original independent executor merida's but she was nominated under the original well and i understand that you are aware of the facts so i won't belabor those for you here and now however i would like to say for your benefit the standard review of course we did on third and propelling the will was a proper will of the deceased it was overturned at our jury trial that occurred approximately a year ago at the end of march i did numerous times your quest and in particular today i asked the judge to enter ha an o b judgement not withstanding the verdict i did so after within the within the proper time limit and of course that was the night i also alternatively requested a new trial that also w i bring that to you today the first relevant to the day an o b e you're looking at that under the no standard be essentially the standard value for you is whether or not i'm looking at the facts as presented in the light most favorable to the  well contestant is it true that i would submit to you that you know that the verdict should have been in our favor that in fact that there should never have been under any set of facts similar to those presented  law and you'll find the facts even giving them every single one and in fact that's how i did my closing i presented to the jury and said i will give them every thing that they're presenting it's true under those facts and circumstances in this case it's insufficient opinion from a fact with witness and insufficient unless they can present evidence incidents to support that overall general opinion in particular with respect to mr i want he presented an opinion that he said he felt he would have been enough to him to be able to say you know what he couldn't recognize me he got my name in correct he was incorrect on the fact that we discussed in fact a test run it was we reminisced about all time and it essentially then it was an appropriate conversation and so the general opinion without sufficient sufficient factual support and incidents to go along with that is not sufficient with respect to mr alvan that would have been the other one i think that you're referring to he generally also said i saw him in i think it was early june or even early middle men he was fine and then i saw him again first of all he couldn't give us a specific time period when he did see the deceit and he believed generally you saw him secondly alvan face his opinion and the same is that i would submit to you it was a general opinion he was he believed him incompetent at that point but then again when practiced press on the facts and incidents on white believe that to be true  what about that they have evidence and i think that would have been the third witness on and if that was presented the issue there that happened on the seventeenth so that was actually morning after and it is a fairly rapidly fairly he presented him with documents but then the story if you read his testimony is very clear that jim was finally beginning of the meeting the issue was as the media wore on he had a long day and it managed and and his opinion was that and being worn down sleepiness so that fits with the physical manifestation but then again even the business partner said i presented that day with documents i believe he understood what we're doing at the beginning closed toward the end that he has started to show fatigue because he couldn't he couldn't stop him so even with that witness we still have no evidence of mental diminishment there's never anyone who comes forward and says he didn't recognize me our conversation was socially inappropriate he couldn't accept forth his assets and he didn't have a true grip on his expenses in fact interesting really jim in all of his conversations consistently or side what he had he would say i have a boat here's what i want this to go i have charleston service center here's where i want this to go and so there is nothing in the record that will permit you for lack of test century pasadena to conclude that he didn't know the that merida loved him she cared for him she was with him but ultimately when she came to stay with him on the six she still was taking care of her own business matters she was leaving him in the care custody efron's and family the only thing she was truly doing in terms of assisting him was she was filling his pill minder she also did they have a joint account she took over paying some of his bills she signed the checks but the only testimony with respect to the finances is simply that she did it for his convenience and that he knew exactly what she was doing there is no evidence in the record of dominance and this exact factual scenario has played out multiple times where they look for dominance and dependence and in particular in this case i think the bomb the baumgarten cases particularly instructive in fact case to the student oldest kid students get a million dollars and it didn't happen he went to the why'd they allege that she was if that were sufficient in nearly every case we would have a will that be suspect and in this case she went to significance of the law clearly says there's a presumption to give her the will there's a even a presumption in favor of  was truly his went back i do not believe that at any point the burden of proof was properly met to show that jim lack the capacity simply because jim has always throughout the entire record even up until th of june been able to recognize family and been able to sell forth properly his assets and not of his estate and independently me with his attorney to go through those things and how he wanted them to be regarding the all the the fish and seas you mention the potential problems with the testimony since you were trial counsel on record shows apparently you argued all of these rigorously to the honor they were not presented with the different cases in closing and i think that this court they were not presented with what they were not presented with these cases in closing they were presented with the jury instructions only general argument but the fact the matter is i think they got it wrong in that there was a lot that went on to the horse the trial that i think were mere distractions we talked a lot about it by cell agreement we talked a lot about the inner workings of business relationship we talked a lot about different factual things that i think ultimately distracted from the underlying issue we don't have any issue before us however believe that raises a question regarding the improper  the case but it's hard to second guess jers the termination this is a panel that has lots of experience in jury trials i don't kno line that's why i didn't file this appeal lightly and ultimately when i'm standing here today and i continue to review these tape is frankly i submitted to these cases to the trial court as well on three different occasions and s i agree completely with what you're saying i've been told no more times whether it be back as you say sherry or the jury but the fact of matter is i've lived with these cases now for three years and i cannot in my head reconcile this factual is not a case that should ever have been submitted to a jury i think the judge should have taken it away from