Dean v. Morris

PRESENT: All the Justices
MARION CASEY DEAN, CO-EXECUTOR AND
CO-TRUSTEE, ET AL.
OPINION BY
v. Record No. 131512 JUSTICE CLEO E. POWELL
April 17, 2014
BARBARA MORRIS, ET AL.
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Joanne F. Alper, Judge Pro Tempore
This appeal arises out of breach of contract suit brought
against the estate of Marion Casey Dean (“Casey”). In this
case, we hold that the trial court’s finding that an oral
contract existed between Casey and his wife, Shirley Gregg Dean
(“Shirley”), is without clear and convincing evidence to support
it. Therefore, we will reverse the judgment of the trial court.
I. FACTS AND PROCEEDINGS
Shirley married Casey on July 1, 1978. Both had children
from their previous marriages. When Shirley and Casey married,
they initially lived in Shirley’s townhouse until it became too
small, at which time they sold it and used the proceeds to
purchase a larger townhome in the same community. After Casey
sold his business to his son, Marion Casey Dean, Jr. (“Dean”),
Casey and Shirley sold the townhome, remodeled Casey’s farmhouse
in Orange County, and moved there.
Shirley died in August 1999. At the time, Barbara E.
Morris (“Morris”), Linda D. Gregg (“Gregg”), and Joanne Sundell
decided not to probate their mother’s estate. Their decision
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was based on their belief that their mother had an oral contract
with Casey for him to provide for them in his will. Morris
claimed that she and her sisters remained close to Casey after
their mother died.
After Casey’s death in 2010, Morris and her sisters
unsuccessfully attempted to get Casey’s estate documents from
Dean. When Morris contacted the estate’s attorney, she was told
that she should have her attorney contact him. Morris then
hired an attorney. Subsequently, the sisters reported receiving
a check for $200,000 accompanied by a release. Morris indicated
that they did not cash it because they still had not seen any of
the estate paperwork.
The sisters then sued Casey’s estate for breach of an oral
contract between him and their mother. At trial, Morris
testified that she and her mother had discussed her mother’s
estate planning desires. Specifically, Morris testified that in
1996 because of her ailing mother’s upcoming surgery, Shirley
told Morris that “Casey and I have discussed . . . asking you
all to wait until after something happens to him, before you all
inherit anything from me, before you get anything from the
estate.” Morris stated that Shirley told her that she and Casey
had agreed that Morris and her sisters would inherit more if
they waited until after Casey’s death. Morris further testified
that in May 1997, Shirley “mention[ed] something about the
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widow’s third.”
Morris also testified about a conversation that she had
with Casey approximately a week and a half after her mother
died. She stated that Casey spoke privately with her and showed
her a document that she did not read. Casey told her that the
document, which he kept in the safe, would not mean much to her
then but that it would after he died, and that he was showing
her because he wanted to be sure that his wishes regarding his
estate were followed.
On cross-examination, Morris admitted that her mother did
not tell her how much they would inherit if they waited and that
Casey never told her not to probate her mother’s will. She also
admitted that her mother gave her a copy of her will around the
same time that she had the conversation about her agreement with
Casey.
Gregg testified that in December 1996 she spoke with her
mother, who told her that she and Casey had made an agreement
for her daughters to wait to inherit until after he died.
Frank Andrew Thomas, III, an attorney who previously
represented Casey, testified as to several letters he wrote to
Casey regarding estate work he did for Casey and a note in his
file memorializing a meeting with Casey and Dean. In one letter
dated December 31, 1996, Thomas wrote “I note that your current
trust has a one third - two thirds division of assets between
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your family and your wife’s family. The irrevocable trust I
have drafted contemplates its asset will be distributed only to
your family. A modification can easily be made.” Approximately
one month later, Thomas wrote,
[e]nclosed with this letter please find a
new draft of your irrevocable trust
incorporating the amendments we discussed by
telephone. It now follows essentially the
same scheme as your existing trust for the
distribution of assets after your death.
In a letter dated October 18, 1999, Thomas wrote
I want to go back over with you in this
letter our discussions and plans regarding
the administration of your wife’s estate.
Based on what you told me, I do not think
there is anything that is needed to be done
to administer your wife’s estate. It appears
that what property you have together was
joint and there was nothing in her name
alone that requires the probate of her Will
or qualification of an Executor. Should
that turn out not to be the case, we can
arrange for you to do so in a fairly simple
fashion.
