Maccabees Mutual Life Insurance v. Morton

CLARK, Senior Circuit Judge,

dissenting:

I agree with the majority’s conclusion that appellant Julie Dianne Morton did not assign her rights in the life insurance policy and the IRA account to Charles Morton and his estate. I disagree with the majority’s holding that the evidence supported appellee Josephine Morton Roberts’ related promissory estoppel and fraud claims. Ap-pellee failed to prove any possible injury by a preponderance of the evidence, and the district court accordingly should have granted appellant’s motions for directed verdict or judgment non obstante veredic-to. I respectfully dissent.

Underlying both the promissory estoppel and the fraud claims are appellee’s allegations that she immediately would have sought to be appointed Charles Morton’s guardian and would have changed the beneficiary on the life insurance policy and the IRA account prior to his death1 but for *1188appellant’s purported promises to turn over the life insurance proceeds to appellee.2 Support for these allegations in the record is crucial to the majority’s holding that a reasonable jury could have found for appel-lee on the promissory estoppel and fraud claims. Regardless of appellant’s alleged promises, if appellee did not show that she could have been appointed guardian and changed the beneficiary, appellee would have suffered no detriment to support her promissory estoppel claim and appellee would not have established the requisite proximate causation to support her fraud claim. And neither the evidence introduced at trial nor the law given to the jury showed that appellee could have been appointed guardian and changed the beneficiary before Charles Morton’s death. As the district court remarked, appellee “probably couldn’t have done it [changed the beneficiary].”3

The only testimony on the guardianship issue came from a probate court judge, called by appellant. The probate court judge testified that two kinds of guardians may be appointed under Georgia law for incompetent adults: permanent and emergency guardians. She stated that she had appointed many permanent guardians in thirteen years on the bench; that she had been requested to appoint only a few emergency guardians; but that she had never encountered circumstances justifying the appointment of an emergency guardian.4 The probate court judge further testified that she had never appointed a permanent guardian in less than a month and a half.5 At most, twenty-eight days intervened between appellant’s alleged promises and Charles Morton’s death.6 On these facts, no rational jury could have found, and the majority does not now contend, that appel-lee could have been appointed a permanent guardian in this time period. Appellee was therefore required to show that she could have been appointed an emergency guardian.

The probate court judge testified that an emergency guardian could be appointed in three to five days.7 There are only two conditions justifying the appointment of an emergency guardian in Georgia: preservation of life or preservation of an estate.8 The probate court judge never stated that an emergency guardian could have been appointed under the circumstances of this case. She only gave the obvious answer that an emergency guardianship could be created, assuming that the statutory re*1189quirements were met (that the emergency guardianship was necessary for the preservation of life or an estate).9 More importantly, the probate court judge stated in response to a cross-examination question from appellee’s attorney that she would not have considered the mere fact that some event was going to diminish a proposed ward’s estate in deciding whether to appoint an emergency guardian:

Q. All right. Assuming that ... any events were taking place, whether or not [the proposed ward] was doing something, if there was any action ... that was going to dissipate his estate and make him insolvent, ... would you have been able to take any action? Would you have considered that?
A. No. What you consider is what the patient is going to do at that point.10

Understandably, appellee’s attorney immediately moved to a different line of questioning after this response.

Less understandable is the majority’s conclusion that appellee sufficiently supported her assertion that she could have been appointed an emergency guardian. The unavoidable import of the probate court judge’s above-quoted statement is that it would be irrelevant to the appointment of an emergency guardian that Charles Morton’s life insurance policy and IRA account named someone other than his proposed guardian as the beneficiary. The judge’s testimony was that the incompetent’s current actions have to support the creation of an emergency guardianship to preserve an estate.11 In other words, obligations undertaken prior to the period of incompetency having the incidental effect of diminishing the incompetent’s estate do not by themselves justify an emergency guardianship. Appellee has asserted no other grounds for seeking an emergency guardianship. According to the trial testimony, appellee therefore was not injured by appellant’s alleged promises, because appellee would not have been able to obtain an emergency guardianship.

In the face of appellee’s failure to carry her burden of proof at trial, the majority relies on the Georgia statute governing the appointment of emergency guardians12 to hold that appellee could have been appointed an emergency guardian.13 The majority omits to disclose that this statute was never even mentioned to the jury.14 The district court judge — the jury’s exclusive source of law15 — did not refer to the statute or describe the standards for appointment of guardians in his jury charge.16 The trial transcript reveals no discussion of the statute or the standards it sets out. As claimant, appellee was required to establish every material element of her case. However, appellee failed to bring the statute relied upon by the majority to the attention of the jury. In the absence of this information, the jury would have had no basis for finding in appellee’s favor on the promissory estoppel and fraud counts. In effect, appellant introduced expert legal testimony as to the interpretation of the statute at issue. Appellee simply never managed to *1190counter this testimony with expert witnesses of her own or otherwise. The majority thus takes an approach to the record that verges on the metaphysical: The majority concludes that the jury innately would have known of the existence of section 29-5-8(b) and then would have interpreted its provisions in direct contradiction to the only testimony presented on this issue, that of the probate court judge. This process of reasoning eludes me.