them simply because i do not believe the facts are sufficient in order to permit it to go forward there is no evidence in my opinion with respect to black lack of test passerby simply because those three subparts there's no supporting evidence that jim ever got anyone in correct well i want to draw these things for a moment between your motion for judgment and the ball of the evidence of the motion for story so the issue here is one that i believe i understand we have huge high hopes for crime and so i agree with you on with respect to expecting the jury verdict and all that that's necessary i simply do not believe when you look at the outstanding discretion by following the jury verdict was not against manifestly yeah that's the alternative really that we're seeking yet so i feel that the court abused its discretion enough holding the jury verdict by and i feel as though i have in my brief gone through a bunch of different cases where they've looked at directed verdict j a n o b when it was appropriate to take it away from the jury because i agree with you i think it is a dramatic moment and so i would implore the court to go through those different cases cited and see that if the facts in this case are directly comparable to those that i cited for you and it is for that reason i'm asking you to enter th spock were also present the saffron with their spouses i likewise practice further south from here an f ing ham have been involved in this case from the beginning i was a trial counsel but this jury trial  just over or just under a year ago and i apologize i can't see any more so i have to use my glasses to read but look at you otherwise your honor i will get right to some of the points raised by by your honour's questions first of all due respect to what is the best case that exists on because for the appellant i would suggest that none of the cases cited support exactly the remedy that is being  requested here there are no cases cited that are directly procedurally on point where the appellate court has overturned the denial of a motion for judgment notwithstanding the verdict after a jury trial the closest case that comes along procedurally is the mitchell versus van sock ace which is directly analogous to this case and that's where the verdict a jury verdict was entered for the plaintiffs in validat the other cases are either pleading cases summary judgment cases direct verdict cases none of which are analogous to what we have here and most of which i think this is probably the case with with many will evidence but there are components of all of those cases factual components that are similar to what we have here but overall none of them are are identical of course and that's why we have a jury trial and again know demonstrates my point here of course that was not and j in a weak case after the jury reached a verdict in fact the jury failed to reach a verdict in that case and then the court directed a verdict for the defen and validated the will however there were dissimilarities there to the court found it significant that testamentary capacity was not an issue in that case only the undue influence and the court found factually significant that the the alleged influencer didn't receive a benefit under that well i'm not sure why it was contested in that case if she didn't receive a substantial benefit but nevertheless that was significant for the court i'll go back and start when i look at these things that i it's easy for me to kind of gloss over what the standard really is but when you look at it piece by piece i think it becomes clear what needs to happen here you know what the court must do here is take all reasonable presumptions and inferences that's the important part of our undue influence count of this case what inferences can be drawn that tend to establish the allegations of the complaint if there are any move much of the language in these cases is there any evidence or inferences to be drawn from that evidence that tend to establish the allegations of the complaint then it goes to the jury and that's exactly what happened here ice i readily admit that undue influence cases are difficult to prove and the reason is if someone's  influence over the student it's unlikely they're going to put a gun to the head of the decision in the attorney's office or the pressure on the in the in in the attorney's office or in the presence of their lifelong friends and tell him here's what i want you to put in this will i think undue influence cases by their very nature are inferential and circumstantial and that's why the supreme court didn't enter a the state of hoover sanctioned this kind of case  refer to i read this case before we that the hoover case before we tried and i thought this is exactly what we're talking about here this isn't a direct influence case this is a subtle invidious type of influence and the court use this terminology that as long as there is some circumstantial evidence which may have operated during the time that will was executed that's the point it's not a very heavy standard to get so i don't know what his plan was except that i know his plan did not comport with the will that was invalidated here and you know carol referred to this by celebrant which was a major part of the the evidentiary disputes in the  and what he had was a partnership or a corporation he was an equal shareholder with gerry hammer who was our first witness and his plan all along which he told all of his friends was if the life insurance from the  life insurance from the corporation was to go to his brother bob in the event the jury handed didn't want bob as a partner that was a major part of his plan that's what he wanted they had worked together for thirty years and that was his point with respect to his parents be i totally agree and there are many court opinions that render inadmissible what the decisions plan was in earlier estate planning procedures whether by will or anything sometimes that's not why not because i believe the only issue before the jury was was this his last will and testament is valid last will and testament i think anything before that i understand how it could be prejudicial because then you have the jury person so i want to know whether she's going to get anything if we do or do not invalidate this will and for that reason i think it is prejudicial and it doesn't go to the jury that evidence it's only whether this will comports with his wishes whether he had testament i do have a few more comments and that first of all it is clear when you look at this that each of us and then counsel complains in the brief that i had to have i have cherry picked evidence of course i cherry picked evidence pick you know and so does the appellant that's what we all do that's what we did before the jury there's a complaint about my alleged improper remarks to the jury well i did do a role play of the deceit and from the grave for my closing argument entirely proper and it's based upon a reasonable differences to be drawn from the evidence that's how i characterized it whole the jury what i was doing and how i was basing how i was coming up with this so what what is interesting when you're talking