United States District Court, N.D. Mississippi, Oxford Division
OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
the Court in this interpleader action are Alita Margaret
Mitchell and Craig J. Cheatham's motion for summary
judgment, Doc. #120; and Ava Mitchell Tanner's motion for
summary judgment, Doc. #126.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is proper only when the record
demonstrates that no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law.” Luv N' Care Ltd. v. Groupo Rimar,
844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is
genuine if the evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party and material if
its resolution could affect the outcome of the action.”
Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 226 (5th Cir. 2015) (internal quotation marks omitted).
“When parties file cross-motions for summary judgment,
we review each party's motion independently, viewing the
evidence and inferences in the light most favorable to the
nonmoving party.” Duval v. N. Assurance Co. of
Am., 722 F.3d 300, 303 (5th Cir. 2013) (internal
quotation marks omitted).
seeking summary judgment, “[t]he moving party bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact.” Nola Spice Designs,
L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536
(5th Cir. 2015) (internal quotation marks and alterations
omitted). If the moving party satisfies this burden,
“the non-moving party must go beyond the pleadings and
by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.”
Id. (internal quotation marks omitted). “Where
the nonmoving party bears the burden of proof at trial, the
moving party satisfies this initial burden by demonstrating
an absence of evidence to support the nonmoving party's
case.” Celtic Marine Corp. v. James C. Justice
Cos., Inc., 760 F.3d 477, 481 (5th Cir. 2014).
Don Mitchell's Family
Mitchell was born May 24, 1934. Doc. #128-1 at ¶ 8. In
1963, Don married Barbara Mitchell. Id. at ¶ 2.
Don and Barbara had three daughters - Ava, Phyllis, and
Doncie. Id. Doncie died in 1980. Id. In
1984, Don and Barbara divorced. Id. After the
divorce, Barbara settled in Florida. Id.
1987, Don married Earlene Cotton White. Id. at
¶ 3. Earlene had two children from a previous marriage -
Ronnie and Lisa. Id. Don and Earlene lived in Heth,
Arkansas, and remained married until Earlene's death in
2005. Id. After Earlene's death, Don continued
to live in Heth. Id. at ¶¶ 3-4.
2007, Ava, who had been medically disabled since 2001, moved
to Heth. Id. at ¶ 5. Three years later, in
2010, Don purchased a mobile home for Ava so that she could
be closer to him. Id. at ¶ 6.
2011, Don began communicating with Alita Cheatham.
Id. at ¶ 8; Doc. #132-5 at 12- 13, 16. Don knew
Alita through her deceased husband, Pete Cheatham, who was a
boyhood friend of Don, but the two had not spoken in
approximately forty years. Doc. #128-1 at ¶ 8; Doc.
#132-5 at 10-11. After about a month of communicating by
telephone, Don began visiting Alita at her home in Horn Lake,
Mississippi. Doc. #132-5 at 16. Sometime later, Alita started
visiting Don in Heth. Doc. #132-5 at 18-19. Eventually, Don
and Alita began to discuss marriage. Doc. #132-5 at 27; Doc.
#132-7 at 30.
2011, Don “was diagnosed with COPD and later with
pneumonia.” Doc #128-1 at ¶ 10. While Don
initially “refused to go to the hospital, ” at
some point, he underwent treatment. Id.
“During the treatment, the doctors found a spot on his
lung, but he refused to allow a test or a biopsy.”
Id. Ava was Don's caregiver during these
early 2012, Don underwent surgery to remove a spot from the
side of his head. Id. at ¶ 11. In March 2012,
shortly after Don's surgery, Ava traveled to Florida to
be with her mother while her mother had knee surgery.
Id. Ava returned to Heth in August of that year to
find her father's health in a worse condition.
Id. In November 2012, Don was diagnosed with stage
IV lung cancer and began receiving treatment. Id.
before he was diagnosed with lung cancer, Don had his
attorney, Frank Dudeck, prepare a will, trust, and other
estate planning documents. Doc. #128-1 at ¶ 12. Ava and
her sister Phyllis, who had not seen Don since 1985, were
mentioned in Don's will. Id. at ¶¶
13-14. Although Don had a provision in his trust which left
$200, 000 to his great-granddaughters, Bianca and Emma Daily,
he never put money in the trust to fund the bequest.
