                                        No. 117,499


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                     JOHN A. MOORE and JOYCE E. MOORE TRUST,
              JOYCE E. MOORE, Trustee, and JOYCE E. MOORE, Individually,
                                     Appellants,

                                             v.

                         JEBIDIAH MOORE and STEVEN L. MOORE,
                                      Appellees.


                              SYLLABUS BY THE COURT

1.
       Principles governing appellate review of errors in jury instructions are stated and
applied.


2.
       When parties occupy a confidential relationship, the courts require the trusted
party to prove the absence of undue influence over the trusting party in bargaining and
contract formation.


3.
       In a will contest, unlike a contract dispute, the burden to prove the absence
of undue influence shifts to a legatee only when he or she occupied a confidential
relationship with the testator and the bequest invites suspicion.




                                              1
4.
        Kansas appellate courts have declined to fashion an overarching definition
of confidential relationships and defer, instead, to an inquiry into the particular
facts of a given case.


5.
        Whether a contracting party has been unduly influenced presents a question of fact
turning upon the particulars of the transaction. Undue influence requires that degree of
pressure sufficient to overpower the party's free will. A fact-finder should consider all the
circumstances, including the relationship of the parties; the timing and manner of
suggestion, advice, or other pressure; the motive for applying that pressure; and the effect
of the pressure.


6.
        The party alleging error on appeal must furnish a record that supports the claimed
mistakes. When there are blanks in the record, appellate courts do not fill them in by
making assumptions favoring the party claiming error in the district court.


7.
        District courts generally have broad authority in remedying lawyer error or
misconduct during trial. Appellate courts typically apply an abuse of discretion standard
to those remedial decisions.


8.
        Individuals with the mental capacity to enter into contracts may still be unduly
influenced to agree to things they otherwise would not, thereby rendering any contract
void.




                                              2
9.
         Lack of capacity and undue influence are equitable rather than legal claims
in that they effectively void or rescind a contract rather than yield money damages
for breach. Rescission is an equitable remedy. A party asserting an equitable claim
and seeking equitable relief typically is not entitled to a jury trial as a matter of
right.


         Appeal from Brown District Court; KIM W. CUDNEY, judge. Opinion filed August 24, 2018.
Affirmed in part, reversed in part, and remanded with directions.


         Michael R. Ong and Caroline Ong, of Ong Law Firm, P.A., of Overland Park, for appellants.


         John W. Fresh, of Farris & Fresh Law Offices, of Atchison, for appellees.


Before ATCHESON, P.J., PIERRON and STANDRIDGE, JJ.


         ATCHESON, J.:


                               SUMMARY OF CASE AND DISPOSITION


         The central issue in this case turns on whether Steven Moore manipulated John
and Joyce Moore, his parents, to part with land they owned, thereby gutting a trust they
had set up as an estate plan to benefit all four of their children. Joyce contends Steven
beset John on his deathbed and exploited her depleted physical and emotional condition
to get them to sign a contract selling their homestead to his son (and their grandson)
Jebediah Moore. She says that several months later Steven improperly induced her to sell
farmland to Jebediah. Those two contracts enabled Jebediah to acquire real estate worth
$1.4 million with a down payment of $25,000 and an agreement to pay Joyce and the
trust an additional $377,000 over as long as 30 years at nominal interest. Those


                                                    3
transactions left Joyce with little of immediate value to pass on to her other children or
grandchildren.


