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Moore v. Miles

Court of Appeals of Kansas

February 17, 2017

Harvey L. Moore, Appellant,
Maureen E. Miles, Kenneth L. Kollenbach, Bart A. Moore, Laurie Moore, and Ryan C. Moore, Appellees.


         1. An "amanuensis" is defined as "one who copies or writes from the dictation of another." The amanuensis rule provides that a person's signature to an instrument may be written by the hand of another, at the request of that person. This longstanding rule is not against Kansas public policy.

         2. Under the amanuensis rule, the person signing the grantor's name at the grantor's request is not deemed an agent of the grantor but is instead regarded as a mere instrument of the grantor; thus the signature is deemed to be that of the grantor.

         3. Because of the potential for fraud or self-dealing, when the signing of a grantor's name is done by an amanuensis who will directly benefit from the transfer of title-that is, an interested amanuensis-we presume that transfer is invalid. The interested amanuensis bears the burden to show that the signing of the grantor's name was a mechanical act in that the grantor intended to sign the document using the instrumentality of the amanuensis.

         4. To show undue influence, when a person is in a confidential and fiduciary relationship with the grantor, and clear and convincing evidence shows suspicious circumstances surrounding the signing of the instrument, a presumption of undue influence arises and shifts to that person the burden to prove the absence of undue influence by a preponderance of the evidence.

         5. Kansas law presumes that every adult is fully competent to enter into a contract until satisfactory proof to the contrary is presented. The quality of evidence needed to overcome the presumption of capacity for testators is clear and convincing evidence. That same burden of proof applies in determining an intestate's capacity to execute a transfer-on-death deed.

         6. A person is mentally competent to make a will when that person is able to understand what property he or she has, how he or she wants it to go at his or her death, and who are the natural objects of his or her bounty. That same legal standard applies in determining an intestate's mental capacity to execute a transfer-on-death deed.

         7. One requirement for a valid transfer-on-death deed is that the deed be signed by "the record owner" of the real estate interest being transferred. K.S.A. 59-3501(a). That requirement is met when one person signs as an amanuensis of the record owner.

         8. A person who lacks authority to sign an instrument as an attorney-in-fact may nonetheless have the authority to sign that instrument as an amanuensis.

         Appeal from Cowley District Court; James T. Pringle, judge. Affirmed.

          Jason P. Brewer, of Wilson & Brewer, P.A., of Arkansas City, for appellant.

          James D. Oliver, of Foulston Siefkin LLP, of Overland Park, and Sharon E. Rye, of the same firm, of Wichita, for appellee.

          Before Gardner, P.J., Atcheson, J., and Stutzman, S.J.

          GARDNER, J.

         In this appeal, Harvey L. Moore asks us to reverse the district court's ruling which found his mother's transfer-on-death deed valid, although it was signed not by his mother but by his ex-wife at his mother's direction, as an amanuensis- one who copies or writes from the dictation of another. That transfer-on-death (TOD) deed left the real estate in question to Harvey's ex-wife, Maureen, and had the effect of disinheriting Harvey, who would have inherited the real estate under the laws of intestate succession absent a valid TOD deed. Finding no reversible error, we affirm.

         Factual and procedural background

         Roxie Moore married Harvey Moore, Sr. and they had one child, Harvey Moore, Jr. (Harvey). Roxie and Harvey Sr. made their living primarily by ranching and farming, and over the years acquired around 900 acres. When Roxie died, only 360 acres located north and west of Cambridge, Kansas, remained. This property was referred to as "the homeplace" and is the subject matter of this litigation.

         Harvey married Maureen Miles, and they had two sons: Bart A. Moore and Ryan C. Moore. In the 1980s, Roxie and Harvey Sr. moved from the homeplace to Burden, Kansas, to be closer to their grandchildren, Bart and Ryan. Harvey Sr. passed away in 1985.

         Roxie suffered a stroke in 1991 which greatly affected her speech, but she continued to live in her home in Burden for the next 12 years. Several witnesses testified that although Roxie's speech was impaired, one could communicate with her if one was patient. However, if Roxie did not like someone or became frustrated, she would not communicate.

