IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00835-COA JEFFREY VAN QUINN APPELLANT

v. SHADE LARUE QUINN APPELLEE DATE OF JUDGMENT: 06/15/2017 TRIAL JUDGE: HON. FRANKLIN C. MCKENZIE JR. COURT FROM W HICH APPEALED: JONES COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: TERRY L. CAVES RISHER GRANTHAM CAVES ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED: 01/31/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, C.J., FOR THE COURT: ¶1. Jef f rey Van Quinn appeals the chancellor’s denial of his com plaint to set aside certain deeds signed by

his late f ather, Earl Quinn, based on undue i nf luence and a lack of m ental capacity . W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. E arl suf

f ered num erous m edical ailm ents, including d e p r e s s i o n . Earl’s grandson, Shade Larue Quinn, along with Bonnie Steadham , assum e d the role of Earl’s prim ary care givers w hen his condition worsened. Earl required a f eeding tube, num erous m edications, and assistance to stand and walk. In January 2016, Shade m oved in with Earl to care f or h imf

ull-tim e. ¶3. Earl owned the f

ollowing property :

a. 166 acres of

tim berland in Jones County , Mississippi; b. Five rental properties in Jones County , located at: 4413 Creek Avenue, 4411 C reek Avenue, 4407 Creek Avenue, 4415 Creek Avenue, and 8 32 Choctaw; and

c. His hom e, located at 4420 Creek Avenue, in Laurel. ¶4. On January 22, 2016, Earl asked Shade to take him to attorney Danny Henson’s of f ice. Earl chose Hanson b ecause of his paralegal, Nita T olbert. Earl alway s used t he attorney who

em ploy e d Nita. W hile t here, Earl s igned three warranty deeds. Two of the deeds transf erred his i nterest in the tim

berland and the f

i v e r e n t al properties to Shade. The other deed transf erred Earl’s i nterest in his h o me t o h i s son, Terry Quinn. All of t he deeds were recorded that day , and Shade placed the deeds in Earl’s saf ety deposit box. Six day s later, Earl took his own lif

e . ¶5. Jef f rey , Earl’s son, f

iled a com plaint t o set aside only the deeds that convey ed property
to Shade. Jef

f rey did n ot assert a claim to set aside t he d eed that convey ed Earl’s hom e to Terry

. Jef

f rey claim ed that Earl was unduly i nf luenced by S hade and that Earl did not have the m ental capacity

to appreciate the consequences of his actions. ¶6. At trial, the chancellor heard testim ony that Earl loved Shade and c onsidered Shade his “heart.” Moreover, Earl wanted to provide f or Shade through num erous versions of his will. The chancellor also heard expert testim ony f rom Dr. Mark Horne, an internist, who had

2never treated or m et with Earl. Dr. Horne opined that Earl was m entally incapacitated and

heavily m edicated. His expert testim o ny f ocus e d o n E arl’s m e dical incapacity , not Earl’s legal ability

to transf er property

to Shade in a deed. ¶7. The c hancellor f

ound that Earl m ade a conscious decisio n t o t r ansf er interest in the property to Shade. T he chancellor determ ined that Earl alway s intended that the tim berland
go to Shade and that the additional f ive properties were transf erred f reely and without undue inf luence. ¶8. Jef f rey appeals the chancellor’s judgm e nt. W e f i nd no error and af

f irm

. S TANDARD OF REVIEW ¶9. “A chancellor’s f

indings of f

act will not be disturbed unless they are m anif estly wrong

or clearly erroneous, or unless the chancellor a pplied an erroneous legal standard.” W right

v. R oberts , 797 So. 2d 9 92, 997 (¶14) (Miss. 2001). “If the [ c]hancell o r ’ s f i n dings are supported by

substantial, credible evidence in the record, this Court will not reverse.” Id

. ANALYSIS
I. W hether the chancellor erred in find i n g t h at Shade rebutted the presumption of undue influence. ¶10. The chancellor determ ined that a conf idential relationship existed b etween Earl and Shade. Because a presum p t ion of undue inf

luence existed, the burden of proof shif ted to Shade to show by

clear and convincing evidence that the gif t was not t he product of undue inf luence. Id

. a t 9 9 8 (¶16). To rebut the p resum ption , Shade had to prove by clear and

c o nvincing evidence: (1) that he acted in good f aith, (2) that Earl had f

u ll knowledg e a n d
3deliberation of his actions and their consequences, a n d ( 3) that Earl exercised independent consent and action. Id . at 999 (¶23).

