Zundel v. Zundel

Decision Date29 June 2020
Docket NumberNo. 20190334,20190334
Citation945 N.W.2d 297
Parties Stephen ZUNDEL, Plaintiff and Appellant v. Loren ZUNDEL and Richard Zundel, Defendants and Appellees
CourtNorth Dakota Supreme Court

Fallon M. Kelly, Lisbon, ND, for plaintiff and appellant.

Benjamin J. Hasbrouck, Fargo, ND, for defendants and appellees.

Crothers, Justice.

[¶1] Stephen Zundel appeals the district court judgment finding that the bill of transfer is void as a result of Stephen Zundel's undue influence over his father, Edwin Zundel, and that the bill of transfer was not validly accepted because it was not signed by a notary. Loren and Richard Zundel argue the district court did not clearly err because the evidence supports the district court's findings of fact and conclusion that the bill of transfer is invalid. We affirm.

I

[¶2] Stephen Zundel sued his brothers, Loren and Richard Zundel, seeking possession of personal property subject to the May 2013 bill of transfer. Loren and Richard Zundel believed the property is part of Edwin Zundel's estate. Loren Zundel served as personal representative of the estate and answered the complaint, denying Stephen Zundel's allegations. Loren Zundel sought declaratory judgment claiming the bill of transfer was invalid because Stephen Zundel obtained Edwin Zundel's signature through undue influence and the document was falsely notarized by Stephen Zundel who was not a notary public.

[¶3] Judge Narum issued an order to show cause and a hearing was held on March 8, 2018. At the hearing Judge Narum noted his previous recusal in a different case between the parties due to ex parte communication. He stated he had not recused himself from this case and asked if the parties would like to make a record on the issue. Both parties declined and the hearing proceeded.

[¶4] A bench trial was held on May 2, 2019, and Judge Narum issued a memorandum opinion on July 11, 2019. The district court found Stephen Zundel obtained his father's signature on the bill of transfer through undue influence and the bill of transfer was not properly accepted because it had not been signed by a notary. As a result, the district court judgment declared the bill of transfer was void.

[¶5] After the case was decided Stephen Zundel served a subpoena on the nursing home where Edwin Zundel lived to obtain records to challenge allegations raised at trial that Edwin Zundel returned to the home bruised after visiting Stephen Zundel. Loren and Richard Zundel moved to quash the subpoena and the district court granted the motion.

II

[¶6] Stephen Zundel broadly argues the district court's finding of undue influence was motivated by bias.

[¶7] At the March 8, 2018 motion hearing Judge Narum noted his previous recusal in a different case between the parties due to ex parte communication. He stated he had not recused himself from this case and asked if the parties would like to make a record on the issue. See N.D. Code Jud. Conduct 2.9, cmt. 6. Both parties declined and the hearing proceeded.

[¶8] "We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal. The failure to raise the issue of judicial bias in the trial court precludes our review on appeal." Molitor v. Molitor , 2006 ND 163, ¶ 12, 718 N.W.2d 13 (citing Wenzel v. Wenzel , 469 N.W.2d 156, 158 (N.D. 1991) ). Further, "[a]dverse rulings alone are not evidence of judicial bias or partiality." Lucas v. Riverside Park Condos. Unit Owners Ass'n , 2009 ND 217, ¶ 12, 776 N.W.2d 801. Because judicial bias was not raised in the district court, we decline to address it for the first time on appeal.

III
A

[¶9] Stephen Zundel argues the district court's finding of undue influence was clearly erroneous. Loren and Richard Zundel argue the district court findings are supported by the evidence and are not clearly erroneous. We affirm the district court finding of undue influence.

[¶10] "Whether undue influence occurred generally presents a question of fact." Riskey v. Riskey , 2018 ND 214, ¶ 8, 917 N.W.2d 488 (citing Erickson v. Olsen , 2014 ND 66, ¶ 19, 844 N.W.2d 585 ). "Undue influence must be sufficiently proven, a mere suspicion is not enough." Estate of Mickelson , 477 N.W.2d 247, 250 (N.D. 1991). "This Court's review of a district court's findings of fact in a bench trial is governed by the clearly erroneous standard under N.D.R.Civ.P. 52(a)." Wheeler v. Southport Seven Planned Unit Dev. , 2012 ND 201, ¶ 23, 821 N.W.2d 746. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if ... on the entire evidence [this Court] is left with a definite and firm conviction a mistake has been made." Id. (citing Prchal v. Prchal , 2011 ND 62, ¶ 11, 795 N.W.2d 693 (internal quotation marks omitted)). "[W]e do ‘not reweigh evidence or reassess witness credibility when the evidence supports the court's findings.’ " Id. (internal quotation marks omitted).

