Kar v. Hogan

251 N.W.2d 77, 399 Mich. 529, 1976 Mich. LEXIS 227

• Court: Michigan Supreme Court
• Decided: December 31, 1976
• Docket: 56383, (Calendar No. 5)
• Status: Published

Opinions

Lindemer, J.

This case involves an attempt to upset a deed between a woman and her husband on the ground that it was procured through undue influence.

Plaintiffs are the stepchildren of Julia Merkiel. Their natural mother, Helen Kar, died in 1914. In that same year Julia married John Kar, plaintiffs’ father. She cared for his children as if they were her own. The property involved in this lawsuit, a farm near Belleville, Michigan, was purchased by John and Julia in 1917. John died in 1951, leaving Julia as the sole owner of the property. In 1953, Julia married Edward Merkiel. In 1969, by use of a "strawman”, the property was deeded to Julia and Edward as tenants by the entireties. When Julia died in 1970, Edward became the sole owner of the property. On March 25, 1970, plaintiffs filed this lawsuit against Edward hoping to have the 1969 deed invalidated. If the deed were to be voided, the property in dispute would pass by the terms of Julia’s will. Under her will, plaintiffs would receive approximately two-thirds of the land while the remainder of the property would go to Edward. Edward died on September 18, 1971, and Fred Hogan, executor of his estate, was substituted as defendant.

Trial commenced on July 6, 1972, before Wayne Circuit Court Judge George E. Bowles. Apparently there was a dispute over whether or not the parties were entitled to have a jury trial. The judge postponed decision of this question until after trial. A jury was selected and the trial proceeded as a regular jury trial. At the conclusion of the trial, the judge requested briefs from both parties on this issue. In his written opinion Judge Bowles concluded that there was no right to a jury trial of this case and therefore " * * * the verdict of the advisory jury is mere surplusage without legal effect”.

In spite of a jury verdict in favor of plaintiffs, the trial judge decided the case for defendant. The Court of Appeals affirmed. Kar v Hogan, 54 Mich App 664; 221 NW2d 417 (1974). This Court granted plaintiffs’ application for leave to appeal on December 5, 1974. 393 Mich 766 (1974). We affirm.

Plaintiffs raise three issues for review. Their first argument is that on the basis of the evidence presented, the trial judge should have found the deed to be the product of undue influence. To establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient. Nelson v Wiggins, 172 Mich 191; 137 NW 623 (1912). However, in some transactions the law presumes undue influence. The presumption of undue influence is brought to life upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction.

The trial judge found all the necessary elements and applied the presumption to the case. It is the application of the presumption and its effect upon the "burden of proof’ over which the parties are split. Plaintiffs argue that, once established, the presumption shifts the burden of proof to the defendant to show an absence of undue influence.

The seeds of this argument were sown by Justice Souris in his landmark opinion of In re Wood Estate, 374 Mich 278; 132 NW2d 35; 5 ALR3d 1 (1965). Several law review comments concerning Wood have aided this theory to sprout roots. Callahan, Succession and Trusts, 17 Wayne L Rev 665, 671 (1971); Recent Decisions, 40 Notre Dame Lawyer 676, 677 (1965). Recently, the Court of Appeals has been nurturing this theory towards full bloom. Totorean v Samuels, 52 Mich App 14, 21; 216 NW2d 429 (1974); First National Bank & Trust Co of Marquette v Albert, 66 Mich App 252; 238 NW2d 827 (1975). In Totorean, the Court of Appeals said:

"We read Wood as standing for the proposition that a rebuttable presumption shifts the burden of proof. In dicta the Wood Court said:

" 'Finally, in every case in which evidence has beep offered to rebut presumed fact C, the jury should be instructed that in the event it cannot decide Upon which side the evidence preponderates, then as a matter of law fact C must be presumed.’ In re Wood, supra, 295; 132 NW2d 46.

"Therefore, in those cases where (1) plaintiff has the benefit of a presumption which has been rebutted and, thus, reduced to a permissible inference; and (2) the trier of fact determines the evidence of plaintiff and defendant to be equal, the trier of fact should return a verdict for the plaintiff. This can only mean the ultímate burden of proof is on defendant — not plaintiff,” (Footnote deleted.)

We disagree. The ultimate burden of proof ip undue influence cases does not shift; it remains with the plaintiff throughout trial. We readily concede that prior cases may have unnecessarily confused the issue. In the case of In re Bailey’s Estate, 186 Mich 677, 692; 153 NW 39 (1915), this Court held:

"It is true that a presumption is raised that calls for an explanation, but the burden of proof to show undue influence is not thereby shifted.”

But only two years later in Williams v Williams, 198 Mich 1, 4-5; 164 NW 374 (1917), the Court said:

"That the presumptions are against transactions of this nature and they are critically scrutinized by the courts, putting the burden of proof upon those seeking to sustain them, requires no citation of authority.”