A. Good Faith ¶11. To determ ine whether Shade acte d i n g o o d f aith, the court m

ust consider the f

ollowing f actors: (a) the determ i nation of the i d e n tity of the initiating party in seeking preparation of the instrum e nt, (b) the place of the execution of the instrum ent and in whose presence, (c) what consideration and f ee were paid, if

any , and (d) by whom paid, and (e) the secrecy or openness g iven the execution o f an instrum ent. Id . at 1000 (¶24). ¶12. Jef f rey relies o n Howell v. May , 983 So. 2 d 3 1 3 , 3 1 6 (¶1) (Miss. Ct. App. 2007), where this Court considered a disagreem ent am ong siblings over gif ts given by their m other

to one sibling but not the others. W e af f irm ed the chancellor’s decision that Sharnee Howell f ailed to dem onstrate good f aith by clear and convincing evidence. Id. at 319 (¶21). ¶13. Jef f rey points to the f

actual sim ilarities between Howell and this case. There, Sharnee took her m other to see a n attorney m any tim es bef ore her m other deeded her property to Sharnee. Id

. at 316 (¶¶5-6). Here, just like S harnee, Shade took Earl to t he attorney ’s of f ice and s tay ed there with him

. H owever, Sharnee specif i cally a sked f

or the property she received, i.e., her m other’s h om e. Id. at 318 (¶18). Sharnee then s et u p every appointm ent with her m other’s attorney and was alone w ith h er m other t o review the deeds. Id

. Here, the f acts are dif

f erent, Shade did n ot ask f

or the property he was given, and there is no indication

4t h a t he ever reviewed t he d eeds a lone with Earl. Although Shade m ay have taken Earl t o

Henson’s of

f i c e, it was at Earl’s insistence. The record shows t h a t Shade did not speak during the m eetings between attorney Henson a nd Ear l

. Shade was only present at the request of his grandf

ather. Moreover, Earl paid f or Henson’s tim e and legal work. ¶14. The record f

u rther shows that, even bef ore he began to f

eel t he ef f ects of h is age, Earl intended f or Shade to get a m ajority of his property

. There was evidence t hat, i n every draf t of his will f r om 2013 until 2016, Earl allocated at least his tim berland to Shade. ¶15. W e f

ind no error as to the chancellor’s determ ination of Shade’s good f

aith.
B. Earl’s Full Knowledge and Deliberation of H is Actions a nd Their Consequences ¶16. At trial, both Bonnie S t e a d h a m a n d Shade were adam ant that Earl did whatever he wanted with his property

. In f a ct, Earl went through m a n y draf ts o f h is wi l l s b e c ause he would rem ove i ndividuals af t er he had argum e nts with them

. J ef f rey , on the other hand,
argues that his f

ather was m entally incapable of properly disposing of his property

. Here, the f ollowing f

actors m ust be considered: (a) [ The grantor’s] awareness of his total assets and their general value, (b) an u nderstanding by him o f the persons who w o u l d b e the natural inheritors o f h is bounty under the laws of descen t a n d distribution or under a prior will and how the proposed c hange w ould l egally af f ect that prior will or natural distribution, (c) whether non-rel ative b enef iciaries would be excluded o r i ncluded[ ,] and[ ] (d) knowledge of who controls h is f inances and business and by what
5m e thod, and if controlled by another, how dependent is [ the grantor] on him and how susceptible to his inf luence.
W right , 797 So. 2d at 1001 (¶31). ¶17. Testim ony c learly indicated that Earl was aware of and f a mi l i a r w i t h his property