The majority further argues that appel-lee in fact met the statutory requirements for the appointment of an emergency guardian and that appellee did not have to disprove the probate court judge’s testimony that she personally would not have appointed an emergency guardian under the circumstances of this case.17 Even assuming that there is a convergence between appellee’s claims and the law of Georgia, this happenstance does not establish that appellee introduced sufficient legal support for her claims during these particular proceedings. And I find no basis in the record for the majority’s assertion that the probate court judge’s testimony only amounted to a declaration that she would not have appointed a guardian under the postulated circumstances. The judge gave expert testimony as to the procedures followed generally in the Georgia probate courts, and neither she nor the attorneys ever indicated that she was merely representing her own idiosyncratic responses to the various factual situations presented to her.

Notwithstanding the majority’s ex post facto insertion of the Georgia emergency guardian statute into the record, appellee failed to introduce even a “mere scintilla of evidence”18 at trial that she could have been appointed a guardian under the circumstances of Charles Morton’s incompetence. Due to this failure of proof, ap-pellee did not show that she sustained any injury to support her promissory estoppel and fraud claims. The district court was obligated to grant appellant’s motions for directed verdict or judgment notwithstanding the verdict. I would reverse for entry of judgment in favor of appellant.

. The life insurance contract provided that the owner of the contract could change the beneficiary at any time while the insured was alive.

. See R3-93-94 (testimony of appellee) ("[Appellant] and my daughter were there and I said that I needed — I needed to get myself appointed Charlie's guardian because I did not know how long Charlie was going to be incapacitated, and I was all that he had, and I knew that things might come up. And [appellant] said, "You don’t need to worry Charlie at this time,’ said, ‘If you go in there and do that,’ says, ‘Charlie will think he’s dying and we don’t want him to think he’s dying.’ And she said, ‘Mrs. Roberts, I’ve told you I have no interest in the insurance other than to make sure that the beneficiary comes to his family, because I know that this was what Charlie would want and I want to carry out his last wishes.’ ”).

. R4-135.

. R4-62; R4-73-74.

. R4-64.

. See R3-90 (appellee’s testimony that appellant made promises to her on September 17, 1987). Charles Morton died on October 15, 1987. R3-11. I note that the actual period of time appel-lee had to obtain a guardianship and change the beneficiary was probably much less than twenty-eight days. Appellee testified that she first discovered the existence of the insurance policy at issue during the last week of September. R3-93. She would have had no reason to seek a change in the beneficiary prior to this time and accordingly would have had only two to three weeks in which to seek guardian status. Moreover, the conversation during which appellee alleges appellant specifically promised to make sure that appellee received the insurance proceeds at issue did not occur until October 3 or 4, 1987, leaving even less time to seek guardian status. R3-114.

. R4-63.

. Id.; see also Ga.Code Ann. § 29-5-8(b) (petitions for appointment of emergency guardians shall set forth "(1) Such facts as establish an immediate, clear, and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed; or (2) Such facts as establish an immediate, substantial risk of irreparable waste or dissipation of the estate of the proposed ward unless an emergency guardian is appointed.”).

. See R4-72:

Q. Assume also that it was either for the preservation of life or the preservation of the ward’s estate?
A. Okay. If surgery was pending or he was about to sign a deed or something of this nature, those two things would have to exist.

. R4-72-73 (emphasis added).

. See also R4-63 (probate court judge testifies as to when an emergency guardianship is appropriate to preserve an estate: “An example would be [the incompetent] has an estate of maybe a $150,000.00 house. Someone has offered him $10,000.00, and he is about to close that deal.”).

. Ga.Code Ann. § 29-5-8(b).

. Majority opinion, at 12-13.

. In fact, this statute was not even cited in the parties’ briefs on appeal.

. See Central of Ga. R.R. v. Sellers, 129 Ga.App. 811, 201 S.E.2d 485, 488 (1973) ("In all civil cases the jury shall receive the law exclusively from the trial judge and any departure from this rule will constitute reversible error.” (emphasis in original)); see abo R5-5 (district court’s jury charge: “The law as contained in these instructions represents the only law for your guidance _”).

. Nor did appellee object to the district court’s charge to the jury on these grounds. See R5-32-34.

. See majority opinion, at 1186 n. 1.

. Boeing Co, v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc) ("On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover's case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is prop-er_ A mere scintilla of evidence is insufficient to present a question for the jury.’’).