IN THE MATTER OF THE ESTATE OF JAMES V. GRANT, Deceased REBECCA A. GRANT, Plaintiff-Appellant, vs. AISHA R. GRANT-DALEY, FLOR-MARIA GRANT, SUZETTE GRANT-MCTAGGERT, KAREEM SEGLER, JAMIE-LEE GRANT and GREGORY J. FENDER, Executor of the Estate of James V. Grant, Defendant-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-741 / 08-1814
Filed December 30, 2009
IN THE MATTER OF THE ESTATE OF
JAMES V. GRANT, Deceased
REBECCA A. GRANT,
Plaintiff-Appellant,
vs.
AISHA R. GRANT-DALEY, FLOR-MARIA
GRANT, SUZETTE GRANT-MCTAGGERT,
KAREEM SEGLER, JAMIE-LEE GRANT and
GREGORY J. FENDER, Executor of the Estate
of James V. Grant,
Defendant-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Kristin L. Hibbs,
Judge.
Plaintiff appeals from a jury’s determination that she had no authority to
change the beneficiary of decedent’s life insurance policy and that decedent was
not unduly influenced in executing a will. AFFIRMED.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
Dennis J. Mitchell of Meardon, Sueppel & Downer, P.L.C., Iowa City, for
appellees Aisha R. Grant-Daley, Flor-Maria Grant, Suzette Grant-McTaggert,
Jamie-Lee Grant, and Kareem Segler.
2
Steven E. Ballard of Leff Law Firm, L.L.P., Iowa City, for appellee Gregory
J. Fender.
Joseph T. Moreland of Hayek, Brown, Moreland & Hayek, L.L.P., Iowa
City, for appellee Gregory J. Fender.
Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
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SACKETT, C.J.
Rebecca A. Grant, the wife of decedent James V. Grant, appeals,
challenging a jury verdict finding she was without authority to submit forms
changing the recipient of James’s life insurance policy and retirement accounts to
herself and that James was competent and not unduly influenced when he
executed a will prior to his death. The other parties to the action, the executor of
James’s estate and his five children, disagree. We affirm.
I. BACKGROUND AND PROCEEDINGS. James Grant died on July 23,
2007, leaving his surviving spouse, Rebecca, and five children, Aisha GrantDaley, Flor-Maria Grant, Suzette Grant-McTaggert, Kareem Segler, and JamieLee Grant. He had married Rebecca on January 1, 2006. The children were all
the products of other relationships.
James, a long-term employee of the
University of Iowa, was diagnosed with cancer in 2005, and in March of 2007,
was advised that the cancer was terminal.
On June 10, 2007, James allegedly signed a document that, while
professing love for his five children, disinherited them and basically left
everything to Rebecca. James was hospitalized on July 5, 2007. On July 11,
2007, James advised Rebecca in the presence of others from his hospital bed
that he intended to divorce her.1 On July 12, 2007, Rebecca filed a petition
contending she was abused by James2 and a no-contact order was issued
1
A dissolution petition was prepared by his attorney but never filed.
She alleged that on July 5 he pushed her, threw water at her and her shoes, pulled
her eight-year-old daughter, who was not James’s biological child, outside and would not
let her go until their pastor pulled up to the house. She also alleged he always threw
water on her or pushed her.
2
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prohibiting any communication or contact by James, who remained hospitalized. 3
On July 13, 2007, James executed a will leaving all his property to his five
children. On July 18, 2007, he executed a General Power of Attorney directing
that his former wife, Janet Richardson, be his attorney-in-fact.
On July 19, 2007, Rebecca delivered change of beneficiary forms to the
benefits office of the University of Iowa designating her as the sole beneficiary of
James’s life insurance and TIAA-CREF accounts. The forms purportedly were
signed by James on or about May 1, 2007.
James died on July 23, 2007.
On August 1, 2007, Greg Fender, the
executor nominated in James’s July 13, 2007 will, filed a petition for probate of
that will and a request that he be appointed executor. An order admitting the will
and appointing him executor was entered that day.
