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In re Estate of Davis

January 25, 2007

IN RE ESTATE OF BARBARA DAVIS,
GARY DAVIS, APPELLANT.



Appeal from the Superior Court of the District of Columbia (ADM 536-04) (Hon. Jose M. Lopez, Trial Judge).

The opinion of the court was delivered by: Farrell, Associate Judge

Argued December 19, 2006

Before FARRELL, RUIZ, and REID, Associate Judges.

Appellant (Davis) brought suit pro se contesting his mother's will which had left him $10,000 when, according to the complaint, she had intended the proceeds of the sale of the family home upon her death to be distributed equally among Davis and his three siblings. He claimed that the will was the product of undue influence by his sister (Davis-Watson), who had been named personal representative by the will, had signed it in the mother's name at her purported direction, and received the principal share of the estate under its terms. The trial judge dismissed the suit under Super. Ct. Civ. R. 41 (b) when Davis failed to attend the pretrial scheduling and settlement conference, see Rule 16 (b); and when the judge subsequently refused to reinstate the complaint on Davis's motion under Rule 60 (b), Davis brought this appeal. Added complexity arises, however, from the fact that during the appeal Davis accepted (by cashing the check) the $10,000 distribution made to him by Davis-Watson after the judge's refusal to reinstate, leading Davis-Watson to assert that by acting in conformity with the will (i.e., having "elected his remedy"), Davis may no longer pursue recovery from the estate outside of the will.

We hold that Davis has not forfeited his right to contest the will, where every indication is that the sum he accepted is much less than he would receive if his suit were successful; where Davis-Watson has identified no prejudice in the form of reliance to herself or others stemming from Davis's acceptance of the bequest; and where the suit on its face bears no evidence of insubstantiality such that it would burden the estate with unfair litigation costs. We hold further that the trial court abused its discretion in not reinstating the complaint, given this court's decisions that a single failure to appear at a pretrial conference does not justify the strict sanction of dismissal unless the other party has suffered commensurate prejudice or unless the plaintiff's overall conduct has been dilatory in a manner constituting at least gross indifference, neither of which has been shown here.

I.

Davis is the oldest of four children of Barbara Davis, who died of brain cancer on December 17, 2003. Her will, dated November 21, 2003, left $10,000 each to her three sons and "the remaining funds from the sale of [her] real property"*fn1 as well as "the residue . . . of [her] estate" to her daughter, Davis-Watson, whom the will also named personal 3 representative and who had signed the will in the mother's name, purportedly at her request. After the will was admitted to probate, Davis, acting pro se, sued his siblings on October 28, 2004, alleging that the will was the product of undue influence by Davis-Watson and that the mother had lacked testamentary capacity because at the time she executed the will she was experiencing seizures and paralysis and was not coherent, lucid, or fully conscious. Davis claimed that he had not learned of the will's existence until April 2004, and that either the mother had executed an earlier will ("which must exist somewhere") or, "if no [prior w]ill existed . . . then she did not intend to leave a [w]ill, [but] her instruction to [his] knowledge was very clear, i.e., the home was to be sold and the money was to be divided equally amongst her four children."

On November 15, 2004, Davis filed a written change of address with the court, listing his residence as 1106 5th Street, N.E., Washington, D.C., see note 1, supra, but requesting that all mail related to his will contest be sent to "P.O. Box 16086, Arlington, VA, 22215-1086." On December 20, 2004, he filed an amended complaint identical in substance to the earlier one, listing the Arlington post office box as his mailing address. On January 18, 2005, Davis-Watson answered the complaint, but on March 16, 2005, a default was entered against the other defendants (appellant's two brothers) for failure to answer.*fn2 That notice of default was mailed to Davis's Arlington post office address but also, mistakenly, to an address at "106 [instead of 1106] 5th Street, N.E." The same day, the court ordered the parties in writing to attend a scheduling and settlement conference on April 22, 2005; although the order does not state the addresses to which it was sent, a reasonable inference is that it too was sent to both of Davis's listed addresses, although misnumbered as to one.

