In Re Estate of Milton A. Boman, Wesley Boman v. Cynthia Cramer, Individually and as and Trudy Burford
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Opinion
IN THE COURT OF APPEALS OF IOWA
No. 16-0110 Filed February 8, 2017
IN RE ESTATE OF MILTON A. BOMAN, deceased
WESLEY BOMAN, Plaintiff-Appellee,
vs.
CYNTHIA CRAMER, Individually and as Executor, and TRUDY BURFORD, Defendants-Appellants. ________________________________________________________________
Appeal from the Iowa District Court for Hancock County, Gregg R.
Rosenbladt, Judge.
Two sisters appeal various rulings in their brother’s successful lawsuit
contesting their father’s will and alleging tortious interference with his inheritance.
AFFIRMED.
Stephen H. Locher and Emily M. Schirmer of Belin McCormick, P.C., Des
Moines, for appellant Cynthia Cramer.
Deborah M. Tharnish of Davis, Brown, Koehn, Shors & Roberts, P.C., Des
Moines, for appellant Trudy Burford.
Nathan J. Schroeder and David J. Dutton of Dutton, Braun, Staack &
Hellman, P.L.C., Waterloo, for appellee.
Heard by Potterfield, P.J., and Doyle and Tabor, JJ. 2
TABOR, Judge.
Cynthia Cramer and Trudy Burford, daughters of Milton and Helen Boman,
appeal jury verdicts in favor of their brother, Wesley Boman, in his lawsuit
contesting their father’s will and alleging tortious interference with inheritance.
On appeal, Cynthia and Trudy argue the district court should have granted their
motion for judgment notwithstanding the verdict or a new trial because Wesley
did not offer sufficient evidence to support the verdicts.1 We find no error in the
court’s refusal to disturb the verdicts or the jury’s award of punitive damages.
Because the admission of improper opinion testimony from Wesley’s expert
constituted harmless error, we affirm.
I. Facts and Prior Proceedings
Cynthia, Wesley, and Trudy grew up on the Boman farm bordering Pilot
Knob State Park in Hancock County. When Wesley was in high school, he
started farming with his father. Wesley attended Iowa State University and
worked for a stint at Winnebago Industries but always returned to help Milton with
the farming operation. Meanwhile Trudy and Cynthia moved away from the farm.
Trudy and husband Tom lived in Texas for seven years before moving to
Johnston, Iowa. Cynthia and husband Bob lived in Boone.
Wesley later substituted as a mail carrier while he farmed with his father,
sharing the farm’s profits on a fifty-fifty basis. Milton had coronary bypass
surgery in 1991, limiting his ability to do heavy work and increasing his reliance
1 Wesley named three defendants: Cynthia and Trudy, individually, and Milton’s estate, Cynthia as executor. The defendants’ counterclaim alleged Wesley converted property belonging to Milton or Milton’s estate. The jury ruled in favor of Wesley on the counterclaim, and the defendants do not appeal that verdict. 3
on Wesley. While farming with his father, Wesley and his first wife, Jayne, spent
thousands of dollars to remodel a small house on the farmstead, in which they
lived rent-free.
In 1997, Britt attorney Earl Hill started helping Milton and Helen with their
estate planning, and that year Hill drafted their revocable trust instrument.2
Under this trust, upon their parents’ deaths, Wesley and Trudy would serve as
trustees, and each would receive one-half of the trust’s net income for twenty-five
years. Thereafter, Wesley and Trudy would each receive one-half of all trust
assets (personal and real property). Cynthia disclaimed any share in the trust
because she felt she was “sufficiently provided for by her husband.”3
The trust went through a series of amendments. A 1999 amendment
again specified Wesley and Trudy would receive one-half of the net trust income
but reduced the income period to ten years. Wesley also received all farm
machinery and tools. For the first time, Cynthia received one-third of the
personal property, along with her siblings. Among the personal properly Cynthia
expected to receive was a burled-wood chest of drawers, considered an
important family heirloom from Sweden. Trudy and Wesley again received one-
half of the estate and remained the trustees.
Wesley and Jayne had three daughters before they divorced in 2000.
During the last year of his marriage and through his difficult divorce, Wesley
started using marijuana and cocaine. Subsequently, he completed six weeks of
inpatient substance abuse treatment. Wesley believed his parents were proud of
2 Before the trust, Milton had executed a will in 1965 bequeathing his property to the three children in equal shares. 3 At the 2015 trial, Cynthia testified her individual net worth exceeded $1.5 million. 4
his efforts to get clean, but his sisters were less supportive. Wesley admitted
relapsing several times after his inpatient treatment.
In August 2001, Helen and Milton again amended the trust. Attorney Hill
testified the impetus for the amendment was their concern about Wesley’s drug
addiction. While the interests of Wesley, Cynthia, and Trudy remained
unchanged, Milton and Helen wanted to ensure that if Wesley predeceased
them, his share would pass to his children and would be held in the trust until
Wesley’s youngest child was twenty-one years old.
In the fall of 2001, Helen and Milton moved off the farm and into a
condominium in nearby Garner, telling Wesley to move into the main farmhouse.
Milton gave Wesley his interest in the farm machinery.4 Thereafter, Wesley and
Milton continued to make joint decisions as to the farming operation. After
Wesley moved into the main farmhouse, he rented out the smaller home.
According to Wesley, his father told him to keep the rent.
Because the Garner condo was close to the farm, Wesley was able to
assist his parents by paying their bills and arranging services. For instance,
Wesley scheduled cable service at the condo. The equipment installer struck a
deal with Wesley that his parents would not be charged for the service if Wesley
would allow the installer to hunt on the farmland. Wesley also helped manage
his parents’ health issues as Wesley held their medical power of attorney. Helen
and Milton both suffered from type 2 diabetes.
4 At trial, Wesley provided receipts showing he paid for one-half of some of the farm equipment. 5
In 2005, Milton and Helen amended the trust, revoking the prior
amendments and again giving Wesley and Trudy each one-half shares. Trudy
and Wesley remained successor co-trustees after their parents’ deaths. Wesley
still had the right to purchase Trudy’s share of the farm. Attorney Hill testified the
parents made the 2005 amendment because they wanted Wesley to be able to
continue farming without having “the land sold out from under him.” If Wesley did
not survive his parents, Cynthia was appointed trustee of Wesley’s share, which
she could not distribute until Wesley’s youngest child reached thirty years of age.
Then Cynthia could terminate the trust.
Wesley met his second wife, Cherie, in 2006. Cherie, her son, and her
grandson moved in with Wesley. For Wesley’s birthday in 2007, Cheri arranged
a video recording of Milton and Helen sharing memories about their son. In the
video, Helen professed her love and admiration for Wesley. Also on the video,
Milton acknowledged difficulty in recalling details of Wesley’s youth, saying: “My
memory is so shot.” At this time, Cherie’s daughter, Jessica, and her family
rented the small house Wesley had remodeled.
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IN THE COURT OF APPEALS OF IOWA
No. 16-0110 Filed February 8, 2017
IN RE ESTATE OF MILTON A. BOMAN, deceased
WESLEY BOMAN, Plaintiff-Appellee,
vs.
CYNTHIA CRAMER, Individually and as Executor, and TRUDY BURFORD, Defendants-Appellants. ________________________________________________________________
Appeal from the Iowa District Court for Hancock County, Gregg R.
Rosenbladt, Judge.
Two sisters appeal various rulings in their brother’s successful lawsuit
contesting their father’s will and alleging tortious interference with his inheritance.
AFFIRMED.
Stephen H. Locher and Emily M. Schirmer of Belin McCormick, P.C., Des
Moines, for appellant Cynthia Cramer.
Deborah M. Tharnish of Davis, Brown, Koehn, Shors & Roberts, P.C., Des
Moines, for appellant Trudy Burford.
Nathan J. Schroeder and David J. Dutton of Dutton, Braun, Staack &
Hellman, P.L.C., Waterloo, for appellee.
Heard by Potterfield, P.J., and Doyle and Tabor, JJ. 2
TABOR, Judge.
Cynthia Cramer and Trudy Burford, daughters of Milton and Helen Boman,
appeal jury verdicts in favor of their brother, Wesley Boman, in his lawsuit
contesting their father’s will and alleging tortious interference with inheritance.
On appeal, Cynthia and Trudy argue the district court should have granted their
motion for judgment notwithstanding the verdict or a new trial because Wesley
did not offer sufficient evidence to support the verdicts.1 We find no error in the
court’s refusal to disturb the verdicts or the jury’s award of punitive damages.
