Rosenberg v. Sanders
| Decision Date | 31 May 2022 |
| Docket Number | 1 CA-CV 21-0246 |
| Parties | Yvette ROSENBERG, Plaintiff/Appellant, v. Marilyn Koke SANDERS, Defendant/Appellee. |
| Court | Arizona Court of Appeals |
Jaburg & Wilk, PC, Phoenix, By David L. Allen, David N. Farren, Counsel for Plaintiff/Appellant
Becker & House, PLLC, Scottsdale, By Mark E. House, Andrea Burnett O'Neill, Amanda L. Barney, Co-Counsel for Defendant/Appellee
Jones Skelton & Hochuli, PLC, Phoenix, By Eileen Dennis GilBride, Co-Counsel for Defendant/Appellee
¶1 A beneficiary deed is voidable as the product of undue influence when signed by the grantor under the grantee's undue influence. We must decide whether a grantor's statements to family and a hospital physician, made 14 months after he signed the deed, were relevant and admissible evidence of undue influence for the superior court at summary judgment. The superior court did not consider this evidence because it applied the eight non-exclusive factors set forth in In re McCauley's Estate , 101 Ariz. 8, 10, 415 P.2d 431, 433 (1966). We hold the evidence should have been considered on summary judgment. When so considered, along with dueling medical evidence of the grantor's earlier state of mind, the record had just enough evidence to create a factual dispute and defeat summary judgment.
¶2 Alex Brandt and Marilyn Sanders dated for several years, first in California. Brandt proposed marriage in 1994, but the couple never got married. Later that year, Brandt moved to Arizona and bought a home. Sanders followed and they lived together in Brandt's home. Brandt bought a pair of investment properties in Arizona, and he gifted an ownership interest to Sanders. But their relationship ended in 1997, and Brandt asked Sanders to transfer her ownership interest back to Brandt. Sanders agreed because she "thought it was fair."
¶3 Brandt moved on to a new relationship with Marilyn Mishkin in 1998. Brandt proposed to Mishkin, but the couple never got married. In August 2001, Brandt signed and notarized a beneficiary deed, leaving his home and both investment properties to Mishkin on his death. But their relationship ended in 2005.
¶4 Later in 2005, Brandt revisited his estate plan. This time, he signed and notarized a second beneficiary deed, leaving his home and one investment property to Yvette Rosenberg on his death. Rosenberg was Brandt's niece, the daughter of his sister Susan. She lived in Canada. Brandt used the same beneficiary deed he used before, just changing the named beneficiary from Mishkin to Rosenberg.
¶5 Brandt and Sanders reconnected in 2008. Sanders had returned to live in California, and Brandt visited her there to return the engagement ring used to propose marriage in 1994. It was a long-distance relationship at first. Sanders shuttled back and forth "every two to three weeks," but Sanders returned to Arizona in 2014 and moved into Brandt's home.
¶6 Brandt got sick in late 2016. Sanders cooked his meals and took him to doctor appointments. In March 2017, she rushed him to the hospital and signed the admission papers. Brandt did not tell his family about the hospital visit. He was diagnosed with "memory loss" and "cognitive impairment."
¶7 A month later, Brandt again revisited his estate plan. This time, in April 2017, he signed and notarized a third beneficiary deed ("2017 deed"), leaving Sanders his home and one investment property on his death. As before, Brandt used the same beneficiary deed with the same language, just changing the named beneficiary from Rosenberg to Sanders, but he did not tell Sanders about the deed for two months. At her deposition, Sanders recounted how Brandt presented her the beneficiary deed on her 70th birthday in June 2017. Brandt did not tell his family about the deed.
¶8 Almost a year later, in May 2018, Brandt was again hospitalized. By June 2, he wanted to leave the hospital, but the medical staff concluded he should remain hospitalized because he was "not decisional." Sanders agreed. According to the hospital records, Brandt called the police and said he was trapped in the hospital.
¶9 Rosenberg contacted Brandt in the hospital and described him as "very distressed." She and Susan immediately traveled to Arizona to visit Brandt in the hospital. Brandt told them he was "afraid of [Sanders]," "she was trying to kill him and steal his assets," and "he wanted the hospital to block [Sanders] from coming to his room or from talking to him on the phone." Brandt asked Rosenberg to cancel the credit card he gave Sanders, "check the status of his checking and credit card accounts to determine whether [Sanders] accessed his cash funds," and "retrieve the contents of his safety deposit box because he was concerned that [Sanders] would attempt to remove the contents."