       Joyce and the trust she and John established sued Steven and Jebediah in Brown
County District Court in September 2015 to set aside the two contracts. Joyce and the
trust have been jointly represented throughout this case and are united in legal interest, so
from here on we dispense with repeated references to the trust as a distinct party. Steven
and Jebediah are similarly unified in their defense, and the evidence points to Steven as
the driving force behind the transactions. At trial, about a year later, Joyce specifically
claimed that she and John lacked the capacity to enter into the contract for the homestead
and she lacked the capacity to sell the farmland. She pressed an alternative claim that the
contracts should be set aside because Steven exerted undue influence over John and her
after cultivating their confidence that he would look out for their best interests. The jury
considered four specific claims: (1) Whether John and Joyce had the capacity to enter
into the contract to sell their homestead to Jebediah; (2) whether Joyce had the capacity
to enter into the contract to sell farmland to Jebediah; (3) whether Steven unduly
influenced John and Joyce to sell their homestead to Jebediah; and (4) whether Steven
unduly influenced Joyce to sell farmland to Jebediah.


       As we explain, the district court incorrectly instructed the jury in a way materially
disadvantaging Joyce on her undue influence claims, rendering its verdicts in favor of
Steven and Jebediah on that theory deficient. We, therefore, reverse that part of the
judgment the district court entered for Steven and Jebediah and remand the case with
directions. On appeal, Joyce also disputed the jury verdicts for Steven and Jebediah on
the claim she and John lacked the capacity to enter into the contracts. We find her
arguments do not require reversal of those verdicts and affirm that part of the judgment.


       Because Joyce pursued equitable claims rooted in upending the contracts rather
than legal claims for monetary damages and Steven and Jebediah asserted no

                                              4
counterclaims, no one was entitled to a jury trial as a matter of right then or now. The
parties were and are owed a fair hearing of their dispute in front of the district court
sitting as the finder of fact—that is, in a bench trial. On remand, a new trial is
unnecessary. The district court should promptly make findings of fact and conclusions of
law resolving Joyce's undue influence claims based on the evidence admitted during the
jury trial and consistent with this opinion. That directive corrects for the erroneous jury
result and affords the parties the fact-finding they have always been procedurally due.


               REVERSIBLE INSTRUCTIONAL ERROR ON UNDUE INFLUENCE


District Court Mishandled Burden of Proof of Undue Influence


       The district court committed reversible error in instructing the jurors on the law
applicable to the claims the contracts should be set aside because Steven exerted undue
influence over John and Joyce. As we explain, the error deprived Joyce of fair
consideration of her contention that Steven should have been required to prove the
absence of undue influence. Had the burden of proof been shifted to Steven, the jurors
reasonably could have reached a different conclusion.


       We begin with the test for assessing instructional error, since that drives how we
review the evidence. As the party asserting the jury had been erroneously instructed,
Joyce must show: (1) she raised and preserved the instructional issue in the district court;
(2) she requested the jury be instructed on a legally appropriate matter; and (3) the facts
supported giving the instruction. Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d
223 (2013). With that showing, an appellate court may conclude the district court erred in
failing to instruct the jury on the particular point. The appellate court must then consider
whether the error can be discounted as harmless. Here, we assume the applicable standard
of review on harmlessness to be the one for an instructional error impinging on a
nonconstitutional right of the complaining party. Steven and Jebediah would be entitled

                                              5
to no more favorable a standard. As the parties benefiting from the error, they have to
establish there was "'no reasonable probability'" the instructional foul-up contributed to
verdicts in their favor. 296 Kan. at 305 (harmlessness standard for error not implicating
constitutional right) (quoting State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 [2011]);
accord Siruta v. Siruta, 301 Kan. 757, 771-72, 348 P.3d 549 (2015) (burden of proving
harmlessness); State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012) (burden of
proving harmlessness).


       1. Issue Preservation


       Joyce requested an instruction informing the jury that when one party to a contract
has placed confidence or trust in the other party, the party in whom that trust or
confidence has been reposed bears the burden of proving the contract was not the product
of undue influence. In a case such as this, that reverses the typical allocation of proof,
since the party seeking relief from a contract typically would be required to prove undue
influence. Joyce specifically asked the district court to instruct the jury on that legal
principle and offered a proposed instruction. The district court's instructions failed to give
the jurors meaningful guidance on the point. Joyce sufficiently raised the issue in the
district court to preserve any error for appellate review.