Because the admission of improper opinion testimony from Wesley’s expert
constituted harmless error, we affirm.
I. Facts and Prior Proceedings
Cynthia, Wesley, and Trudy grew up on the Boman farm bordering Pilot
Knob State Park in Hancock County. When Wesley was in high school, he
started farming with his father. Wesley attended Iowa State University and
worked for a stint at Winnebago Industries but always returned to help Milton with
the farming operation. Meanwhile Trudy and Cynthia moved away from the farm.
Trudy and husband Tom lived in Texas for seven years before moving to
Johnston, Iowa. Cynthia and husband Bob lived in Boone.
Wesley later substituted as a mail carrier while he farmed with his father,
sharing the farm’s profits on a fifty-fifty basis. Milton had coronary bypass
surgery in 1991, limiting his ability to do heavy work and increasing his reliance
1 Wesley named three defendants: Cynthia and Trudy, individually, and Milton’s estate, Cynthia as executor. The defendants’ counterclaim alleged Wesley converted property belonging to Milton or Milton’s estate. The jury ruled in favor of Wesley on the counterclaim, and the defendants do not appeal that verdict. 3
on Wesley. While farming with his father, Wesley and his first wife, Jayne, spent
thousands of dollars to remodel a small house on the farmstead, in which they
lived rent-free.
In 1997, Britt attorney Earl Hill started helping Milton and Helen with their
estate planning, and that year Hill drafted their revocable trust instrument.2
Under this trust, upon their parents’ deaths, Wesley and Trudy would serve as
trustees, and each would receive one-half of the trust’s net income for twenty-five
years. Thereafter, Wesley and Trudy would each receive one-half of all trust
assets (personal and real property). Cynthia disclaimed any share in the trust
because she felt she was “sufficiently provided for by her husband.”3
The trust went through a series of amendments. A 1999 amendment
again specified Wesley and Trudy would receive one-half of the net trust income
but reduced the income period to ten years. Wesley also received all farm
machinery and tools. For the first time, Cynthia received one-third of the
personal property, along with her siblings. Among the personal properly Cynthia
expected to receive was a burled-wood chest of drawers, considered an
important family heirloom from Sweden. Trudy and Wesley again received one-
half of the estate and remained the trustees.
Wesley and Jayne had three daughters before they divorced in 2000.
During the last year of his marriage and through his difficult divorce, Wesley
started using marijuana and cocaine. Subsequently, he completed six weeks of
inpatient substance abuse treatment. Wesley believed his parents were proud of
2 Before the trust, Milton had executed a will in 1965 bequeathing his property to the three children in equal shares. 3 At the 2015 trial, Cynthia testified her individual net worth exceeded $1.5 million. 4
his efforts to get clean, but his sisters were less supportive. Wesley admitted
relapsing several times after his inpatient treatment.
In August 2001, Helen and Milton again amended the trust. Attorney Hill
testified the impetus for the amendment was their concern about Wesley’s drug
addiction. While the interests of Wesley, Cynthia, and Trudy remained
unchanged, Milton and Helen wanted to ensure that if Wesley predeceased
them, his share would pass to his children and would be held in the trust until
Wesley’s youngest child was twenty-one years old.
In the fall of 2001, Helen and Milton moved off the farm and into a
condominium in nearby Garner, telling Wesley to move into the main farmhouse.
Milton gave Wesley his interest in the farm machinery.4 Thereafter, Wesley and
Milton continued to make joint decisions as to the farming operation. After
Wesley moved into the main farmhouse, he rented out the smaller home.
According to Wesley, his father told him to keep the rent.
Because the Garner condo was close to the farm, Wesley was able to
assist his parents by paying their bills and arranging services. For instance,
Wesley scheduled cable service at the condo. The equipment installer struck a
deal with Wesley that his parents would not be charged for the service if Wesley
would allow the installer to hunt on the farmland. Wesley also helped manage
his parents’ health issues as Wesley held their medical power of attorney. Helen
and Milton both suffered from type 2 diabetes.
4 At trial, Wesley provided receipts showing he paid for one-half of some of the farm equipment. 5
In 2005, Milton and Helen amended the trust, revoking the prior
amendments and again giving Wesley and Trudy each one-half shares. Trudy
and Wesley remained successor co-trustees after their parents’ deaths. Wesley
still had the right to purchase Trudy’s share of the farm. Attorney Hill testified the
parents made the 2005 amendment because they wanted Wesley to be able to
continue farming without having “the land sold out from under him.” If Wesley did
not survive his parents, Cynthia was appointed trustee of Wesley’s share, which
she could not distribute until Wesley’s youngest child reached thirty years of age.
Then Cynthia could terminate the trust.
Wesley met his second wife, Cherie, in 2006. Cherie, her son, and her
grandson moved in with Wesley. For Wesley’s birthday in 2007, Cheri arranged
a video recording of Milton and Helen sharing memories about their son. In the
video, Helen professed her love and admiration for Wesley. Also on the video,
Milton acknowledged difficulty in recalling details of Wesley’s youth, saying: “My
memory is so shot.” At this time, Cherie’s daughter, Jessica, and her family
rented the small house Wesley had remodeled. Jessica also was a caretaker for
Milton and Helen as they aged, and Helen developed a close relationship with
her.
Cherie and Wesley married on January 1, 2008. Wesley’s parents initially
embraced his second marriage, serving as best man and matron of honor at the
wedding. In early February 2008, Milton turned ninety years old. Also in 2008,
Milton took medication for Alzheimer’s. Later that year, family relationships
started to fray. When Helen had to be hospitalized in Britt for a diabetic ulcer on
her foot, Wesley arranged for Milton, who could not care for himself, to stay at 6
the Summit House, an assisted-living facility attached to the Britt hospital. Both
facilities are near the Boman farmstead. Helen joined Milton after being released
from the hospital but was unhappy at the Summit House and made it clear to
Wesley she wanted to return with Milton to the Garner condo. Based on medical
advice, Wesley believed Helen and Milton should remain near the hospital.
When Wesley refused Helen’s requests, she became very angry with him. The
sisters then stepped in. On July 23, 2008, Helen and Milton executed powers of
attorney, including medical powers, making all three children attorneys-in-fact
with the “agreement of any two children” binding. The sisters then acceded to
Helen’s request.
Wesley believed his parents’ return to the condo caused further
deterioration of Helen’s foot ulcer. Wesley and Cherie drove his parents to Des
Moines for doctors’ appointments, and Trudy met them at the first appointment.
Trudy and Wesley argued about whether Helen needed to go to the second foot
appointment. Eventually, Helen required hospitalization following the amputation
of her toe on August 15, 2008. For Helen’s post-hospital assisted living, Cynthia
found The Cedars in Madrid, Iowa. Over Wesley’s objections, Helen and Milton
moved to The Cedars, which was closer to Cynthia’s Boone home and Trudy’s
Johnston home, but one and one-half hours from the Boman farm where Wesley
lived and from the parents’ community and likely visitors. The sisters frequently
visited their parents at The Cedars but stopped speaking with Wesley.
In 2009, Cynthia and Trudy took over the tasks Wesley had performed for
their parents, helping with bills and other obligations while their parents’ care at 7
The Cedars continued.5 That January, attorney Hill met with Milton, Helen, and
Cynthia and then commenced drafting the fourth amendment to the trust, which
wrought the most significant change. Hill testified the fourth amendment was
prompted by Helen’s unhappiness with a phone call from Cherie and the parents’
desire to prevent Cherie from owning their farmland. Milton and Helen converted
Wesley’s outright interest in one-half of the farm upon their death to the
equivalent of a life estate. During the life estate some of the farm and investment
income would be paid to Wesley at Cynthia’s discretion. At Wesley’s death, the
trust was slated to terminate and the principal and income would be distributed
per stirpes to Trudy and Cynthia. According to attorney Hill, “Helen and Milt
decided they wanted no opportunity for [Cherie] to have her name on property
that they had worked so hard to accumulate.” Despite the fact Wesley was still
helping his father make farm decisions, neither sister informed Wesley of the
fourth amendment.
In June 2009, Helen and Milton left The Cedars and returned to their
Garner condo. In July 2009, Milton’s doctor noted slowly progressive memory
loss. Over that summer, Wesley’s relationship with his parents worsened.
Cherie remained a point of contention with Helen. Helen, described by trial
witnesses as strong-willed, grew upset when Wesley visited less often after his
marriage to Cherie.
Helen returned to the hospital in fall 2009. When she was discharged,
Cherie and Wesley picked up his parents and drove them to The Cedars.