         In December 1992, Harvey and Maureen divorced. Harvey moved in with Roxie and stayed there for the next 11 years. Roxie and Harvey had what was described as a "strained relationship, " but Maureen and her sons maintained a very close relationship with Roxie.

         In August 2003, Roxie fell in her home in Burden and was taken to the hospital and then to Cumbernauld Village, an assisted living facility in Winfield, Kansas. Maureen made the arrangements to move Roxie to Cumbernauld. Over the next 6 years, approximately $265, 000 was spent on Roxie's nursing care. Harvey was asked to help with the expense but paid nothing. Maureen visited Roxie multiple times a week, while Harvey never visited.

         On April 29, 2004, Roxie signed a general durable power of attorney (DPOA) naming Maureen as her attorney-in-fact. Shortly thereafter, Roxie asked Maureen to assist in transferring the homeplace to her grandsons. Roxie wanted an attorney to draft a TOD deed to Maureen, who would hold the property until the grandsons were secure enough financially to own it themselves. Soon thereafter, an attorney drafted the TOD deed for Roxie which is the subject of this appeal.

         The facts relating to the execution of the TOD deed are not disputed. On May 10, 2004, a notary public from the attorney's office went to Cumbernauld Village to notarize the TOD deed prepared by the attorney. The notary signed the document, but she could not testify at trial as to any particulars because she could not recall the event. Others present during the execution of the TOD deed were Maureen, Mildred Moore, Deborah Keely, Bart, and Ryan. Maureen testified that Roxie was in her bed experiencing pain. Maureen handed the TOD deed to Roxie, who read the document. Maureen asked Roxie if they could get the staff to help her out of bed, but Roxie refused and told Maureen, "I want you to sign it." Maureen took the TOD deed and signed Roxie A. Moore's name as grantor "by Maureen Miles, Power of Atty."

         Bart and Ryan testified they were not visiting Roxie that day as witnesses. They were there only because it was Mother's Day. Both Bart and Ryan recalled the TOD deed being read out loud. Ryan asked Roxie, "Are you sure this is what you want to do, Grandma?" Roxie replied, "Yes." Deborah Keely, Maureen's friend, testified that Roxie told Maureen she was in a lot of pain and asked Maureen to sign the deed. She also saw Roxie look at the document and testified "something was read to her." The TOD deed was recorded the same day it was signed, directly after the general DPOA was recorded.

         Roxie passed away intestate on September 15, 2009. Upon her death, the ownership of the homeplace was transferred to Maureen by operation of the TOD deed. Had the real estate transferred pursuant to the laws of intestate succession and without a TOD deed, Harvey would have owned the homeplace. In October 2009, Harvey expressed a desire to build a home on the homeplace and learned from Bart that Maureen was the record owner of the property. On November 3, 2009, Maureen and her current husband executed a TOD deed naming Bart and Ryan as the beneficiaries. Three years later, Maureen and her husband signed a warranty deed conveying the homeplace outright to Bart and Ryan.

         Harvey later filed a petition for determination of descent of the homeplace. Bart and Ryan subsequently filed written defenses, claiming they were the legal owners of the homeplace, and filed a separate petition to quiet title and for declaratory judgment. After the two cases were consolidated, the parties filed cross-motions for summary judgment. The argument and the authorities cited in both motions focused almost exclusively on Maureen's legal authority under the DPOA to sign Roxie's name to the TOD deed.

         The district court granted, for the most part, Harvey's motion for summary judgment, finding Maureen did not have express authority pursuant to the DPOA to sign the TOD deed as attorney-in-fact for Roxie. Bart and Ryan moved to reconsider based upon a nonagency theory as to the validity of the TOD deed-the amanuensis theory. The district court granted the motion and set the matter for trial, limiting the issues to the nonagency theory because Maureen's authority under the DPOA had previously been decided.