The essence of the problem is the definition of "burden of proof’. There are two separate meanings. 9 Wigmore, Evidence (3d ed), § 2483 et seq., p 266 et seq.; McCormick, Evidence (2d ed), § 336, p 783; James, Burdens of Proof, 47 Va L Rev 51 (1961). One of these meanings is the burden of persuasion or the risk of nonpersuasion. The other is the burden of going forward or the risk of nonproduction.

Generally the burden of persuasion is allocated between the parties on the basis of the pleadings. The party alleging a fact to be true should suffer the consequences of a failure to prove the truth of that allegation. A plaintiff has the burden of proof (risk of nonpersuasion) for all elements necessary to establish the case. This burden never shifts during trial. Therefore, plaintiffs, who alleged the existence of undue influence, bore the ultimate burden of persuading the trier of fact that undue influence was used to procure the deed.

Initially, the burden of going forward with evidence (the risk of nonproduction) is upon the party charged with the burden of persuasion. However, the burden of going forward may be shifted to the opposing party.

"We have seen something of the mechanics of the process of 'proceeding’ or 'going forward’ with evidence, viewed from the point of view of the first party who is stimulated to produce proof under threat of a ruling foreclosing a finding in his favor. He may in respect to a particular issue pass through three states of judicial hospitality: (a) where if he stops he will be thrown out of court; (b) where if he stops and his adversary does nothing, his reception will be left to the jury; and (c) where if he stops and his adversary does nothing, his victory (so far as it depends on having the inference he desires drawn) is at once proclaimed. Whenever the first producer has presented evidence sufficient to get him to the third stage and the burden of producing evidence can truly be said to have shifted, his adversary may in turn pass through the same three stages. His evidence again may be (a) insufficient to warrant a finding in his favor, (b) sufficient to warrant a finding, or (c) irresistible, if unrebutted.” McCormick, supra, p 793.

A discussion of presumptions and their effect upon the burden of producing evidence appears in Wood.

"Presumptions in the law are almost invariably crystallized inferences of fact. Experience has taught that if certain evidentiary facts be established, there is such a strong practical likelihood that another stated fact will be true that that fact may be presumed. The law’s special recognition of this lesson of experience is expressed by its rulings that if a litigant proves evidentiary facts A and B, then fact C’s existence will be presumed.

"The immediate legal effect of a presumption is procedural — it shifts the burden of going forward with the evidence relating to the presumed fact.⁵ Once there is a presumption that fact C is true, the opposing party must produce evidence tending to disprove either facts A and B or presumed fact C; if he fails to do so, he risks jury instruction that they must presume fact C to have been established.”_

The thrust of the Wood case was to change the law in this state concerning the effect that a presumption has after rebuttal evidence has been introduced. Prior to Wood, Michigan held to the "Thayer” or "bubble bursting” approach; that is, the presumption governed only the burden of going forward with evidence and the presumption was totally dissipated if rebuttal evidence was offered. See In re Haskell’s Estate, 283 Mich 513; 278 NW 668 (1938). Wood rejected the "Thayer” approach and adopted the view that once rebuttal evidence was introduced, the presumption, originally a "mandatory inference”, was reduced to a "permissible inference”. Unless the defendants’ controverting evidence met the standard for a directed verdict, the presumption, as a "permissible inference”, was sufficient to get the case before the jury. Wood, supra, 290-291.

The passage from the Wood case cited by the Court of Appeals in Totorean, supra, as authority for the position that the burden of persuasion shifted to the defendants upon proof of the presumption was gratuitous language. The Court of Appeals recognized it as dictum but relied upon it anyway. We have examined both the majority and the dissenting opinions in Wood and we are convinced that the Court had no intention of adopting the theory advanced by plaintiffs here and the Court of Appeals in Totorean. We believe the dictum from Wood refers to the burden of going forward with evidence that the transaction was free of undue influence. If the trier of fact finds the evidence by the defendant as rebuttal to be equally opposed by the presumption, then the defendant has failed to discharge his duty of producing sufficient rebuttal evidence and the "mandatory inference” remains unscathed. This does not mean that the ultimate burden of proof has shifted from plaintiff to defendant, but rather that plaintiff may satisfy the burden of persuasion with the use of the presumption, which remains as substantive evidence, and that the plaintiff will always satisfy the burden of persuasion when the defendant fails to offer sufficient rebuttal evidence.

In the case at bar, the trial judge reviewed the proofs and found the presumption to have been rebutted. We agree. The facts disclosed that at the time the disputed deed was signed, Julia Merkiel was 72 years old and suffering from a decline in her physical condition. She had trouble walking and needed assistance to do so. She had been hospitalized three times in the two years before her death in 1970. However, both plaintiffs’ and defendant’s witnesses testified that Julia was a strong-willed individual who was mentally competent and capable of handling her own business affairs. Julia was a native Hungarian who emigrated to this country at an early age. Apparently she had no formal education but she was capable of both reading and conversing in the English language.