Coinciding with the parents’ move, attorney Hill again met with Cynthia and her
5 Wesley pointed out at trial that also during 2009, the values of Iowa farmland doubled. 8
parents before drafting a September 2009 restatement of the trust to equalize the
income generated by the tracts of real estate owned by the Bomans. On
September 16, 2009, Hill sent his revisions to Bob and Cynthia.
In May 2010, the parents lobbied to return to the Garner condo. Despite
reservations from The Cedars staff, who believed Milton and Helen were not
ready to live independently, Trudy returned her parents to the condo. Wesley
tried to stay in contact with his parents through 2010, but his relationship with his
mother had deteriorated after her time at The Cedars. Helen would “dig” at
Wesley and make accusations about him. If Milton was around when Helen
would say negative things to Wesley, Milton would admonish her, “Helen, for
goodness sakes. Leave Wes alone.” According to Wesley, his sisters’ false
statements caused him to fall out of favor with his mother to the point Helen
continually called Wesley to berate him and express what a disappointment he
was to his parents. Eventually, Wesley refused to take Helen’s calls and
declined to visit.
In early January 2011, Milton’s doctor noted he was sleeping more and
was “quite demented.” In the spring of 2011, several events added to the friction
between Wesley and his parents. An employee with the Iowa Department of
Human Services (DHS) came to the Garner condo to investigate an allegation of
dependent-adult abuse against Helen. Although the abuse was determined to be
unfounded, Helen was devastated and blamed Wesley, though the complaint
was actually filed by Cherie’s daughter, Jessica, who had been Milton’s
caretaker. 9
On April 10, Helen asked Wesley and his cousin, Steve Boman, to meet
with her and Milton. During the meeting, Wesley suggested the proper division of
his parents’ estate would be one-third for each sibling with Steve serving as a
paid executor. Wesley said he did not want to be under “Bob and Cynthia’s
thumb.” During this same time period, the sisters contacted Steve Boman and
told him they “thought Wesley was in trouble with drugs again.” At trial, Trudy
admitted she had not personally seen Wesley doing drugs, but the sisters
“wondered” if Wesley was doing drugs based on his behavior.
On April 12, Cherie and Helen had an unpleasant phone call, in which
Cherie said she now understood why Milton had extramarital affairs. Cherie
testified she almost immediately regretted the harsh words, but she had been
frustrated by Helen’s treatment of Wesley, who was “so shook up” that he was
not sleeping, not eating, “just couldn’t figure out why he was being thrown to the
wolves.” Helen was upset and described the phone call to Trudy.
Trudy, in turn, compiled a timeline of incidents (dating from 1954 to the
present) that she believed showed Wesley’s “abuse” of their parents. On
April 18, Trudy’s husband, Tom, emailed the timeline to attorney Hill so he could
“discuss the content” with Milton and Helen during an appointment the next day.
On April 20, Milton’s doctor noted Milton was “[s]miling, happy, but totally
disoriented.” According to Hill, he had discussed lawyer-client communications
with Milton and Helen and they told Hill he could exchange e-mails with the
sisters. The email communication offered into evidence provided the jury with
strong evidence of the sisters’ intent to interfere with Wesley’s inheritance. 10
On the morning of May 10, 2011, Hill sent the sisters an e-mail with a draft
letter to Wesley incorporating “the changes suggested in your e-mails.” The
letter advised Wesley of three developments: (1) he would start paying monthly
rent on the farmhouse as of June 15; (2) it was not his responsibility to lease the
southeast acreage that would soon be vacant; and (3) he was finally advised that
“according to the Restatement of the Boman Trust . . . you have been given a life
estate in the residence and surrounding buildings [on the NE property.] You may
also, depending on the discretion of the trustee, share in the net income from the
SE [property].” Hill closed by telling Wesley to contact him—“You are not to
directly contact Milt or Helen Boman in any manner as related to these subjects.”
Wesley testified the letter was his first news of the trust’s change to a life estate.
The unpleasantries between Helen and Cherie continued during May.
Helen left voicemails calling Cherie a “real bitch” and threatening to contact the
sheriff regarding Wesley. When Helen telephoned again, Cherie called Helen an
“old hag” and hung up. Cherie left a message for attorney Hill on May 26, asking
him to curtail the harassing telephone calls from Helen. On May 26, Milton’s
doctor described him as “pleasantly demented.” The next day, Hill e-mailed the
sisters to tell them about Cherie’s message—“I would not characterize it as a
nasty call, but certainly passionate.” Hill expressed his belief Helen should stop
making such calls and asked for the sisters’ input.
Trudy responded on May 27, telling Hill that Helen “won’t ever contact
[Wesley] again.” Trudy wrote: “Wesley has been a source of a lot of problems
throughout the years for them . . . . It sickens me that Wesley has chosen to
ignore and neglect them.” An hour later, Trudy sent Hill another e-mail, saying 11
Helen told her “Wes and Cherie called Mediacom and had Mom and Dad’s
[television] disconnected.” Trudy continued: “It seems Wes knew an employee
who hooked them up for free. Mediacom received a ‘tip’ from a woman about
Mom and Dad receiving free service.” Milton felt ashamed by the implication he
was stealing cable. Without discussing the matter with Wesley, the sisters
blamed him for shutting off the cable. Wesley pointed out the sisters were
handling their parents’ bills then and knew they had not paid for cable service.
Also in her second May 27 e-mail, Trudy told Hill: “Because Wesley
doesn’t come to see them and is unkind to them, Mom said that they are
discussing cutting him out of the trust entirely.” Trudy asked for Hill’s view on the
viability of that option. Hill replied, telling both sisters on May 28, the Saturday of
Memorial Day weekend:
I really don’t know what to say. Any attempt to change the trust at this point, could, in my opinion, be challenged on grounds of competency. You know your parents mental condition better than I. While I think we would be successful with respect to your mother, I’m not so sure with respect to your dad.
About an hour later, Cynthia e-mailed Hill, including Trudy and both
husbands on the communication. She asked for Hill’s thoughts, stating:
As to my parents, I was wondering if we could handle this problem by destroying the trust—the main reason that they drew it up was to keep the farm out of Wesley’s name. Instead handle the estate through their wills—with the benefits going to Trudy and [me], thus leaving out Wesley.
Hill replied in the early morning hours of Sunday, May 29: “Terminating the
trust would certainly be a way to go if the wills are set up correctly.” Hill noted
the will provisions would be important “to make sure it goes where you want.”
Hill explained the mental capacity necessary to make a will was “a fairly low 12
standard.” Hill opined, if Milton gave all his assets to Helen, “I don’t think we
have a court in Iowa that would overturn the will if challenged. Whatever you
decide, I think we should do it quickly.”
Trudy’s next e-mail to Hill was on Tuesday evening, May 31, stating “It
appears Wes is collecting monies/income related to the farm that he is not giving
to Mom and Dad.” Trudy made allegations as to the farm equipment and the
rental of crop and pasture land. Trudy asked Hill: “So what can we do? Shall we
wait and see whether he is selling the equipment and then press charges?
Should we contact the [auctioneer] and let him know that the equipment is not
Wes’s to sell and if they auction it they will be selling stolen goods?” At no point
did the sisters ask Wesley himself about ownership of the farm equipment.
Trudy concluded, after the parents’ multiple visits to the farm with each sister
around Memorial Day weekend:
Mom and Dad are ready to create new wills that will exclude Wes entirely from any inheritance. The thought being that he has already received his inheritance throughout the many years that they have supported him . . . . [W]e do have a concern that if Mom passed first, that Dad could still change his will and get Wes back in the picture.
For her part, Cherie was so upset by Cynthia driving through the farm yard
that she took a hammer and “whacked” the side of the Swedish chest that was
being stored in the barn and that Cynthia was to receive as a bequest. Before
the June 15 rent deadline, Wesley and Cherie bought a house and moved off the
farm.
On June 1, 2011, Hill told the sisters to “be very careful” as “ownership of
the machinery will be critical. Without your Dad’s help that may be a significant 13
issue.” Regarding the proposal that Milton and Helen execute new wills, Hill
advised: “There is what is called a joint and mutual will . . . . You are correct in
that following the death of the first spouse, the will cannot be changed.”
