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Cannon v. Stonefield, in the Matter of McCoy (1/22/93), 844 P 2d 1131
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Estate )
)
of )
)
RUTH McCOY, ) Supreme Court File No. S-4888
) Superior Court File No.
Deceased. ) 4FA-89-537 P
)
HUGH CANNON, )
)
Appellant, ) O P I N I O N
)
v. )
)
ROZENA STONEFIELD, )
)
Appellee. ) [No. 3919 - January 22, 1993]
)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Arthur Lyle Robson, Robson
Law Office, Fairbanks, for Appellant.
William S. LaBahn, Eugene, Oregon, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
COMPTON, Justice.
This case arises out of a will contest between Ruth
McCoy's sole beneficiary, Hugh Cannon, and her sister,
Rozena Stonefield. After a unanimous jury verdict in
favor of Stonefield, Cannon appeals the trial court's
formulation of the jury instruction on the issue of
undue influence, as well as the trial court's decision
to disqualify Cannon's attorney on ethical grounds. We
affirm the judgment of the superior court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The evidence regarding the making of Ruth McCoy's last
will is essentially uncontroverted. The parties
dispute the inferences and conclusions that can be
drawn from the evidence. On March 22, 1989,
McCoy executed a will leaving her entire estate to Hugh
Cannon, a neighbor who had become McCoy's friend. This
will revoked McCoy's previous will, executed in 1971,
which divided the estate equally between Rozena
Stonefield, McCoy's sister, and relatives of McCoy's
deceased husband. After McCoy died on October 4, 1989,
Stonefield charged that the 1989 will was the product
of undue influence exercised by Cannon.
The 1989 will was drafted by attorney Arthur Robson at
Cannon's request. Cannon, who had a power of attorney
from McCoy, told Robson that McCoy wished to leave
everything to him. Although McCoy was ostensibly
Robson's client, Robson did not consult with her, did
not discuss the terms of the will with her, and did not
supervise execution of the will. In fact, Robson never
met McCoy, despite his intention to do so. Cannon
arranged for a Notary and witnesses when the will was
executed.
At trial, Stonefield argued that Robson was Cannon's
agent in preparing the 1989 will, and that the will
should be invalidated on the basis of undue influence.
The jury returned a unanimous verdict in favor of
Stonefield. Cannon appeals on the basis that the jury
instruction defining undue influence was erroneous and
prejudicial. He further argues that the trial court
abused its discretion in disqualifying Robson from
representing Cannon at trial.
II. DISCUSSION
A. JURY INSTRUCTION ON UNDUE INFLUENCE
Cannon argues that the jury instruction as given was an
improper statement of the law and that, but for the
erroneous instruction, he would have prevailed. The
trial court's instruction on undue influence reads:
Instruction No. 21
If you find that all the requirements of a valid
will have been satisfied, you may still find in
favor of the challenger if you find that the maker
was unduly influenced when she made her will. The
challenger claims the maker was unduly influenced
when she made her will. The supporter claims that
the maker was not unduly influenced. I will now
tell you what undue influence is.
A maker of a will is unduly influenced when
another person has so influenced the maker that
the maker made a will which she would not have
made had she freely followed her own judgment and
wishes.
For the challenger to win on this claim, you must
decide that it is more likely than not there was
undue influence.
In this case, the challenger claims that:
1. There was a confidential
relationship between the maker and the
supporter.
2. The supporter took an active
part in the making of the will.
If you decide that both of these things more
likely than not are true, you must return a
verdict for the challenger, unless you find that
despite these facts it is more probable than not
that there was no undue influence. If you are not
persuaded that both of these things more likely
than not are true, you still may decide, on the
basis of all of the evidence, that it is more
likely than not that there was undue influence and
return a verdict for the challenger. Otherwise,
you must find that there was no undue influence.