Id. at ¶ 15.
chemotherapy and radiation treatments took a toll on Don
physically and mentally and, in April 2013, he retired after
years of working “on a boat on the Mississippi
River.” Id. at ¶¶ 7, 17; Doc.
#126-45 at 14-15. Because he could no longer keep up with his
bills and bank accounts, Don put Ava in charge of his
accounts. Doc. #128-1 at ¶ 17. When Don retired, he
converted his work group life insurance policy through
Prudential to an individual policy. Id. at ¶
18. Don also moved his 401k account from his work to Regions
Bank. Id. With some of the 401k money, Don purchased
two annuities from Great American Life Insurance Company.
Id. He invested the balance of his 401k money with
Cetera, a Regions securities firm. Id. Ava was
listed as a beneficiary on the Great American annuities, the
Cetera account, and the Prudential policy. Id. at
¶¶ 18, 64.
to Ava, sometime after August 2013, “Alita began
meddling in [Don's] personal and financial affairs”
and Don resented it. Id. at ¶¶ 23-24, 26.
Ava asserts that Alita criticized Don for financially helping
his adult stepchildren. Id. at ¶ 24. Ava
further asserts Alita told her that she wanted to help Don
get his financial affairs in order and asked for a copy of
his will and burial policy but Don told Ava he did not want
Alita to have a copy. Id. at ¶ 25.
testified during her deposition that she never asked for a
copy of Don's will, was not concerned with Don's
affairs and did not get involved with them, and only knew
about Don's finances what he told her. Doc. #126-45 at
22-25, 35-36, 38, 46; Doc. #126-46 at 59-60; Doc. #126-47 at
107. She also testified that she was not after Don's
money and could financially support herself. Doc. #126-45 at
34. According to Alita, when she asked Ava about Don's
burial policy at his request, Ava responded,
“[D]on't worry about it. When you put him in the
ground, let me know.” Doc. #126-46 at 63. Alita
contends that Don expressed concern about what Ava was doing
with his finances. Doc. #126-45 at 49-50.
Ava's Departure to Florida
began to consider returning to Florida because her sister
Phyllis was scheduled to have surgery on March 19, 2015, and
would be unable to take care of their mother while she
recovered. Doc. #128-1 at ¶ 28. Ava was
“conflicted” because both of her parents needed
her help; however, Don encouraged her to go. Id. at
¶ 29. At that time, Don's stepson Ronnie was living
with him and could take care of him. Id. Ava and Don
had been discussing her mother's need for new dentures,
hearing aids, and glasses for several months. Id. at
¶ 32. During these discussions, Don told Ava to get her
mother “whatever she needs” and that he would
help pay for it. Id.
March 4, 2015, Ava left for Florida but called to check on
her father almost daily. Id. at ¶ 34. She took
with her to Florida two folders containing information about
Don's Great American policies, a receipt for his burial
policy, and a checkbook. Doc. #132-8 at 29-30. Ava planned to
return to Heth and check on her father in June 2015 but,
because her mother's health was not improving, stayed
longer than she expected. Doc. #128-1 at ¶ 34. That
summer, Ava asked Don and Alita if she should return to Heth
to help care for Don but they both assured her that was not
necessary. Id. at ¶ 35.
Craig Cheatham's Involvement in Don's
point, Don asked Alita's son, Craig Cheatham, for
financial planning advice but Craig did not want to get
involved because Don had children. Doc. #126-44 at 14, 17-20.
Don told Craig that every time he would ask Ava about his
finances she would tell him, “it's all right there
on the computer, Daddy” but “would never open the
computer or unlock it for him to visibly look at it.”
Id. at 18. Several months later, Don asked Craig to
assist him in locating his trust account but Craig declined.
Id. at 19-20. Craig told Don that “he needed
to see his trust lawyers.” Id. at 19.
point, Don asked Craig to come to his house and meet with him
and, on August 7, 2015, Craig complied. Id. at 20.