On June 6, Wesley sold farm machinery at an auction in Floyd. Helen
called Hill to report that someone from Garner told her Wesley had sold
machinery that morning. Hill told Helen it was time to take action. According to
Cynthia, Milton and Helen were crushed when they learned that Wesley had sold
the equipment, and Helen wanted to pursue criminal charges. That same day,
Hill had a conference call to discuss new estate documents with Helen, Cynthia,
and Bob.6 According to Hill, Helen made the final decision to move forward.7
Trudy testified her parents’ decision to change their estate plans was based on “a
culmination” of events. After the call, Hill drafted documents to terminate the
trust and create mutual wills. On the morning of June 7, Hill sent the “proposed
will” to Trudy and Cynthia. “Let me know ASAP what you think.”
On the afternoon of June 7, Hill and his assistant, Janice Bertilson, met
with Milton and Helen at their Garner condo. Neither sister was present. Hill
said he probed Milton’s competency by sitting down to visit with him. Hill did not
recall Milton saying why he was disinheriting Wesley. Milton and Helen executed
several estate planning documents, including revocation of the trust and
disinheriting Wesley. On June 8, Hill e-mailed Cynthia and Trudy, saying “both
Janice and I thought your parents were capable of signing new wills. Janice was
6 At trial, Hill explained Helen was vocal, and Milton was quiet. But Milton valued Bob’s opinion. 7 Hill testified he met with Milton and Helen on June 3 to discuss their estate. Wesley disputed such a meeting took place, pointing out Hill had not prepared a bill for the discussion. Hill responded he was sometimes a sloppy bookkeeper. 14
particularly impressed with the amount of time your father took to make the
decision to sign the will. Frankly, neither of us was sure he would do so.”
On July 17, 2011, Trudy told Hill the sisters were concerned about Helen’s
“unlimited spending” so they discussed a conservatorship for their parents but
the conversation did not go well. Further, Helen had filed a complaint with the
sheriff about the sale of the machinery. On July 25, Hill reiterated his reluctance
concerning criminal charges. Hill also stated, “[Y]our mother will make a very
poor witness and your father will make almost no witness at all.”8 On November
2, Hill again advised against taking action regarding Wesley’s sale of farm
equipment. Also in November 2011, Trudy sent an e-mail to Hancock County
Deputy Sheriff Steve Nelson stating the sisters believed “Wesley is still
connected to drugs.”
Helen died in March 2012. Wesley did not attend the funeral because he
was worried the “family drama”9 would be hard on his father. The sisters asked
Hill to create a voluntary guardianship/conservatorship for Milton, which was
finalized at the end of March. On April 26, 2012, Hill informed the sisters he was
8 The sisters complained that Cherie’s daughter Jessica sold over-priced jewelry to their mother. Hill noted an earlier occasion when Helen had been very complimentary of Jessica and said how much Jessica meant to her. Hill advised the sisters not to take action. 9 It is hard to miss the parallels this case presents to the Shakespearean tragedy of King Lear, which recounts the events surrounding the aging Lear’s decision to divvy up his kingdom among his three daughters, Cordelia, Regan and Goneril. Looking for his progeny to bask him in love, Lear decides he will bequeath the greatest riches upon whichever daughter makes the most sycophantic incantation of devotion and adoration. When his favorite daughter, Cordelia, fails to be sufficiently obsequious in the eyes of the King, he disowns her. Van Horn v. Van Horn, 393 F. Supp. 2d 730, 734 n.1 (N.D. Iowa 2005) (discussing the play’s plot). 15
required to send Helen’s will to Wesley. Cynthia replied, “I did not think he would
realize what was going on until Dad died . . . . Now the cat is ‘out of the bag,’
unless he thinks Dad’s will is going to say something else??” Hill responded,
“[W]e are in good shape,” explaining Milton “has a binding contract with [Helen],
that became irrevocable” when Helen died. Therefore, if Wesley influenced
Milton to make a new will, “it would be of no value.”
When Wesley received the copy of his mother’s will, he learned for the
first time of his June 2011 disinheritance. Wesley met with Milton at The Cedars,
showed him the will, and Milton told his son, “I don’t think this is fair.” When the
sisters learned of Wesley’s visit, they took steps to restrict Wesley’s contact with
Milton. Cynthia told Hill: “Trudy and I have had enough of this ‘crap’!! We are
ready to restrict further phone calls and visits from Wesley to Dad. Period!!!” On
May 11, 2012, Hill instructed Wesley’s attorney that any visits by Wesley’s family
with Milton had to be arranged in advance with the guardians—Cynthia and
Trudy—and the visits would be monitored by another person.
Milton died on February 18, 2013. Trudy’s husband sent Hill an email that
night, asking him to keep Milton’s death “completely confidential” because the
sisters did not want Wesley to know “prior to the small service” they were
planning. The sisters’ plan was effective; Wesley did not learn of his father’s
death until after the private funeral. Milton’s will was admitted to probate nine
days later. Just over a month later, Tom sent Hill an e-mail stating the sisters 16
and their husbands had been researching 1031 exchanges10 and seeking Hill’s
advice on their questions regarding an exchange or a sale of the farm.
In May 2013, Wesley filed suit. His amended petition and jury demand
sought to invalidate the 2011 will on the grounds Milton lacked testamentary
capacity to execute the will or Milton was unduly influenced by the sisters in
executing the will. Wesley also sought damages for tortious interference with a
bequest.
In September 2014, the sisters moved for summary judgment on all claims.
In a detailed ruling filed on November 19, 2014, the court rejected Wesley’s
contention the capacity at issue for Milton was “the standard applicable to
forming contracts.” See Costello v. Costello, 186 N.W.2d 651, 654-55 (Iowa
1971). Citing Gillette v. Cable, the court ruled “the relevant standard here is
testamentary capacity, not contractual capacity.” 79 N.W.2d 195, 199 (Iowa
1956) (involving reciprocal wills). The court denied summary judgment on the
will contest.
The court recognized tortious interference with a bequest is an independent
cause of action distinct from the will contest, the same evidence will not
necessarily support both claims, and the evidence to prove the tort focuses on
the alleged tortfeasor. See Huffey v. Lea, 491 N.W.2d 518, 521 (Iowa 1992)
(“[I]n a will contest, the testator’s intent or mental state is the key issue; in an
intentional interference case, the wrongdoer’s unlawful intent to prevent another
10 Pursuant to section 1031 of the United States Internal Revenue Code, capital gains tax may be deferred where property is exchanged for “property of like kind which is to be held either for productive use in a trade or business or for investment.” 26 U.S.C. § 1031(1)(a). 17
from receiving an inheritance is the key issue.”). The court also denied summary
judgment on the tortious-interference claim.11
A jury trial occurred over eight days in late August and early September
2015. The court submitted Wesley’s two counts—will contest and tort—to the
jury, along with Cynthia’s counterclaim for conversion of the farm machinery.12
During closing arguments, Wesley’s counsel asked the jury to find conduct
by Trudy and Cynthia resulted in Wesley losing his inheritance—one-half of the
parents’ $2.6 million estate, plus the right to purchase the rest of the farm.
Wesley asked for compensatory damages based on his sisters’ actions that
resulted in his emotional distress from his mother’s rejection, limits on his contact
with his father, and his inability to attend Milton’s funeral. Defense counsel
argued the “two sisters did absolutely nothing wrong.”
The jurors returned their verdict on September 11, 2015, finding Milton’s
June 2011 will should be set aside on two grounds—either Milton’s insufficient
mental capacity at the time of execution or due to undue influence exercised by
the sisters. On the tort claim, the jury found in favor of Wesley, awarding
damages for loss of inheritance of $1,183,430.5013 and consequential damages
of $295,857.62. The jury also found a preponderance of clear, convincing, and
11 The court granted summary judgment on portions of Wesley’s separate defamation claim. The court assumed Trudy’s distribution of the “timeline” to attorney Hill in April 2011 constituted defamation but granted summary judgment based on the two-year statute of limitations. The court rejected Wesley’s two claims for defamation by implication, ruling the sisters’ request for a police presence at Milton’s funeral was “not defamatory.” 12 On the conversion issue, Steve Boman testified Milton said he gave his interest in the farm machinery to Wesley. Daisy Schwichtenberg, from the Garner condo association, testified Helen told her that Milton had given the farm machinery to Wesley. 13 This amount is one-half of the “total Iowa gross estate” listed by Cynthia as Milton’s executor on the probate inventory. 18
satisfactory evidence supported punitive damages, assessing $59,171.53 from
Trudy and $118,343.05 from Cynthia. The jury found for Wesley on the estate’s
counterclaim alleging conversion. The sisters filed a joint motion for judgment
notwithstanding the verdict (JNOV) or for a new trial. The district court denied
the motion, concluding all aspects of the verdict were supported by substantial
evidence. Trudy and Cynthia separately appeal the court’s denial of their joint
motion.14
II. Scope and Standards of Review
We review an action to set aside a will for errors at law. In re Estate of
Bayer, 574 N.W.2d 667, 670 (Iowa 1998). Tortious interference with a bequest is
also an action at law. See Frohwein v. Haesemeyer, 264 N.W.2d 792, 795 (Iowa
1978). Accordingly, we review the JNOV rulings for legal error. See Van Sickle
Constr. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa
2010). “[W]e view the evidence as the district court did in ruling on the motion,
that is, in the light most favorable to the party against whom the motion was
directed,” here Wesley. See Bayer, 574 N.W.2d at 670. Similarly, we examine
the court decision not to instruct the jury as to qualified privilege for errors at law.
