Starke v. Starke

MOYLAN, Judge. It is a cliché that the law is a thing of never-ending fascination. This apparently routine appeal confirms the truth underlying that cliché, as we are called upon, for what seems ⁶⁶⁷ the thousandth time, to make an apparently simple “clear error” analysis of a trial judge’s verdict. The never-ending fascination emerges with the realization that we are looking for clear error in a mirror, where left is right and up is down and everything moves in the opposite direction.

We are asked to do a familiar thing in what turns out to be an unfamiliar way. The thrust of the appeal is that a trial judge, in his fact-finding capacity, was clearly erroneous. He is charged, however, with being clearly erroneous not in something that he found but in something that he did not find. Although the distinction has suffered long neglect, those two decisional phenomena are not the same.

We do not, and cannot, assess the propriety of what is not done in the same way that we assess the propriety of what is done. THE TRUE ISSUE The appellant, Bernice C. Starke, challenges the verdict entered in favor of the appellee, Albert Edward Starke, by Judge Thomas P. Smith in the Circuit Court for Prince George’s County. The appellant presents the following issues for our consideration: 1. When title to the appellant’s real property was changed from sole ownership by the appellant to joint ownership by the appellant and the appellee, did the trial court err in (a) failing to order a constructive trust or (b) failing to find constructive fraud? 2.

Did the trial court err in holding that title to the real property should not be quieted to the appellant’s benefit? Such a framing of the issues, however, hopelessly obscures the single, apparently simple, but ultimately profound issue that is dispositive of everything else. In the way the case now plays out before us, although not in the way it played out before the trial court, the controlling threshold question is whether there existed a confidential relationship between an ⁶⁶⁸ elderly mother,.who signed a deed, and her son, who received a benefit from the deed. Although we may have to do a little procedural house cleaning at the end of the opinion, all of the legal results with respect to constructive fraud, constructive trust, and the quieting of title follow, essentially automatically, from the answer to that ultimately controlling threshold question.

Judge Smith did not find that any such confidential relationship existed. The appellant’s case rises or falls with her claim that Judge Smith was clearly erroneous in not so finding. “CLEAR ERROR” ANALYSIS APPLIES TO VERDICTS AND NOT TO INTERMEDIATE FACT FINDING . The appellant’s central claim is that Judge Smith was clearly erroneous for failing to find the existence of a confidential relationship. In her appellate brief, she frames that contention unequivocally: Whether a “confidential relationship” existed is a question of fact.

In a non-jury trial, an appellate court will not set aside a judgment of the trial court on the evidence unless clearly erroneous. Rule 8-131(c). Appellant respectfully submits that, on the basis of the record, even when taking the facts in the best light of the Appellee, the trial court’s ruling that no “confidential relationship” [existed] was clearly erroneous. (Emphasis supplied).

In that contention, the appellant relies on Md. Rule 8-131(c). That Rule, however, has no bearing on the contention. Rule 8-131(c) provides: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of witnesses.

(Emphasis supplied). Rule 8-131(c) does not apply to evidentiary rulings, even rulings that have a critical influence on the outcome of ⁶⁶⁹ the case. Neither does Rule 8-131 (c) apply to ancillary or intermediate findings of fact (or non-findings of fact), even those that might control, as in this case, whether a presumption of undue influence arising out of a confidential relationship should arise. Rule 8-131(c) applies only to verdicts, conferring on an appellate court the authority to review a verdict on the evidence.

Historically, no such authority existed in either court trials or jury trials. In a jury trial, however, it effectively existed because a trial judge’s legal decision as to whether the evidence was sufficient to permit the case to be submitted to the jury was renewable as a matter of law. No such review of the sufficiency of the evidence was traditionally available in a court trial, however, because a judge, in his capacity as a legal referee, was not required to make a legal ruling before submitting the case to himself, in his capacity as a fact finder. The procedural formality that attends the passing of a case from a legal-referee judge to a fact-finding jury is not present when a judge alone, playing two distinct roles, passes the case from the left hemisphere of his brain, where he “thinks” as a legal referee, to the right hemisphere of his brain, where he “feels” as a fact finder.

No legal ruling is involved in the turning of that switch within the brain. Because no legal ruling is involved, there was historically no available mechanism for an appellate court to review on the evidence the verdict of a fact-finding judge. The predecessor provisions to what is now Rule 8-131(c) conferred on appellate courts the authority to rule on the legal sufficiency of evidence in court trials by applying the clear error standard of review. Such appellate review of a verdict on the evidence became available on the civil side in 1941 and on the criminal side in 1950.

