Perry v. Reinke, 970095

• Decision Date: 06 November 1997
• Docket Number: No. 970095,970095
• Citation: 570 N.W.2d 224,1997 ND 213
• Parties: Kenneth PERRY, Judith Goetz, Nancy Brannan and Kathee Heisz, Petitioners and Appellees, v. Patricia J. REINKE, Personal Representative of the Estate of Gertrude Mahoney a/k/a Kathryn Gertrude Mahoney, deceased Respondent and Appellant. Civil
• Court: North Dakota Supreme Court

Page 224

570 N.W.2d 224

1997 ND 213

Kenneth PERRY, Judith Goetz, Nancy Brannan and Kathee Heisz, Petitioners and Appellees, v. Patricia J. REINKE, Personal Representative of the Estate of

Gertrude Mahoney a/k/a Kathryn Gertrude Mahoney,

deceased Respondent and Appellant.

Civil No. 970095.

Supreme Court of North Dakota.

Nov. 6, 1997.

Rehearing Denied Dec. 2, 1997.

Orlin W. Backes, McGee, Hankla, Backes & Dobrovolny, Minot, for petitioners and appellees.

John C. Skowronek, Lamont and Skowronek, Minot, for respondent and appellant.

VANDE WALLE, Chief Justice.

¶1 Patricia J. Reinke, personal representative for the estate of Gertrude Mahoney, appealed from the Judgment of the Ward County District Court entered upon a jury verdict finding the Last Will and Testament of Gertrude Mahoney invalid as the product of undue influence. We affirm.

I

¶2 Gertrude Mahoney was a single, 86-year-old, childless woman with no surviving brothers or sisters. She had ten living first generation nieces and nephews and twenty-two living grand nieces and nephews. Personal Representative Patricia Reinke is Gertrude's niece and Bob Mahoney is her nephew. The will was challenged by Gertrude Mahoney's grand nieces and nephew: Judith Goetz, Nancy Brannan, Kathee Heisz, and Kenneth Perry (Perry children). The challengers are the children of Gertrude's now-deceased niece, Delores, and Delores's husband, Wilton Perry.

¶3 During her life, Gertrude Mahoney lived with her parents until their death and thereafter with her brother James Edwin Mahoney. Gertrude was described as a very quiet, dependent person who spoke in short sentences, kept in the background of conversations, avoided being in public, and lived a hermit-like life. Prior to her death, Gertrude was considered to be almost completely deaf and this condition required others to communicate with her by writing in notebooks.

¶4 Just before his death, their father asked Edwin to remain single so he could take care of his sister Gertrude. Edwin lived with Gertrude from their father's death in 1949 until he became ill and died in November of 1993. Edwin was hospitalized until his death. Edwin died without a will and Gertrude was appointed personal representative of his estate. The administration required Gertrude to contact 32 heirs at law, each of whom received a portion of Edwin's interest in the family farm. In order to keep the farm intact, Gertrude bought back Edwin's interest from each of these heirs.

¶5 The evidence at trial showed the Perry family was always close to Edwin and Gertrude. When Edwin became ill, Wilton Perry asked Reinke and Bob Mahoney to watch over Gertrude. Gertrude was naive when it came to financial matters and received assistance in handling her affairs from Reinke and Bob Mahoney. While handling Gertrude's assets, Reinke transferred over one hundred thousand dollars into accounts and certificates of deposit payable to Patricia Reinke and Bob Mahoney on Gertrude's death.

¶6 Reinke attempted to exclude the Perry children from Gertrude's affairs. In one of the handwritten notes Reinke instructed Gertrude "to tell Nancy Perry to mind her own business." In another note Reinke wrote, "[d]on't say anything to her --- it just gives her more ammunition --- she thinks Bob and I are stealin['] from you and from her." Reinke also mentioned how much money the Perry children were costing Gertrude by calling her attorney regarding the estate. On at least one occasion, Gertrude expressed concern to one of the Perry children over the disposition of her assets.

¶7 Reinke was also intimately involved in the creation of Gertrude's will. She advised Gertrude the best way to avoid the problems associated with Edwin's estate would be to draw up a will. Reinke contacted the attorney who was probating Edwin's estate and informed him Gertrude wished to make a will. Because Gertrude was hard of hearing, Reinke contacted the law office and communicated the terms of the will to the office. After communicating the terms of the will, Reinke told a law office assistant she would get back to her "if this is what Gert wants." Upon its completion, the will was sent to Reinke, without a copy being forwarded to Gertrude. Reinke brought Gertrude to the law office to sign the will and was in the room while the will was read over and signed.

