This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).





In Re: Estate of Henry H. Haase,

a/k/a Henry Herbert Haase and Henry Haase.

Filed August 10, 1999


Willis, Judge

Lyon County District Court

File No. PX9853

Paul E. Stoneberg, Christianson, Stoneberg, Giles & Stroup, P.A., 300 O'Connell Street, Marshall, MN 56258 (for appellant Raymond Kirk)

C. Thomas Wilson, Dustan J. Cross, Gislason, Dosland, Hunter & Malecki, PLLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073; and Mark G. Wermerskirchen, Nesser, Darval, Nelson & Wermerskirchen, P.A., 1101 South First Street, P.O. Box 1175, Willmar, MN 56201 (for respondents Haase heirs)

Luther M. Amundson, Maser & Amundson, P.A., 6600 France Avenue South, Suite 425, Minneapolis, MN 55435 (for respondent special administrator)

Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant Raymond Kirk challenges the district court's order denying his petition for probate of Henry Haase's will dated June 29, 1990, and granting the petition of respondents Haase heirs for probate of Haase's will dated March 8, 1985. Kirk also appeals from the court's order denying his motion for a new trial. We affirm.


Henry Haase died on December 29, 1997. Kirk petitioned for formal probate of Haase's 1990 will and for his appointment as the executor of Haase's estate. D. Rick Haase, one of Haase's heirs, petitioned for formal probate of Haase's 1985 will and requested that Beverly Mercil be appointed as executor. Eldora Maas, one of Haase's heirs, filed a petition objecting to the appointment of Kirk as executor and to probating Haase's 1990 will, alleging the will was the product of undue influence and fraud.

After a bench trial, the district court found that Haase's heirs had proved by clear and convincing evidence that the 1990 will was the product of Roger Peavey's undue influence. The court therefore denied Kirk's petition for probate of the 1990 will and granted the petition of Haase's heirs for probate of the 1985 will. Kirk appealed. The court also denied Kirk's motion for a new trial, and he appealed. This consolidated appeal follows.


I. Undue Influence

Kirk claims the district court erred in finding that Haase's 1990 will was the product of Peavey's undue influence. Findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01 (noting that district court is in best position to judge credibility of witnesses); see also In re Estate of Opsahl, 448 N.W.2d 96, 100 (Minn. App. 1989) (stating that existence of undue influence is question of fact); Berg v. Ackman, 431 N.W.2d 264, 266 (Minn. App. 1988) (providing that district court's findings on disputed questions are entitled to same weight as jury verdict). A finding is clearly erroneous if it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Randall v. Northern Milk Prods., Inc., 519 N.W.2d 456, 458 (Minn. App. 1994) (citation omitted).

A party challenging the validity of a will on the ground of undue influence must prove such an interference by clear and convincing evidence. In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957).

The evidence must go beyond suspicion and conjecture and show, not only that the influence was in fact exerted, but that it was so dominant and controlling of the testator's mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.

Id. at 126-27, 81 N.W.2d at 280 (citations omitted). But such evidence generally will be circumstantial, and direct evidence is not required. In re Estate of Ristau, 399 N.W.2d 101, 103 (Minn. App. 1987).

The Minnesota Supreme Court has identified several factors that should be considered in determining whether circumstantial evidence will support a finding of undue influence. In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W. 2d 502, 504 (1969). Those factors are

(1) an opportunity to exercise undue influence; (2) a confidential relationship between the person making the will and the party allegedly exercising the undue influence; (3) active participation in the preparation of the will by the party alleged to have exercised it; (4) disinheritance of those whom the decedent would have been expected to remember in his will; (5) a singularity of the provisions of the will; and (6) the exercise of either influence or persuasion to induce decedent to make the will in question.

Id. (citation omitted). The record contains evidence of most of these factors.

First, the record demonstrates that Peavey had an opportunity to exercise undue influence and had a confidential relationship with Haase. Peavey had been involved in Haase's financial affairs since 1976. In fact, Peavey at one time was Haase's investment broker and gave him advice regarding various investments, including annuities, interests in partnerships, insurance policies, and other securities. There also was testimony that Haase may have been slightly mentally impaired.

