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Posey v. Pope

Court of Appeals of Mississippi

August 28, 2018

PAUL POSEY AND ROBERT POSEY APPELLANTS
v.
DOROTHY POPE AND WILLARD POSEY APPELLEES

          DATE OF JUDGMENT: 10/06/2016

          NESHOBA COUNTY CHANCERY COURT HON. EDWARD C. FENWICK TRIAL JUDGE.

          ATTORNEY FOR APPELLANTS: STEVEN DETROY SETTLEMIRES

          ATTORNEYS FOR APPELLEES: G. TODD BURWELL EMILY KINCSES LINDSAY

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          TINDELL, J.

         ¶1. This appeal arises from a dispute among siblings Paul Posey and Robert Posey (collectively, the Proponents) and Dorothy Pope and Willard Posey (collectively, the Contestants) as to the validity of a 2008 will (the 2008 will) executed by their mother, Gladys Posey. Following Gladys's death in 2013, Paul submitted the 2008 will to probate and recorded three warranty deeds (the 2013 deeds)[1] that transferred portions of Gladys's real property to the Proponents' children and grandchildren. The Contestants subsequently filed a complaint in Neshoba County Chancery Court and alleged the Proponents procured both the 2008 will and the 2013 deeds through undue influence. In a bifurcated trial solely on the issue of the 2008 will's validity, a Neshoba County jury returned a verdict in favor of the Contestants. Citing Mississippi Rule of Civil Procedure 54(b), the Neshoba County Chancery Court entered a final judgment that revoked Gladys's 2008 will.

         ¶2. The Proponents appeal both the chancellor's final judgment and his denial of their motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. On appeal, the Proponents raise the following arguments: (1) the chancellor's evidentiary rulings on the parties' motion-in-limine requests resulted in the admission of evidence that was unfairly prejudicial, confused the issues, and misled the jury; (2) the chancellor erroneously gave jury instructions that were too numerous and that misled and confused the jury; and (3) insufficient evidence supported the jury's verdict that the Proponents procured the 2008 will through undue influence.

         ¶3. Finding no error, we affirm.

         FACTS I. The 2007 Deeds and the 2008 Complaint

         ¶4. In 1996, Madison Posey executed a will that left all his real property to his wife, Gladys. If Gladys predeceased Madison, his will directed that his real property be equally divided among five of the couple's six children, including the Proponents and the Contestants. Gladys's will mirrored the provisions of Madison's will.

         ¶5. In 2004, Madison died and left Gladys approximately 138 acres of land in Neshoba County, Mississippi. At the time of Madison's death, Gladys was in her mid-eighties. Through two separate warranty deeds signed on September 13, 2007 (the 2007 deeds), Gladys conveyed approximately 132 acres of her property to the Proponents. On April 10, 2008, she executed a general durable power of attorney that appointed her son Paul her attorney-in-fact.

         ¶6. On June 30, 2008, the Contestants filed a complaint (the 2008 action) to cancel the 2007 deeds based on undue influence and to confirm their title to part of the conveyed land through adverse possession. In a January 30, 2012 final judgment, the chancellor found the Contestants had sufficiently proven their claims of undue influence and adverse possession. As a result, the chancellor set aside the property conveyed to the Proponents through the two 2007 deeds and granted the Contestants' claims of title by adverse possession. On appeal, this Court found the Proponents lacked standing to appeal the chancellor's judgment. Posey v. Pope, 130 So.3d 1183, 1185 (¶5) (Miss. Ct. App. 2014). We therefore dismissed the appeal. Id.

         II. The 2008 Will, the 2013 Warranty Deeds, and the 2013 Action

         ¶7. Gladys died on May 21, 2013.[2] The same day, Paul recorded the three 2013 deeds, which conveyed portions of Gladys's real property to only the Proponents' children and grandchildren.[3] Several days later, on June 6, 2013, Paul filed a petition to open Gladys's estate and for the issuance of letters testamentary. Paul submitted for probate the 2008 will, which considerably changed the distribution of Gladys's property to favor the Proponents. While Gladys's 1996 will had evenly distributed her property among the Proponents, the Contestants, and one other sibling, her 2008 will bequeathed four of her children, including the Contestants, only $100 each and devised and bequeathed the remainder of her estate to the Proponents.