. There was no evidence that Earl was aware of the property ’s general value; y et, that does not

m ean Earl was incapable of knowing the consequences of h is actions when he d e e d e d the property to Shade. Earl had the ability to distribute the rest of his p roperty i n every will he had d raf ted. Earl s poke with Henson about the reservation of a lif e estate in his property and what that m eant. Earl e ven transf erred, by deed, his hom e to his s o n Terry

. Jef f rey does not dispute this convey ance. Thus, Jef f rey does not question Earl’s m ental com petency regarding his decision to transf er property to T erry . I n s t e ad, Jef f rey only d isputes Earl’s

com petency as to his decision to transf er property to Shade. W e recognize t h a t J e f f r e y ’s claim a s t o this f

actor is inconsistent – Earl was m entally com petent to deed property to his

son Terry but not m entally com p e t e n t a t the sam e t im e to deed property to h is grandson Shade. ¶18. There was also evidence that Earl also understood his f inances. Although Earl could not phy sically write his checks because his hands shook, Earl was still m entally capable to ask Bonnie to handle m ost of his bills at hom e . ¶19. W e f

i nd no error as to the chancellor’s d eterm ination that Earl had f ull knowledge and deliberation of

his actions and their consequences. C. Independent Consent and Action by Earl
6¶20. The record supports the chancellor’s f i n d i n g s r e g a r d i n g independent consent and action by Earl. Indeed, the record shows that Earl’s intent was t o alway s provide f or Shade in h is will. According t o Bonnie, Earl told h er bef ore he died w hat he wanted to d o with his property : Earl would s it and think about what all he had. And how m u ch he l oved Shade and that S hade was going to be taken c are of

. He was g o ing to take care of Sha d e . S o he decided - he

. . . was going to sell the [ rental] houses

. . . and then h e would say no, I’m n ot going to sell the [ r ental] houses. S o he d ecided he was going to give Shade the [ rental] houses. ¶21. W e f

ind no error as to the chancellor’s determ inatio n that Shade r ebutted the
presum ption of undue inf

luence.
II. W hether the chancellor erred in finding that Earl did n ot suffer from a lack of mental capacity. ¶22. Jef f rey next argues that Earl was m entall y i n c a p a b l e a n d c o u l d n o t transf er the property in accordance with the laws of this S tate. Because Jef f rey questioned his f

ather’s

m ental capabilities, he was required to prove b y clear and convincing evidence that Earl was incapable of properly executing the deed. Richardson v
. Langley , 426 S o. 2 d 780, 783 (Miss. 1983). ¶23. T o p r o ve incapacity , J ef f rey was required to show that E a r l e i t h e r : ( 1 ) d i d n o t understand the l egal consequences of his actions; ( 2) suf f ered f rom a general “weakness of i n t e l l e ct” with either i nadequate consideration g iven f or the transf

er, or a c onf

identi a l relationship; or (3) suf

f ered f r om perm a nent insanity up to a nd af ter the date of

execution. Smith v. Smith , 574 So. 2d 644, 653-54 (Miss. 1990).
7¶24. A t trial, Jef f rey called Dr. Horne to testif y as to Earl’s m ental capacity

. Dr. Horn e , an internist, had never treated Earl or seen him as a patient. W hile Dr. Horne testif ied that Earl was “an e lderly , severely , and chronically ill i n d i v i dual with m ultiple m edical problem s,” he was n ot able to base t hat opinion on any assessm ent that he had conducted. Instead, D r. Horne testif ied generally regarding how an eld e rly patient w ith sim ilar

m edications and ailm ents m ight suf f er. ¶25. The chancellor also heard testim ony f rom Dr. C hris Mauldin, who evaluated Earl just three day s bef

ore the execution of the deeds. Earl’s m e dical records f rom that visit n oted that Earl was “alert and in no acute d istress” a nd “grossly oriented to person, tim e and place

. . .

