Daphne Barrios v. Regina C. Necaise
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00532-COA
IN THE MATTER OF THE CONSERVATORSHIP OF ARTHUR R.
MORAN: DAPHNE BARRIOS, REGGIE BARRIOS AND ALDEN R.
MORGAN
v.
REGINA C. NECAISE AND GARRIE D. NECAISE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANTS
APPELLEES
03/02/2001
HON. WALTER WESLEY TEEL
HANCOCK COUNTY CHANCERY COURT
WILLIAM W. DREHER JR.
RONALD J. ARTIGUES JR.
CIVIL - WILLS, TRUSTS AND ESTATES
PETITION TO SET ASIDE DEEDS AND SUBSTITUTE
PLAINTIFFS AS CO-CONSERVATORS OF THE
ESTATE OF ARTHUR R. MORAN DENIED
AFFIRMED - 07/16/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
8/6/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND BRANTLEY, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Arthur R. Moran conveyed two tracts of land to his daughter, Regina C. Necaise. Other relatives
brought suit, claiming that Moran was not mentally competent when he executed the deeds or that undue
influence was used to obtain them. From a decision upholding the deeds, the other relatives appeal. There
was sufficient evidence to support the chancellor's decision. We affirm.
STATEMENT OF FACTS
¶2. Arthur Moran conveyed to his daughter Regina Necaise two tracts that became the focus of this
litigation. They were contiguous blocks in the Clearmont Highlands Subdivision in Hancock County,
Mississippi, being Blocks 20 and 21. They were conveyed in 1997 and 1995, respectively. Moran is now
deceased, having died while this case was pending on appeal. In his will, executed in 1986 before any
doubts about mental competence existed, Moran provided that Block 21 would be devised to Regina
Necaise. The appellants have abandoned any claim to that land. Block 20 was under the will devised to the
appellant Alden Moran and to Alden's sister Wilma, who died in 1997.
¶3. Arthur Moran was in his late eighties at the time of the trial. In addition to other ailments, Moran
suffered from Alzheimer's disease. The uncertain evidence on when the disease became sufficiently
advanced as to render him incompetent will be discussed below. In February 1998, the chancery clerk was
appointed as conservator to manage Moran's affairs.
¶4. Moran conveyed Block 20 to his daughter Regina Moran Necaise on October 17, 1997. Mrs. Necaise
testified that her father on his own initiative decided to make this conveyance; she did not coax him.
Necaise believed that her father wanted her to have this parcel of land because it was directly in front of and
adjoining the other tract that he had deeded to her in 1995. Under his direction, Mrs. Necaise had the deed
prepared by a local attorney, Gerald Gex.
¶5. Attorney Gex testified that because Arthur Moran was advanced in age, he interviewed Moran outside
the presence of Mrs. Necaise prior to preparing the deed, to determine if he understood the nature and
consequences of the conveyance as well as to assure that he was acting independently of any outside
influences. In Gex's opinion, on the date of the deed, Moran was lucid, acting under his own free will, and
able to understand the nature and results of his actions.
¶6. Mary Beth Arnold, who was Gex's legal secretary and the notary public on the 1997 deed, stated that
before Moran signed the deed, she ascertained that he was lucid and acting voluntarily. Arnold based this
determination on a conversation that she had with Moran of approximately ten to fifteen minutes in length.
This conversation occurred outside the presence of any other person. On the day that Moran executed the
deed, he had an injured leg, which prevented him from getting out of Necaise's vehicle. Arnold went out to
the car to have Moran execute the deed. Arnold testified that she and Moran were alone when he signed
the deed and that she had no doubt that he was aware of his actions.
¶7. The three plaintiffs in this litigation are Daphne Barrios and Reggie Barrios, who are Arthur Moran's
grandchildren, and Arthur's brother, Alden Moran. Daphne Barrios's mother, Wilma Barrios, was Moran's
primary care giver until she died in August of 1997. After that time, Daphne had the responsibility of
Moran's care. Shortly after Wilma Barrios's death, home health care personnel advised the family that
Arthur Moran needed constant supervision.
¶8. Daphne Barrios testified that for a two-week period prior to Moran's coming to live with her, that Mrs.
Necaise stayed with Moran. There was conflicting testimony as to exactly what time period this two week
visit encompassed. Both of the plaintiff-grandchildren stated that it was during his stay with Mrs. Necaise
that Moran deeded Block 20 to her.
¶9. Dr. Irene Koskan, who was Moran's physician for more than a decade, provided testimony by way of
a deposition. Dr. Koskan stated that she first diagnosed Moran as having Alzheimer's in 1997. She
described his then-current mental state at the time of the 2000 deposition as confused and disoriented.
Further, she testified that Moran's mental condition had progressively diminished over the previous five
years. She believed that the stress of losing two close family members had accelerated the effects of
Alzheimer's on Moran. Dr. Koskan stated that she examined Moran in February and in December of 1997,
and he was confused and agitated on both dates. She did not state that he was incompetent to understand
the execution of a deed, however.
¶10. After a hearing in January 2001, the chancellor upheld the deed to Block 20. Daphne Barrios, Reggie
Barrios and Alden Moran appeal.