See Kiray v. Hy-Vee, Inc., 716 N.W.2d 193, 199 (Iowa 2006). We also review
the punitive-damages award for correction of legal error. See Wolf v. Wolf, 690
N.W.2d 887, 893 (Iowa 2005). By contrast, we review the evidentiary rulings for
an abuse of discretion. See Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d
681, 685 (Iowa 2012).
14 The sisters had the same attorneys at trial and for their post-trial motion, but they are represented by separate counsel on this appeal. 19
III. Will Contest
The jury decided Wesley proved both alternatives of his will contest,
finding by special interrogatory that Milton lacked the mental capacity to make a
will on June 7, 2011, and that the will was the product of the sisters’ undue
influence.
A. Testamentary Capacity
On appeal, Cynthia and Trudy argue Wesley failed to present sufficient
evidence showing Milton was so mentally impaired he could not execute the will
on June 7, 2011. They contend Wesley did not offer any qualified witnesses to
discuss Milton’s testamentary capacity.15 See Hart v. Lundby, 137 N.W.2d 642,
647 (Iowa 1965). On the flip side, the sisters highlight the lay opinions they
elicited from Hill and Bertilson, who were both present at the will signing, as well
as the medical opinion from Dr. Taylor—all confirming Milton’s mental capacity to
make a will on the specific day in question.
In support of the verdict, Wesley points to testimony from several sources
that Milton had been growing forgetful over the years and required assistance
from Helen with cooking, dressing, and bathing. Wesley also relies on his
father’s 2007 videotaped self-assessment that his memory was “shot.”
Iowa law presumes a testator has the mental ability to make a will and
does so free from undue influence. In re Estate of Pritchard, 443 N.W.2d 95, 98
(Iowa Ct. App. 1989). In contesting his father’s will, Wesley had the burden to
15 The sisters acknowledge Wesley’s presentation of evidence from attorney Bruce Walker, but they argue because Walker lacked medical or psychological expertise, his opinion was not helpful to Wesley. As discussed below, we agree Walker’s testimony did not assist the jury on the issue of Milton’s testamentary capacity or on the issue of susceptibility to undue influence. 20
overcome that presumption by showing Milton lacked the mental capability to
sign a will on the date of execution. See In re Estate of Lachmich, 541 N.W.2d
543, 545 (Iowa Ct. App. 1995). Although he was a nonagenarian suffering from
dementia, Milton was legally competent to execute the June 2011 will if he
possessed the requisite testamentary capacity, marked by the following factors:
(1) knowledge a will was being made, (2) knowledge of the nature and extent of
his property, (3) an ability to identify and remember the persons to whom he
would naturally give his property, and (4) knowledge of how he wanted to
distribute his property. See id. at 546.
Hill had worked as Milton’s estate-planning attorney since 1997. Hill
recalled taking more than an hour to go through the documents with Milton and
Helen and having a conversation with Milton to determine his competency. Hill
sensed some hesitation on Milton’s part:
[Milton] looked to Helen and said, is this really what we want to do, or something to that effect, and they had a discussion. And then [Milton] looked at me and he said, what would you do? And then before I answered he said, you can’t tell me, can you? And I said no. He and Helen discussed a little further. Again, on the second occasion, he turned to me and said, what would you do? And then a second time he said, you can’t tell me, can you? And I said, no, you have to make up your own mind.
Hill testified, after hesitating, Milton picked up the pen and signed the document.
Hill believed Milton understood what he was signing and intended to extinguish
Wesley’s inheritance. Hill’s belief was seconded by Bertilson, who testified
Milton “mulled it over” before signing because it was a “hard thing to do for him
because he loved his son.” Bertilson recalled Helen stating her mind before the
signing, making the case to her husband that Wesley had “lived for free for a long 21
time,” sold the farm machinery and kept the money for himself, and didn’t have
time for them anymore. Bertilson believed Milton was “brokenhearted” over the
decision to disinherit Wesley, but she did not observe Milton having any “memory
issues” that day.
Wesley’s evidence is unpersuasive because it does not focus on the day
Milton executed his mutual will. See In re Gruis’ Estate, 207 N.W.2d 571, 573
(Iowa 1973) (stating plaintiff’s burden is “to establish testator, at the exact time of
the making of the will,” lacked testamentary capacity). The testimony cited by
Wesley shows only Milton’s gradual mental deterioration over time. Milton’s
mounting forgetfulness and dementia diagnosis, standing alone, do not render
him unable to dispose of his property by will as he saw fit on June 7, 2011. See
generally Drosos v. Drosos, 103 N.W.2d 167, 172 (Iowa 1960) (“No mere
impairment of his mental or physical powers, so long as he retains mind and
comprehension sufficient to meet the tests . . . , invalidates his will.”). Thus, the
jury’s verdict cannot be sustained on this ground. We turn to the alternative
basis for Wesley’s will contest.
B. Undue Influence
The sisters’ JNOV motion alleged insufficient evidence that they had “the
disposition to unduly influence Milton for the purpose of procuring improper favor”
and that the will was clearly the result of undue influence.16 On appeal, they
16 The district court instructed the jury that to show Milton’s will was the product of undue influence, Wesley was required to prove the following propositions by a preponderance of the evidence: (1) at the time the will was made, Milton was susceptible to undue influence; (2) the defendants had the opportunity to exercise influence and carry out the wrongful purpose; (3) the defendants were motivated to influence their father “unduly to get an improper favor”; and (4) the result, reflected in the will, was clearly brought about by undue influence. See Burkhalter v. Burkhalter, 841 N.W.2d 93, 105-06 (Iowa 2013) 22
focus their will-contest challenge on the mental-capacity alternative. Neither
provides more than a cursory statement contesting the proof of undue
influence.17 Because neither sister develops an argument or cites authority on
the undue-influence alternative, we affirm the ruling denying the sisters’ JNOV
motion and setting aside the 2011 will on that basis. See Midwest Auto. III,
L.L.C. v. Iowa Dep’t of Transp., 646 N.W.2d 417, 431 n.2 (Iowa 2002) (holding
random mention of an issue without elaboration or supporting authority fails to
preserve the claim for appellate review); Hyler v. Garner, 548 N.W.2d 864, 876
(Iowa 1996) (“In a case of this complexity, we will not speculate on the
arguments [a party] might have made and then search for legal authority and
comb the record for facts to support such arguments.”); see also Iowa R. App. P.
6.903(2)(g)(3) (noting that the failure to argue an issue or cite authority in support
of it in the brief may be deemed a waiver of that issue).
In any event, the e-mail exchanges and other facts detailed above
demonstrate ample evidence of the sisters’ undue influence. See Bayer, 574
N.W.2d at 670-71 (discussing undue influence in a will contest).
IV. Tortious Interference with Inheritance
The tort of interfering with an inheritance subjects a person to liability if by
“tortious means” he or she intentionally prevents another from receiving an
inheritance from a third person if that inheritance would have otherwise been
received. See Huffey, 491 N.W.2d at 520 (quoting Restatement (Second) of
(stating “a requirement that causation be clearly established” in element four “is not inconsistent with the preponderance-of-the-evidence standard” for other elements). 17 Additionally, neither Cynthia nor Trudy tie those conclusory statements to their more lengthy arguments concerning undue influence as an element of Wesley’s tort claim. In making this observation, we do not imply the two claims are identical. 23
Torts § 774B (Am. Law Inst. 1979)). Here, the district court instructed the jury
that Wesley had to prove the following propositions: (1) he expected to receive
an inheritance from Milton upon Milton’s death, (2) Trudy and Cynthia knew of
Wesley’s expected inheritance, (3) Trudy and Cynthia intentionally and
improperly interfered with Wesley’s expectancy by way of defamation or undue
influence, (4) there was a reasonable certainty Wesley would have received an
inheritance but for his sisters’ interference, and (5) Wesley suffered damages as
a result of his loss of inheritance.18
On appeal, Trudy and Cynthia jointly challenge the third and fourth
elements. Trudy raises a separate undue-influence challenge based on her
alleged lack of motivation to interfere with her brother’s inheritance. Viewing the
record in the light most favorable to Wesley as the non-moving party, we assess
whether substantial evidence supports the challenged elements. See Winger v.
CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016). Evidence is substantial
if it forms the basis for the jury’s reasonable inference of facts at issue. See id.
18 The sisters argue Wesley needed to prove they improperly interfered with the sole or predominant purpose to injure or financially destroy him, citing the business case of Compiano v. Hawkeye Bank & Trust, 588 N.W.2d 462, 464 (Iowa 1999) (distinguishing intentional interference with contract and intentional interference with prospective business relations by noting prospective theory required plaintiff to prove defendant acted “with the sole or predominant purpose to injure or financially destroy” plaintiff). Wesley contends the “sole or predominant” language misstates the proof necessary for this noncommercial tort. We have recognized the difference between interference with a bequest and a commercial tort. See Hosier v. Hosier ex rel. Estate of Hosier, No. 00- 1225, 2001 WL 1451137, at *7 (Iowa Ct. App. Nov. 16, 2001) (“[The plaintiff] has cited no authority, and we have found none, in which Iowa recognizes the theory of intentional interference with prospective economic benefit as a legal theory in a noncommercial context.”). Assuming error is preserved, it is not our role to graft a new standard of proof into the existing law of interference with a bequest. See Spencer v. Philipp, No. 13- 1887, 2014 WL 4230223, at *2 (Iowa Ct. App. Aug. 27, 2014) (“[T]he task of materially altering substantive or procedural rights is best left to the General Assembly or the Supreme Court of Iowa.”). 24
A. Element Three: “Undue Influence”
Wesley had to prove by a preponderance of the evidence that his sisters
intentionally and improperly interfered with his expectancy by way of undue
influence. We consider the existence of a confidential relationship in actions
alleging undue influence. At trial, Wesley argued his sisters enjoyed a
confidential relationship with his parents, and the court instructed the jury on
factors showing a confidential relationship. On appeal, neither sister disputes the
existence of a confidential relationship. Therefore, as to Milton’s will, “a
suspicion, not a presumption, of undue influence, arises where the dominant
party in a confidential relationship participates in either the preparation or
execution of a contested will.” Bayer, 574 N.W.2d at 675. While neither sister
was present at will signing, they were active in their parents’ estate planning from
2008 when they arranged for new powers of attorney and moved their parents
away from Wesley. Thus, a suspicion of undue influence exists here.
The sisters jointly contend “the first shortcoming in Wesley’s evidence was
one of timing.” They point to the limit on Wesley’s inheritance imposed by the
fourth amendment to the trust, resulting in a life estate and farm income. They
assert the record does not show they engaged in “improper interference” or
employed “wrongful means” before March 2009. They contend Wesley did not
establish a basis to recover damages. Continuing, they state:
Assuming arguendo Cynthia and Trudy engaged in tortious interference in 2011, the effect of that interference was merely to invalidate the June 7, 2011 will, and return Wesley to the inheritance he would have received immediately prior to it. But Wesley had no inheritance immediately prior to the June 7, 2011 will, other than a one-third interest in farm machinery that was sold anyway and personal property. With respect to the farmland, he 25
merely had a life estate in one portion of it, which he made no attempt at trial to place a value on. Thus, in the absence of tortious interference in 2008 or 2009, Wesley has not satisfied his burden of proving damages with reasonable certainty.
This argument fails because neither in the district court nor on appeal do
the sisters challenge their parents’ June 7, 2011 revocation of the trust or the
simultaneous execution of deeds. At this point, the Bowman Trust has been
dissolved. See Linkmeyer v. Brandt, 77 N.W. 493, 494 (Iowa 1898) (discussing
revocation of a trust). Setting aside the will based on the sister’s undue influence
would not return Wesley to the life estate created under that revoked instrument.
Further, the record includes evidence of undue influence predating the
March 2009 amendment to the trust. Trudy specifically testified “from 2008 to
2009” she provided care for her parents, dealing with “their emotional and
physical needs.” A reasonable jury could have found the sisters started their
campaign of influence in 2008, when (1) the dispute over Helen’s health care
occurred, (2) the sisters acted to obtain their own powers of attorney, and
(3) they moved their parents away from Wesley and closer to them. See Bayer,
574 N.W.2d at 670 (“Evidence is not insubstantial simply because it may support
contrary inferences.”). At that time, Wesley expected to receive one-half of his
parents’ property.
Finally, Wesley was required to show an “intended bequest.” Hosier, 2001
WL 1451137, at *7. Here, under each estate-planning instrument drafted before
the 2011 will, Wesley received some inheritance. Cf. id. (noting plaintiff’s failure
to present prior documents legitimizing his expectancies). We conclude the jury 26
was justified in finding the sisters wielded undue influence over the expected
bequest and affirm the district court on this issue.
We next turn to Trudy’s separate claim she had no reason to exert undue
influence over her father because she did not benefit from the changes made to
his estate plan. She asserts her status did not change—she remained the
beneficiary of one-half of Milton’s estate. Assuming her status did not change,
we are not persuaded. Wesley was not required to prove Trudy’s inheritance
was diminished or increased, instead, the jury was instructed to consider a
number of circumstances “in deciding if there was undue influence.”19 Further, a
reasonable jury could have found Trudy had the disposition to unduly influence
even if her inheritance stayed the same. The “improper favor” logically could be
the ousting of Wesley to the benefit of her sister, Cynthia. The sisters’ e-mails
show joint action to undermine Wesley. See Kerber v. Eischeid, No. 15-1249,
2016 WL 1696929, at *4 (Iowa Ct. App. Apr. 27, 2016) (finding breach of
fiduciary duty where conservators removed beneficiaries to whom they were
19 The instruction listed the following circumstances: 1. Dominance over the maker of the will; 2. Whether the condition of the maker’s mind was subject to such dominance; 3. Whether the distribution of the maker’s property is unnatural, unjust, or unreasonable; 4. The activity of the person charged with undue influence; 5. Whether defendants had the opportunity and frame of mind to exercise undue influence. Activities may include suggestion, request, and persuasion short of controlling the will of the maker, but they do not alone constitute undue influence. Consider such activities along with any other evidence of undue influence; 6. The intelligence or lack of intelligence of Milton; 7. Whether Milton was physically or mentally weak; 8. Whether Cynthia Cramer and/or Trudy Burton was the controlling party in a confidential relationship with Milton; 9. Whether Cynthia Cramer and/or Trudy Burton was the controlling party in a fiduciary relationship with Milton; 10. Any other facts or circumstances shown by the evidence which may have any bearing on the question. 27
“antagonistic” or to whom they had “demonstrated their dislike”); Bronner v.
Randall, No. 14-0154, 2015 WL 2089360, at *8-9 (Iowa Ct. App. May 6, 2015)
(finding sufficient evidence decedent’s sister, who was not a beneficiary,
improperly interfered with a prior beneficiary’s expectation of inheritance, such
interference benefitting the sister’s daughter). We find no merit to Trudy’s
argument.
B. Element Three: Defamation
Wesley also had to prove the sisters intentionally and improperly
interfered with his expectancy by way of defamation. The tort of defamation
concerns the invasion of Wesley’s interest in reputation or good name by “the
publication of written or oral statements.” See Barreca v. Nickolas, 683 N.W.2d
111, 116 (Iowa 2004). Wesley alleged he was defamed by his sisters’
statements on the following topics: his drug use, his responsibility for cutting off
their parents’ cable television service, the DHS complaint of elder abuse, and
stealing Milton’s farm equipment.
On appeal, the sisters first argue they did not improperly interfere because
they had a good faith basis for their conduct and statements. As to all four
categories of defamatory statements, the sisters contend Wesley “merely
established” that they “discussed information with Milton and Helen that they had
every reason to believe was true.” The sisters contend their conversations with
their parents and attorney Hill “were so deeply rooted in undisputed facts” that
those communications “cannot possibly rise to the level of wrongfulness
necessary for a tortious interference claim.” 28
The jury considered whether the sisters acted in good faith. The court
instructed that “[o]ne who by legitimate means merely persuades a person to
disinherit a child and to leave the estate to the persuader instead is not liable to
the child.” But the jurors did not find the sisters were persuaders using legitimate
means. The jurors, who had a front-row seat for assessing the credibility of the
witnesses, did not believe the sisters acted in good faith. After reviewing the
sisters’ emails with Hill, as well as their statements critical of Wesley made to
their parents and others in the community, we find substantial evidence to
support the jury’s finding.
