In re the Estate of Robert Buchanen Cameron, a/k/a Robert B. Cameron.

In re the Estate of Robert Buchanen Cameron, a/k/a Robert B. Cameron. A06-2157, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2157

 

In re the Estate of

Robert Buchanen Cameron,

a/k/a Robert B. Cameron.

 

Filed August 21, 2007

Affirmed

Halbrooks, Judge

 

Itasca County District Court

File No. PR-05-2631

 

Hugh A. Cameron, P.O. Box 707, Deer River, MN 56636 (attorney pro se)

 

Leif A. Nelson, 515 Northeast Second Avenue, Grand Rapids, MN 55744 (for respondent Estate of Robert Cameron)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court's denial of his motions for amended findings or amended judgment, new trial, and attorney fees arguing that the district court (1) abused its discretion when it denied his claim for $388,749 in attorney fees; (2) erred when it determined that his father's May 3, 2005 will was not the product of undue influence; and (3) abused its discretion when it denied his motions without addressing his motion to compel discovery.  We affirm. 

FACTS

Testator Robert Cameron died on July 5, 2005, survived by his three sons, Donald Cameron, Lee Cameron, and appellant Hugh Cameron.  In 1983, Robert and Louise Cameron, Robert's predeceased wife, acquired 100% of the shares in the First National Bank of Deer River.  During his lifetime, Robert served as president and director of the bank as well as chairman of the board.  Robert and Louise established separate revocable trusts, each of which contained one-half of the bank shares.  Lee Cameron served as co-trustee of both trusts.

On April 8, 2005, Robert entered into a stipulation and agreement with Lee and Donald, whereby they agreed to dismiss a number of pending lawsuits in which they were opposing parties.  In consideration of the stipulation and agreement, Robert agreed to execute a will within 15 days that contained a number of provisions set forth in the agreement, including: (1) the division of Robert's estate equally between Lee and Donald; (2) language stating that "[a]ny claim against Robert B. Cameron's estate for fees, services or other matters, made by [appellant], to the extent allowed, have been fully satisfied as of the date hereof"; (3) terms revoking any prior executed wills and agreeing not to reinstate such wills or to execute another will revoking the provisions of the will "described and agreed to herein"; and (4) language disinheriting appellant.  The agreement further stated that "Robert B. Cameron shall not retain or designate [appellant], . . . as his attorney or as his Attorney in Fact for any purpose and any prior document whereby he has previously done so is hereby revoked."

            Robert executed his last will and testament, "revok[ing] any and all prior wills and codicils" on May 3, 2005.  The will provides in section 4.1 that the residuary estate should be given to Lee and Donald in equal shares.  The will further states in section 4.3:

                        Omission to Provide for [appellant] and His Issue.  During my lifetime, my said son [appellant], contrary to my wishes and contrary to my best interests, had me convey several parcels of real estate in Itasca County, Minnesota, to him and his children and the remainder interest in my homestead in Itasca County, Minnesota, to him.  Despite numerous requests from me that he cause those parcels of real estate to be reconveyed to me and that he reconvey said remainder interest to me, my said son [appellant] has repeatedly refused to do so.  Accordingly, I have made no provision for my said son or any of his issue in this Will.  In making this Will, I am aware that I have made no provision for my said son or for any of his issue.  Such omission is intentional and has not been occasioned by accident or mistake.  I intend to continue my efforts to have those parcels of real estate and said remainder interest reconveyed to me during my lifetime and, if I am not successful in accomplishing that prior to my death, I authorize the Personal Representatives of my estate to continue to pursue my efforts after my death and to have said parcels of real estate and said remainder interest reconveyed to my estate. 

 

                        In the event [appellant] voluntarily delivers a valid warranty deed to me conveying to me all the real estate he had me convey to him, then I reserve the option to change this will to provide for an equal distribution between my three sons.

 

            The will was witnessed by Debra L. Sagedahl and Jerry S. Ophoven, who declared that Robert

signed and executed the [will] as his last will, that he signed it willingly, that he executed it as his free and voluntary act for the purposes therein expressed, and that the witnesses . . . signed the will as witnesses, and that to the best of their knowledge the testator was at the time of legal age, of sound mind and under no constraint or undue influence.