       2. Legal Appropriateness


       Kansas courts have long recognized that contracts between parties in a
confidential or fiduciary relationship require particular scrutiny should their fairness be
challenged. The danger, of course, lies with the party in whom trust has been placed and
his or her ability to exploit the relationship to gain unfair advantage in any transaction
with the other party. As an antidote, the courts have required the trusted party to prove
the absence of undue influence over the trusting party in bargaining and contract
formation. Frame, Administrator v. Bauman, 202 Kan. 461, 467, 449 P.2d 525 (1969);

                                               6
Smith v. Smith, 84 Kan. 242, 244-45, 114 P. 245 (1911). In effect, the courts presume
undue influence in contracts between parties occupying a confidential relationship. The
Frame court captured the rule this way: When parties occupying a confidential
relationship enter into a contractual transaction, "the burden rests upon the person [in
whom confidence has been placed] to show that the transaction was conducted in good
faith and did not result from the exercise of undue influence." 202 Kan. 461, Syl. ¶ 5; see
Curtis v. Freden, 224 Kan. 646, 651, 585 P.2d 993 (1978) (recognizing rule and citing
Frame); PIK Civ. 4th 124.09 Comment (noting ruling). The principle bears obvious legal
relevance to Joyce's allegations attacking the contracts.


       Kansas courts, however, apply a different rule to wills and other testamentary
instruments. If the recipient of a bequest in a will had a confidential or fiduciary
relationship with the testator, a court should presume undue influence when "suspicious
circumstances" surround the making of the will. Cresto v. Cresto, 302 Kan. 820, 833-34,
358 P.3d 831 (2015). So in a will contest, unlike a contract dispute, the burden to prove
the absence of undue influence shifts to a legatee only when he or she occupied a
confidential relationship with the testator and the bequest invites suspicion.


       As we discuss, the district court failed to appreciate the differing rules governing
contracts and wills involving parties occupying confidential relationships. And that likely
contributed to the instructional error. In any event, an instruction or instructions
addressing confidential relationships between contracting parties and the burden of proof
on undue influence in those circumstances were legally appropriate here.


       3. Factual Appropriateness


       In assessing the sufficiency of the factual basis for an instruction, both the district
court in the first instance and this court on appellate review must look at the record in the


                                              7
best light for the party asking for the instruction, here Joyce. Foster, 296 Kan. at 301. We
summarize the evidence that way.


       As they grew older, John and Joyce set up a trust that provided for the disposition
of three quarter sections of land they owned in Brown County, including farmland and
the house they lived in. The trust permitted the surviving spouse to use the house and all
of the land. Upon his or her death, the trust assets were to be divided among John and
Joyce's four adult children, including Steven.


       Steven assisted John in running the family farm and took over more and more of
the operation as his parents aged. Jebediah actively participated in the farming business
as both a child and an adult. In its final form, the trust directed that upon the deaths of
Joyce and John, Steven would receive the quarter section of farmland on which he lived
and all the farm equipment. The trust severed John and Joyce's house and about 2 acres of
land from the rest of the homestead quarter section and directed that both parcels go to
their other children: John W. Moore, Sue Hartter, and Wilma Rainwater. John W., Sue,
and Wilma also were to receive the third quarter section of farmland. The trust gave
Steven the first right to purchase the farmland from his siblings at a fair market price to
be set through an appraisal process. Family members understood the intent behind the
trust to be that Steven would continue the farming operation on all the land, thus his first
option to purchase any of the farmland his siblings might wish to sell.


       At some point, John and Joyce signed powers of attorney for their financial affairs
and medical directives naming Steven as the successor to whichever of them died first. In
early 2014, John, then 81 years old, was dying of pancreatic cancer. Joyce, then 80 years
old, had been caring for him at home with the help of a hospice program. On May 16,
Joyce was admitted to a local hospital with fever, chills, and nausea; she was diagnosed
as having a severe abdominal infection. Later that day, Steven went to see his father and
had him sign a contract selling his and Joyce's house and the surrounding 2 acres to

                                               8
Jebediah for $110,000. The contract called for a down payment of $20,000 with the
balance to be paid to John and Joyce in monthly installments over 20 years at 2 percent
interest. Steven then took the contract to the hospital and had his mother sign it. John died
six days later.