Fender, as executor, on August 29, 2007, filed a petition for declaratory
judgment4 asking that the court find that the change of beneficiary forms
Rebecca delivered on July 19, 2007, did not manifest decedent’s intention and
were not authentic.
Fender also asked for a temporary injunction enjoining
Rebecca from transferring or expending funds from the life insurance policies
and retirement accounts.
On September 12, 2007, Rebecca filed a petition seeking probate of the
June 10, 2007 will. On September 13, 2007, she filed a petition for declaratory
judgment asking that the court declare the June 10, 2007 will to be decedent’s
3
On July 18, 2007, she asked that the order be cancelled, and the district court
cancelled it.
4
James’s five biological children subsequently joined in the action.
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valid will and that the July 13, 2007 will was a nullity. She further asked that
Fender be removed as executor and his attorney be removed.
The declaratory judgment actions were joined and a jury trial was held in
September of 2008. After hearing the evidence, the jury responded to a series of
interrogatories.5 The district court then filed an order determining that the jury
found James had the mental ability to make the July 13, 2007 will and it was not
the result of undue influence.
The court further granted the petition of the
executor and James’s five children for declaratory judgment and declared that
the change of beneficiary forms Rebecca delivered to the University of Iowa had
no effect as the jury found they were delivered without authority.
Rebecca filed a motion for new trial arguing, among other things, that the
jury was improperly instructed and that she was prejudiced by the grant of a
motion in limine limiting the admission of evidence about Jamie-Lee Grant, one
of James’s children and a party to this action. The motion was denied and this
appeal follows.
II.
INSTRUCTIONS ON PRINCIPAL-AGENT RELATIONSHIP.
The
review of a challenge to jury instructions is for correction of errors at law.
Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 265 (Iowa 2000).
5
The jury was instructed to answer whether the beneficiary designation on the life
insurance policy and on the TIAA-CREF accounts contained the authorized signatures of
James Grant. The jury answered “yes” to this question. The jury was also asked to
answer whether Rebecca had authority to file the change of beneficiary forms on July
19, 2007. To this question the jury answered “no.” The jury was further instructed to
answer whether James had the mental ability to make the July 13, 2007 will. To this
question the jury answered “yes.” The jury was also instructed to answer whether that
will resulted from undue influence. To this question the jury answered “no.”
6
Rebecca contends the district court erred in instructing the jury she must
prove the requirements of a principal-agent relationship in connection with her
delivery of beneficiary designations to the University. She argues the jury should
not have been instructed that she had to prove she had authority as an agent for
her husband as principal to file the change of beneficiary forms.
The estate and James’s children contend the instructions given are
supported by law. They argue that the burden of proving an agency relationship
is on the party asserting its existence, namely Rebecca. They assert she had the
burden of proving she had the manifest consent of James, as principal, and she
acted on his behalf and subject to his control and consent. In order to bind him,
they contend, she must have had previous authorization from James with his
express or implied knowledge that ratified the filing of the change of beneficiary.
The estate contends that error on this issue was not preserved.
Rebecca states she objected to the agency instructions. When asked to
make a record her attorney stated:
First of all, with respect to the general submissibility of the
instruction on agency, the suggestions and comments made when
we were discussing these informally, I would object because I do
not believe that normal agents and principals ought to apply in the
context of the delivery of beneficiary designations between
husband and wife.
One of the instructions that Rebecca appears to argue should not have
been given is that instruction that was designated as Instruction 20 which
provides in relevant part:
Rebecca A. Grant has the burden of proving that she had
been authorized and directed by Mr. Grant, as his agent, to file the
change of beneficiary forms for the life insurance policies and the
TIAA-CREF accounts by proving the following:
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1. That James Grant had manifested his consent for
Rebecca A. Grant to file each change of beneficiary form and that
consent continued through July 19, 2007; and
2. That Rebecca A. Grant was acting subject to James
Grant’s consent and control when she filed each change of
beneficiary form on July 19, 2007; and
3. That any authority for Rebecca Grant to act on behalf of
James Grant on July 19, 2007, had not been revoked or
terminated.
