Converted WP file 060186-1

Appeal by defendants from judgment entered 9 August 2005 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 9 January 2007.

Marshall, Williams & Gorham, L.L.P., by Charles D. Meier, and Smith Moore, L.L.P., by Sidney S. Eagles, Jr., and Laura M. Loyek, for plaintiffs-appellees.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., and Charles F. Marshall III, and Johnson, Lambreth & Brown, by Robert White Johnson, for defendants- appellants.

    STEELMAN, Judge.

    The trial court did not err in denying defendants' motions for directed verdict and judgment notwithstanding the verdict where plaintiffs introduced evidence for each element of undue influence sufficient for submission of this issue to the jury. Defendants have failed to demonstrate that any alleged error in the trial court's instructions to the jury served to mislead the jury or affect the outcome of the verdict.     Waddell Pate (“decedent”) had three children with his first wife prior to their divorce in 1961, plaintiffs Polly Wilson and Lydia Dugan, and a son who pre-deceased him. Decedent married defendant Mildred Green (“Mrs. Pate”) in 1968. Mrs. Pate had two children from a previous marriage, Lamonie Green and defendant Aaron Green (“Green”). Decedent and defendants lived in Augusta, Georgia prior to decedent's death.
    Decedent owned 1.19 acres of beach-front property in Carolina Beach, New Hanover County, North Carolina (“property”). The property had been owned by his family since the 1930's. Green contacted a surveyor, Sherwin Cribb, in February of 2000, requesting that the property be surveyed and subdivided into three lots. The survey was completed on 29 February 2000, and the property was subdivided. Green also contacted an attorney, Jim Snow, and requested he prepare a deed of gift for one of the lots transferring ownership from decedent to Green. On 30 March 2000 one of the three lots, lot number two, was transferred by deed from decedent to Green. The deed was signed by decedent at Mr. Snow's office, and in the presence of both defendants. Green contacted Mr. Snow again on 24 July 2000, requesting that he prepare deeds conveying Tract 1 to Mrs. Pate, and Tract 3 to Green. Mr. Snow prepared the deeds without any discussion with decedent, and mailed them to Augusta, Georgia. On 30 July 2001, one of the remaining two lots was transferred to Green, and the other to Mrs. Pate. Decedent died testate on 22 February 2002. Decedent's will named Bank of America as executor, but it declined to serve in thatcapacity. Plaintiff Polly Wilson and Mrs. Pate both applied to be appointed as administratrix of the estate. Ms. Wilson was named administratrix of decedent's estate in a contested proceeding in Richmond County, Georgia.
    This action was originally instituted as a declaratory judgment action by defendants. Plaintiffs counterclaimed seeking to set aside the conveyances of the three lots based upon undue influence. The declaratory judgment action was voluntarily dismissed, whereupon the designations of plaintiffs and defendants were reversed. This matter came on for trial before Judge Cobb at the 18 July 2005 session of court. A jury returned a verdict in favor of plaintiffs on 28 July 2005. The trial court entered judgment on 9 August 2005, setting aside the deeds to the three lots. From this judgment, defendants appeal.
    In their first argument, defendants contend that the trial court erred in denying their motions for a directed verdict at the close of plaintiffs' evidence, at the close of all the evidence and their motion for judgment notwithstanding the verdict. We disagree.
    The standard of review for motions for directed verdict and for judgment notwithstanding the verdict are the same. Hawley v. Cash, 155 N.C. App. 580, 582, 574 S.E.2d 684, 686 (2002). This Court must examine:
        “all the evidence in the light most favorable to the nonmoving party,” give that party “the benefit of every reasonable inference drawn therefrom” and determine if “the evidence is sufficient to be submitted to the jury.” The trial court correctly denies a motion fordirected verdict “if there is more than a scintilla of evidence supporting each element of the non-movant's claim.”