Edwards v. State, 198 Md. 132, 153-54 , 83 A.2d 578 (1951). See also Isen v. Phoenix Assur. Co. of New York, 259 Md. 564 , 270 A.2d 476 (1970); Williams v. State, 5 Md.App. 450, 452-59 , 247 A.2d 731 (1968). As Edwards v. State, 198 Md. at 154-55 , 83 A.2d 578 explained: ⁶⁷⁰ Until adoption of the federal and Maryland rules of civil and criminal procedure there was (perhaps with special exceptions under federal statutes) no appellate review of facts at all in the federal or Maryland courts in civil cases at law or in criminal cases.

(Emphasis supplied). The respective civil and criminal enabling rules for the appellate review of evidentiary sufficiency have now coalesced into Rule 8-131(e). With respect to Rule 8-131(c) itself, however, its concern is not with how the evidence arrived at the state it was in at the end of the adjudicatory process. Its concern is rather with whether the evidence at that stage, however it came to be, is sufficient to permit the deliberative process to begin.

What the appellant is attempting to do is to apply Rule 8-131(c) to an ancillary non-finding of a fact in the middle of the trial. She claims that had the proper “finding” been made that a confidential relationship existed, a presumption in her favor of undue influence would then have arisen. She then hypothesizes, however, the very existence of the presumption she desired and makes the further claim that the ultimate verdicts were erroneous in the face of such an “unrebutted” presumption. The existence of a confidential relationship was not, of course, an ultimate fact in issue.

It was not the subject matter of a verdict. Rule 8-131(c) and its “clear error” analysis simply will not stretch as far as the appellant would stretch it. THE APPELLEE’S BEST VERSION OF THE FACTS Purely for the sake of argument, however, we will indulge the appellant in the assumption that “clear error” analysis applies to the non-finding of a confidential relationship in this case. We do so because of the rare opportunity it affords to explore the heretofore almost totally unexplored subject of how a fact finder could ever be clearly erroneous with respect to what was not found.

It is not inappropriate that we do so in this case, moreover, because although Rule 8-131(c) itself ⁶⁷¹ may literally apply only to ultimate verdicts, we do in various contexts apply the “clearly erroneous” criterion to a trial judge’s ancillary fact finding on a variety of intermediate issues that can come up for appellate review. As we probe Judge Smith’s verdict and, arguendo, its antecedent fact finding for clear error, “the prevailing party is entitled to have the evidence viewed in the light most favorable to it.” Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121, 127-30 , 85 A.2d 759 (1952).

See also Burroughs Int’l Co. v. Datronics, 254 Md. 327, 337 , 255 A.2d 341 (1969); Balt. & Ohio Railroad v. Kuchta, 76 Md.App. 1, 11 , 543 A.2d 371 (1988); and Levin v. Levin, 43 Md.App. 380, 386 , 405 A.2d 770 (1979). The prevailing party, of course, is the appellee and it is in his direction that our interpretative favor will tilt. Moosavi v. State, 118 Md.App. 683, 692-95 , 703 A.2d 1302 (1998), rev’d on other grounds, 355 Md. 651 , 736 A.2d 285 (1999). The appellant is the 95-year-old mother of the appellee.

She is almost totally blind, almost totally deaf, and suffering from diabetes. For approximately twenty years prior to August of 1997, the appellant lived alone in her residence at 4907 Ridgeview Lane in Bowie. On August 26, 1997, however, she was taken to Laurel Regional Hospital because of problems she had been having with her foot, complicated by her diabetes. A few days later, on September 3, the appellee drove to Maryland from his Florida residence to see his mother.

During that visit, he had her evaluated for mental competency by a psychiatrist. Dr. Exall Kimbro, Jr. performed that examination and concluded that the appellant was “alert and competent mentally. There is no psychiatric history.” Also in Dr. Kimbro’s written report was the following: HISTORY OF PRESENT ILLNESS: The patient is a 92-year-old white female who was seen in the presence of her son who had requested the evaluation. Apparently he was getting somewhat perturbed with her because of her resistance to his helping with her affairs and her insistence on being completely independent.

Today she told me very ⁶⁷² pleasantly that this was her only child and that he was helping her with her affairs and that she was giving him power of attorney so that he could handle everything for her. She seemed to he completely happy with that decision. Her son told me later that he had been talking to her about it and the importance of doing that. Both of them declared that their relationship was good. * * * ...

She stated that she wanted her son to handle her affairs and that he would he inheriting everything since he is the only child. (Emphasis supplied). On that same date, the appellant was also visited by her attending physician, Dr. Robert DePetris, who noted that she was “fully alert and answering to all questions appropriately.” On September 8, 1997, the appellee visited the appellant at Larkin Chase Nursing Home and brought with him (1) a Power-of-Attorney form and (2) a deed to the appellant’s home which transferred her sole ownership to that of joint ownership with him. In a deposition, the appellant recalled signing the Power-of-Attorney but denied that she ever signed the deed.