When Davis did not appear at the April 22 scheduling conference, the trial judge dismissed the suit with prejudice for failure to prosecute. See Rules 16-II and 41 (b). The record does not reflect that notice of the dismissal order was mailed to either party. Davis later retained a lawyer and, on September 13, 2005, moved to reinstate the suit under Rule 60 (b), asserting that he had not learned until late August that "something may have gone awry in connection with [his] complaint when he discovered that the mother's house was being offered for sale through a broker." He then "promptly visited the probate division" and learned for the first time (he claimed) of the scheduling conference and the dismissal for his failure to attend it. Following a hearing on November 2,*fn3 the trial judge denied the motion to reinstate. Important to his ruling was Davis's admission at the hearing that, despite the change of mailing address he had submitted to the court, "he was still receiving mail at the 5th Street[, N.E.] address," making it especially likely, in the judge's view, that he had received notice of the pretrial conference. The judge also found inexcusable Davis's failure to inquire about the status of his lawsuit during the ten months between the filing of the amended complaint and the "event[, the pending sale of the house,] that led him to go see what's going on with his [suit]."

Five days after the motion to reinstate was denied, Davis-Watson distributed $10,000 to each of the brothers under the will, the house just recently having been sold.*fn4 On December 2, 2005, Davis noted the present appeal and, on March 27, 2006, filed his opening brief. Davis-Watson subsequently moved to dismiss the appeal, however, pointing out that on April 24, 2006, Davis had cashed the check received from the estate. She argued that by doing so he was estopped from further challenging the will, citing, inter alia, Utermehle v. Norment, 22 App. D.C. 31 (D.C. 1903), aff'd, 197 U.S. 40 (1905). A motions division deferred the issue of estoppel to this merits division of the court.

II.

We first consider Davis-Watson's contention that "a legatee who accepts benefits under a will is estopped to contest that will or attack its validity" (Supp. Br. for Appellee at 1). Davis-Watson relies substantially on the Supreme Court's statement in Utermehle, supra, on review from the District of Columbia Circuit, that "there is really no foundation to dispute the proposition that [a party taking the benefit of a provision in his favor under a will] thereby is precluded from, at the same time, attacking the validity of the very instrument under which he received the benefit." 197 U.S. at 57 (citing cases). For the reasons that follow, however, the bare statement of that principle in Utermehle, in a factual setting very different from the present one and when the law of the District of Columbia has not "stood still" since that decision, Elam v. Monarch Life Ins. Co., 598 A.2d 1167, 1170 (D.C. 1991), does not persuade us that Davis has forfeited his right to challenge the will.

Both at the Circuit Court level and in the Supreme Court, Utermehle applied common law principles of equitable estoppel to a will challenge, in circumstances where a key element of that doctrine - detrimental reliance by other parties - was powerfully demonstrated. That is how Utermehle was later understood by the Circuit Court, we think convincingly, in In re Estate of Burrough, 154 U.S. App. D.C. 259, 475 F.2d 370 (1973). Speaking for the court there, Judge Leventhal agreed with the claimant/appellant "that under . . . traditional estoppel analysis, in order for a party to be estopped (here from objecting to the will's validity), there must be not only acquiescence in validity on his part, but also a change in position on the part of others, a condition which both existed in Utermehle and was relied on in the Utermehle opinion." 154 U.S. App. D.C. at 260, 475 F.2d at 371 (footnote omitted). Specifically, the beneficiary in Utermehle had taken property under his grandfather's will (apparently knowing it cut him off from a larger inheritance), then waited over ten years before bringing a contest action. By that time not only were two of the witnesses to the will dead and a third paralyzed, but other heirs had spent or distributed the personalty given under the will, so that - as the Supreme Court observed - "[i]t would be impossible to place [them] in the same position that they were in at the time of the [grandfather's] death." 197 U.S. at 53. Application of estoppel was thus "greatly strengthened" because, "in addition to the fact that [the beneficiary] took a benefit under the will, [he] acquiesced in its validity for many years, . . . the opposing party . . . ha[d] so changed his position on that account that he [could] not be restored to it, and . . . witnesses [had] in the meantime died." Id. at 58 (emphasis added).

In Burrough, the Circuit Court explained this reasoning as a straightforward application of the rule "that estoppel requires prejudice wrought by detrimental reliance," Burrough, 154 U.S. App. D.C. at 262, 475 F.2d at 373, consistent with a later District of Columbia decision, Bowen v. Howenstein, 39 App. D.C. 585 (1913), that applied estoppel principles to the action of a testatrix's sister who had consented to probate and accepted jewelry under a will. The Bowen court, Judge Leventhal explained, recognized that the only limitation the legislature had intended "by way of estoppel on the statutory right of caveat*fn5 . . . is that provided by the general law ...


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