¶8 Under the will, identified nieces and nephews, including Reinke and Bob Mahoney, were entitled to a one-tenth share of the entire estate. The will contained a lapse provision which when combined with the limited number of identified heirs, cut off all grand nieces and nephews, including the Perry children. Had Gertrude died intestate, the Perry children would have been heirs at law. See N.D.C.C. § 30.1-04-03 (1996) (U.P.C. § 2-103) and N.D.C.C. § 30.1-09.1-09(3) (1996) (U.P.C. § 2-709). Also under the intestate succession law, Reinke would receive more than she received under the will. Id. Nevertheless, Reinke and Bob Mahoney were both alleged to have unduly influenced Gertrude Mahoney in the making of her will.

¶9 The jury heard the above facts as well as testimony from Dr. Stephan Podrygula, a clinical psychologist. Dr. Podrygula reviewed the notebooks containing communications between Reinke and Gertrude, various court documents and depositions, including Gertrude's will. Dr. Podrygula identified fifteen "facts" supporting his conclusion Gertrude was subject to undue influence. Dr. Podrygula testified as to how these "facts" satisfied the legal elements of undue influence.

¶10 The jury found Bob Mahoney did not exercise undue influence over Gertrude Mahoney in the creation of her will. However, the jury found the will to be invalid as the product of undue influence exerted by Patricia Reinke.

II

¶11 Personal Representative Patricia Reinke contends the district court erred in three ways: (a) in denying judgment as a matter of law because the verdict was against the weight of the evidence; (b) in denying her motion for a new trial because the evidence was insufficient to justify the verdict; and (c) in denying her motion for a new trial because newly discovered evidence would result in a different verdict. The Perry children resist Reinke's contentions by countering each of the these arguments with evidence favorable to the jury verdict. We consider Reinke's arguments in turn.

A. Judgment as a Matter of Law

¶12 Reinke argues the district court erred in denying her Rule 50 motion for judgment as a matter of law because the jury verdict is against the weight of the evidence. See N.D. R. Civ. P. 50. ¹ In a jury trial, the existence of undue influence is a question of fact for the jury to decide. Okken v. Okken, 325 N.W.2d 264, 267 (N.D.1982) (reversing the granting of a judgment notwithstanding the verdict and affirming the granting of a motion for a new trial). On a motion for judgment as a matter of law, the district court has no discretion for viewing the evidence. Id. at 269 (holding the trial court has no discretion in viewing the evidence on a motion for judgment n.o.v.). "[The court] must admit the truth of all evidence in favor of the verdict and the truth of all reasonable inferences from that evidence. [The court] cannot weigh the evidence, and [ ] cannot judge the credibility of witnesses." Id. (Emphasis added). (Citation omitted). On appeal, "we must examine the trial record and then apply the same standard [ ] the trial court was required to apply initially." Id. at 267.

¶13 In reviewing a district court ruling on a motion for judgment as a matter of law, we examine the sufficiency of the evidence by viewing the evidence supporting the jury verdict as the truth. Id. We then apply the standard for a Rule 50 judgment as a matter of law which is whether the evidence favoring the verdict is so insufficient reasonable minds could reach only one conclusion as to the verdict. Id. The evidence must be sufficient with regard to each essential element of the claim. Cf. Pulkrabek v. Sletten, 557 N.W.2d 225, 226 (N.D.1996) (stating summary judgment is required against a party who fails to establish a factual dispute as to an essential element of his claim). See Dobbins v. Hupp, 562 S.W.2d 736, 743 (Mo.Ct.App.1978) (holding the issue of undue influence is submissible to a jury once the elements exist). But the evidence must also create more than just a mere suspicion of undue activity. Matter of Estate of Polda, 349 N.W.2d 11, 14-15 (N.D.1984) (holding the district court's finding of no undue influence was not clearly erroneous because the evidence "at best raises a mere suspicion of undue influence").

¶14 The elements of undue influence are: "(1) [ ] the testator was subject to such influence; (2)[ ] the opportunity to exercise [undue influence] existed; (3)[ ] there was a disposition to exercise [undue influence]; and (4)[ ] the result appears to be the effect of such influence." Matter of Estate of Herr, 460 N.W.2d 699, 702 (N.D.1990) (Quotation and citations omitted). While not conceding any of the four elements, Reinke essentially focuses on three main arguments. ²

¶15 First, Reinke argues the Perry children introduced no evidence of what Gertrude's intent was and how it differed from what was contained in her will. Reinke contends this Court's definition of undue influence and the fourth element of the test require the challenger to offer direct evidence of how the testator's intent differed from the will. Reinke quotes as support, the definition of "undue" in Matter of Estate of Herr, 460 N.W.2d at 702. In Herr, we stated "[t]o be undue, the influence must operate at the time the will is made and must dominate and control the making of the will; it 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." Id. (Emphasis added). (Citations and quotations omitted). Reinke also points to the fourth element of undue influence as requiring...