DISCUSSION
I. Mental Capacity
¶11. A properly executed deed carries with it a presumption that the grantor was mentally competent at the
time of execution. Richardson v. Langley, 426 So. 2d 780, 786 (Miss. 1983). To show otherwise
requires clear and convincing evidence. In re Estate of Green, 755 So. 2d 1054, 1055 (Miss. 2000). It is
not enough to show that at the time of the conveyance the grantor was suffering from a general mental
weakness or condition; mental incapacity and insanity are not always permanent and a grantor may
experience a lucid interval when he would possess the mental capacity to understand the legal
consequences of his actions. Whitworth v. Kines, 604 So. 2d 225, 228 (Miss. 1992). It must be shown
that, at the moment of execution, the grantor lacked the required mental capacity or was permanently
insane. Id. at 229.
¶12. The deed was executed on October 17, 1997. Medical testimony was presented from Dr. Koskan
that she examined Moran twice in 1997, once in February and again in December. Her notes revealed that
he was confused and agitated on those dates. There was no testimony from Dr. Koskan, or any other
source, that would establish that Moran was mentally incompetent on the date he executed the deed. Dr.
Koskan's testimony did not provide a specific date as to when Moran was diagnosed with Alzheimer's.
¶13. Conversely, there was testimony from the attorney and a secretary who participated in the preparation
and execution of the deed that Moran appeared competent at that time to them.
¶14. The chancellor found insufficient evidence of mental incapacity. A chancellor's fact-findings will be
upheld absent manifest error or the lack of substantial evidence to support them. Whitworth v. Kines, 604
So. 2d at 228. We find substantial evidence and no manifest error.
II. Weakness of Intellect
¶15. Even if Moran were not completely incompetent, the plaintiffs argue that he suffered from a weakness
of intellect. Such a weakness, when coupled with some other factor such as grossly inadequate
consideration or the existence of a confidential relationship, may lead to setting aside a deed. In re Estate
of Green, 755 So. 2d at 1055.
¶16. Confidential relationship. A confidential relationship exists "when a dominant over-mastering
influence controls over a dependent person or trust, justifiably reposed." In Re Estate of Dabney, 740 So.
2d 915, 919 (Miss. 1999). The following factors must be considered:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close
relationship with another, (3) whether one person is provided transportation and has their medical
care provided for by another, (4) whether one person maintains joint accounts with another, (5)
whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and
(7) whether there exists a power of attorney between the one and another.
Id. The chancellor made specific findings of fact to support his conclusion that no confidential relationship
existed. Among the matters relied upon were these:
(1) Moran was alert and in good spirits when the deed was executed;
(2) Moran drove his own car (though perhaps not far), and handled his finances;
(3) Moran eventually became dependent but not upon Regina Necaise; instead, he depended upon
the appellant Daphne Barrios;
(4) Mrs. Necaise was not given any authority over bank accounts, or to handle his finances.
¶17. What the chancellor faced was conflicting testimony and an elevated evidentiary standard of clear and
convincing proof of a confidential relationship. The chancellor analyzed the Dabney factors and made
reasonable and explicit findings of fact to support that no confidential relationship existed between Mrs.
Necaise and Moran. We find no manifest error in the findings.
¶18. Inadequate consideration. Weakness of intellect that does not fall to the level of incompetence may
still invalidate a conveyance if inadequate consideration existed. Love and affection will suffice as
consideration. Holmes v. O'Bryant, 741 So. 2d 366, 370 (Miss. Ct. App. 1999). That a father would
wish to give land to his daughter is not unreasonable, though we accept that other and perhaps equally
beloved family were thereby provided less. "A man of sound mind may execute a will or a deed from any
sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or
even a whim or caprice." Herrington v. Herrington, 232 Miss. 244, 250-51, 98 So. 2d 646, 649 (1957)
(quoting Burnett v. Smith, 93 Miss. 566, 47 So. 117, 118 (1908)).
¶19. Moran may have suffered from weakness of intellect. That standing alone, and we find that it did stand
alone, is insufficient here. In re Estate of Green, 755 So. 2d at 1055.
III. Undue Influence
¶20. The plaintiffs argue that Regina Necaise used undue influence on Mr. Moran. This is defined as an
"improper use of power or trust in a way that deprives a person of free will and substitutes another's
objectives." Black's Law Dictionary, 1529 (Bryan A. Garner ed., 7th ed, West 1990). There is a
presumption of undue influence where a confidential or fiduciary relationship is shown to exist between a
grantor and grantee. Vega v. Estate of Mullen, 583 So. 2d 1259, 1263 (Miss.1991).
¶21. We have already upheld the chancellor's finding that no confidential relationship existed. The
chancellor was concerned that Mrs. Necaise had been actively involved in the procuring of the deed, but
determined ultimately that these circumstances were "adequately explained."
¶22. We find substantial evidence to support that undue influence did not arise from the assistance that
Regina Necaise provided to Mr. Moran in having the deed prepared and executed.
¶23. The chancellor had to determine whether Mr. Moran was mentally incompetent or had been
improperly influenced when executing the 1997 deed. There was inconclusive evidence on which inferences
had to be drawn. Perhaps largely relying on the burden of proof, the chancellor found that insufficient
evidence was presented to cause the setting aside of the deed. In this family dispute, it is likely that
whatever conclusion was reached would not have been accepted as fair by the unsuccessful party. We are
one step removed from the presentation of evidence and must give deference to the fact-finder regarding the
evidence. We find no basis for reversal.
¶24. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS
AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND
BRANTLEY, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
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