In 1966, Julia first approached Fred Hogan and requested that he draft her will. Subsequent to that event, Julia returned to attorney Hogan’s office and requested that he prepare a purchase agreement for the sale of the farm. On another occasion, Julia requested that Hogan prepare a deed to the property upon which the Kar Bottling Works Company was located. The deed was from Julia to plaintiff Edward W. Kar. Finally in May of 1969, Julia approached Hogan with a request to draft the deed which is challenged in this lawsuit. Hogan testified that he thoroughly discussed the transaction with his client:

"We again discussed the ramifications of preparing such a deed, that it [the deed] would it [the farm] take [sic] out of the estate and it would then go to the survivor, either her if she survived Ed Merkiel or Ed Merkiel if he survived her. She advised me that this is what she wanted to do. I prepared a deed and she came back at a later date and signed the deed.”

Hogan also testified that:

"Whenever any business was transacted in the office Julia did all the talking and all the negotiations. Ed on —on occasion, when he would come with her, he'would sit in a chair and Julia did all the talking.”

Finally Hogan testified that his observations led him to believe that Julia was acting in accordance with her own will and not subjected to undue influence.

It is true that the record contains contrary evidence. There were occasional statements by Julia to her stepchildren and to her neighbor that the plaintiffs were to inherit the land. Some letters from Edward Merkiel to plaintiffs were introduced into evidence and considered by the trial judge.

On this record we conclude that defendant met his burden of rebutting the presumption of undue influence. The defense evidence established that Julia sought out and retained independent counsel and that she supplied the impetus behind the procurement of the deed. We believe that plaintiffs failed to meet their burden of persuasion on the issue of undue influence.

Plaintiffs’ second issue alleges that the trial judge committed reversible error in declaring his decision as to the disposition of the case before hearing all of the evidence. Plaintiffs offer the following unsolicited statement of the trial judge to support their allegation.

"I want to be frank with able counsel. If I was deciding this non-jury, I would have no difficulty with it at all. I would hold for the defendant. I think all plaintiffs have shown was that [sic] the many, many plaintiffs have shown, namely, the opportunity of undue influence because this disposition of property was different from what the plaintiffs thought it was going to be. That doesn’t make out a case of undue influence; it is an opportunity for undue influence. There is not one scintilla of evidence in this case. As a matter of fact, it is all to the contrary. She got sick, but to get sick, is I think to dispose of one’s state [sic] — most of us will never get to dispose of our estates — many of these are disposed of while they are thinking, you know, what is going to happen to it when we are sick. I am going to be very frank with counsel. To me there isn’t even a prima facie case made out by the plaintiff. It is quite a different thing when you have the free jury situation. I think a jury case has been made out and the only question is in my mind is whether there is a jury case both as to the confidential fiduciary relationship and the undue influence. I have to say that because of the nature of the relationship, namely, husband and wife, that in and of itself is a fiduciary relationship and therefore it would go to the jury merely on undue influence.”

We agree that the above passage is ambiguous and confusing. The trial judge made this statement at the close of plaintiffs’ proofs. The record discloses that shortly after this statement was made, the trial judge ruled in favor of plaintiffs on an issue concerning the dead man’s statute and allowed plaintiffs to reopen their proofs in order to adduce further testimony. We find no prejudice in the way the trial judge conducted the remainder of the trial, including the defense proofs, the final arguments by the attorneys and the instructions to the jury. Neither party seemed reversibly limited in presentation of its case. We agree with plaintiffs that due process requires that litigants have their cases heard in full before an impartial decision maker. People v Thomas, 390 Mich 93; 210 NW2d 776 (1973); Wayne County Prosecutor v Doerfler, 14 Mich App 428; 165 NW2d 648 (1968). However, we cannot say, as we did in Thomas, that plaintiffs in this case were deprived of due process because they were not afforded a meaningful opportunity to present their case. Judge Bowles weighed facts and law carefully and delivered an 18-page written opinion. In that opinion he again ruled in favor of plaintiffs on the issue of admission of the letter exhibit 11c. We find no merit in plaintiffs’ argument on this issue.

Plaintiffs’ final issue concerns whether or not the deed was void because it was not based upon sufficient and valid consideration. At 'trial, attorney Hogan testified that the $1,000 consideration recited in the challenged deeds was, in fact, never paid. Plaintiffs argue that this is a failure of consideration and that the deeds are void. While we agree that in some cases the lack of sufficient consideration is good cause to invalidate a deed, such as the case where creditors are defrauded, the deed between Julia and Edward was valid even in the absence of consideration. Straith v Straith, 355 Mich 267; 93 NW2d 893 (1959). We find no error in this issue.

As we hear chancery cases de novo, it is our duty to examine the entire record and weigh all the evidence presented. Hawthorne v Dunn, 210 Mich 176; 177 NW 393 (1920). Our review of this record leads us to conclude that the trial judge properly decided this case in favor of defendant. Affirmed, costs to defendant.

Williams, Coleman, and Fitzgerald, JJ., concurred with Lindemer, J. Ryan, J., took no part in the decision of this case.

5 "5 Baker v Delano, 191 Mich 204, 208 [157 NW 427 (1916)], citing 1 Elliott on Evidence § 91: ' "The office or effect of a true presumption is to cast upon the party against whom it works the duty of going forward with evidence.” ’ ” Wood, supra, p 288-289.