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Terry Mays and v. Liddia Porter Appellee

April 19, 2013

TERRY MAYS AND BRENDA MAYS APPELLANTS
v.
LIDDIA PORTER APPELLEE



APPEAL FROM BOYD CIRCUIT COURT HONORABLE C. DAVID HAGERMAN, JUDGE ACTION NO. 10-CI-00203

The opinion of the court was delivered by: Moore, Judge:

RENDERED: APRIL 19, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES.

Terry and Brenda Mays appeal the judgment of the Boyd Circuit Court finding that the real property transfer to them was the result of undue influence. After a thorough review of the record, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Brenda Mays is the daughter of Charles and Liddia Porter. Brenda and her husband, Terry, brought this action in Boyd Circuit Court seeking to recover items of personal property that Terry had allegedly stored in the Porter garage. Terry asserted that, upon Liddia's request, he and Brenda moved in with Liddia after Charles' death. Consequently, Terry moved numerous items into the Porter garage. When Liddia later demanded that the Mayses move out of her home, the Mayses were denied access to the garage and could not retrieve their property.

Liddia filed a counter-claim, seeking to set aside the deed to her home that she and Charles had executed in favor of the Mayses. Specifically, Liddia's counterclaim alleged that she "was coerced into signing the Deed through undue influence and means of fraud perpetrated by the [Mayses]."

A bench trial was held. Numerous parties testified regarding how the Mayses had attempted to influence Charles and Liddia to deed the house to them by convincing them that none of the Porters' other children were appropriate caregivers for the couple and promising that they would provide care for the Porters.

A large portion of the testimony presented was in regard to Charles' poor health and mental condition at the time the deed was executed, as well as Liddia's history of complying with Charles' business decisions despite any personal misgivings she may have had regarding those decisions. Specifically, Liddia also testified that Charles had arranged the preparation of the parties' wills and that she had no control over the provisions contained in her will, which devised her entire estate to Brenda, leaving only "love" to her remaining children.

Several witnesses testified that prior to Charles and Liddia conveying the subject property to the Mayses, Charles decided to sell a parcel of property for significantly lower than market price. However, after Liddia expressed reluctance to sign the deed, she nevertheless complied after Charles instructed her to do so.

The Mayses' counsel made a general objection to the relevance of the testimony regarding the prior deed after which Liddia's counsel argued that the testimony was relevant to the argument that Charles had a confidential relationship with Liddia and had unduly influenced her to execute the deed to the Mayses. Therefore, counsel contended that any prior evidence of Charles exerting this type of power over Liddia was relevant. The circuit court permitted the testimony; no objection was made regarding the fact that Liddia's counterclaim did not contain an allegation of Charles having unduly influenced Liddia to execute the subject deed.

Further, the attorney who drafted the deed at issue testified that Liddia had attempted to express some concerns and questions regarding the deed but that Charles did not permit her to ask any questions and "pretty much took control of the situation." Liddia also testified that before she executed the deed, she told Charles "I'm not gonna sign that deed. And [Charles] said 'yes, you are.' So I did." Liddia expressed concerns for her safety because Charles had become increasingly belligerent in the last few years of his life, ...


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