 

On October 24, 2005, appellant filed a claim against Robert's estate in the amount of $388,749 for "legal services performed for Robert B. Cameron as requested, from October 2001 to November 2004."  Appellant attached a number of billing statements to the claim.  But the probate court disallowed appellant's claim in its entirety, and appellant subsequently petitioned the district court for an allowance of his claim.  In an accompanying memorandum, appellant argued that he

was requested by Robert to work on at least sixteen separate legal matters:  (1) trusts; (2) obtaining information withheld by Lee on trust and bank matters; (3) sale of the bank; (4) bank stock problems; (5) bank management matters; (6) bank loan problems; (7) board of directors' matters; (8) bank investment matters; (9) bank personnel problems; (10) bank regulator problems including cease and desist order and strategic plan and civil money penalties; (11) Federal Reserve Bank problems; (12) hearings as to memoranda and gathering evidence and exhibits and faxes; (13) minority shareholder issues; (14) refusal to follow court orders by Lee; (15) Lee['s] refusal to follow terms of trusts; (16) Bank and Lee cutting off all income and wrongful termination of Robert. 

 

            The district court granted Lee and Donald's petition to admit Robert's will to probate, concluding that Robert "had sufficient testamentary capacity to make and execute the will" and that the will was "not the product of undue influence."  Specifically, the district court reasoned that in making the will, "Robert Cameron met with [his attorney] several times and took the will home with him for review" and that the "will [wa]s consistent with the April 2005 mediated agreement."

But appellant subsequently moved for amended findings and amended judgment, seeking to void the will on the grounds of undue influence and because the will did not reflect Robert's intent.  Specifically, appellant alleged that Lee and Donald "pressured [Robert] to . . . disinherit [appellant]."  In the alternative, appellant sought an order compelling the discovery of additional evidence allegedly showing undue influence, to be followed by a new trial pursuant to Minn. R. Civ. P. 59.01 on the issue of undue influence.  The district court issued an order denying appellant's motions for amended findings and amended judgment, new trial, and $388,749 in legal fees. 

            This appeal follows. 

D E C I S I O N

            Under Minn. Stat. § 524.3-407 (2006), persons contesting a will have the burden of proving lack of testamentary capacity and undue influence.  In re Estate of Torgersen, 711 N.W.2d 545, 550 (Minn. App. 2006), review denied (Minn. June 20, 2006); see also In re Estate of Peterson, 283 Minn. 446, 448, 168 N.W.2d 502, 504 (1969) (stating that "the contestant has the burden of establishing by clear and convincing evidence that a will was procured by undue influence").  On appeal from a probate court's decision after a trial without a jury, "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.  "Findings of fact are clearly erroneous only if [this] court is left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  In applying Minn. R. Civ. P. 52.01, "we view the record in the light most favorable to the judgment of the district court."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  This court will not reverse the district court's judgment merely because we view the evidence differently.  Id.  In addition, "this court will not reverse a [district] court's award or denial of attorney fees absent an abuse of discretion."  Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987); see also Torgersen, 711 N.W.2d at 550 (same).  

I.

            Appellant argues that he is entitled to legal fees in the amount of $388,749 for services he provided Robert Cameron from October 2001 through November 2004.  Minn. Stat. § 549.01 (2006) provides that "[a] party shall have an unrestricted right to agree with an attorney as to compensation for services, and the measure and mode thereof . . . ."  "The essentials of such contracts, whether oral or written, express or implied, are the same as any other contracts."  Kittler & Hedelson v. Sheehan Props., Inc., 295 Minn. 232, 235, 203 N.W.2d 835, 838 (1973).  "When a fee agreement is fairly entered into with the client and involves no fraud by the attorney, it is as valid and binding as other contracts not involving a fiduciary."  Id.  But "while the freedom to contract between attorney and client is unimpaired, agreements made after services have been rendered should be closely scrutinized to see that there has been no overreaching and that the client was fully informed."  Id. 

            Appellant contends that he is entitled to legal fees for services he provided to Robert because Robert requested appellant's legal expertise and because appellant provided Robert with "accurate and detailed itemized monthly statements" of the amounts Robert owed for the requested services.  But the record does not support the conclusion that appellant and Robert had an agreement with regard to the exchange of legal services for compensation.  First, appellant admits that he and Robert did not have a written agreement for the legal services he allegedly provided to Robert.  While this fact alone is not dispositive, the record further shows that after appellant had submitted a bill to Robert in a previous matter for legal work he had done on October 4, 1999, Robert sent appellant a letter stating, in part:

                        About the Bird's Eye matter (2nd time) you recommended that I again hire Kent A. because of his previous knowledge.  I was of the belief you were sitting in on our discussions on a father/son kind of relationship.