¶10 Brandt remained hospitalized on June 3, when he asked to appoint Susan by power of attorney to make his medical decisions. A hospital psychiatrist visited Brandt to assess his mental capacity. The psychiatrist found Brandt "alert, oriented, and pleasant and cooperative." He reported that Brandt "no longer trusts his domestic partner with whom he has lived over the past 10 years," adding that Brandt "did not want to get into details, but his family is concerned that she may be trying to take advantage of him by getting him to sign paperwork about his rental properties."
¶11 Brandt was discharged from the hospital on June 5. Sanders picked him up and they returned home. Susan remained in Arizona for a week to help care for Brandt. He died less than three months later. Brandt never told Susan or Rosenberg about the 2017 deed.
¶12 Rosenberg filed a probate action in Arizona and was appointed the personal representative of Brandt's estate. She then sued Sanders to void the 2017 deed, alleging that Sanders had unduly influenced Brandt to sign the deed. After oral argument, the superior court granted summary judgment for Sanders, holding that Rosenberg had "not presented evidence from which a reasonable trier of fact could conclude that [Sanders] unduly influenced Mr. Brandt into executing the Beneficiary Deed." Rosenberg timely appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).
¶13 Rosenberg argues the court erroneously granted summary judgment to Sanders. We review de novo whether summary judgment was appropriate, Am. Furniture Warehouse Co. v. Town of Gilbert , 245 Ariz. 156, 159, ¶ 9, 425 P.3d 1099, 1102 (App. 2018), and will "affirm the judgment if it is correct for any reason," S & S Paving & Const., Inc. v. Berkley Reg'l Ins. Co. , 239 Ariz. 512, 514, ¶ 7, 372 P.3d 1036, 1038 (App. 2016).
¶14 Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). A moving party is entitled to summary judgment "if the facts produced in support of the [nonmovant's] claim or defense have so little probative value" that "reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves , 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). Summary judgment is not, however, "a substitute for jury trials simply because the trial judge may believe the moving party will probably win the jury's verdict, nor even when the trial judge believes the moving party should win the jury's verdict." Id . at 310, 802 P.2d at 1009 (emphasis in original); see also Jennifer G. v. Ariz. Dep't of Econ. Sec. , 211 Ariz. 450, 456, ¶ 23, 123 P.3d 186, 192 (App. 2005).
¶15 Rosenberg first contends the superior court applied the wrong standard of proof, arguing it should have presumed Sanders exercised undue influence. We disagree.
¶16 Arizona law presumes that Brandt was not under undue influence when he granted the beneficiary deed to Sanders, and the deed's challenger, Rosenberg, must prove the deed is invalid by a preponderance of the evidence. See A.R.S. § 14-2712(B), (D). An inverse presumption that Brandt was under Sanders’ undue influence was appropriate only if Sanders either (1) had a confidential relationship to Brandt, was active in procuring the beneficiary deed's creation and execution, and is a principal beneficiary of the deed, or (2) prepared the beneficiary deed and is a principal beneficiary of the deed. A.R.S. § 14-2712(E).
¶17 The record at summary judgment had no evidence to support a presumption of undue influence. There was no evidence that Sanders prepared the beneficiary deed or occupied the sort of confidential or fiduciary relationship that triggers an undue influence presumption. Not even the "marital relationship" is "one of the confidential relationships giving rise to the presumption of undue influence." In re Vermeersch's Est. , 109 Ariz. 125, 129, 506 P.2d 256, 260 (1973).
¶18 Still, Rosenberg argues that summary judgment was inappropriate because whether "a person is a principal beneficiary of a governing instrument or the preparer of a governing instrument is a question of fact to be determined by the totality of the circumstances." A.R.S. § 14-2712(G). But again, the record had no evidence that Sanders prepared the beneficiary deed. Nor was there evidence to contest how and when Sanders first learned about the deed.
¶19 So, Rosenberg bore the burden of proof on her undue influence claim. See In re McCauley's Est. , 101 Ariz. 8, 10-11, 415 P.2d 431, 433-34 (1966). To defeat summary judgment on her claim, Rosenberg had to present "specific facts" showing a genuine issue for trial, and not "mere conclusions of ultimate fact and law." See In re Sherer's Est. , 10 Ariz. App. 31, 34, 455 P.2d 480 (1969). We turn there now.
¶20 A beneficiary deed is voidable if executed under undue...
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