The appellant’s signature nonetheless appeared on both documents and both were notarized in her presence. The notary, Marian Buckner, later testified that she did not specifically recall meeting with the appellant and notarizing the documents. Ms. Buckner did testify, however, that. “I know that if I notarize a signature, I always make sure that the resident knew what was actually in it, because a lot of residents don’t actually understand — I mean, they would sign most anything.” On July 21, 1998, the appellant filed suit against the appel-lee in the Circuit Court for Prince George’s County. Following a series of amended complaints, she sought relief for the following: (1) accounting, (2) breach of fiduciary duty, (3) constructive fraud, (4) constructive trust, (5) quiet title, and (6) fraud.

Counts 1 and 2 concerned certain financial conse ⁶⁷³ quences of the appellee’s actions pursuant to his power of attorney, ie., the closing of the appellant’s bank accounts and the appellee’s purchase of the CDs with some of the money that had been his mother’s bank account. Counts 3 through 6 concerned the ownership of the property at 4907 Ridgeview Lane and the appellant’s disputed signing of the deed to that property. On September 21, 1999, a court trial was held. At the conclusion of the trial, the court referred counts 1 and 2 to the Court auditor for an accounting before making any decision.

The court ruled in favor of the appellee as to counts 3 through 6. We are concerned, therefore, only with those counts pertaining to the deed transferring ownership of the appellant’s residence. THIS TRIAL WAS ABOUT AN ALLEGED FORGERY NOT ABOUT A CONFIDENTIAL RELATIONSHIP Before turning to the now critical question of whether Judge Smith was clearly erroneous in failing to find the existence of a confidential relationship, it is important to place this entire issue, and our assessment of the trial with respect to this issue, in the context of the actual trial that took place before Judge Smith. The issue now being raised on appeal, if it was before the circuit court at all, was before that court only in the most peripheral of fashions.

Indeed, the case before us bears little resemblance to the case that was tried before Judge Smith, We will not, therefore, indulge in a critical inquiry into why Judge Smith did this or why Judge Smith did not do that from the warped perspective of the appellant, who would like us to treat as having been on center stage an issue that was, at best, in the far, far wings of the trial that actually took place. In attempting to set aside the deed from the appellant to the appellant and the appellee jointly, the primary thrust of the appellant’s case at the trial level was that the appellant never signed such a deed and that it was, therefore, a forgery. ⁶⁷⁴ The dominant focus of the trial was not on either 1) the existence of a confidential relationship or 2) the abuse of such a relationship. It was almost exclusively on the issue of whether the appellant signed the deed to her home or whether her purported signature was a forgery. The case before Judge Smith consisted of the testimony of four witnesses, the pre-trial deposition of the appellant, and the medical evaluation of the appellant made by Dr. Exall Kimbro.

In her deposition, the appellant never stated that she signed the deed because she succumbed to the pressure, the cajoling, or' the blandishments of her son to get her to do so. She adamantly maintained that she did not sign the deed at any time. The medical report from Dr. Kimbro did not suggest in any way that the appellant was under the influence of her son. It characterized her as “alert and competent mentally.” Two of the three witnesses called by the appellant were 1) her long-time friend and neighbor, Kay Kaplanis, and 2) the manager-director of an assisted living facility where the appellant stayed for several months, Dorothy Powell-Alien.

Ms. Kaplanis gave a general narration of the appellant’s at-times troubled relationship with her son but did not indicate she was under his influence or relied on him in deciding what course of action to take. Her testimony actually reflected overtones of hostility between the° appellant and her son. Ms. Powell-Alien shed little light on the relationship between the appellant and her son and what little light she did shed was not indicative of any pressure being placed upon or advantage being taken of the mother by the son: Q: And you knew Mrs. Starke fairly well as she was a resident at your home? A: Yes, I think I did.

Q: And did you view her as being disadvantaged, being taken advantage [of] by her son? A: No, I did not. Not when she got there. I thought he was doing his job as son.

The real battle was joined by the last two witnesses and almost all of Judge Smith’s rendering of his verdict was ⁶⁷⁵ devoted to resolving the conflict between those two witnesses. Katherine Koppenhaver was offered by the appellant as an expert witness on handwriting examination. She testified that the signature on the deed was not that of the appellant. The appellee then offered Marian F. Buckner, the Notary Public who notarized the deed, as his only witness.

Her testimony supported the conclusion that the appellant had signed the deed. In rendering his verdict at the conclusion of the trial, Judge Smith devoted almost all of his analysis to his resolution of the question of whether the appellant’s signature on the deed was genuine: ... I did hear from the notary public. I find her to be a credible witness.

