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Poll v. Poll

Court of Appeals of Iowa

June 5, 2019

ESTATE OF WILMA POLL, Plaintiff-Appellant,
v.
KENNETH WILLIAM POLL, Defendant-Appellee.

          Appeal from the Iowa District Court for Jackson County, Stuart P. Werling, Judge.

         The Estate of Wilma Poll appeals following a jury trial finding in favor of defendant Kenneth Poll. AFFIRMED.

          Christine Frederick and Cynthia Z. Taylor of Zamora Taylor Woods & Frederick, Davenport, for appellant.

          Matthew L. Noel (until withdrawal) and Victoria D. Noel of The Noel Law Firm, Clinton, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.

          DOYLE, JUDGE.

         Patricia Gerardy, the conservator for Wilma Poll, brought suit against Kenneth Poll concerning a real estate transaction between Kenneth and Wilma. Patricia alleged Kenneth unduly influenced Wilma to enter into the agreement and that Wilma was not competent to enter into the transaction. The jury found in favor of Kenneth, and the district court denied Patricia's posttrial motions. Patricia appealed the jury verdict and various rulings by the district court. The Estate of Wilma Poll was substituted as the plaintiff/appellant after Wilma passed away. Upon our review, we affirm the jury verdict and the district court's rulings.

         I. Background Facts and Proceedings.

         Wilma Poll was born in 1918. In September 2012, Wilma executed a power of attorney form appointing her son, Kenneth Poll, as her attorney in fact. On September 8, 2015, ninety-seven-year-old Wilma entered into a real estate contract with Kenneth to sell Kenneth her forty-acre farm for $24, 000. The purchase price was to be paid in installments. Eight days later, Wilma was examined by her regular physician, Dr. Jerald Bybee, to ascertain her mental status or competency. Using a test called the "mini mental status evaluation," Dr. Bybee asked Wilma to perform a number of tests, including answering what the exact date was and the solution to relatively simple arithmetic problems. Out of a possible score of thirty points, Wilma scored twenty points. Dr. Bybee opined Wilma's score indicated her memory was on the line between mildly and moderately impaired. Wilma thought it was 2012 when it was 2015. Wilma did not recall the amount of money in question in the real estate contract with Kenneth. Ultimately, Dr. Bybee opined that Wilma's mental capacity at that time-and the eight days before it-was such that she did not have the mental capacity to understand the contract and was not capable of entering into a contract voluntarily, freely, and intelligently.

         In April 2016, Wilma's daughter, Patricia Gerardy, was appointed guardian and conservator of Wilma. In July 2016, Gerardy, acting as Wilma's conservator, filed a suit against Kenneth. Patricia alleged Kenneth, while acting as Wilma's attorney in fact, unduly influenced Wilma to sell her farm to Kenneth at an amount well below market value. Patricia also asserted the real estate contract should be set aside or deemed void because Wilma was not competent to enter into a contract with Kenneth. Kenneth denied the allegations.

         In August 2017, Patricia filed her list of expected trial exhibits, which included one titled "Judgment Entry in Case No. SCSC018588 and captioned Joshua William Poll v. Kenneth William Poll and filed on May 11, 2015." In that case, Kenneth's nephew, Joshua, alleged Kenneth failed to properly care for Joshua's bull as agreed. Following a small claims trial, the magistrate entered judgment in favor of Joshua. Therein, the court made express findings that Kenneth was not credible and explained its reasons for so finding.

         Prior to trial, Kenneth filed a motion in limine seeking to exclude the judgment entry from evidence, arguing it was irrelevant. Patricia resisted, arguing the judgment entry was relevant "as it speaks directly to [Kenneth's] credibility, especially while testifying under oath." The court took the matter up before trial and ruled the judgment entry was irrelevant in Patricia's case-in-chief as a matter of law, but the exhibit could be introduced if Kenneth testified to test his credibility.

         At trial, Patricia's attorney called Kenneth as an adverse witness, and during the examination, the following exchange occurred:

Q. Now, Mr. Poll, you've said that you believe that you are an honest person?
A. Yes.
Q. And would you say that you are always honest?
A. Yes.
Q. You've testified in court before; correct?
A. Yeah.
Q. And just like today, did you raise your hand and swear to tell the truth?
A. Yes.
Q. Were one of those testimonies in a case involving Joshua Poll?
A. Yeah.
Q. And was the ruling in that case filed on May 11, 2015?
A. Around that.
Q. Okay. Isn't it true, Mr. Poll, that the judge determined that your ...

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