Id. (Citations omitted). In reviewing the trial court's denials of defendants' motions for directed verdict, and judgment notwithstanding the verdict, we do not weigh the evidence or attempt to assess credibility. We must take plaintiffs' evidence as true, and resolve any doubt in their favor. In re Will of Dupree, 80 N.C. App. 519, 521, 343 S.E.2d 9, 10 (1986).
    “The very nature of...undue influence makes it impossible for the law to lay down tests to determine its existence with mathematical certainty.” In re Beale's Will, 202 N.C. 618, 622, 163 S.E. 684, 686 (1932). Direct proof is therefore not required as facts and circumstances taken together generally prove or disprove undue influence. Id. at 621, 163 S.E. at 686. If the question is one of fact or credibility, it is for the jury to determine. Id.
    The plaintiff bears the burden of demonstrating more than mere influence or persuasion on the decedent in order to submit their case to the jury. In re Will of Everhart, 88 N.C. App. 572, 364 S.E.2d 173 (1988). To meet this burden, plaintiff need only show more than a scintilla of evidence demonstrating each of the four general elements of undue influence: “(1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence.” Griffin v. Baucom, 74 N.C. App. 282,286, 328 S.E.2d 38, 41 (1985), disc. rev. denied 314 N.C. 115, 332 S.E.2d 481 (1985).
    Evidence was presented as to the first element of undue influence, that decedent was subject to influence. Michael Hagler, decedent's longtime attorney and friend, testified that he believed decedent was making decisions based upon Mrs. Pate's control and influence, and that in 1997, when he visited decedent's house to discuss tax changes in decedent's will, he “realized then that [decedent] didn't have any idea what he was doing.” Decedent's daughter, plaintiff Lydia Pate, testified that he was susceptible to influence at the time the deeds were executed, and that towards the end of his life he appeared “dazed,” “puzzled,” and could not remember that he was in his own residence. Larry Broyles, an attorney who drafted a will for decedent in 1997, testified that decedent was influenced by both defendants. There was testimony that decedent's memory was suffering, and he was sometimes confused. Decedent had problems with his eyesight, and had difficulty reading small print. In addition, his hearing was impaired, he had a pacemaker, and regularly took medication for his heart. There was testimony that decedent would not have been able to live by himself. This evidence was sufficient to support submission of the first element to the jury.
    Evidence was presented as to the second element, the opportunity by defendants to exert undue influence. Decent lived with Mrs. Pate, and Green was intimately involved in transactions concerning the property. Due to decedent's poor eyesight,defendants often read documents to him. Green contacted the surveyor and initiated the subdivision of the property. Green contacted the attorney to prepare the transfers of the two lots to himself, and the third lot to Mrs. Pate. Decedent executed the last two transfers nearly a year after the documents were prepared, and he never contacted the attorney who prepared them to seek any advice about them. Defendants clearly had an opportunity to influence decedent prior to his execution of the deeds. This evidence was sufficient to support submission of the second element to the jury.
    Evidence was presented as to the third element, that defendants had a disposition to exert influence. Green was not gainfully employed for most of his adult life. Plaintiff Darien Pate testified decedent told him Green was untrustworthy, and that “you can't trust anything that he said[.]” Darien Pate further testified decedent had loaned Green money to start a business, and had never been paid back, and that decedent was suspicious of Green because he always seemed to have money, but was never working. Clovis Nash, caretaker of decedent's country property, testified that decedent told him to keep away from Green, and have nothing to do with him, and that Green was trying to get the property from him but he “wouldn't let them have that.” Decedent's investment advisor, Chuck Evans, testified that decedent had asked him to look at some documents, and Evans told decedent it appeared to him “that this document will transfer the Carolina Beach property to [Green] for $100.00.” According to Evans, decedent laughed out loud andsaid: “Oh, no, I don't want to do that.” Evans further testified that Green once contacted him and requested he transfer money out of decedent's account, which he was not authorized to do. Sheila Scott, housekeeper for decedent and Mrs. Pate from 1992 to 1994, testified that decedent told her he hated being at the home “because he'd say [defendants] were just waiting around for him to die so they could get everything he owned,” and that defendants treated him “like he was sh** under their shoes.” She further stated that decedent referred to Mrs. Pate as a gold digger, and stated that defendants “led a life [sic] of deception.”
    Mrs. Pate met with John Broyles, an attorney who handles tax related issues, in 1996 requesting that he draft a will for decedent. Decedent was not at this meeting. Mrs. Pate and her-son in-law, who was also an attorney, took the lead in proposing the terms of decedent's will, which went through numerous revisions, all of which benefitted Mrs. Pate and her heirs. Finally, defendants never informed any of the plaintiffs that the transfer of the property had taken place. This evidence was sufficient to support submission of the third element to the jury.
    Evidence was presented as to the fourth element, a result indicating undue influence. There was testimony at trial that decedent did not have a high opinion of Green, and that he did not wish to provide for him in any manner. Decedent was very generous to his biological children and grand-children, and made frequent gifts to them. Decedent did not show the same generosity with defendants, and was not in the habit of bestowing gifts upon them(decedent and Mrs. Pate had separate banking and investment accounts, and held their real property separately). Sheila Scott testified: “[decedent] would not have left [Green] a damn thing because he couldn't stand him.” Decedent did not want defendants to get the property. It was important to him that it be passed to his blood heirs because it had been in his family for a long time. Decedent continued to pay ad valorem taxes on the property after the transfers, and never told his accountant that he no longer owned the property. Decedent's income tax returns continued to show he owned the property. Ten days before his death, decedent told his daughter Polly, “[Green] thinks he is going to get my property at Carolina Beach but he is not going to get my property ....” This evidence was sufficient to support submission of the fourth element to the jury.
    We hold that plaintiffs presented sufficient evidence to support the submission of all four elements of undue influence to the jury. We further hold the trial court did not err in denying defendants' motions for directed verdict and for judgment notwithstanding the verdict. This argument is without merit.
    In their second argument, defendants contend that the trial court erred by instructing the jury on certain “factors” it could consider when deciding the issue of undue influence, and further erred by refusing to give requested jury instructions. We disagree.
    The trial court is permitted to instruct a jury on issues that are, when viewed in the light most favorable to the proponent ofthe instruction, supported by the evidence. Hill v. McCall, 148 N.C. App. 698, 701, 559 S.E.2d 265, 268 (2002). Our appellate courts have enumerated specific factors which may be relevant in determining the existence of undue influence. See Hardee v. Hardee, 309 N.C. 753, 756, 309 S.E.2d 243, 245 (1983). Our appellate courts recognize, however, that the potentially relevant factors in cases concerning undue influence are “limitless.” Id. Therefore, the trial court may instruct on factors not specifically enumerated in Hardee, or any other opinion of our appellate courts, so long as there is sufficient evidence to support the instruction.
    Defendants argue the trial court erred by instructing the jury it could consider two factors not specifically enumerated in Hardee in making its determination on undue influence: (1) The fact, if found, that defendants kept the transfers of the property secret from plaintiffs, and (2) the fact, if found, that decedent continued to treat the property as his own after the property was transferred to defendants.
    Plaintiff's evidence tends to show that defendants kept the transfer of the lots “secret” from decedent's children and grandchildren, and that defendants did not want plaintiffs to know about the deeds. Defendants admitted that they did not inform defendants of the property transfers, stating that they “were none of the Defendants [sic] business.” Upon decedent's death, the parties met to discuss decedent's estate. Plaintiff Polly Wilson discussed decedent's assets with Green. She told him that the assets included the property. Defendants never corrected her ormentioned that the property had already been transferred. We hold this evidence supports the trial court's instruction.
    Plaintiff's evidence also tended to show that decedent asserted ownership to the property in question after its transfer, until the time of his death. Decedent paid the ad valorem property taxes on the property. His accountant continued to prepare state and federal income tax returns stating that decedent was the owner of the property. Decedent never informed his attorney or investment advisor that he no longer owned the property. Further, ten days before his death, decedent told plaintiff Wilson: “Aaron thinks he is going to get my property at Carolina Beach but he is not going to get my property at Carolina Beach.” We hold this evidence supported the trial court's instruction on decedents assertion of ownership after the transfers.
    Further, in instructing the jury in this case, Judge Cobb made it clear that the plaintiffs had the burden of proving each element of undue influence. The factors recited by the court were circumstances that the jury “may consider” in determining whether undue influence occurred. Finally, the jury was instructed that “the plaintiffs need not prove the existence of every factor; however, the plaintiffs must present sufficient evidence to meet their burden of proof.” The instructions clearly placed upon plaintiffs the burden of establishing the elements of undue influence, and left it to the jury to determine the facts of the case and whether plaintiffs had met their burden of proof.     Next, defendants contend that the trial court erred by not instructing the jury in accordance with two special jury instructions requested by them. Defendants submitted written requests to the trial court requesting that the jury be instructed as follows:
        If you find that Mr. Pate was not susceptible to undue influence you may determine that any other evidence of undue influence may be too tenuous for consideration.

