Ross v. Blackwell

• Decision Date: 22 September 2016
• Docket Number: 14-PR-1299,Nos. 14-PR-1298,s. 14-PR-1298
• Citation: 146 A.3d 385
• Parties: David Ross, et al., Appellants, v. Betty J. Blackwell, et al. Appellees.
• Court: D.C. Court of Appeals

146 A.3d 385

David Ross, et al., Appellants,

v.Betty J. Blackwell, et al. Appellees.

Nos. 14-PR-1298

14-PR-1299

District of Columbia Court of Appeals.

Argued March 22, 2016

Decided September 22, 2016

Ferguson Evans with whom Oliver D. Long was on the brief, for appellants.

Robert Bunn for appellees.

Before Washington, Chief Judge, Thompson, Associate Judge, and Ferren, Senior Judge.

THOMPSON

, Associate Judge:

After a bench trial in a probate proceeding, the Superior Court (the Honorable John Campbell) ruled that the August 25, 2003, and September 9, 2008, wills executed by decedent Elsie Hamilton,¹ in which Hamilton named appellants David Ross and his wife Daphne Arrindell as sole beneficiaries of her estate, are “void as being the product of undue influence.” In a separate order in a related estate-administration proceeding, Judge Campbell approved the Auditor Master's Report and ruled that appellants are liable for the balance (plus interest, penalties, and costs) due on a $127,000 mortgage loan they took out in September 2005 using Hamilton's home as collateral. In these consolidated appeals, appellants argue that Judge Campbell (1) applied an erroneous legal standard and erred in invalidating the 2003 and 2008 wills; and (2) erred in holding appellants liable for the outstanding balance of the mortgage loan amount without giving them credit for the “provable expenditures” they incurred to renovate Hamilton's house. We affirm.

I.

When reviewing a trial court's ruling after a bench trial, this court “may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it.” D.C. § 17-305 (a) (2012 Repl.). Under this standard of review, we view the evidence in the light most favorable to the prevailing party, see Real Estate Escrow, Inc. v. Fitzgerald , 846 A.2d 289, 290 (D.C.2004)

, and “[w]e defer to the trial court's credibility determinations unless they are clearly erroneous.” In re Estate of Bates , 948 A.2d 518, 527 (D.C.2008). The “plainly wrong” standard “means that if the trial court's determination is plausible in light of the record viewed in its entirety, we will not disturb it whether or not we might have viewed the evidence differently ourselves.” Hildreth Consulting Engineers, P.C. v. Larry E. Knight, Inc. , 801 A.2d 967, 971–72 (D.C.2002) (internal quotation marks omitted). “Where the facts admit of more than one interpretation, [we] must defer to the trial court's judgment.” Id. at 972 (internal quotation marks omitted). “Undue influence is a mixed question of fact and law, and our review of the legal issues is de novo .” In re Ingersoll Trust , 950 A.2d 672, 692 (D.C.2008).

We review the trial court's approval of an auditor master's recommendations for abuse of discretion. See Rosendorf v. Toomey , 349 A.2d 694, 702 (D.C.1975)

(“It was within the trial court's discretion to approve the Auditor-Master's recommendations as long as they were prepared with the requisite criteria in mind and were reasonable.”).

II.

Appellants contend that Judge Campbell erred in invalidating the 2003 and 2008 wills as the product of undue influence because the evidence showed that Hamilton was mentally sound at the time she asked her court-appointed conservator (attorney Philip Zipin) to prepare the will; and because the will is “entirely consistent with [her] history of testamentary planning,” specifically her history of wanting, at the outset of a caregiving relationship, to leave her assets to her caregiver(s), out of gratitude.² Appellants also argue that Judge Campbell erred in applying the principle (accepted in some jurisdictions, but allegedly not in ours) that “a presumption of undue influence arises solely by the existence of a confidential or fiduciary relationship [of the type that existed between Hamilton and appellants] between the donor and donee[.]” Citing Ingersoll , 950 A.2d at 692–93

, appellants assert that Judge Campbell failed to apply this jurisdiction's rule that “undue influence must always be proven.” They contend that he “looked to ‘suspicious' circumstances” rather than to “any hard proof of wrongdoing” and relied on inadmissible hearsay and “extraordinarily weak evidence” in reaching his findings.

