Knight v. Ebert

824 P.2d 432, 175 Utah Adv. Rep. 38, 1991 Utah App. LEXIS 179
CourtCourt of Appeals of Utah
DecidedNovember 29, 1991
DocketNo. 910244-CA
StatusPublished
Cited by1 cases

This text of 824 P.2d 432 (Knight v. Ebert) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knight v. Ebert, 824 P.2d 432, 175 Utah Adv. Rep. 38, 1991 Utah App. LEXIS 179 (Utah Ct. App. 1991).

Opinion

JACKSON, Judge:

Appellants, beneficiaries of the last will and testament of the deceased, appeal the denial of their motion seeking a new trial. Appellants’ motion came after a jury, verdict held the deceased had given certain certificates of corporate stock to Ray Ebert during his lifetime. We affirm.

ISSUES

Appellants have raised three issues which were contained in their motion for a new trial under Rule 59(a)(7), Utah Rules of Civil Procedure:1 (1) error of law in admitting certain parol evidence, (2) error of law in not applying the doctrine of estop-pel against Ebert’s claims of inter vivos gifts of the stock certificates, and (3) error of law in ruling that four letters were not admissible evidence under Rule 403 of the Utah Rules of Evidence. Appellants have raised a fourth issue for the first time on appeal: error of law in not allowing evidence of claims that Ebert exercised undue influence on Justheim in obtaining the certificates.

STANDARD OF REVIEW

A trial court’s grant or denial of a motion for a new trial will not be overturned on appeal absent an abuse of discretion. Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988); Erickson v. Wasatch Manor, Inc., 802 P.2d 1323, 1326-27 (Utah App.1990). The general rule concerning abuse of discretion is that the appellate court “will presume that the discretion of the trial court was properly exercised unless the record clearly shows to the contrary.” Goddard v. Hickman, 685 P.2d 530, 534-35 (Utah 1984), quoted with approval in Donohue v. Intermountain Health Care, Inc., 748 P.2d 1067, 1068 (Utah 1987). But the trial court has no discretion to grant a new trial absent a showing of at least one of the grounds set forth in Rule 59(a) of the Utah Rules of Civil Procedure. Moonlake Elec. Ass’n. v. Ultrasystems W. Constructors, Inc., 767 P.2d 125, 128 (Utah App.1988).

BACKGROUND

Clarence I. Justheim died on July 3,1983. Sometime later, Ray Ebert asserted that Justheim had completed two life-time gifts to Ebert consisting of all of Justheim’s stock in Wyoming Petroleum Corporation. Justheim designated Ebert, long-time friend, business associate, and caretaker of Justheim, as personal representative in Justheim’s will and as trustee of an inter vivos trust created by Justheim as part of his estate plan.2 Ebert had possession of Justheim’s stock certificates and testified that 120,431 shares were delivered to him about two weeks prior to May 29, 1981 and that the remaining 30,712 shares were delivered to him prior to Justheim’s death. The certificates Ebert claimed by the first delivery were duly endorsed by Justheim. The certificates Ebert claimed by the sec[434]*434ond delivery were not endorsed. The certificates in Ebert’s possession represented about fifty percent of the corporate stock. Ebert also produced a document entitled “Codicil” which bears the date May 29, 1981. The Codicil also bears Justheim’s signature but admittedly has no legal effect since it was not witnessed. Ebert testified he typed the document pursuant to instructions from Justheim. Language in the document states that Justheim has “interest and stockholdings in the Wyoming Petroleum Corp., of which I own approximately fifty percent (50%).” The document further states that “I hereby give, bequeath, and devise to Raymond W. Ebert ... all of my interest and stockholdings in the Wyoming Petroleum Corp., ...”

The beneficiaries requested and received a jury trial. The jury was asked to determine whether Justheim during his lifetime had made two separate gifts of stock to Ebert, as Ebert claimed. The above described stock certificates, Codicil, and many other documents were admitted as evidence. The above described and other testimony of Ebert was received as evidence, along with testimony of Ebert’s wife and his attorney. Ebert’s attorney had also been Justheim’s legal counsel and prepared his estate plan. Ebert testified of conversations with Justheim, his attorney and his wife. Ebert’s wife testified of conversations with Ebert. The attorney testified of separate conversations with Justheim and Ebert. The testimony of these witnesses related to Justheim’s inter vivos and testamentary intentions and the circumstances under which Ebert obtained possession of the stock certificates from Justheim. The beneficiaries did not object to this testimony. The jury was instructed concerning applicable law without objection or exception by the beneficiaries. The jury returned separate verdicts finding that Justh-eim had indeed made two inter vivos gifts of the stock certificates to Ebert. The trial court entered its own separate findings of fact and conclusions of law in accord with the jury verdicts.

On appeal, the beneficiaries have not challenged the sufficiency of the evidence, the findings of fact nor the conclusions of law. Rather, they have raised the four issues outlined above.

ANALYSIS

I. Waiver of Issues

Ebert asserts that the beneficiaries waived their claims of error based on admission of parol evidence and the doctrine of equitable estoppel. Thus, we will address those issues in turn.

A. Parol Evidence

The appellants assert that the trial court erred in admitting “Ebert’s evidence that he had received Justheim’s stock interest in Wyoming Petroleum by way of two inter vivos gifts in derogation to Justheim’s Codicil.” Appellants’ brief agrees that the evidence was admitted without assertion of the parol evidence rule and that the “rule was first raised by the appellants in post-trial motions before the trial court.” “The parol evidence rule as a principle of contract interpretation has a very narrow application.” Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985). Assuming arguendo that the parol evidence rule is applicable, we address the question of appellants’ waiver of the rule by failure to object at trial.

Rule 103 of the Utah Rules of Evidence provides:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....

The advisory committee note indicates that this subsection is in accord with Rule 4 of the Utah Rules of Evidence and Stagmeyer v. Leatham Bros., 20 Utah 2d 421, 439 P.2d 279 (1968). Stagmeyer states that “in order to complain of the admission of evidence, there must be a clear and [435]*435definite objection stating the grounds therefor.” Id. 439 P.2d at 282. See also State v. Eldredge, 773 P.2d 29

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of Estate of Justheim
824 P.2d 432 (Court of Appeals of Utah, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
824 P.2d 432, 175 Utah Adv. Rep. 38, 1991 Utah App. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-ebert-utahctapp-1991.