I find her testimony to be consistent and logical, and I believe her testimony as a credible witness. I think that the expert witness, Ms. Koppenhaver, did the best that she could, but document examination is far, far, far from an exact science when one does not have the original documents and is able, for instance, to run scientific tests on paper and ink and things of that nature. I think Ms. Koppenhaver’s testimony has been sufficiently placed in doubt. ... Having found Ms. Koppenhaver’s testimony now to be less than persuasive, and Ms. Buckner’s testimony to have been persuasive, I am convinced that [the deeds of October 8 and 9, 1997] are each genuine documents bearing the signature of Bernice C. Starke that they purport to bear, and that the signature is not false or forged or copied and that the documents, each of the documents are genuine.

(Emphasis supplied). Those findings of fact were essentially dispositive of the entire case. Having made those findings, Judge Smith proceeded summarily to render his verdicts as to the various counts. Both parties were apparently satisfied that the verdicts resolved all outstanding questions.

The appellant never requested any further findings of fact or further verdicts. She never suggested that there were issues of 1) the existence ⁶⁷⁶ of a confidential relationship or 2) the abuse of a confidential relationship still calling for resolution. We are fully persuaded that the contention now being raised by the appellant is no more than, or little more than, an appellate afterthought. At the very least, the rhythm and course of the real trial makes it clear why Judge Smith did not have more to say about either 1) the existence of a confidential relationship or 2) its abuse if it did exist.

There was no occasion for him to address those issues that were not squarely before him. The appellant at the time of the rendering of the verdicts, moreover, did not ask him to address those issues. HOW DO WE MEASURE CLEAR ERROR WITH RESPECT TO WHAT IS NOT FOUND The measure of whether evidence is legally sufficient 1) to permit the judge to submit the case to the jury, in a jury trial, or 2) to support the judge’s verdict as not clearly erroneous, in a non-jury trial, is the same in civil cases and criminal cases alike. Isen v. Phoenix Assur.

Co. of New York, 259 Md. 564, 569 , 270 A.2d 476 (1970); Williams v. State, 5 Md.App. 450, 452-60 , 247 A.2d 731 (1968). We use various references to refer to such legal sufficiency. We sometimes speak of the legal sufficiency of the evidence; we sometimes speak of satisfying the burden of production; we sometimes speak of a prima facie case. This civil or criminal burden of production is a constant that does not rise and fall with the shifting of the burden of persuasion.

The burden of persuasion is simply an attempt to communicate to lay jurors our historic understanding of the level of certitude, greater or lesser, that they should feel before reaching a decision on a particular kind of issue. How a fact finder, properly instructed, then assesses credibility and how much weight a fact finder gives to evidence, however, are matters within the exclusive control of the fact finder. Evidence that is legally sufficient to persuade one fact finder only by a bare preponderance of the evidence may ⁶⁷⁷ persuade a second fact finder clearly and convincingly or yet a third fact finder beyond a reasonable doubt. Our measurement of the legal sufficiency of the evidence has nothing to do with what the burden of persuasion may be.

McCoy v. State, 118 Md.App. 535, 539 , 703 A.2d 237 (1997); Moosavi v. State, 118 Md.App. 683, 686-92 , 703 A.2d 1302 (1998), rev’d on other grounds, 355 Md. 651 , 736 A.2d 285 (1999). The measure of legal sufficiency, moreover, is precisely the same whether we are applying it in the context of a jury trial or a non-jury trial. Isen v. Phoenix Assur. Co., 259 Md. at 571 , 270 A.2d 476 ; Allen v. Steinberg, 244 Md. 119, 122-23 , 223 A.2d 240 (1966). “Although the manner in which the question of the sufficiency of the evidence comes before us when a case is tried by the lower court without a jury is different than when a case is tried below by a jury, we see no material difference in the tests applied in determining the question.” Williams v. State, 5 Md.App. at 458 , 247 A.2d 731 .

We do, to be sure, frame the issue somewhat differently, depending upon that context. In a jury trial, our inquiry will be whether the evidence was legally sufficient to permit the judge, as a matter of law, to submit the case to the jury. In a non-jury trial, our inquiry will be whether the evidence was legally sufficient to sustain the verdict of the fact-finding judge as not clearly erroneous. With respect to the difference in the framing of the issues in the respective contexts of jury and non-jury cases, Williams v. State, 5 Md.App. at 455-56 , 247 A.2d 731 , explained: [T]he issue comes before us in a case tried by the lower court sitting as a jury in a different posture than when the case is tried by a jury.

In a non-jury case Rule 1086 specifically provides that we shall review the case upon the evidence (as well as the law) and we must determine whether the lower court was clearly wrong on the evidence in finding a verdict of guilty. In a jury case if the lower court finds upon motion for judgment of acquittal that the evidence is sufficient in law to justify a conviction, it denies the motion, and permits the evidence to go to the jury. On ⁶⁷⁸ appeal we determine whether the denial of the motion was proper. It is because of