We are not persuaded by these arguments. First, Judge Campbell recognized explicitly that “[i]t is not enough that there is a possibility or suspicion of undue influence.” Second, although Judge Campbell stated that a “special circumstance applies ... when a confidential or fiduciary relationship exists between the donor and beneficiary” and noted that “it has ... been held” that a recipient has the burden of proving that a gift was not the product of undue influence, he concluded that the will-contestants (appellees Betty Blackwell et al.) had met their burden “even if [the burden] rests completely with the [appellees] to prove undue influence by clear and convincing evidence.” Judge Campbell also told appellees' counsel during closing arguments at trial that “[y]ou guys have the burden of proof.”

Third, while appellants are correct that the relevant evidence suggested that Hamilton had no significant cognitive impairments during the period in issue, Judge Campbell's ruling did not rest on a finding that Hamilton lacked testamentary capacity. Rather, he relied on the evidence that the nearly blind and bed-bound Hamilton was totally dependent on others—including appellants—for her care, and was vulnerable to exploitation.³ Fourth, Judge Campbell recognized that Hamilton had a history of bequeathing her assets to a caregiver (to wit, appellees' now-deceased mother Dorothy King, who was Hamilton's 1998-2000 caregiver and the beneficiary of Hamilton's 1998 will), but the judge also recounted the evidence that Hamilton and King had known each other since King was a teenager, had been friends for many years, and had a mother-daughter-type relationship. In contrast, Judge Campbell recognized, Hamilton had known appellant Ross, a roofing contractor hired to work on Hamilton's home, and his wife (appellant Arrindell) for only a few months before they obtained her power of attorney, and had known appellants for only several months when she changed her will in 2003 (executing the new will only four days after the court appointed appellant Ross to be her guardian) to name appellants sole beneficiaries.

Fifth, while appellants are correct that some of the evidence that they “isolated [Hamilton] from long-time friends” was based on what appears to be hearsay, much of the hearsay testimony came in without objection.⁴ “[U]nobjected-to hearsay may be competent evidence which the [factfinder] may consider.” Alsbrooks v. Washington Deliveries, Inc. , 281 A.2d 220, 221 (D.C.1971)

. Further, while appellants assert that there was “abundant counterevidence that no such isolation occurred” (for example, Ross testified that King hung up on him when he called her at Hamilton's request) and “paltry evidence” of any isolation of Hamilton, Judge Campbell was free to believe, and he specifically credited, the testimony by appellees' witnesses that appellants cut Hamilton off from her previous friends. The credited testimony about appellants' efforts to isolate Hamilton supported an inference that appellants were exerting undue influence over her in 2003.⁵ Judge Campbell heard former conservator Zipin's testimony that Hamilton (not appellants) asked him to prepare a will (the 2003 will) leaving her house to appellants and that he was “satisfied that there was no und[ue] influence. But Zipin's testimony did not preclude the court from finding that appellants (who acknowledged in their depositions or trial testimony that they knew that Zipin would be drafting the 2003 will, heard some of Zipin's interview with Hamilton, and were present when the will was signed⁶ ) had exerted undue influence over Hamilton to prompt her to ask Zipin to prepare a new will for her.⁷

Moreover, it is clear from Judge Campbell's Order that, in his view, some of the most telling evidence that appellants were “maneuver[ing]” and “taking advantage” of Hamilton was their “cover up”: specifically, as detailed at length by Judge Campbell, the evidence that appellants attempted to conceal their various actions from Hamilton's then-conservator and from the court. Judge Campbell noted that appellants failed to inform conservator Zipin about the mortgage they took out on Hamilton's house. The judge further emphasized that appellants had repeatedly misled or lied to the court, with one or both appellants telling the court that there was no mortgage on the house, which was “patently false”; failing to tell the court about Hamilton's medical condition when, a few days before her death, they asked the court for, and received, permission to sell her house; falsely telling the court that they had receipts showing how they had used the mortgage loan proceeds; falsely stating in a Guardianship Report that all of the loan proceeds were used to renovate Hamilton's house, and Ross's repeating that false statement under oath during his deposition; and failing to disclose to the court the 2008 changes to Hamilton's will that caused appellants, who were her court-appointed fiduciaries,⁸ to be both the sole beneficiaries of the will and the co-personal representatives. As Judge Campbell implicitly recognized, efforts at concealment can support an inference of undue influence.⁹ Although much of the evidence of concealment, dishonesty, and other telling conduct relates to the period after the 2003 will was executed, it is relevant to the validity of the 2003 will inasmuch as it justified Judge Campbell's lack of credence in appellants' explanation of how that will came to be executed.

Appellants assert that the evidence of undue influence was “extraordinarily weak[,]” but this court has held that it “generally takes less to establish undue influence when [as...