While at Don's house, Craig and Don discussed Don's
desire to marry Alita, Don's children allegedly stealing
from him,  and Don's concerns about what Ava was
doing with his finances. Id. at 24-26, 28-29. Don
also asked Craig for help finding his trust account.
Id. at 28. Don told Craig that Ava would not give
him information on where his trust was located, and would not
return the documents he had requested from her or the laptop
with the information on it. Id. at 28-29.
agreed to go with Don the following week to speak with a
trust attorney in Little Rock regarding the location of
Don's trust. Id. at 29-30. Don also asked Craig
to go with him to Regions Bank to get a copy of his bank
statements. Id. at 51-52. They went to Regions Bank
on August 12, 2015. Id. While there, Don told Craig
that his account had less than $18, 000, when in July 2015,
he had $58, 000 in his money market account and $8, 000 in
his personal account. Id. at 70-74, 103-04. Don was
advised that he had active checking accounts in Alabama,
Florida, and four in Arkansas. Id. at 73. Don
informed bank officials that he had no knowledge of accounts
in Alabama and Florida and was only aware of three of the
four accounts opened in Arkansas. Id. at 73-75.
While at the bank, Don closed all but one of the accounts.
Id. at 53-54. Don believed that Ava had forged his
name on the other accounts. Id. at 75. Don became so
upset that he was physically shaking and had to “sit
down on the side of the truck to gather himself.”
Id. at 78. Don believed that Ava had ruined him.
their meeting on August 12, 2015, Don told Craig that they
would have to return to Regions and meet with Scottie
Lackland, the branch manager for Regions' West Memphis
branches, about his investments. Id. at 91; Doc.
#132-12 at 6. This is when Craig learned about the Great
American annuities. Doc. #126-44 at 91-92.
days later, on August 14, 2015, Don signed forms revoking
Ava's power of attorney and appointing Craig in her
place. Doc. #126-2; Doc. #126-3. Don called Dudeck's
office to have him prepare such forms. Doc. #126-44 at 84.
However, Craig went, without Don, to Dudeck's office to
get these documents. Id. After receiving power of
attorney, Craig faxed his power of attorney and Ava's
revocation to Great American asking them to freeze the
accounts until it heard further from him. Id. at
87-88. Craig asked Great American to freeze the accounts
because Don “was moving his bank accounts to
Mississippi and he had direct deposits going into bank
accounts that were being closed out and [they] had to have
his direct deposits changed to the new bank accounts and
those forms had not shown up for Don to sign.”
Id. at 88. Craig also sent Cetera a request to
freeze Don's account. Id. at 93.
August 17, 2015, Don returned to Regions bank with Alita and
Craig. Id. at 93, 101. At that time, Don removed Ava
as the beneficiary of the Great American annuities and made
Alita the primary beneficiary. Id. at 95; Doc.
#132-12 at 22-24; Doc. #126-13. A couple of weeks later,
Great American mailed Don a letter asking him to clarify
whether Alita should be a co-owner or beneficiary of the
policies. Doc. #126-44 at 141-42. In response, the policies
were changed at Don's request to name Alita as a co-owner
and Craig as the primary beneficiary. Doc. #126-23; Doc.
#126-22; Doc. #126-44 at 143. Great American sent Don another
letter informing him that Alita could not be a co-owner on
the annuities, only a beneficiary. Doc. #126-44 at 143.
Therefore, the annuities were amended for a third time to
reflect Alita as the primary beneficiary and Craig as a
contingent beneficiary. Id.; Doc. #126-30; Doc.
#126-31. The last two forms changing the beneficiary were in
Craig's handwriting. Doc. #126-47 at 144-45.
August 21, 2015, Don signed a form naming Alita and Craig as
the beneficiaries of his Prudential policy. Doc. #126-19. The
form was filled out by Craig. Doc. #126-44 at 138-139. Three
days later, Don signed paperwork designating Alita as the
primary beneficiary and Craig as the contingent beneficiary
of his Cetera account. Doc. #126-20. Craig was present when
the form was filled out by Terry Green, a Financial
Consultant with Regions Investment Solutions. #126-44 at
139-40, 145; see Doc. #126-28.