com m unicat[ ed] within n orm al lim its

. . . [ and] [ h ad] no evidence of aphasia.” According to Dr. Mauldin, there was no indication of a lack of m ental awareness. ¶26. Im portantly , the chancellor posed a hy p o t h e t i c a l t o D r . H o r

n e c o n c e rning whether Earl likely understood the con s e q u e n c e s of his actions. The c hancellor asked Dr. Horne that

ass u m i n g there were f

i ve separate copies of Earl’s will, which all appointed Shade as the

owner of a m ajo r i t y o f Earl’s property , would the doctor have an o pinion. Dr. Horne responded, “So as a phy sician, if I were presented with t hose f acts and this was a consistent thing over a long period of tim e , that would lead m e t o believe that perhaps that was an intent that was correct – that w as som ething he truly i ntended and understood.” T he chancellor’s hy pothetical was consistent w ith E arl’s actions i n e ach of his wills. T here was no evidence to support a conclusion that Earl did not understand the legal consequences of his actions.

8¶27. Additionally , in light of Earl’s phy sician’s notes just day s bef ore t he transf

er, Jef f rey f ailed to prove by clear and c onvincing evidence that Earl suf f ered f rom a “weak n e ss of intellect.” Finally , neither party asserts that Earl w as insane bef ore or af ter the date of transf er. ¶28. W e f

ind no error in the chancellor’s f indings as to Earl’s m ental capacity

. III. W hether the chancellor a b u s e d h is d iscretion by admitting E arl’s previous wills into evidence when they were unsigned. ¶29. Jef f rey next argues t he chancellor im properl y a d m i t t e d E a r l ’ s p r e v i ous wills in evidence. W e utilize an abuse-of -discretion standard of review when cons i dering the trial court’s decision to a llow or disallow evidence. W ebb v. Braswell , 930 So. 2d 3 87, 396-97 (¶15 ) ( M i s s . 2006). Jef

f rey argues that several evidentiary issues preclude t he use of the docum ents: authentication, the “Best Evidence” rule, hearsay , and relevance. W e separately address each issue. ¶30. F i r s t , J e f

f r e y a r g ues that the wills w ere not properly authenticated. P urs u a n t t o Mississippi Rule of Evidence 901(a), “[ t ]o s atisf y the requir e me n t o f a

uthenticating or identif y ing an item o f evidence, the proponent m ust produce evidence suf

f icient to support

a f inding t hat the item is what the proponent c laim s it is.” Under Rule 9 01(b)(1), an item of evidence c an be authenticated b y testim o ny of a witness with knowledge t h a t t he “item is what it is claim ed to be.” ¶31. Nita testif

ied about t he docum ents and their authenticity in accordance with R ule 901. Although Jef

f rey takes issue w ith the f

act that the docum ents admi t t ed into e vidence were 9not signed, N ita draf t ed the docum ents and witnessed the execution and s i g n a t ures of the originals. Moreover, the docum ents were not adm itted into e vidence in the sam e m anner as they would be adm itted f

o r probate. T he reason f

or t he subm ission of the wills was to show Earl’s intent at the tim e, which the chancellor recognized. ¶32. Sec o n d , J e f

f rey argues that the adm ission of t he wills violates Mississippi Rule of Evidence 1 0 0 2 , o t h erwise known as the “Best Evidence” rule. Rule 1002 r equires “an original writing, recording, or p hotograph” in or d e r to “prove [ the writing, recording, or photograph’s] content unless otherwise provided by law.” Under Rule 1003, a duplicate or copy is adm issible unless t h e r e are questions of the original’s a uthenticity or it is unf

air to adm it the duplication. ¶33. In f

inding t h a t t h e d ocum ents were a dm issible under Rules 1002 and 1003, the chancellor stated, “I would think t hat [ the wills] are self -authenticating if y o u want to know the t ruth about it. W hy would a lawy er have a copy of a will i n their of f ice unless som ebody

cam e i n and said ‘prepare this f or m e.’” We d i s a g ree and f ind the chancellor erred in his determ ination that the wills w ere adm issible under Rules 1 002 and 1003. The wills adm itted into evidence were not signed and theref ore n ot o riginals. Additionally , t he unsigned wills

were not duplicates or c opies of the originals. Thus, t heir adm ission f ails t o m eet the requirem ents of Rules 1002 and 1003. Moreover, t he unsigned wills w e r e n o t self

authenticating. Mississippi Rule o f Evidence 902 sets f orth item s o f e v idence t hat are self

authenticating. The unsigned wills, which were not c ertif ied , d o n o t q

ualif y as self

1 0authenticating evidence under Rule 902.