Cannon argues that Instruction 21 does not correctly
reflect the controlling doctrine of Paskvan v. Mesich,
455 P.2d 229 (Alaska 1969), and erroneously shifts the
burden of persuasion to the proponent of the will.1
1. Waiver of Error.
Stonefield argues initially that Cannon waived any
error in the instruction by failing to object at trial.
We agree.
Civil Rule 51(a) requires a party that disagrees with
the formulation of a jury instruction to make an
objection to that instruction at trial.2 This court
has noted that:
The purpose of [Rule 51(a)] is to enable
the trial judge to avoid error by affording
him an opportunity to correct his charge
before it goes to the jury. The dictates of
the rule are satisfied only if the judge is
clearly made aware of the alleged error in or
omission from the instructions. Counsel's
objections must be specific enough to clearly
bring into focus the precise nature of the
asserted error.
Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964). See also Brown
v. Estate of Jonz, 591 P.2d 532, 534 (Alaska 1979)
(even under a "less stringent view of Rule 51(a) . . .
counsel should make a specific objection to a given
instruction" so the trial court has an opportunity to
rule on the party's position).
The record shows that Cannon did not object to the
language of which he now complains.3 Cannon clearly
stated: "Okay, Your Honor. I'll accept the
instruction. I have no further objection, Your Honor."
At no time was the trial court made aware of the
alleged error, or given an opportunity to correct the
instruction. Having failed to object in a timely
manner, Cannon is precluded from raising the issue in
this court.
2. Plain Error.
Because Cannon has failed to comply with Rule 51(a),
this court will not review the jury instruction unless
plain error has occurred:
A party who fails to so object is not
entitled to review of an instruction unless
it appears that giving the challenged
instruction was plain error such that a
miscarriage of justice would occur if the
instruction was not reviewed.
Haskins v. Shelden, 558 P.2d 487, 492 (Alaska 1976). Plain error
will be found only when an erroneous instruction
creates "a high likelihood that the jury followed an
erroneous theory resulting in a miscarriage of
justice." Holiday Inns of America, Inc. v. Peck, 520
P.2d 87, 91 (Alaska 1974). As this court more recently
stated, the "ultimate determination in analyzing plain
error in jury instructions is simply whether a correct
instruction would have likely altered the result."
Conam Alaska v. Bell Lavalin, P.2d , Op. No.
3900 at 12 (Alaska, November 27, 1992) (citations
omitted).
We are not persuaded that another instruction would
have resulted in a different outcome. The problem with
Instruction 21 is that it may have shifted the burden
of persuasion to the proponent of the will. Paskvan
contains the clearest explanation of the presumption of
undue influence, stating:
When the principal or sole beneficiary
under a will, who had a confidential
relationship with the testator, participated
in the drafting of the will, then a
presumption of undue influence arises. It
requires the beneficiary to come forward with
a satisfactory explanation for his actions.
He must show that he did not take advantage
of the confidential relationship in
influencing the testator to execute the will
in his favor.
455 P.2d at 233.
The presumption of undue influence shifts only the
burden of production, not the burden of persuasion, to
the proponent of the will. This conclusion is
supported by Paskvan, and is consistent with Alaska
Evidence Rule 301: "a presumption imposes on the party
against whom it is directed the burden of going forward
with evidence to rebut or meet the presumption, but
does not shift to such party the burden of proof in the
sense of the risk of nonpersuasion." Alaska R. Evid.
301.
In Paskvan, the will proponent did not come forward
with sufficient evidence to "carry his burden of
overcoming the presumption of undue influence." 455
P.2d at 233. In this case, however, Cannon appears to
have met his burden of coming forward with sufficient
evidence to raise the possibility that there was no
undue influence. In denying Stonefield's motion for a
directed verdict, the trial court noted:
[W]hether or not that confidential
relationship [between Cannon and McCoy] was
used rests on determinations of the
credibility of the witnesses, and the
inferences to be drawn both from the direct
and circumstantial evidence that has been
presented. And reasonable jurors may differ
in drawing those inferences and in weighing
the testimony that's been presented in this
case.
