Valcarce v. Valcarce (In re Estate of Valcarce)

301 P.3d 1031

732 Utah Adv. Rep. 47

In the Matter of the ESTATE OF Juanita Marie VALCARCE.John Valcarce, Petitioner and Appellee,

v.Paul Valcarce, Respondent and Appellant.

No. 20110863–CA.

Court of Appeals of Utah.

April 18, 2013.

Paul Valcarce, Appellant Pro Se.

Jack H. Molgard, Attorney for Appellee.

Opinion

McHUGH, Judge:

¶ 1 Paul Valcarce appeals from the trial court's order probating the estate of his sister, Juanita Marie Valcarce; from the denial of his motion to alter or amend judgment; and from the denial of his motion for a new trial. We affirm.

BACKGROUND ¹

¶ 2 Juanita Valcarce (Decedent) died on March 8, 2010, survived by her siblings Paul Valcarce (Appellant), John Valcarce (Appellee), Edward E. Valcarce (Edward), and Ann Merrill.² After Decedent's death, Appellee and Edward filed a motion to Admit and Probate the Last Will and Testament of the Decedent (Motion to Probate 1991 Will). In the Motion to Probate 1991 Will, Appellee alleged that Decedent had executed a will sometime in 1991 (the 1991 Will), that the original of it had been lost, and that despite reasonable diligence, he was unaware of any instrument revoking the 1991 Will. Appellee requested that Decedent's estate be administered according to the lost 1991 Will, rather than through intestacy. Appellant contested the validity of the 1991 Will and argued that it should not be admitted to probate.

¶ 3 The factual issues were tried on May 18 and 27, 2011. Although Appellant was present at trial only on May 27, 2011, he was represented by counsel throughout the proceedings. Likewise, while Merrill was not present at trial on either date, she was representedby the same counsel as Appellant throughout the trial court proceedings.

¶ 4 During trial, Appellee called attorney Jeff Thorne, who testified that sometime in 1991 he had prepared the 1991 Will for Decedent. Thorne believed that the 1991 Will was properly executed, that the original of it was delivered to the Decedent, and that, consistent with his firm's practice, he retained only an unsigned copy of the 1991 Will in addition to the notes he made during his meeting with Decedent. Although Thorne did not have a specific recollection of Decedent executing the 1991 Will, he explained that it was his firm's practice for secretaries to act as witnesses and for the attorney to act as a notary in executing a will. Thorne believed the original 1991 Will was properly executed by the Decedent, witnessed by two firm employees, and notarized by him because, if it had not been, the original would have been kept with the copy in the firm's files. Thorne also testified that his firm was paid for drafting Decedent's 1991 Will, which further indicated that the original had been signed and executed. The unsigned, undated, and unwitnessed copy of the 1991 Will was received as an exhibit at trial, without objection. The terms of the 1991 Will, as reflected in the copy, indicate that Decedent left her entire estate to Appellee and another sibling, Arland Valcarce, who predeceased Decedent.

¶ 5 Edward also testified at trial, indicating that he found a one-page will (the One–Page Will) at Decedent's house a few days after her death. He could not recall what color the One–Page Will was, whether it was typewritten or handwritten, single or double spaced, or notarized. Although Edward did remember that the One–Page Will was signed by Decedent and two witnesses, he testified that he did not read the names of the witnesses and, therefore, could not identify them. He did not establish the date of the One–Page Will or indicate whether it included a date. Edward testified that he gave the One–Page Will to the Appellant, who told Edward during a subsequent telephone conversation that he was considering destroying it.³ Neither the One–Page Will nor a copy of it were produced at trial.

¶ 6 Edward also testified regarding an affidavit, admitted as an exhibit at trial, that he filed with the trial court in support of the Motion to Probate 1991 Will. Consistent with his affidavit, Edward indicated that during a visit to the Decedent in her home six months before her death, she showed him an executed will that was dated sometime in the early 1990s and appointed Appellee as a personal representative of her estate. Edward stated that he read and discussed the contents of that will with Decedent and that they were the same as the terms in the copy of the 1991 Will located in Thorne's office. Edward also explained that the One–Page Will he found after Decedent's death was not the same will that Decedent had shown to him six months earlier but that it contained essentially the same terms regarding distribution of her estate.