         Following a trial on the amanuensis theory, the district court found that under Kansas law, a TOD deed may be signed by another. The district court then found that because Maureen was an interested amanuensis-one who would directly benefit from the transfer of title-the TOD deed was presumed invalid. Therefore, Maureen, Bart, and Ryan had the burden of proof to show that "Maureen's signing of Roxie's name was a mechanical act, in that Roxie intended to sign the TOD deed using the instrumentality of the amanuensis." The district court then addressed whether Roxie possessed the necessary mental capacity to execute the TOD deed and found that Harvey failed to meet his burden to show Roxie's lack of capacity. Next, applying a two-prong test to determine whether undue influence was exerted over Roxie, the district court found: (1) Maureen was in a confidential and fiduciary relationship with Roxie; and (2) suspicious circumstances surrounded the making of the TOD deed. Thus, undue influence was presumed. But the district court found sufficient evidence had been presented to overcome this presumption. The district court ultimately concluded that Roxie intended to sign the TOD deed, Maureen's signature was a mechanical act, and the presumption of invalidity of the TOD deed was overcome. Harvey timely appeals.

         I. The district court did not err in admitting evidence that Roxie instructed Maureen to sign the TOD deed

         We first address Harvey's contention that the district court erred by admitting parol evidence and hearsay that Roxie told Maureen to sign the TOD deed for her.

         A. Parol Evidence

         Harvey contends that the district court erred by "permit[ing] parol evidence to establish that Maureen signed the transfer-on-death deed not as attorney-in-fact but as the amanuensis of Roxie." Harvey apparently contends that Maureen's signing Roxie A. Moore's name as grantor "by Maureen Miles, Power of Atty." is part of the deed and is contradicted by oral testimony that she signed not as power of attorney, but in another capacity-as an amanuensis.

         The amanuensis rule provides that "[a] signature to an instrument may be attached by . . . the hand of another, at the request of a party . . . ." Kadota Fig Ass'n. v. Case-Swayne Co., 73 Cal.App. 2d 815, 819, 167 P.2d 523 (1946). "The Oxford English Dictionary (2d ed. 1989) defines 'amanuensis' as 'one who copies or writes from the dictation of another.'" Estate of Stephens, 28 Cal.4th 665, 671 n.1, 122 Cal.Rptr.2d 358, 49 P.3d 1093 (2002). Whether the district court erred in admitting this evidence raises a question of law which we review de novo. State v. Bowen, 299 Kan. 339, 348-49, 323 P.3d 853 (2014).

         Generally, the parol evidence rule provides that oral testimony of a prior agreement cannot be used to vary the terms of a written instrument. See State v. Hood, 255 Kan. 228, 236, 873 P.2d 1355 (1994).

"'When a contract is complete, unambiguous and free of uncertainty, parol evidence of a prior or contemporaneous agreement or understanding, tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible.'" Branstetter v. Cox, 209 Kan. 332, 334, 496 P.2d 1345 (1972) (quoting Thurman v. Trim, 206 Kan. 118, Syl. 2, 477 P.2d 579');">477 P.2d 579 [1970]).

         This rule is not a rule of evidence but of substantive law whose applicability is for the court to determine. Phipps v. Union Stock Yards Nat'l Bank, 140 Kan. 193, 197, 34 P.2d 561 (1934). Thus no contemporaneous objection is required.

         The parol evidence rule applies when parties to a contract dispute the terms of the written agreement. See Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, Syl. ¶ 3, 298 P.3d 250 (2013) (when a court finds the written contract language is ambiguous, parol evidence may be introduced to ascertain the intent of the parties). But Harvey was not a party to the TOD deed, and he has not shown that the parol evidence rule operates to protect him, a stranger to the transaction. Nor does he dispute the terms of the TOD deed itself or claim that mutual mistake prevented the formation of that deed.

         To the extent Harvey contends that the DPOA itself precludes parol evidence of subsequent oral authority, he errs, as the parol evidence rule precludes only a "'prior or contemporaneous oral agreement.'" See Branstetter, 209 Kan. at 334.

"[T]he parol evidence rule prevents a party to a written contract from attempting to vary its terms by relying on oral representations, be they characterized as negotiations or promises, made in discussions leading up to the agreement. [Citation omitted.] A written contract, in most instances, subsumes earlier oral discussions or agreements." Bouton v. Byers, 50 Kan.App.2d 34, 46, 321 P.3d 780 (2014), rev. denied 301 Kan. 1045 (2015).