 

                        When you told me that you wanted to be paid you said you would accept from me whatever amount I thought . . . .

 

                        . . . .

 

                        In the future, if you are to participate in my legal affairs, I want you to set forth your terms for payment in writing.

 

                        I want to put this "pay" matter behind us.  If you believe that you have money due you will you please advise by writing to me within the next 10 daysand send a copy to Kent. 

 

Moreover, the stipulation and agreement signed by Robert in April 2005 provides that "[a]ny claim against Robert['s] . . . estate for fees, services, or other matters, made by [appellant], to the extent allowed, have been fully satisfied as of [April 8]."

            The testimony of two of Robert's attorneys supports the conclusion that appellant was not providing legal services to Robert pursuant to any agreement between appellant and his father.  James Stewart, an attorney who assisted Robert beginning in December 2001 in amending his estate plan, testified that appellant accompanied Robert to most of their meetings and that, after reviewing the itemized statements that appellant sent to Robert, it appeared to him that appellant was charging Robert for the same services that Stewart provided, despite the fact that Stewart had not engaged appellant to assist him.  Stewart also testified that neither appellant nor Robert told him that Robert had engaged appellant to represent Robert, noting that

            if anyone, [appellant] or [Robert] . . . had ever suggested to me that [appellant was] representing [Robert] on the same matter as me, in other words that we were co-counsel, I would immediately have objected.  I would not have proceeded with [appellant] as co-counsel on this matter.  I never got any indication either from [appellant] or from [Robert] that he . . . had engaged [appellant] to give advice on the same matter that I was giving him advice.  

 

            John Kelly, an attorney who represented Robert concerning several legal matters beginning in 2002, similarly testified that although appellant often accompanied Robert to office meetings, Kelly did not ask appellant to assist him with his father's legal matters and that neither Robert nor appellant told him that Robert had asked appellant to provide him with legal services.  Specifically, Kelly noted, "I have absolutely no reason . . . to believe that at any time [Robert] was represented in the several matters which I appeared for him by anyone other than me."  Kelly added that had he known that appellant was also acting as Robert's attorney, he "would have insisted that Robert . . . terminate one or the other because [he] never would have served as co-counsel with [appellant]."

            Citing Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958), and Kittler, appellant contends that an account stated was established when Robert was sent monthly itemized statements by appellant and thereafter continued to request that appellant provide him with additional legal services.  In Kittler, the Minnesota Supreme Court stated that

[a]n account stated comes into being through an acknowledgment or an acquiescence in the existing condition of liability between the parties.  If an account rendered is acquiesced in by the parties and the correctness of the statement is admitted, then the law will imply a promise to pay whatever balance is thus acknowledged to be owing and due, without further proof; likewise, proof of the retention of a statement of account without objection for more than a reasonable length of time may under certain circumstances operate as proof of an acquiescence in or an admission of the correctness of the statement of account and permit the legal inference that an account stated has been established.

 

295 Minn. at 237-38, 203 N.W.2d at 839 (quoting Meagher, 251 Minn. at 487, 88 N.W.2d at 879).  The supreme court in Kittler went on to award attorney fees after finding that the record showed "many instances of fee discussion, acceptances of services, and requests for additional services."  Id. at 236, 203 N.W.2d at 838. 

Here, there is no record evidence to support the assertion that Robert and appellant discussed legal fees, that Robert acknowledged that he owed appellant for services appellant allegedly provided him, or that Robert admitted the accuracy of appellant's billing statements, if he ever even received them.  Further, there is no evidence, other than appellant's own statements, that Robert requested that appellant provide him with legal services.

Because the record shows that Robert and appellant did not have an agreement with regard to the legal services appellant allegedly provided to Robert and that Robert did not acquiesce to such services, we conclude that the district court did not abuse its discretion when it denied appellant's claim for $388,749 in attorney fees. 

II.

            Appellant also argues that the district court erred by admitting Robert's May 3, 2005 will to probate because the will was the product of undue influence.  Specifically, appellant contends that his brothers, Lee and Donald, improperly convinced Robert to disinherit appellant in the May 2005 will by "exert[ing] extreme pressure and influence" over Robert.