¶34. Although the c hance llor erred in the adm ission of t he d ocum ents under Rules 1002 and 1003, such error was harm less based on Nita’s testim ony . Again, N ita testif ied regarding her preparation o f t he wills pursuant to Earl’s intent and plan and f urther t estif

ied regarding Earl’s execution of the docum ents. The f act that the wills adm it t e d i n t o e v i dence were unsigned i s of no consequence here because t his was not a probate proceeding. Instead, the unsigned d ocum ents a dm itted into evidence were draf ted at E arl’s request and are evidence of his i ntent. Because the docum ents were p rope r l y a u t h e n ticated under Rule 901, the chancellor did not abuse his discretion in adm itting the unsigned wills into evidence. ¶35. Finally , Jef

f rey argues t hat the docum e n ts c onstitute hearsay and are irrelevant. The wills were clearly relevant as t o Earl’s intent and his wishes f or h is p roperty af

ter h is death. See M.R.E. 4 01 (“Evidence i s relevant if : (a) it has any t endency to m a ke a f act m o re or less probable than it would be wit hout the e vidence; and (b) the f act is consequence in determ ining the case.”). The content o f t h e wills m ay contain hearsay statem ents, but the

s tatem ents f

all u nder the hearsay exception in M ississippi Rule o f Evidence 803(3 )

. 1 T h e wills contain Earl’s then-existing state of m ind and w ere used t o show Earl’s intent, which directly im plicates the exception. ¶36. W e f

ind n o error in t he chancellor’s adm i ssion of Earl’s previous wills into evidence.

1 M i s s i s s i p p i R u le o f E v id en ce 8 0 3 (3 ) states th at i f a statem en t is o f a d e claran t’s th en - ex istin g state o f

m in d th ere is an ex cep tio n to h earsay .

1 1IV. W hether the chancellor a bused his discretion w hen he excluded t he lay opinion testimony of Bonnie Steadham. ¶37. In his f

i nal i ssue, J ef

f rey argues that the chancellor erred in excluding Bonnie’s l ay opinion testim ony regarding Earl’s m e ntal capacity

. Mississippi R ule of E v i d e n c e 701
perm its lay -opinion testim ony when it is:

a. rationally

based on the witness’s perception; b. helpf

ul to c learly u nderstand the witness’s testim ony or to determ ining a f act in issue; and

c. n o t b a s e d o n s c i e ntif ic, technical, or other specialized kn o w l e d g e within the scope. ¶38. W h ile on direct exam ination, Bonnie was asked if she believed Earl was com petent
to execute the deeds on January 22, 2016. Shade o bjected. Bonnie subsequently prof f ered the f ollowing testim ony : [ Jef f rey ’s counsel]: Based on y o ur personal observation of [ Earl] on January

22nd, 2016, af

ter y ou gave him that pain m edication, was [ Earl] com

petent t o execute a deed or to understand t hat transaction involving the transf er of real estate[ ? ] [ Bonnie]: I don’t think so. [ Jef f rey ’s counsel]: B a s e d o n y o u r p e r s o n a l o b s e r v a t i on of [ Earl] f r o m January 22, 2016, af

ter y ou gave him his p ain m edication and his m

uscle relaxers and Xanax , do y ou have an opinion as to whether or not he had the m e n tal capacity to understand the nature of the transaction of transf erring real estate, the rental houses, and the land? [ Bonnie]: I don’t think so. ¶39. In response to the prof f er, the f ollowing discussion occurred:
1 2The Court: D i d [ E a r l ] s a y o r do any t hing unusual a f

t e r h e t o o k t h e m e dicine? [ Bonnie]: To m e, no, because, y ou know, I’d b e e n w i t h h im so long and

every thing was - he was just Earl as [ f ar as] I was concerned. ¶40. Because Bonnie did not observe or perceive “any thing unusual” f

ollowing t he use of the m e dicatio n s , t h ere was no underly ing basis f or her opinion that Earl had a dim inished

m ental capacity

. Moreover, the record r e f l ects that the chance l l o r h eard expert testim ony regarding Earl’s m ental capacity f r o m at least two m edical doctors, Dr. Horne and Dr. Mauldin. ¶41. W e f

ind no error in the exclusion o f B o n n i e ’ s t estim ony regarding Earl’s m ental capacity