Having met his burden of coming forward, Cannon was entitled to
an instruction on undue influence which properly left
the burden of persuasion with Stonefield.
The instruction standing alone seems to have improperly
shifted the risk of nonpersuasion to Cannon: "If you
decide that both of these things more likely than not
are true, you must return a verdict for the challenger,
unless you find that despite these facts it is more
probable than not that there was no undue influence."
The shift is a subtle one. Nevertheless, the jury may
have believed that Cannon was required to prove that it
was more probable than not that there was no undue
influence, rather than requiring Stonefield to prove
that it was more probable than not that there was undue
influence.4
Although Instruction 21 may have contained an erroneous
statement of law, Cannon has failed to persuade this
court that it was highly likely that the error was
determinative. Cannon has not made a persuasive
argument that a correct instruction would likely have
altered the result. He has simply concluded that the
instruction was ambiguous and misleading. This court
will not speculate on whether a correct instruction
would have changed the result. Conam Alaska v. Bell
Lavalin, P.2d , Op. No. 3900 (Alaska, November
27, 1992); Holiday Inns of America, 520 P.2d at 92.
Accordingly, it cannot be said that the subtle shift in
the burden of persuasion constituted plain error.5
B. DISQUALIFICATION OF ROBSON AS TRIAL COUNSEL
1. Standard of Review.
A trial court's decision to disqualify counsel will
only be reversed if it constitutes an abuse of
discretion. Munn v. Bristol Bay Hous. Auth., 777 P.2d
188, 196 (Alaska 1989). This court has stated that
"[w]e will reverse for abuse of discretion only when
left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred
in its ruling." Betz v. Chena Hot Springs Group, 742
P.2d 1346, 1348 (Alaska 1987).
2. Code of Professional Responsibility.
The Code of Professional Responsibility indicates two
situations in which withdrawal is required where the
attorney involved becomes a witness. In the first
situation, following the dictates of DR 5-102(A), an
attorney must withdraw if there is notice or reasonable
probability that the attorney will be called as a
witness on behalf of a client and attorney testimony
does not fall within one of the four exceptions
enumerated in DR 5-101(B). The second situation
requiring withdrawal arises if an attorney learns or it
is obvious that the attorney may be called by the other
side and attorney testimony is or may be prejudicial to
the client. DR 5-102(B). This court has raised the
burden in the second situation to avoid the risk that
parties might attempt to disqualify opposing counsel by
calling counsel as a witness. Where the attorney is
not a "central figure in the litigation,"a motion for
disqualification under DR 5-102(B) must be supported by
a showing that the evidence is unobtainable elsewhere.
Munn, 777 P.2d at 197.
Cannon argues that the trial court abused its
discretion in disqualifying Robson on the basis that
further representation of Cannon would be in violation
of the Code of Professional Responsibility. He asserts
that hindsight makes it clear that Robson's testimony
fell within the rule's four exceptions: (1) Robson was
not asked to testify on contested matters, (2) his
testimony related to formalities only, (3) his
testimony related to the nature and scope of his legal
services, and (4) substantial hardship was worked on
the client in terms of unnecessary expense.
Stonefield argues that Robson was properly disqualified
under DR 5-101 and DR 5-102 since (1) he was a "central
figure in the litigation," (2) his testimony was
material to crucial disputed matters and could not be
obtained elsewhere, and (3) his testimony was
prejudicial to his client.6
In reviewing discretionary decisions made by a trial
court, this court examines the evidence at the time the
decision was made, rather than evidence adduced
following the decision. The "hindsight" approach
advocated by Cannon is inappropriate, since such a
review focuses on information not available to the
trial court when it made its decision. Reviewing the
pleadings and the evidence before the trial court at
the time Robson was disqualified, it cannot be said
that the court abused its discretion in granting the
motion for disqualification.7 The trial court was in
the best position to weigh the considerations
surrounding Robson's disqualification. Its decision
was not an abuse of discretion.