The trial court held that Morris “carried [the] burden of
clear and convincing evidence to prove that there was such an
agreement that [Shirley’s] children be entitled to a third of
the estate.” This appeal follows.
II. ANALYSIS
Dean argues that the trial court erred in finding clear and
convincing evidence of an oral contract between Casey and
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Shirley to leave one-third of Casey’s estate to Shirley’s
children if Shirley predeceased Casey. To prove a breach of an
oral contract, Morris must first prove that a valid oral
contract existed. To prove a contract’s existence, all of the
essential elements must be proven. “[T]here must be a complete
agreement which requires acceptance of an offer, as well as
valuable consideration.” Montagna v. Holiday Inns, Inc., 221
Va. 336, 346, 269 S.E.2d 838, 844 (1980)(citation omitted).
In reviewing the trial court’s finding that clear and
convincing evidence of the contract existed, “[w]e must ‘accept
with caution and examine with scrutiny’ the evidence proffered
by [the proponent] in support of an alleged oral contract
providing for the disposition of the decedent’s estate contrary
to the directions of [his] probated will.” Blincoe v. Blincoe,
209 Va. 238, 244, 163 S.E.2d 139, 143 (1968) (citation omitted).
Only if the proponent has sustained her burden of putting on
“clear, definite and convincing evidence that with reasonable
certainty established the making of the contract and proved its
terms,” will we affirm the trial court’s determination that an
oral contract existed. Id.
To determine whether the trial court correctly held that
there was an oral contract between Shirley and Casey, we first
look to whether there was an agreement. In reviewing a trial
court’s determination that an oral contract existed, we review
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the record for clear and convincing evidence, i.e., proof that
is more than a mere preponderance but less than beyond a
reasonable doubt. Fred C. Walker Agency, Inc. v. Lucas, 215 Va.
535, 540-41, 211 S.E.2d 88, 92 (1975).
“In testing the credibility and weight
to be ascribed to the evidence, we must give
trial courts and juries the wide discretion
to which a living record, as distinguished
from a printed record, logically entitles
them. The living record contains many
guideposts to the truth which are not in the
printed record; not having seen [the
witnesses] ourselves, we should give great
weight to the conclusions of those who have
seen and heard them.”
Id. at 541, 211 S.E.2d at 93 (quoting Bradley v. Commonwealth,
196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955)).
Gregg testified without objection that there was an
agreement between her mother and Casey. Morris further
testified that her mother believed that there was an agreement
between herself and Casey. Thus, upon review, the record
contains clear and convincing evidence to support the trial
court’s determination that an agreement existed.
Simply because the evidence is clear and convincing to
prove that an oral agreement existed, however, does not mean
that the evidence is sufficient to prove the terms of that
agreement. Without specificity of terms, there is no contract.
Indeed,
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[i]n Mullins v. Mingo Lime [& Lumber] Co.,
176 Va. 44, 49, 10 S.E.2d 492 [(1940)], we
[explained] as follows: “It is a necessary
requirement in the nature of things that an
agreement in order to be binding must be
sufficiently definite to enable a court to
give it an exact meaning.”
. . . .
“Another essential element of a valid
contract is certainty and completeness. The
element of completeness denotes that the
contract embraces all the material terms;
that of certainty denotes that each one of
those terms is expressed in a sufficiently
exact and definite manner. An incomplete
contract, therefore, is one from which one
or more material terms have been entirely
omitted. An uncertain contract is one which
may, indeed, embrace all the material terms,
but one of them is expressed in so inexact,
indefinite or obscure language that the
intent of the parties cannot be sufficiently
ascertained to enable the court to carry it
into effect.”
“While a contract to be valid and
enforceable must be so certain that each
party may have an action upon it, reasonable
certainty is all that is required. So where
a contract is to some extent uncertain and
ambiguous, it may be read in the light of
surrounding circumstances, and if, reading
it thus, its meaning may be gathered, the
same will be enforced. But an agreement, in
order to be binding, must be sufficiently
definite to enable a court to give it an
exact meaning, and must obligate the
contracting parties to matters definitely
ascertained or ascertainable.”
. . . .
“In order that there may be an agreement,
the parties must have a distinct intention
common to both and without doubt or
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difference. Until all understand alike,
there can be no assent, and, therefore, no
contract. Both parties must assent to the
same thing in the same sense, and their
minds must meet as to all the terms. If any
portion of the proposed terms is not
settled, or no mode is agreed on by which it
may be settled, there is no agreement,
. . . .”