about cherry picking the evidence is what what is in dispute here  evidence was presented on is there is no question that jim repose trust and confidence in merida she lived with him she helped him with his medication she wrote the checks for him and she has an excuse or an explanation for why she did that but the fact is she did she transported him to and from his activities she was present during all of the discussions of the contents of the will other than june thirteenth the date it was signe but if you believe the attorney's testimony it had already been decided long before june thirteenth in fact her testimony was that jim already had everything decided their first meeting in early june i think it was june first now that's contrary to the it which brings this brings it to this point that there are factual disputes about what happened and that's why a jury should decide it another fact t i am cherry picking here is and again in partial recognition of the difficulty of an undue influence case is when was this influence exerted well what is important is not whether the it's not it doesn't have to be shown that the exertion or the influence was exerted on that day it wasn't the law is that it's important that when the will contents were decided that's when the influence  has to have been exerted so on early on in the hospital that the testimony was that merida asked john should spock to leave there was flater testimony that john was jim's confident confidant for life you know his his advisors gave him more kinds of life advice and financial advice merida ass until eat and then he starts making notes as to what you want what he wants in the well and that comes on it exhibit in the case of some notes that he made in the hospital that somehow made it to the attorney's office so i don't know what happened but a reasonable inference can be drawn that that's when the influence was exerted and that's when the contents of the will were decided on the fact that i share it absolutely i'm not going to go into the facts i have a list of facts that that were presented particularly on the on the  under the influence account but i think the point is being made that there are facts that can go either way there are explanations there are marginalization yes there are excuses and there is contrary testimony to almost every point we  four day trial with many witnesses and given that the only question is whether if you take all of the evidence and the life most favorable to us can it be said that this this  jury was wrong and that's simply not the case i think  can be said that the evidence so overwhelmingly favors the defendant that a contrary verdict can't stand i will admit that the evidence was conflicting all admit that the jury could have gone either way what the defendant did not request as an alternative verdict form separating the counts so we don't know whether the jury found that the will was the product a bundle influence or whether he lacked testamentary bassy we don't we don't have that  luxury here of knowing we don't know but i would suggest that a reasonable inference can be drawn either way judge writer and the jury heard the evidence reviewed all the documents reviewed the hospice notes which you referred to in my brief they saw the witnesses with their own eyes it took into account their ability their memory the facts they testified to their manner while testifying their interests their bias their prejudice all of those things and they made a decision in light of all that evidence council did a great job at trial these all of these witnesses were subjected to rigorous cross examination merida was put on the stand twice and i think when the court considers all that this isn't a case in which an opposite conclusion is clearly evident as would be required for this verdict to be overturned here this is why we have jury trials and the verdict of the jury should stand here in the denial of the motion for g o v t should be affirmed i have one last comment and that's on the motion for a new trial it is indeed a different standard it's an abuse of discretion standard and i think what's important consideration that portion of the motion  this as stated by the fifth district appellate court either the trial court nor the occult court should sit as a second jury granting a new trial merely because the trial court would have reached a different result where there is evidence which if believed would support the jury's verdict is an abuse of discretion that's not the case here could have gone either way but it's not this court's job to sit as a second jury the only question is whether was there evidence to support their verdict and i would ok i don't agree that the facts are necessarily in dispute what i've asked this court to do and what i asked the trial court to do was give them everything they're asking you for and at at the conclusion of that when you take the last presented in the cases and you look at are completely without any factual evidence of him forgetting his family forgetting natural objects down to you are completely without any evidence that he was unable to recall his assets properly handle his own affairs properly at any time even clear up until the you were also without any evidence that he was without the capacity to form a disposition of his assets so with everything that was given to the jury everything that was given to the judge and again to you now i'm not given to the jury which i think in this case was appropriate simply because there was no evidence of dependence there was no evidence of dominance and even more importantly there is no evidence she participated in any way shape or form  presence at the initial meeting in the park you're a man of the will the cases are very clear that alone is insufficient and so in this particular instance when mr shoots back independently make contact with this attorney talk to her while merida was present looked at merida at one point in time and she says the only testimony of her participation is it's up to you it's yours i have nothing to do with it he then leaves she leaves that meeting the attorney leaves the meeting th what we have are a flurry of phone calls back and forth between the scenes in the attorney then we have a meeting on the first where we sign a power of attorney and we have another meeting on the thirteenth where the will assign marie to sitting outside she drove him but she was not participate all of the cases make it clear in order to find under the influence there must have been some participation in the procurement of that will the record is completely devoid of that and that is why i believe in this case the jury's verdict was a complete miscarriage of justice because she did not participate and that's a requirement for finding undue influence those are just two reasons the facts i do not agree are in dispute i have said from the beginning given what they're asking for and that's why sane and so it's hard for me now to sit across from to see this and say here will be presented valid and your family cannot overturn it and that's why i'm asking for the g o p this make it easier public policy wise for attorneys to give them that