After Rebecca’s attorney had made the objection above when addressing
what instructions should be given as to agency, Rebecca’s attorney stated:
With respect to the language of the instructions on agency, I will
state that we had substantial discussion of those outside –
substantial discussion before we made the record, and I would
state that Exhibit (sic) 20 reflects a substantial effort by all parties to
craft the best language possible given the legal determination made
by the Court, and I do not have any objections to the language
used in Instruction 20 or any of the other instructions other than
with respect to Instruction Number 23, because I believe that
instruction should have language that indicates Rebecca Grant
should have known the permanent loss of capacity at the time she
filed the beneficiary designations.
(Emphasis supplied).
We agree that the burden of proving an agency
relationship is upon the party asserting its existence. Benson v. Webster, 593
N.W.2d 126, 130 (Iowa 1999); Kanzmeier v. McCoppin, 398 N.W.2d 826, 830
(Iowa 1987). An agency relationship exists where there is “(1) a manifestation of
consent by one person that another shall act on the former’s behalf and subject
to the former’s control and (2) the consent of the latter to so act . . . .” Mermigis
v. Servicemaster Indus., Inc., 437 N.W.2d 242, 246 (Iowa 1989). The primary
consideration in determining whether an agency relationship exists is the
principal’s right of control. See id. Furthermore, there is no presumption that a
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spouse acts as an agent for his or her spouse based only on the marriage
relationship.
41 C.J.S. Husband and Wife § 87, at 464-65 (2006), provides:
An agency relationship between a husband and wife is not
presumed based solely upon their marital relationship and neither
spouse is empowered to act as agent for the other simply because
they are married. Rather, the existence of an agency between a
husband and wife is a question of fact, resting upon the same
considerations or rules applying to any other agency. Marriage is a
factor to be considered in determining if an agency relationship
exists and the effect of the marriage relationship has been said to
make it more likely that other circumstances will be found to raise
an inference of agency.
Additionally, Rebecca, having raised no objection to the language of
Instruction 20 as given, cannot challenge it being given at this time.
It is a
fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); Metz v. Amoco Oil Co.,
581 N.W.2d 597, 600 (Iowa 1998).
We therefore move to her challenge to instruction number 23 which
provided:
An individual principal’s loss of capacity to do an act
terminates the agent’s actual authority to do the act.
The
termination is effective only when the agent has notice that the
principal’s loss of capacity is permanent.
If you find that on July 19, 2007, James Grant had
permanently lost the mental capacity to change the beneficiaries on
his life insurance and retirement accounts and on July 19, 2007,
Rebecca Grant knew of his permanent loss of capacity, then you
must find that Rebecca A. Grant did not have authority to file the
change of beneficiary forms on July 19, 2007.
(Emphasis supplied).
9
Rebecca is arguing here that the instruction should have required that
Rebecca had notice of James’s lack of capacity. We need not and do not decide
whether the instruction should have required that Rebecca have notice of James’
lack of capacity as the language of the instruction given instructs as Rebecca
requested. We find no reason to reverse on this issue.
The estate and James’s children also argue that there is no credible
evidence to show any agency. Rebecca suggests there is evidence. Whether
an agency exists ordinarily is a fact question and there must be substantial
evidence on the question to generate a jury question; a scintilla is not enough.
Martin v. Jaekel, 188 N.W.2d 331, 333-34 (Iowa 1971). There was no error
made in instructing the jury. We affirm on this issue.
Rebecca also argues for the first time on appeal that these instructions are
in error, for Iowa does not require strict adherence to agency law in connection
with delivery of beneficiary designations. She cites two cases in support of this
argument: Isgrig v. Prudential Ins. Co. of Am., 242 Iowa 312, 316 45 N.W.2d
425, 427 (1951), and Jacobs v. Abraham Lincoln Life Ins., 223 Iowa 1157, 116061, 274 N.W. 879, 881 (1937).