        ...

        Now, as to Mr. Pate's mental condition, you have heard testimony from medical practitioners. I instruct you that opinions of physicians are considered entitled to greater weight than the opinions of nonprofessional persons, provided you find that the physicians have had personal observation and knowledge of the person whose mental condition is the matter in issue.

    “In reviewing a trial court's ruling on requests for jury instructions, we are 'required to consider and review [the] jury instructions in their entirety.'” Davis v. Balser, 155 N.C. App. 431, 433, 574 S.E.2d 177, 179 (2002). Further, it is the party assigning error's burden “to show 'that the jury was misled or that the verdict was affected by an omitted instruction.' 'The charge will be held to be sufficient if “it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]”'” Davis, 155 N.C. App. at 433, 574 S.E.2d at 179.     We have thoroughly reviewed the proffered instructions, and hold that they presented the law of the case in a reasonable and straightforward manner. Defendants have failed in their burden of showing the omission of their requestedinstructions served to mislead the jury, or affect the verdict. This argument is without merit.
    In defendants' third argument, it contends that the jury's verdict was against the greater weight of the evidence. We disagree.
    In light of our holdings above, and after having thoroughly reviewed the record and transcript, we hold that the trial court did not abuse its discretion, and its denial of defendants' motion for a new trial did not result in a substantial miscarriage of justice. Martishius v. Carolco Studios, Inc., 142 N.C. App. 216, 225-26, 542 S.E.2d 303, 309 (2001). This argument is without merit.
    AFFIRMED
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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