III. CONCLUSION
By failing to properly object to the trial court's
formulation of Instruction 21, Cannon waived his right
to appeal any error therein. Although the instruction
may have contained an erroneous statement of law, we
cannot say that the instruction was plain error.
Accordingly, we AFFIRM the judgment in favor of
Stonefield.
The trial court's decision to disqualify Cannon's
attorney on ethical grounds was not an abuse of
discretion. The ruling of the trial court is AFFIRMED.
_______________________________
1. Cannon makes several ancillary arguments regarding the
jury instruction. We note these arguments only insofar
as they may suggest the absence of plain error. See
infra p.6. Cannon first argues that the imperative
language of the instruction ("must return a verdict")
creates an "irrebuttable presumption of undue
influence." This argument is without merit, given the
qualifying "unless"that immediately follows. Cannon
next argues that AS 13.11.165(a), AS 13.16.165(b) and
AS 13.16.170 shift the presumption applicable to self-
proved wills from a presumption that undue influence
exists, to a presumption that no undue influence
exists. This argument is likewise without merit. AS
13.16.170 merely states that the will challenger has
the burden of establishing undue influence, and AS
13.11.165 deals only with the formalities of will
execution for self-proving wills. Neither statute
changes or shifts any burden relating to the issue of
undue influence.
2. Civil Rule 51(a) provides in part:
No party may assign as error the giving
or the failure to give an instruction unless
the party objects thereto before the jury
retires to consider its verdict, stating
distinctly the matter to which the party
objects and the grounds of the objection.
3. At trial Cannon made an objection based only on the two-
pronged test derived from Paskvan v. Mesich, 455 P.2d
229 (Alaska 1969). After a brief discussion with the
court, however, Cannon expressly accepted the
instruction as written.
4. We reach our conclusion despite the fact that the trial
court's instruction came directly out of the Alaska
Pattern Jury Instructions. Alaska PJI 26.10. The
language in question appears in the last paragraph of
the Use Note to PJI 26.10, and the rationale for its
inclusion is less than clear. Apparently, the
commentator was suggesting the inclusion of the
language if the Alaska Supreme Court were ever to
decide that the presumption of undue influence shifts
the burden of persuasion as well as the burden of
production. As we have never done so, the language was
inapplicable.
5. The fact that we conclude there was no plain error does
not mean we approve of Instruction 21.
6. Stonefield also argues that Cannon has waived any
objections to disqualification by not seeking immediate
review by this court under Alaska Appellate Rule
402(b)(1). Rule 402 provides litigants an opportunity
to seek review of interlocutory orders that would
otherwise not be appealable until a final judgment was
entered. The rule does not, however, require a
litigant to petition for review of non-appealable
orders. Stonefield's waiver argument on these grounds
is therefore without merit.
7. It was reasonable for the trial court to conclude that
Robson, who drafted McCoy's will at Cannon's request
without ever consulting McCoy, ought to have been
called by Cannon to explain Cannon's role and help
refute the charge of undue influence. None of the
enumerated exceptions set forth in DR 5-101(B) apply.
Further, opposing counsel indicated in a letter that he
would call Robson as a material witness. Given
Robson's dealings with Cannon, and the disputed facts
that revolve around these dealings, it was reasonable
for the trial court to conclude either that (1) Robson
was a "central figure in the litigation,"or (2) that
Robson's testimony was material and could not be
obtained elsewhere. Accordingly, the court could have
found that Robson should be disqualified under the Munn
standard.
These conclusions are further warranted by the policy
behind the ethical rules which make it clear that the
roles of advocate and witness are fundamentally
incompatible. J.D. Pflaumer, Inc. et al. v. United
States Dep't. of Justice, 465 F. Supp. 746, 748 (E.D.
Pa. 1979). As Ethical Cannon 5-10 states: "Where the
question arises, doubts should be resolved in favor of
the lawyer testifying and against his becoming or
continuing as an advocate."
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