         Evidence that Maureen signed the TOD deed as an amanuensis is not evidence of an agreement prior to or contemporaneous with the drafting of the TOD deed.

         Further, "there is a wide distinction between an attempt to contradict the terms of a written instrument and to explain the circumstances and conditions under which it was executed and delivered." In re Estate of Goff, 191 Kan. 17, 29, 379 P.2d 225 (1963). "[T]he parol evidence rule is not violated when the evidence tends to show the relation of the parties and the circumstances under which the contract was executed." Miles Excavating, Inc. v. Rutledge Backhoe & Septic Tank Services, Inc., 23 Kan.App.2d 82, 84, 927 P.2d 517 (1996) (citing In re Estate of Goff, 191 Kan. at 29.

         Such is the case here. Maureen's signature as "DPOA" reflects her subjective belief that she was authorized to sign the deed pursuant to her DPOA. Yet even assuming that the Kansas Power of Attorney Act would not have authorized Maureen's signature on this TOD deed, we find nothing in that Act, in the TOD deed itself, or in the parties' prior agreements to contradict or preclude Maureen's signing as an amanuensis. In short, Harvey fails to show that the challenged evidence is inadmissible parol evidence.

         B. Hearsay

         Harvey also mentions hearsay in his brief, but we are uncertain whether he intends to raise this argument on appeal. Harvey contends that he "asserted that the statements of Roxie sought to be admitted by Maureen were hearsay pursuant to K.S.A. 60-460." Those statements were apparently that Roxie was in a lot of pain and therefore asked Maureen to sign the TOD deed for her. To the extent Harvey intends to raise hearsay as a separate issue on appeal, we find no error for three reasons, which follow.

         First, Harvey has not shown that he properly preserved this issue at trial, as is necessary. The record shows that Harvey raised a hearsay objection to this evidence during the initial summary judgment motion related to the DPOA, and the district court found a hearsay exception applied. But Harvey did not make a contemporaneous objection to this evidence at the subsequent trial on the issue of amanuensis, as is necessary. See State v. Kelly, 295 Kan. 587, 590, 285 P.3d 1026 (2012) (explaining the contemporaneous objection rule and finding that a pretrial ruling is not sufficient because the materiality of the proposed evidence may not become apparent until other evidence has been admitted); State v. Bogguess, 293 Kan. 743, Syl. ¶ 1, 268 P.3d 481 (2012) (finding the exception to the contemporaneous objection rule is explicitly limited to a bench trial on stipulated facts). By not renewing his hearsay objection at trial, Harvey waived it.

         Second, to the extent Harvey argues on appeal that this evidence was inadmissible hearsay, this argument is raised only incidentally in his brief and is neither argued nor supported with pertinent authority. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).

         Third, even if we had addressed the hearsay issue on its merits, Harvey would not have succeeded. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. K.S.A. 2016 Supp. 60-460. The trial court admitted the challenged testimony (that Roxie told Maureen she was in a lot of pain and asked Maureen to sign the TOD deed for her) under the following exception to the hearsay rule: "a statement of the declarant's [] then existing state of mind, emotion or physical sensation, including statements of . . . bodily health . . . when such a . . . physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant." K.S.A. 2016 Supp. 60-460(1). The court cited Laterra v. Treaster, 17 Kan.App.2d 714, 720-21, 844 P.2d 724 (1992), which affirmed the admission of decedent's statements regarding his intent and plans for his son's future as expressions of his then-existing state of mind. Harvey's sole challenge to the district court's ruling is to state that Laterra is "not on point as there was no writing by which the statements of Laterra were being sought to interpret." Harvey's argument appears to relate more to parol evidence than to hearsay and fails to show error in the district court's analysis.

         We believe Roxie's direction for Maureen to sign the deed for her is not hearsay, but is instead a verbal act.

"'A second kind of situation in which utterances are not offered testimonially arises when the utterance accompanies conduct to which it is desired to attach some legal effect. The conduct or act has intrinsically no definite significance, or only an ambiguous one, and its whole legal purport or tenor is to be more precisely ascertained by considering the words accompanying it. The utterance thus enters merely as a verbal part of the act, or, in the ...

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