In a related argument concerning the defamation alternative, the sisters
complain the district court should have instructed the jury on qualified privilege,
an affirmative defense providing immunity from liability for defamation in some
circumstances. See id. at 118 (explaining qualified privilege exists with respect
to an otherwise defamatory statement “when (1) the statement was made in good
faith; (2) the defendant had an interest to uphold; (3) the scope of the statement
was limited to the identified interest; and (4) the statement was published on a
proper occasion, in a proper manner, and to proper parties only”). Wesley
argues his sisters did not identify “which statements to what persons” would be
covered by qualified immunity. The district court refused to give the instruction,
concluding qualified immunity did not apply to the “matter at hand.”
The sisters assert this instructional error requires us to remand for a new
trial. We find no error in the district court’s refusal to instruct on qualified
immunity. First, at trial, the sisters did not specify the “occasions” giving rise to a
qualified privilege. See id. (explaining court’s task was “to determine whether the 29
occasion of [the defendant’s] statement[, a city council meeting,] was qualifiedly
privileged”). Second, on appeal, the sisters do not cite any cases applying
qualified immunity to testamentary actions. We affirm the district court on the
issue of qualified immunity.
C. Element Four: Causation
On appeal, Cynthia and Trudy argue their actions were not clearly the
cause of Wesley’s loss of inheritance.20 They assert Wesley and Cherie’s
deteriorating relationship with Wesley’s parents, particularly his mother, loomed
as independent motivation for disinheriting him that had “nothing to do with
Cynthia or Trudy.”
We defer to the jury’s finding of causation because it was supported by
substantial evidence. The jury learned of the deteriorating relationship but was
free to credit Wesley’s version of the events. Wesley offered testimony to show
Milton was susceptible to unfair persuasion by his daughters—his physical
strength was limited, his hearing was impaired, and his memory was declining.
Milton relied on Helen for his daily needs, and Helen was receptive to
disparaging information about Wesley and Cherie. A reasonable jury could
conclude Trudy and Cynthia had the opportunity to exercise influence over their
parents’ decision-making and to carry out the wrongful purpose of excluding
Wesley from receiving a share of the family farm that he had long worked with his
father. Two prime examples of their opportunity to inject themselves into their
parents’ estate planning were the sisters’ efforts to move their parents closer to
20 They again contend Wesley, as a matter of law, failed to prove “reasonably certain” damages. We previously rejected this argument and need not repeat our analysis here. 30
them and farther from Wesley and their arrangement with attorney Hill to act as
liaisons with him because their parents did not have the ability to send emails.
A reasonable jury could also conclude, based on the record, that the
sisters were motivated to influence their father to unduly get an improper favor.
Wesley submitted evidence of the increasing Iowa land values around 2009 and
of the exploration by the sisters’ husbands into the possibility of selling the
Boman farm. Substantial evidence supported the jury’s conclusion the parents’
mutual wills disinheriting Wesley were clearly brought about by the sisters’ undue
Like the district court, we find sufficient evidence of all the challenged
elements of the tort, including causation.
V. Evidentiary Challenges
A. Admission of Wesley’s Expert Testimony on Legal Concepts
Wesley called attorney Bruce Walker as an expert witness.21 On appeal,
the sisters claim the district court abused its discretion in allowing Walker to
opine, over objection, that Milton lacked the requisite capacity to execute a will
and that Milton and Helen were subjected to “undue influence” by Cynthia and
Trudy. They argue Walker was improperly allowed to explain what the law is and
to then offer an opinion on whether the facts satisfied the legal standards.22 We
include a portion of the challenged testimony below:
21 A lengthy discussion occurred outside the presence of the jury before Walker testified. Both sides agreed expert opinion was not admissible to explain the applicable law. 22 Wesley contends Cynthia and Trudy did not preserve error on this claim because they did not raise it in their post-trial motions and did not address error preservation in their appellate briefs. In their reply briefs, the sisters contend they preserved error by seeking to exclude Walker’s testimony by filing a motion in limine and renewing their objections during his testimony. We agree the sisters’ trial objections citing “lack of competency of 31
Q. Do you have an opinion, based upon reasonable certainty, as to whether . . . Milton and Helen Boman were susceptible to undue influence on June 7, 2011 when the mutual wills were executed? . . . . A. Okay. It looked to me at the time of the execution and before, but particularly at the time of the execution, based on the information that was provided by Mr. Hill’s office, that when the actual documents were presented there was a pause in the execution, which was telling to me. Apparently the information was that Mr. Boman wanted these documents prepared, he wanted to execute them, and [Mr. Hill] was informed that [Mr. Boman] understood what he was doing. And then when it came time to actually sign the documents, there was a pause, and it wasn’t clear because the memos and so forth weren’t completely clear as to how long that pause occurred, but it was at least several minutes. When there’s a pause like that, it triggers bells in the mind of an attorney that’s supposed to be supervising the execution of documents that maybe the individual either did not understand the documents or did not agree with the content and the effect of the documents. .... Q. Do you have an opinion, based upon reasonable certainty; as to whether Milton or Helen Boman were susceptible to undue influence and also had the requisite testamentary capacity to sign those wills and to execute the other documents . . . that were presented to them on June 7, 2011? . . . . A. It appeared from the information that I reviewed from Mr. Hill’s file that there wasn’t much, if any, concern about Helen Boman’s capacity to execute documents. There were, however, indications in Mr. Hill’s file about his concern about Milton Boman’s ability to competently understand and execute documents. That’s spread throughout some of the emails and other notes that I was supplied to review. On the question of undue influence, I’ve already said that I believe the daughters were influencing Mrs. Boman, Mrs. Boman was then influencing Milton Boman. And the most telling portion of the influence that I found was that in the actual execution of the documents themselves during this period that I mentioned about the pause, Mrs. Boman prompted Mr. Boman to recall that that’s what they’d agreed to and that’s what he wanted to do. I think that speaks to undue influence pretty clearly.
this expert to make such an opinion” preserved error on the admissibility of Walker’s opinion evidence. As to appellate procedure, we agree with Wesley that Cynthia and Trudy contravened the rules by not citing the place in the record where the evidentiary issue was preserved. See Iowa R. App. P. 6.903(2)(g)(1). While this omission is an inconvenience to the appellate courts, in this case we opt to reach the merits of the sisters’ claim regarding expert testimony. 32
In addressing the sisters’ objections, we first acknowledge Iowa’s liberal
rule allowing “expert opinion testimony if it will aid the jury and is based on
special training, experience, or knowledge with respect to the issue in question.”
Bornn v. Madagan, 414 N.W.2d 646, 647 (Iowa Ct. App. 1987). “Testimony in
the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.” Iowa R.
Evid. 5.704. But when an expert witness opines on a legal conclusion or on
whether the facts of the case meet a given legal standard, that opinion holds no
value for the jury. See In re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa 2005),
overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708
n.3 (Iowa 2016). “[T]he jurors are fully capable of applying the facts of the case
to the law provided to them by the trial judge.” Id. Such an opinion is
inadmissible under rule 5.702, which requires the specialized knowledge of an
expert witness to assist the trier of fact. Id. at 419-20 (“Whether an opinion
couched in legal terms is excludable . . . depends on ‘whether the terms used by
the witness have a separate, distinct and specialized meaning in the law different
from that present in the vernacular. If they do, exclusion is appropriate.’” (citation
omitted)).
In this case, the district court allowed attorney Walker to give opinions
about Milton’s “susceptibility to undue influence” and Milton’s “testamentary
capacity”—specialized legal concepts not within the common knowledge of lay
persons. Walker’s opinions were inadmissible under rule 5.702 and the analysis
in Palmer because his views invaded “‘the province of the court to determine the
applicable law and to instruct the jury as to that law.’” See id. at 419 (citation 33
omitted). Walker’s opinions were couched in legal terms that carry “a separate,
distinct, and specialized meaning in the law different from that present in the
vernacular.” See id. at 420 (explaining “the question, ‘Did T have the capacity to
make a will?’ would be excludable because ‘capacity’ is a legal term with a more
precise, specialized legal meaning than the lay understanding of that term,”
though the danger of jury confusion could be avoided if the questioner explored
the basis for the expert’s opinion in factual terms). Accordingly, such testimony
by Walker should have been excluded. See id.