The evidence also shows that Peavey participated actively in the preparation of Haase's 1990 will. In June 1990, Peavey accompanied Haase to attorney James Garvin's office, and according to Garvin's testimony, Peavey acted as Haase's "spokesperson" in suggesting the terms and conditions of an option in favor of Kirk to purchase a half-section of Haase's farmland. Garvin further testified that although Haase approved the final terms, Haase was not otherwise involved in discussions of the option.

Next, the record demonstrates that, although Haase's heirs were not wholly disinherited, the option price of $160,000 was substantially below the market value of Haase's land and that the land subject to the option constitutes a significant part of Haase's total probate estate.

Finally, Peavey's conduct at the meeting in June 1990 with Haase and Garvin is evidence that Peavey in fact exercised influence or persuasion to induce Haase to make the 1990 will. And the record shows that Peavey previously suggested that Haase disinherit his heirs and that Peavey did not disclose to Garvin his knowledge concerning Haase's nonprobate assets, many of which named Kirk as beneficiary.

Kirk argues that there was no "nexus" between Peavey and him and that he was therefore an innocent beneficiary. But once undue influence is established

a proffered will may not be admitted to probate even though the named beneficiaries are innocent of any wrongdoing, for such an instrument cannot thereafter be regarded as a free and voluntary declaration of the testator's intentions.

Peterson, 283 Minn. 449-50, 168 N.W.2d at 504-05 (citation omitted). Because there is sufficient circumstantial evidence to support the court's finding that Haase's 1990 will was the product of Peavey's undue influence, the finding is not clearly erroneous.

Kirk also challenges three other findings of fact as clearly erroneous. First, he argues that the district court erred in finding that Vernon Devries testified regarding a statement made by Peavey to Haase and regarding a 1976 contract for deed. Although the district court may have erred in attributing this testimony to Devries, the testimony of Robert Rice supports both assertions, and any error is harmless. See Minn. R. Civ. P. 61 (providing that harmless error is not ground for disturbing court's order).

Second, Kirk argues that the district court erred in finding that certain nonprobate assets brokered by Peavey were high-risk investments, claiming the investments were fixed-rate annuities. But there was testimony that at least one of the investments, a limited partnership, was not a good investment for Haase because of his age. And in any event, any such error is harmless.

Third, Kirk argues that the district court erred in finding that Haase was not capable of evaluating a prospectus for an annuity. But evidence in the record, including Peavey's testimony, supports such a finding. And again, any error is harmless.

II. Motion for New Trial

Kirk claims the district court abused its discretion in denying his motion for a new trial, asserting that there was an irregularity in the proceedings. See Minn. R. Civ. P. 59.01(a) (permitting court to grant new trial because of irregularity in proceedings that deprived party of fair trial). He argues that because the same district court judge presided over both this case and Peavey's subsequent criminal trial for obstructing legal process, the judge should have disqualified himself, citing Minn. Code Jud. Conduct Canon 3(D)(1) (providing that judge should disqualify himself or herself in proceeding in which judge's impartiality might reasonably be questioned). But even if Canon 3(D)(1) applies, a violation of the Code of Judicial Conduct "is not a basis for disqualifying a judge." Nachtsheim v. Wartnick, 411 N.W.2d 882, 891 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).

The decision to grant a motion for a new trial "rests almost entirely in the discretion of the [district] court and will be reversed only for a clear abuse of discretion." 200 Levee Drive Ass'n v. County of Scott, 532 N.W.2d 574, 578 (Minn. 1995) (citation omitted). A district court should grant such a motion only if there is a strong probability that a new trial will render a different result. Gunderson v. Olson, 399 N.W.2d 166, 168 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987); see also Hair v. Miller, 374 N.W.2d 223, 225 (Minn. App. 1985) (noting that district court should be reluctant to grant motion for new trial).

Haase's heirs assert that Kirk waived his right to claim an irregularity in the proceedings, citing Zurn v. Hunt, 409 N.W.2d 8, 11 (Minn. App. 1987) (requiring that, at first suspicion of irregular procedure, attorney bring matter to court's attention). In Zurn, we stated that if the irregularity is not brought to the court's attention immediately, it may not be raised for the first time in a motion for a new trial. Id.; see also Baskerville v. Baskerville, 246 Minn. 496, 501, 75 N.W.2d 762, 766 (1956) (concluding that, absent "fraud or other controlling circumstance," failure to take timely and appropriate action to disqualify judge for bias constitutes waiver).

