Jury finding of undue influence affirmed

Dace v. Dace (Tex.App.- Houston [1st Dist.] July 31, 2008)(Higley)
dispute over estate, breach of contract, deed, undue influence)(legally insufficient evidence supports the jury’s
finding that Harry entered into a written agreement with his parents to purchase the business).

2001 Deed

In his second issue, Harry contends that the trial court erred “in declaring null and void the March 28, 2001
deed to [Harry] from his parents.”

As mentioned, the jury found that Harry obtained the execution of the 2001 deed from his parents through the
use of undue influence. To support his second issue, Harry contends that no evidence was presented to
support the undue influence finding.

Here, the jury was instructed that undue influence

means that there was such domination and control exercised over the mind of the person entering into the
agreement, under the facts and circumstances then existing, as to overcome his free will. In effect the will of the
party exerting undue influence was substituted for that of the party entering into the agreement, preventing him
from exercising his own discretion and causing him to do what he would not have done but for such domination
and control.

The jury was further instructed,

elements of undue influence require that the person alleging such undue influence must prove:

a. the existence and exertion of an influence;

b. the effective operation of such influence so as to subvert or overpower the mind of the maker of the
document at the time of execution of the document;

c. the execution of the document which the maker thereof would not have executed but for such influence.  

See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963) (setting forth elements of undue influence).

Undue influence involves an extended course of dealings and circumstances, which may be proven by direct or
circumstantial evidence. See Watson v. Dingler, 831 S.W.2d 834, 837 (Tex. App.—Houston [14th Dist.] 1992,
writ denied). For this reason, it is proper to consider evidence of all relevant matters that occurred within a
reasonable time before or after execution of the deed that tend to prove the existence of undue influence at the
time of execution. See id. All material facts may be considered, including: the circumstances attending execution
of the instrument; the relationship between the maker and the beneficiaries; the motive, character, and conduct
of those benefitted by the instrument; the words and acts of all attending parties; the physical and mental
condition of the maker at the time of the execution of the instrument; the maker’s age, weakness, infirmity, and
dependency on or subjection to the control of the beneficiary; and the improvidence of the transaction by
reason of unjust, unreasonable, or unnatural disposition. Id.

In this case, the evidence showed that, at the time that the deed was executed in March 2001, both Ernestine
and Marvin were elderly and in ill health. Ernestine suffered from cancer and was taking morphine. Marvin
resided in a nursing home. He had suffered a stroke leaving him paralyzed on his right side with little use of his
left arm. Tommy testified that Marvin could not feed or dress himself and could not have held a pen to sign a
document. Other than responding “yes” or “no,” Marvin was unable to speak or hold a conversation. Tommy
also indicated that Marvin had no “mental understanding of a document such as a deed.”

The evidence showed that Ernestine and Marvin were dependent on Harry to supplement their income with
funds from the business, including paying for Marvin’s nursing home care. Tommy testified that, in 2001, Harry
began cutting back on the funds he gave his parents.

The record further shows that, in 2000, Tommy searched the real property records and discovered that his
parents had deeded property to Harry in 1989 and in 1992. Tommy testified that Ernestine told him that she and
Marvin had never deeded these properties to Harry. According to Tommy, when he confronted Harry in March
2000 about the 1992 deed, the first thing that Harry mentioned was that Marvin and Ernestine were ill at the time
of the 1992 conveyance. Tommy confirmed that Marvin and Ernestine were in ill health in 1992. Tommy also
testified that Harry then boasted that Tommy ought to be glad that Harry had not taken the “home place”
because Marvin and Ernestine “would have signed anything I put in front of them.” One year after Harry made
this statement, Marvin and Ernestine did sign a “gift deed” conveying their homestead to Harry.

Tommy further testified that Ernestine denied that she and Marvin had deeded their home to Harry. Letters
written by Ernestine to Harry in 2001 indicate that she had not intended to give him her home and informed
Harry that he would not receive anything more from her. Not only does correspondence in the record indicate
that Ernestine did not want Harry to receive any portion of her estate, Marvin’s and Ernestine’s 1989 will
expressly disinherited Harry. The record reflects that, in October 2001, Harry changed the locks on Marvin and
Ernestine’s home and refused to allow Ernestine access to retrieve any of her personal items.

Evidence was also presented depicting Harry as abrasive and domineering. Testimony was admitted that, at
times, he was verbally abusive to his parents. The record further reflects that, over the years, Harry had a
volatile relationship with his parents.

At trial, Harry introduced a videotape from November 2001. The video shows Harry taking Ernestine to the
offices of Dace Manufacturing. Ernestine appears tired and not to be feeling well. Harry questions Ernestine
regarding whether she wants to sue him, and she says she does not. The video shows Ernestine signing an
affidavit, prepared by Harry, in which Ernestine states that she does not want to sue Harry. The video then
shows Ernestine calling her attorney from Harry’s office with Harry at her side. Once she reaches her attorney’s
office on the telephone, Harry instructs his mother what to say regarding dismissing the suit against him.

The record further reflects that Ernestine later regretted initiating the dismissal of the suit and continued the
prosecution of the suit against Harry.

Applying the appropriate standard of review, we hold that legally sufficient evidence was presented to support
the jury’s finding of undue influence, which supports the portion of the trial court’s judgment voiding and
cancelling the 2001 conveyance.  

We overrule Harry’s second issue.