. ¶42. AFFIRMED. BARNES AND CARLTON, P.JJ., WILSON, GREENLEE, WEST B R OOKS, TINDELL, McDONAL D A ND LAWRENCE, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND DISSENTS I N PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY WESTBROOKS, J. McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART: ¶43. I agree w i t h t h e ma j o r i t y t h a t t h e r e w as no undue i nf luence by Shade – Earl’s grandson. However, I write s eparately b ecause I b elieve that our Rules of Evidence explicitly allow lay

persons to testif

y as t o m ental capacity

. Theref ore, I would f

ind that the chancellor e rred i n e x c l u ding Bonnie Steadham ’s lay -opinion testim ony regarding Earl’s

m ental capacity . For this reason, I concur in part and respectf ully dissent in part. ¶44. Lay witnesses can “testif y to opinions they have which are ‘rationa l l y b a s ed on the

1 3perception of the witness’ and ‘helpf ul t o t h e c l e ar understanding of the testim ony of the determ ination of a f

act in issue.’” 4 Jef

f rey J ackson, et al., Encyclopedia o f Mississippi Law § 33:67, at 737 (2d ed. 2016) (quoting M.R.E. 701). Rule 701 “allows w itnesses to testif y

a b o ut inf orm ation they have personally observed and which m ight assist the trier of f act.” M.R.E. 701. ¶45. Bonnie possessed specia l k n o w l e d ge about Earl’s m ental status given t heir dating relationship and h e r ma n y y ears as his caretaker. Her t estim o ny w as valuable to assist the determ ination of a f

a c t i n issue: Earl’s m e ntal state at the tim e he executed his will—particularly while un d e r t h e i n fl u e n c e o f c e r

tain m edications. Bonnie testif ied that Earl

was, i n her opinion, “addicted to too m uch m e d icine” and would of ten f all af ter taking his

m uscle relaxers. Bonnie also testif ied to h er opinion that Earl did not have m ental capacity at the tim e he executed the will: [ Jef f rey ’s counsel]: Havi n g b e e n w i t h h i m o n t h a t me d i c a t ion, was he

com petent to e x ecute that will on t hat January 2 0th, 2016? [ Bonnie]: I don’t think so. [ Jef f rey ’s counsel]: O k a y . A n d d i d h e h a v e t h e me n t a l c a p a c i t y t o f u l l y understand that he was giving away to his grandson f ive rental houses and about 166 acres of land? [ Bonnie:] I don’t think so, but Shade was his heart. ¶46. Lay witnesses can testif y to their opinion that a person has had too m u ch alcohol. See Havard v. State , 800 So. 2 d 1193, 1196 (¶7) (Miss. Ct. A pp. 2001). They can also testif y that

1 4a person appears under the inf luence of drugs or alcohol o r t h a t t h e p erson appears to be

m entally disturbed. See Brown v
. State , 981 So. 2d 1007, 1014 (¶20) (Miss. Ct. App. 2007). This is exactly what Bonnie did when she testif ied to her opinion that she did not believe Earl had m ental capacity

when he executed the will while on the m edications. ¶47. Bonnie’s opinion t estim ony was based on her personal knowledge and observation of Earl. This is what Rule 701 explicitly allows. Theref

o re, it was error f

or the chancellor to exclude her opinion testim ony . I n this particular case, the error is harm less as both parties had expert testim o ny regarding Earl’s m ental com petency

. In o ther cases, it m a y not be so. ¶48. For this reason, I concur in part and respectf ully dissent in part. WESTBROOKS, J., JOINS THIS OPINION IN PART.

1 5