Smith v. Farrell, 199 Va. 121, 127-28, 98 S.E.2d 3, 7-8
(1957)(citations omitted).
In fact, in a prior case considering an oral contract as to
how to dispose of an estate, this Court reversed the trial
court’s determination that there was sufficient evidence to
prove the essential terms of an oral contract. Blincoe, 209 Va.
at 244-45, 163 S.E.2d at 144. The record in that case contained
clear and convincing evidence that the defendant promised to
compensate the plaintiff but fell short of proving by clear and
convincing evidence “that there was [a] meeting of the minds
respecting essential terms--the amount to be paid or bequeathed
by [the defendant] and the persons to whom the payment or
bequest would be made.” Id.
Here, although Thomas’ letters to Casey tend to indicate
that Casey initially intended before and around the time of
Shirley’s death to leave one-third of the trust assets to her
daughters and two-thirds to his own children, these letters are
not clear and convincing evidence of the terms of the agreement.
Indeed, although the trial court found there was sufficient
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evidence that the daughters were entitled to “one-third of the
estate,” its very ruling indicates that the agreement was not
sufficient as to the terms. Specifically, during the liability
portion of the bifurcated trial, the trial court stated:
I think . . . that the plaintiff has carried
its burden of clear and convincing evidence
to prove that there was such an agreement
that [Shirley’s] children be entitled to a
third of the estate.
The question that hasn’t been answered yet
is: What is the estate? And I think that’s
. . . the next issue. Was it a third of
what was put in that trust, which
vacillated, and maybe nothing? Was it a
third of his entire estate, regardless of
the provisions of the trust? I’m not sure
we have the answer to that.
(Emphasis added.)
The trial court’s uncertainty is borne out by the documents
themselves. In 1996, Casey drafted a will and accompanying
trust. That will left all of his tangible personal property to
his children and left the “residuary estate” to be passed
through the trust, which was to be divided two-thirds to his
children and one-third to Shirley’s children. The trust itself
was unfunded at that time. Therefore, clearly in 1996, when
Shirley told her children about the agreement, there was no
evidence of an agreement that they would receive one-third of
the estate because certain items had been specifically devised
to Casey’s children.
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The fact that there was no evidence of a specific agreement
as to terms is also borne out by the fact that even during
Shirley’s lifetime, the assets shuffled. In 1997, three parcels
of property were placed into the previously unfunded revocable
trust.
Adding to the confusion as to what corpus Shirley’s
children would receive one-third of is the fact that an
irrevocable trust was also established. That trust was
originally drafted by Thomas to pass all of its assets to
Casey’s children. It appears from correspondence that this
trust was later drafted to provide a one-third/two-thirds
division but this trust was funded with only $1.
However, any evidence about a one-third/two-thirds division
simply sheds light on what Casey may have been thinking when he
initially drafted his trusts. * It does not provide any evidence
that Shirley and Casey agreed with each other that there would
be a one-third/two-thirds division. There simply is not clear
and convincing evidence of what Shirley meant by “more.”
Indeed, Morris admitted on cross-examination that her mother
*
The trial court considered Casey’s actions to initially
give one-third of the revocable trust to Shirley’s children as
corroboration of what Shirley and he intended to leave to
Shirley’s children. His actions, however, only shed light as to
his intent. They provide no evidence as to what Shirley thought
that the agreement was and therefore cannot be considered clear
and convincing evidence of the terms of the agreement between
Shirley and Casey.
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never told her that Casey would divide his estate such that one-
third went to her and her sisters and two-thirds went to his
children, and Gregg indicated that her mother never discussed a
one-third “widow’s share” with her. Therefore, the evidence of
a statement referring to a “widow’s third” even when combined
with Casey’s actions does not establish an agreement between
Casey and Shirley that her children would receive one-third of
the estate. Thus, as in Blincoe, it cannot be said that there
is clear and convincing evidence of the specific terms of what
Casey and Shirley contracted to leave to Shirley’s children and,
as such, the trial court’s decision is without sufficient
evidence to support it. See Code § 8.01-680.
III. CONCLUSION
Because the record lacks clear and convincing evidence as
to the terms of the agreement between Casey and Shirley, we will
reverse the judgment of the trial court holding that a contract
existed between Shirley and Casey. We will also vacate the
damages awarded to Morris.
Reversed and final judgment.
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