Although the district court mistakenly allowed attorney Walker to express
his opinions on specialized legal concepts, not every erroneous admission of
evidence requires reversal. See Mohammed v. Otoadese, 738 N.W.2d 628, 633
(Iowa 2007). Reversal is only warranted when the admission affects a party’s
substantial right. Id. (citing Iowa R. Evid. 103(a)).
On the question whether allowing Walker’s testimony amounts to
reversible error, Wesley contends Trudy and Cynthia were not prejudiced by
Walker’s testimony because their trial attorney asked the same “inappropriate”
questions to their expert witnesses—Dr. Michael Taylor and attorney Gregory
Kenyon. The sisters reply: “A party cannot, over objection, ask inappropriate
questions of an expert witness, then turn around and claim waiver or lack of
prejudice when the other side is forced to respond in kind.” See Thavenet v.
Davis, 589 N.W.2d 233, 236 (Iowa 1999) (finding legal error in allowing expert
testimony on legal standards prejudiced litigants and forced them into Hobson’s
choice of offering equivalent opinions). 34
If we had resolved the will-contest claim on the issue of testamentary
capacity, we would be more inclined to find the erroneous admission of attorney
Walker’s opinions rose to the level of reversible error. But as stated above, we
agree with the sisters’ position that Milton had the mental wherewithal on June 7,
2011, to execute a will. Our decision to uphold the jury’s verdict on the undue-
influence alternative is not significantly impacted by Walker’s inadmissible
opinions because, on appeal, neither Cynthia nor Trudy directly challenged the
undue-influence basis for Wesley’s will-contest claim. Accordingly, we find no
prejudice resulted from the erroneous admission of Walker’s testimony in the will
contest. See Palmer, 691 N.W.2d at 422 (finding error harmless where issues
discussed by expert witness were not disputed).
As to the tort claim of intentional interference, which included an element
of undue influence, we conclude that to the extent attorney Walker was allowed
to offer inadmissible opinions, when the record is considered as a whole, the
sisters were not prejudiced.
The jury’s view of Walker’s expertise was likely tempered by his disclosure
that he had not drafted a will for twenty-five years and had no recent experience
in probate matters. Moreover, the sisters countered Walker’s testimony not only
with their own experts, but through extensive cross-examination. For example,
on cross, Walker acknowledged if Wesley or Cherie said things that upset either
parent, that could have influenced their estate planning; Cherie’s harsh phone
call “probably did” influence Helen; and if Milton heard Cherie call Helen “an old
hag,” it could have influenced Milton. Walker further agreed that accusations
from people outside the family about Wesley’s drug use could have influenced 35
Wesley’s parents, as could have Wesley’s decision to sell farm machinery or his
less frequent visits. In the context of Milton’s pause during execution of the wills,
Walker admitted, when someone is about to disinherit a child, “they should be
thinking about it.” Walker’s testimony on cross-examination supported the
sisters’ theory of the case point by point. When the record is viewed as a whole,
the court’s admission of Walker’s testimony did not result in reversible error.
B. Exclusion of Evidence Concerning Wesley’s Past Conduct
Wesley filed a motion in limine seeking to exclude evidence of his alleged
use of illegal drugs, specifically methamphetamine. The district court declined to
make a preliminary ruling on admissibility because it “wasn’t sure of what the
context would be and what the evidence necessarily would be showing in detail.”
Wesley revealed in his own testimony that during his divorce he had used
marijuana and cocaine, sought treatment, and had several relapses.
Midtrial, counsel for the sisters informed the court they intended to offer
testimony from a former deputy sheriff concerning drug investigations in which
Wesley’s name had come up. Wesley’s counsel argued the evidence was not
relevant because it had not been communicated to Helen or Milton and would be
unfairly prejudicial. The district court ruled the prejudicial effect of the proposed
evidence substantially outweighed its probative value. See Iowa R. Evid. 5.403.
The court did not find “a real solid connection” between the information sought to
be offered and Milton’s decision to revoke the trust and change his will.
Additionally, the sisters made an offer of proof seeking to admit Trudy’s
testimony that in 2006, she was visiting her parents when Wesley brought her a
phone book and asked if she saw a highlighted name, but no names were 36
highlighted. In the same time frame, according to Trudy, Wesley told his parents
“people were chasing him and the police were after him.” The court also
excluded this proffered testimony, finding the timing—two years before the March
2009 amendment to the trust—detracted from its probative value.
On appeal, the sisters argue the court abused its discretion in excluding
this evidence because it supported their position that they had a good-faith basis
for their suspicions Wesley was using drugs. They also contend the remoteness
of the evidence went to its weight and not its admissibility.
The balancing of probative value against grounds for exclusion in rule
5.403 rests in the sound discretion of the district court. See Thompson v. City of
Des Moines, 564 N.W.2d 839, 846 (Iowa 1997). Here, the district court
reasonably determined the tendered evidence was too remote in time and lacked
a significant nexus to Milton’s estate planning. See Goche v. Goche, No. 09-
0761, 2010 WL 2925140, at *9 (Iowa Ct. App. July 28, 2010) (upholding
exclusion of family discussions remote from the date the will was executed).
Given its weak probative value, the district court exercised sound judgment in
deciding evidence that Wesley was acting paranoid and was the target of drug
investigations tipped the scales too far toward the danger of unfair prejudice.
VI. Punitive Damages
The jury awarded Wesley $118,343.05 in punitive damages from Cynthia
and $59,171.53 from Trudy. Both Cynthia and Trudy argue on appeal that
Wesley failed to show that either sister’s behavior was “willful and wanton.”
Cynthia claims she “simply participated in conversations that were driven by
others and based on natural inferences from undisputed facts.” Trudy also 37
contends she “she engaged in discussions with her parents about natural
inferences from undisputed facts” regarding Wesley’s conduct, pointing to her
testimony she loved her brother “but they disagreed about issues relating to their
parents’ care.”
Punitive damages “serve a vital function in our tort system.” Spaur v.
Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 865 (Iowa 1994). Such
damages exist to punish and deter the defendant and to deter “like-minded
individuals from committing similar acts.” Ryan v. Arneson, 422 N.W.2d 491,
496 (Iowa 1988). The primary focus of our review is the relationship between
the offending party’s wrongful conduct and the punitive damage award. See id.
To merit an award of punitive damages, Wesley was required to prove by a
preponderance of clear, convincing, and satisfactory evidence that each sister
acted in willful and wanton disregard for his rights. See Iowa Code § 668A.1
(2013); Wolf, 690 N.W.2d at 893. The “willful and wanton” element requires
Wesley to show the sisters’ “conduct constituted actual or legal malice.” See
Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001). Wesley can
prove actual malice by evidence of ill-will, personal spite, or hatred. See Wolf,
690 N.W.2d at 893 (citation omitted). Wesley can prove the “legal malice”
alternative by evidence of “wrongful conduct committed or continued” by each
sister “with a willful or reckless disregard” for his rights. See Gibson, 621
N.W.2d at 396 (stating punitive damages are not awarded for “merely negligent
conduct”).
In upholding the jury’s award of punitive damages, the district court cited
the following evidence: the overall hostility of the siblings’ relationship, including 38
the fact Trudy and Cynthia did not talk to Wesley from mid-2008 until the trial
date; the sisters’ failure to ask Wesley or his neighbors about the sale of any
farm machinery; the sisters’ accusation Wesley stole the machinery; their claim
Wesley was still using drugs and that he or Cherie had reported Helen to the
DHS for maltreatment of Milton; and the sisters’ allegations Wesley was abusive
to his mother and took financial advantage of his parents.
In our review, we would further point to the sisters’ callous, intentional
decision to keep Milton’s death a secret from Wesley, even though Wesley had
farmed with his father for more than thirty years, thereby preventing Wesley from
attending his father’s funeral. This conduct, along with the conduct detailed by
the district court, satisfied the “actual malice” alternative for both Cynthia and
Trudy. Accordingly, we affirm on this issue.
In conclusion, we affirm the district court’s denial of the sisters’ motion for
JNOV or a new trial. We have considered all the issues presented by Cynthia
and Trudy, and any issues not specifically addressed are deemed meritless.
Related
Cite This Page — Counsel Stack
In Re Estate of Milton A. Boman, Wesley Boman v. Cynthia Cramer, Individually and as and Trudy Burford, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-milton-a-boman-wesley-boman-v-cynthia-cramer-iowactapp-2017.