Kirk did not bring the alleged irregularity to the district court's attention until he filed his motion for a new trial on November 9, 1998. And he concedes that he had notice of the district court judge's involvement in Peavey's criminal trial before the judge's order of October 16, 1998. But Kirk contends that he did not learn until the motion hearing on November 16, 1998, of the judge's opinion regarding Peavey's credibility or of a juror's statement to the judge after Peavey's criminal trial regarding Peavey's credibility.

In any event, to succeed on a motion for a new trial under Minn. R. Civ. P. 59.01(a), Kirk must demonstrate that an irregularity in the proceeding deprived him of a fair trial. See Nachtsheim, 411 N.W.2d at 890 (discussing removal of judge in context of rule 59.01). He has not done so. There is sufficient evidentiary support for the court's finding that Peavey did not testify truthfully in this case, and nothing in the record suggests that another judge at a new trial would have reached a different conclusion. The district court, therefore, did not abuse its discretion in denying Kirk's motion for a new trial.

III. Evidentiary Rulings

A ruling on an evidentiary matter rests within a district court's broad discretion and will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Absent prejudicial error, a party is not entitled to a new trial because of an improper evidentiary ruling. Id.

A. Testimony Regarding Service of Summons and Complaint

Kirk claims the district court erred in allowing testimony that Peavey lied about his identity when Lyon County Sheriff's Deputy Shane Klokonos attempted to serve him with a summons and complaint in a related civil case. Kirk argues that the testimony is inadmissible under Minn. R. Evid. 608(b), which provides:

Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.

Id. But such matters may, "in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness." Id.

Peavey was questioned at trial by an attorney for Haase's heirs regarding the incident involving service of the summons and complaint. But Kirk objected only as to relevancy and immateriality. Because Kirk did not challenge at trial the admissibility of this testimony as improper under rule 608(b), he may not do so on appeal. See Town of Forest Lake v. Minnesota Mun. Bd., 497 N.W.2d 289, 290 (Minn. App. 1993) (stating that failure to object to admission of evidence at trial generally constitutes waiver of issue on appeal), review denied (Minn. Apr. 29, 1993).

Deputy Klokonos was questioned on direct examination regarding the same incident, and Kirk objected to the testimony as improper under rule 608(b). Because specific instances of conduct are admissible for purposes of impeachment only on cross-examination of the witness, the court erred in allowing this testimony by Deputy Klokonos. But Kirk has not demonstrated that any error in admitting this evidence prejudiced him. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating appellant bears burden of demonstrating error is prejudicial), review denied (Minn. June 28, 1993).

The district court made no reference in its findings to the incident involving service of the summons and complaint, and there is other evidence to support the court's finding that Peavey testified untruthfully. See Pump-It, Inc. v. Alexander, 230 Minn. 564, 573, 42 N.W.2d 337, 342 (1950) (concluding that admission of evidence was not reversible error where record contained sufficient competent evidence to support court's order); see also Minn. R. Civ. P. 61 (providing that harmless error in admitting evidence is not ground for disturbing court's order). Furthermore, we permit "[g]reater latitude" on evidentiary matters in cases tried without a jury. Pump-It, Inc., 230 Minn. at 572, 42 N.W.2d at 341.

B. Exhibit 32

Kirk also claims that the district court erred in admitting exhibit 32, which is a letter dated May 19, 1992. The letter was written by Lyle Porter, an accountant, and was addressed to Haase. Kirk contends that the letter is hearsay, which is an out-of-court statement "offered in evidence to prove the truth of the matter asserted" and is not admissible unless it falls within one of the exceptions provided by the rules of evidence. Minn. R. Evid. 801(c), 802.

But the district court admitted the exhibit into evidence for the limited purpose of showing that Kirk also received a copy of this letter from Porter. Because the letter was not offered in evidence to prove the truth of the matter asserted, it falls outside the definition of hearsay. See Minn. R. Evid. 801(c) (defining hearsay). And in any event, Kirk has not demonstrated that admission of the exhibit prejudiced him.