[¶11] " Section 59-18-01.1, N.D.C.C., provides a rebuttable presumption of undue influence for certain trust transactions. We have said that [t]his presumption applies not only to transactions involving trustees, agents, and attorneys-in-fact, but also to all transactions involving confidential relationships.’ " Riskey , 2018 ND 214, ¶ 15, 917 N.W.2d 488 (citing In re Estate of Harris , 2017 ND 35, ¶ 19, 890 N.W.2d 561 (quoting In re Estate of Bartelson , 2015 ND 147, ¶ 16, 864 N.W.2d 441 )); see also In re Estate of Vizenor , 2014 ND 143, ¶¶ 26-27, 851 N.W.2d 119.

[¶12] Here, the district court concluded the "evidence clearly and convincingly showed that Edwin relied to a significant extent on Stephen for care, transportation, and the management of his affairs" and therefore a significant confidential relationship existed. This finding is supported by the evidence. Stephen Zundel testified Edwin Zundel lived with him from 2006 until Edwin Zundel was moved into a nursing home. Stephen Zundel testified he drove his father to appointments, funerals, out shopping, for groceries, to the cemetery, or anytime something required travel. Stephen Zundel also testified he had a joint bank account with Edwin Zundel and he signed checks for him, bought items for Edwin Zundel from that account, and paid Edwin Zundel's bills. We conclude the district court finding that a confidential relationship existed was not clearly erroneous. Therefore, a rebuttable presumption of undue influence existed.

[¶13] The district court identified the elements of undue influence as "(1) a person susceptible to undue influence; (2) the opportunity to exercise such influence existed; (3) there was a disposition to exercise such influence; and (4) the result appears to be the effect of such influence." "In nontestamentary cases, this Court has held [a] finding of undue influence ... requires that three factors be established: (1) A person who can be influenced; (2) The fact of improper influence exerted; and (3) Submission to the overmastering effect of such unlawful conduct.’ " Riskey , 2018 ND 214, ¶ 12, 917 N.W.2d 488. Neither party challenged the elements applied by the district court. For purposes of this appeal, we will assume that the four-factor test applies to whether undue influence occurred in a bill of transfer. Id. at ¶ 14 ; see Erickson v. Brown , 2008 ND 57, ¶ 27, 747 N.W.2d 34 (citing State v. Duchene , 2007 ND 31, ¶ 10, 727 N.W.2d 769 ) ("Issues not briefed by an appellant are deemed abandoned, and thereby become the law of the case and will not be considered on appeal.").

[¶14] The district court concluded Stephen did not overcome the presumption of undue influence with credible evidence. Under the four-factor test the district court found, "All elements of undue influence are clearly present, and the Court concludes, based on the credible evidence, that the Bill of Transfer is invalid and void as a result of Stephen's undue influence over Edwin Zundel."

[¶15] First, the district court heard evidence regarding Stephen Zundel's opportunity to influence Edwin Zundel. Stephen Zundel testified he lived alone with his father since his mother passed away, and frequently saw his father alone after he lived in the nursing home. Stephen Zundel testified he tried to talk to his father everyday on the telephone to update him about what was going on at the farm. Stephen Zundel also testified he helped his father run errands, get to appointments, and was a joint owner on Edwin Zundel's primary bank account. Loren Zundel also testified he believed Stephen Zundel wanted to be in control of who brought Edwin Zundel to his appointments. Stephen Zundel also testified no one else was in the room at the nursing home when Edwin Zundel signed the bill of transfer.

[¶16] Second, the district court heard evidence Edwin Zundel was susceptible to undue influence in May 2013. Stephen Zundel testified when Edwin Zundel was first released from the hospital he went into a nursing home. He also testified that Edwin Zundel was transferred to a different nursing home because he needed a higher level of care. Loren Zundel testified after Edwin Zundel was released from the hospital "he was not like he was before." Loren Zundel testified Edwin Zundel was having memory lapses, and was physically declining. Stephen Zundel testified Edwin Zundel "was sharp up until the very end." The district court found Loren Zundel's testimony was more credible. "[W]e do ‘not reweigh evidence or reassess witness credibility when the evidence supports the court's findings.’ " Wheeler , 2012 ND 201, ¶ 23, 821 N.W.2d 746.

[¶17] The question whether Stephen Zundel had a disposition to exercise undue influence also was before the district court. The district court found Stephen Zundel had the disposition to exercise undue influence over Edwin Zundel to deprive his brothers of their legal rights. The district court found Stephen Zundel engaged in at least five legal disputes with his brothers since late 2012. The district court stated, ...

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