Without addressing the issue of error preservation, we find that neither
case supports Rebecca’s argument. Isgrig dealt with the failure of the insurance
company to note on a life insurance policy a change of beneficiary made by the
insured at an office of the insurer under the supervision of its agents and
delivered to an agent of the insurer, but not delivered to the home office. 242
Iowa at 316, 454 N.W.2d at 427. The court addressed the issue of the ministerial
10
duty of the company and did not address the issue of the authority of a person
delivering a change of beneficiary form. See id. Jacobs addressed compliance
with change of beneficiary designations and again did not deal with the authority
of the person delivering a change of beneficiary form, the issue here.
See
Jacobs, 223 Iowa at 1160-61, 274 N.W. at 881.
III. EXCLUSION OF EVIDENCE.
Rebecca contends the district court
should not have excluded evidence that Jamie-Lee Grant, a son of James, was
being investigated for allegedly assaulting a minor. She contends she should be
granted a new trial because of this exclusion.
We review a district court’s decision on the admissibility of evidence for an
abuse of discretion. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
An offer of proof is generally necessary to preserve error. State v. Lange, 531
N.W.2d 108, 114 (Iowa 1995). We will not presume prejudice when the answer
to the question is not obvious and the proponent made no offer of proof. Id.
Rebecca contends an offer of proof was made in connection with the
event. The estate and James’s children deny that such an offer was made.
Rebecca’s brief does not advise us where in the record the offer of proof was
made, consequently we accept the representation of the estate and James’s
children it was not made. The question then is whether it is obvious from the
record.
In support of her argument Rebecca’s brief tells us, without making a
reference to where in the record the evidence appears, that before James went
to the hospital he told Rebecca he was concerned his son was being investigated
11
for assaulting children who participated in a tennis program Jamie-Lee taught.6
Rebecca argues, without citing any authority that evidence she sought to admit
was probative on the issue of undue influence as showing there was an
investigation ongoing.7 She contends, again without any reference to where this
evidence appears in the record, that after his father’s death Jamie was charged
in Johnson County with assault causing injury and he filed a motion in limine to
keep this information out at the time of the present trial. According to Rebecca’s
brief, no formal ruling was made on the motion. However, after the estate and
James’s children objected to a question posed by Rebecca’s counsel to JamieLee on the ground that the question violated the motion in limine, a recess was
called. The discussion with the judge during that recess indicates the parties
knew the motion was granted. Nonetheless, the extent of the ruling may not
have been as clear. The court ruled, “there being no request of the Court based
on this violation of the court’s limine motion we will go ahead and proceed.” It is
not obvious what evidence Rebecca was prevented from introducing, she cites
no authority for her position that any answer elicited by the question was
6
We do find in the appendix that on cross examination Jamie testified that he told his
father in July it was his belief that Rebecca was trying to get him in trouble about his
disciplinary action at the tennis facility where he was a coach and that a young child had
made a complaint. However, the fact we were able to find the information does not
relieve Rebecca from abiding by Iowa Rule of Appellate Procedure 6.14(7). This rule
provides in relevant part that, “[r]eferences in the final briefs to portions of the record
shall be to the pages of the appendix at which those parts appear.” Iowa R. App. P.
6.14(7).
7
Iowa Rule of Appellate Procedure 6.14(1)(c) provides in relevant part, “[f]ailure in the
brief to state, to argue or to cite authority in support of an issue may be deemed waiver
of that issue.”
12
admissible, and she makes no attempt to show she was prejudiced by the
omission of the alleged evidence. We affirm on this issue.
IV. MOTION FOR NEW TRIAL. Rebecca also contends she should have
a new trial because of the rulings on both of these issues. We disagree.
AFFIRMED.
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