            "To invalidate a will, undue influence must be such as to substitute the will of the person exercising it for that of the testator, thereby making the written results not the will of the testator."  In re Estate of Rasmussen, 244 Minn. 215, 221, 69 N.W.2d 630, 635 (1955).  "Conjecture and suspicion are insufficient to prove undue influence." Torgersen, 711 N.W.2d at 550-51.  Instead, "[t]he evidence must show that the influence exerted ‘was so dominant and controlling of the testator's mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.'"  Id. at 551 (quoting In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn. 1981) (quotation omitted)); see also Rasmussen, 244 Minn. at 221, 69 N.W.2d at 635 (stating that the influence "must be equivalent to moral coercion or constraint overpowering the will of the testator and must operate at the very time the will is made and dominate and control its making").   

            Courts consider the following factors when determining whether a testator was unduly influenced: (1) an opportunity to exercise influence; (2) a confidential relationship between the testator and the party claimed to have influenced the testator; (3) active participation in the preparation of the will by the alleged influencer; (4) disinheritance of those whom the testator would have been expected to remember or an unreasonable disposition; (5) a singularity of the provisions of the will; and (6) the exercise of either influence or persuasion to induce the testator to make the will.  Peterson, 283 Minn. at 449, 168 N.W.2d at 504.  This court's "function on appeal is limited to determining whether the [district] court's conclusions are manifestly and palpably contrary to the evidence viewed in the light most favorable to respondent."  Id. at 448, 168 N.W.2d at 504.

            Here, appellant argues that both Lee and Donald exercised undue influence over Robert in the making of his May 2005 will.  But the district court disagreed, determining that appellant did not show by clear-and-convincing evidence that the will was "the product of undue influence."  The district court was persuaded by the fact that Robert met with his attorney several times in making the will, took the will home for review, and that the will was consistent with the April 2005 stipulation and agreement between Robert, Lee, and Donald.  Further, the will was witnessed by Debra L. Sagedahl and Jerry S. Ophoven, who declared that Robert signed it voluntarily and willingly, without undue influence. 

As a general rule, the appellant bears the burden of providing an adequate record.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).  The record must be "sufficient to show the alleged errors and all matters necessary for consideration of the questions presented."  Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964).  When a transcript is not provided on appeal, this court's task is "limited to determining whether the [district] court's findings of fact support its conclusions of law."  Am. Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 925 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).  Because the record does not include a transcript of the March 2, 2006 will-contest hearing, it is difficult to determine whether Lee or Donald actively participated in the preparation of the will and whether either individual attempted to unduly influence or persuade Robert to make the will and to disinherit appellant.  Nevertheless, we conclude that evidence in the record supports the district court's conclusion that the will was not the product of undue influence.  

III.

            Finally, appellant argues that Lee and Donald "refused to provide relevant discovery regarding undue influence" and that the district court therefore abused its discretion in failing to either amend its findings and judgment or to enter an order compelling discovery and granting a new trial. 

            The district court "has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed."  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Because the district court also has the discretion to grant a new trial, we will not disturb the district court's decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

            In appellant's motion, he argued that Lee and Donald failed to provide him with requested and relevant discovery with regard to the issue of undue influence.  In its order dated October 24, 2006, the district court denied appellant's motion but did not directly address appellant's motion to compel or his claim that Lee and Donald had failed to provide him with relevant discovery.

            But the Minnesota Supreme Court held in St. Paul Fire & Marine Ins. Co. v. Lenzmeier, 309 Minn. 134, 138, 243 N.W.2d 153, 156 (1976), that a district court's refusal to decide a party's discovery motion did not require reversal when the party was not prejudiced by the district court's refusal.  See also Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464-65 (1944) (stating that "[i]t is well to bear in mind that on appeal error is never presumed.  It must be made to appear affirmatively before there can be reversal . . . . [E]rror without prejudice is not ground for reversal"); White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 734 (Minn. App. 1997) (noting that error is never presumed on appeal).  Here, appellant does not state how the allegedly relevant documents may have bolstered his claim that the will was the product of undue influence or how the failure to acquire this discovery prejudiced his case.  Absent such a showing, we conclude that the district court did not abuse its discretion by denying appellant's motions for amended findings and amended judgment or a new trial. 

            Affirmed.