Don and Alita's Marriage and Don's Death
leaving Regions Bank on August 17, 2015, Don and Alita were
married in a small ceremony. Doc. #126-44 at 102-03; Doc.
#121-11. Alita's children and neighbors were in
attendance. Doc. #126-44 at 102-03. Ava did not know about
the wedding. Doc. #128-1 at ¶ 45.
Don and Alita were married, Ava contends that she was unable
to speak with her father because Alita changed Don's
telephone number and did not give it to her. Id. at
¶ 47. Alita, however, testified that she gave Don's
new cell phone number to Ava. Doc. #126-46 at 96-97.
According to Alita, she blocked Ava from her cell phone and
changed Don's number because Ava would call her late at
night with “a bunch of crap, ” and because every
time Don talked to Ava he “would be so upset [that] he
would take the phone and throw it across the room.”
Id. at 94-96.
December 1, 2015, Don died at the age of 81. Doc. #128-1 at
April 5, 2016, Great American Life Insurance Company filed an
interpleader complaint in this Court to determine whether
Ava, Alita, Craig, or anyone else, is the proper recipient of
the two annuities issued to Don before his death. Doc. #1. On
May 27, 2016, Alita and Craig answered the complaint and
Alita filed a crossclaim against Ava. Doc. #9. In her
crossclaim, Alita alleges that “[w]ithout a legal basis
or right, Ava Mitchell Tanner has interfered with Alita
Margaret Mitchell's right to the annuity death benefits
by submitting a false and scandalous letter to [Great
American]” and “[a]s a result of her malicious
interference, ” Ava “is liable for the damage
Alita Margaret Mitchell has incurred ….”
Id. at ¶¶ 5-6.
9, 2016, Ava answered Great American's complaint and
Alita's crossclaim. Doc. #13; Doc. #14. Three weeks
later, on June 30, 2016, Ava filed an amended answer to
Alita's crossclaim and asserted a crossclaim of her own
against Alita and Craig. Doc. #24. Ava's crossclaim
Alita Cheatham and Craig Cheatham exerted undue influence
over Don Mitchell to persuade him to disinherit his
daughters, the natural objects of his bounty, and to convey
his assets to them. They used undue influence to convert the
Regions Bank CD $150, 000, Prudential Life Insurance policy
for $186, 000, Great American Life Insurance annuities for
$120, 153.25 and $117, 333.54, Oil Interest of unknown value.
Id. at ¶ 41. On July 18, 2016, Alita and Craig
answered Ava's crossclaim. Doc. #30.
August 30, 2016, Phyllis Mitchell Fernandez filed a motion
seeking “leave to intervene as a plaintiff in the cross
claim filed by her sister [Ava] against the current
defendants to the cross claim, Alita Cheatham Mitchell and
Craig Cheatham.” Doc. #43. The Court denied the motion
to intervene because it failed to comply with the Local Rules
of this Court. Doc. #138.
September 1, 2017, Phyllis renewed her motion to intervene in
Ava's crossclaim of undue influence as it relates to the
Prudential policy and a trust which owns some mineral
interest. Doc. #139.
15, 2017, Alita and Craig filed a motion for summary
judgment. Doc. #120. On May 21, 2017, Ava filed a
motion for summary judgment. Doc. #126. The next day, Ava
filed a “Supplemental Motion for Summary Judgment by
Ava Tanner, ” which, in substance, supplements her May
21 motion for summary judgment with her
declaration. Doc. #128; Doc. #28-1.
30, 2017, Ava filed a response opposing Alita and Craig's
motion for summary judgment. Doc. #129. On June 5, 2017,
Alita and Craig filed a response opposing Ava's motion
for summary judgment. Doc. #132. The next day, Craig and Alita
replied in support of their motion. Doc. #134. One week
later, Ava replied in support of her motion. Doc.
#135. On August 7, 2017, the Court, on ...