         ¶8. On June 12, 2013, the chancellor entered an order to admit the 2008 will to probate. The chancellor also appointed Paul executor of Gladys's estate and issued letters testamentary. In August 2013, the Contestants filed a complaint (the 2013 action) to set aside the 2008 will and the property conveyed through the three 2013 deeds. The Contestants also filed a successful motion to remove Paul as executor of Gladys's estate and to consolidate their complaint with the estate proceedings.

         ¶9. Prior to trial, the Proponents filed two motions in limine in which they sought to (1) prohibit any mention to the jury of the undue-influence judgment related to the 2007 deeds; and (2) bifurcate the trial to first determine the validity of the 2008 will. The Contestants likewise filed a motion in limine that sought to restrict the trial to the issue of the 2008 will's validity. The Contestants' motion in limine also sought the exclusion of the following: (1) any mention of or testimony about "the [w]ill executed by Madison; the adverse possession of the real property at issue in the 2008 [action]; and[] how any of the property, whether real or personal, in . . . Gladys['s estate] should be distributed"; (2) any testimony offered by the Proponents to rebut a presumption of undue influence; (3) any hearsay regarding Gladys's opinion of the Contestants and how Gladys wished to dispose of her assets; and (4) any hearsay regarding statements Dorothy allegedly made to third-party entities about Gladys and Paul. Along with their motion in limine, the Contestants filed a motion to bifurcate the trial so that the jury only received facts and evidence related to the 2008 will's validity.

         ¶10. Following a March 17, 2016 hearing, the chancellor granted the parties' requests to bifurcate the trial. The chancellor therefore restricted the trial to the sole issue of the will contest and reserved all other issues for a later determination. As to the parties' motion-in-limine requests, the chancellor found the Proponents could provide testimony to rebut any presumption of undue influence. However, the chancellor excluded testimony of alleged statements Dorothy made to third-party entities about Gladys and the Proponents as irrelevant, speculative, and hearsay. With regard to evidence about the undue-influence and adverse-possession rulings in the 2008 action and any statements Gladys made about her opinion of the Contestants or how she wished her property to be distributed, the chancellor reserved his decision "until trial or such other time that [he] deem[ed] appropriate." In a subsequent order, however, the chancellor determined that the parties' prior litigation, and the resulting findings of undue influence and adverse possession, "would be unfairly prejudicial should the jury hear about the same and [should therefore] be excluded from the will contest[] unless the party attempting to exclude the evidence . . . open[ed] the door by introducing evidence that such party [had attempted] to exclude." The chancellor explained, though, that his ruling did not prohibit the parties from offering evidence presented in the prior litigation about the two 2007 deeds.

         ¶11. Over the course of a three-day trial in September 2016, the parties presented evidence and testimony about the validity of Gladys's 2008 will and whether the Proponents had used undue influence to procure the will. At the close of the Contestants' case-in-chief, the Proponents moved for a directed verdict and argued the Contestants had failed to establish a presumption of undue influence. In denying the motion, the chancellor concluded the Contestants had proven the existence of a confidential relationship between Gladys and the Proponents. The chancellor also found that a triable jury question existed as to whether the Proponents had abused their relationship with Gladys by either asserting dominance over her or by substituting their intent for hers.

         ¶12. After considering all the parties' evidence, the jury returned a verdict in favor of the Contestants. On October 6, 2016, the chancellor entered a final judgment pursuant to Rule 54(b) that revoked Gladys's 2008 will. The Proponents filed an unsuccessful motion for a JNOV or, in the alternative, a new trial. Aggrieved by the chancellor's final judgment and his denial of their posttrial motion, the Proponents timely appeal.[4]

         DISCUSSION

         I. Evidentiary Rulings

         ¶13. The Proponents argue the chancellor's rulings on the parties' motion-in-limine requests resulted in the admission of evidence that was irrelevant, unfairly prejudicial, and confusing to the jury. In particular, the Proponents challenge the chancellor's decision to admit into evidence the 2007 deeds, Gladys's bank records, and the 2013 deeds.

         ¶14. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the case." M.R.E. 401. Unless the United States Constitution, the Mississippi Constitution, or the Mississippi evidentiary rules provide otherwise, relevant evidence is admissible. M.R.E. 402. However, a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." M.R.E. 403. We review the trial court's admission or exclusion of evidence for abuse of discretion. Ehrhardt v. Donelson, 221 So.3d 393, 396 (ΒΆ15) (Miss. Ct. App. 2017). "Where error involves the admission or exclusion of evidence, [the appellate courts] will not reverse ...


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