¶ 7 The trial court issued its memorandum decision on June 7, 2011, finding that “[Decedent] executed the [1991 Will] received as Exhibit # 1 in 1991. Said [1991 Will] acknowledges her various siblings and directs that her entire estate be given to her brothers, Arland Valcarce and [Appellee]. Arland Valcarce predeceased [Decedent].” The trial court additionally found, “[Edward's] testimony was at times somewhat confusing yet seemed credible. His testimony amounts to a declaration against interest because he receives inheritance from the estate if there is no will, yet receives nothing if either of the wills of which he testified are recognized by the court.” The trial court then applied those factual findings to the legal question of “whether either the 1991[W]ill or the [One–Page Will] ... govern distribution of [D]ecedent's estate, or whether the estate should be distributed pursuant to Utah's laws of intestacy.” Ultimately, the court determined “that the 1991 [W]ill governs [D]ecedent's estate.” Based on these findings and legal conclusions, the trial court issued its order on August 2, 2011.

¶ 8 Appellant and Merrill filed a motion for a new trial on August 3, 2011, alleging that Appellant was denied his constitutional rights of due process and confrontation because “[Appellant] was unable to hear what was said, what was asked, and any rulings made by the [c]ourt during the trial ... because the bailiffs made him turn the volume down on the hearing device, given [to] him by the clerks.” On August 5, 2011, Appellant and Merrill also filed a motion to alter or amend judgment, claiming that the trial court “failed to consider ... controlling case law when it entered its decision admitting the unsigned, undated, and unattested alleged copy of [Decedent's] will into probate.”

¶ 9 The trial court denied both motions on August 30, 2011. It determined that Appellant had “waived any objection concerning his ability to fully participate in this trial by ... wait[ing] approximately two months after the decision was rendered ... before raising this issue.” Alternatively, the trial court determined “that any such defect constitutes harmless error and is not inconsistent with substantial justice. [Appellant] was fully represented by counsel at trial. [Appellant's] counsel could fully hear the proceedings and was able to fully present [Appellant's] case and defense in this matter.” Additionally, the court found, “[Appellant's] attorney made the tactical decision to allow his client not to testify. The [c]ourt will not now allow a second bite at the apple because [Appellant] and his attorney regret this decision.” Subsequently, the trial court found “that any such ‘irregularity in the proceedings' did not prevent [Appellant] from having a fair trial.” Last, in rejecting the motion to alter or amend judgment, the trial court reaffirmed its decision, stating “that the evidence adduced at trial establishes by clear and convincing evidence that the [D]ecedent intended the 1991 Will to constitute her will regardless of any deficiencies in its execution.” ⁴

¶ 10 Appellant filed a timely notice of appeal. In his docketing statement, Appellant challenges for the first time the trial judge's impartiality. According to Appellant, he learned only after judgment that, when Thorne drafted the 1991 Will, Thorne and the trial judge were partners in the law firm of Mann, Hadfield & Thorne. As a result, Appellant seeks reversal and a new trial on the ground that the trial judge should have recused himself.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Appellant challenges the sufficiency of the evidence underlying the trial court's findings of fact, and the trial court's legal conclusions based on those facts. “[W]e review a trial court's factual findings under a clearly erroneous standard and the legal sufficiency of those findings, as well as the legal conclusions based on those findings, under a correction-of-error standard.” Kimball v. Kimball, 2009 UT App 233, ¶ 15, 217 P.3d 733.

¶ 12 Appellant also argues that the trial court abused its discretion when it denied his motions under rule 59 to alter or amend judgment and for a new trial. SeeUtah R. Civ. P. 59 (providing grounds to alter or amend a judgment and for new trial). “Generally, we afford trial judges wide latitude in granting or denying rule 59 motions.... Consequently, we generally disturb a trial court's grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. “An abuse of discretion may be demonstrated by showing that the district court relied on ‘an erroneous conclusion of law’ or that there was ‘no evidentiary basis for the trial court's ruling.’ ” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (quoting Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997)).

¶ 13 Last, Appellant argues that the trial judge should have recused himself due to his membership in the law firm that drafted the 1991 Will during the same time that Thorne prepared it. SeeUtah R. Civ. P. 63(b)(1) (stating that a disqualification motion shall be filed “not later than [twenty] days after ... the date on which the moving party learns or with the exercise of...