that Martha made...