       Steven assumed full control of the farming operation and consistent with the
power of attorney began handling Joyce's personal finances in addition to those of the
business. During the trial, witnesses variously described Joyce as "completely
devastated," "distraught," and "grieving" following John's death. Over the next several
months, Steven repeatedly told Joyce that she should let Jebediah buy the farmland to
preserve the family business and that if she did not, the other children literally could sell
the property out from underneath him.


       On September 9, Steven, Jebediah, and Joyce went to see a lawyer with the firm
that had regularly done work for Joyce and John for about 30 years. The firm had advised
John and Joyce on business and personal legal matters, including the trust disposing of
their land. The lawyer presented Joyce with a contract to sell the remainder of the
homestead quarter section and the third quarter section to Jebediah for $292,000. The
contract required a down payment of $5,000 with the balance to be paid to Joyce in
annual installments over 30 years at 2 percent interest. Steven, rather than Joyce, had
asked the lawyer to prepare the contract. Joyce had not seen the contract before the
meeting. And the lawyer did not discuss with Joyce the effect of the sale on the trust.
Joyce signed the contract then and there. John W., Sue, and Wilma received no advance
notice of the sale.


       Through the contracts, Jebediah acquired the two quarter sections, including John
and Joyce's home, designated to go to Steven's siblings under the terms of the trust. The
only remaining trust asset of substantial value was the quarter section of land designated
to go to Steven. The contracts together called for Jebediah to pay $25,000 up front with

                                              9
the balance of $377,000 due in installments to Joyce over 20 to 30 years with 2 percent
interest. An appraisal of the quarter sections done in probating John's estate showed one
to have a fair market value of $642,000 and the other $768,000. So Jebediah bought real
estate worth about $1.4 million for $402,000 with nearly 95 percent of the purchase price
due in installments through 2044. By agreeing to the installment arrangements, Joyce
personally financed the transactions except for the down payments.


       Those facts taken in the best light for Joyce would support a finding that Steven
held a position of confidence with John and her. See Brown v. Foulks, 232 Kan. 424,
430-31, 657 P.2d 501 (1983) (confidential or fiduciary relationship entails one party
"repos[ing] special trust and confidence in [another party] who is in a position to have
and exercise influence over the first party"; Nelson v. Nelson, 38 Kan. App. 2d 64, 78,
162 P.3d 43 (2007) (same), aff'd 288 Kan. 570, 205 P.3d 715 (2009). Steven had assumed
significant control of the family farming business—control that deepened as John
succumbed to pancreatic cancer and Joyce concentrated on caring for him. After John's
death, Steven further insinuated himself into both the business and Joyce's personal
finances. More generally, John and Joyce displayed the requisite sort of confidence in
Steven both through his involvement in the family business and their trusting him enough
to name him in their powers of attorney and medical directives. Jury instructions on
confidential relationships and their relevant legal consequences were factually
appropriate.


       The jurors, therefore, should have been instructed on circumstances creating a
confidential or fiduciary relationship and that if Steven occupied a position of confidence
in dealing with John and Joyce, he and Jebediah bore the burden of proving that either or
both contracts were not the result of Steven's undue influence over his parents. The
district court did instruct the jurors on the nature of confidential relationships consistent
with PIK Civ. 4th 125.01 and the caselaw. But the district court failed to inform the
jurors that the burden of proof shifted to Steven and Jebediah if the jurors found

                                              10
confidential relationships. So the lone instruction, as given, provided no meaningful
guidance to the jurors in applying Kansas law on contracts between parties in a
confidential relationship. The district court erred on this point.


       4. Harmlessness


       We could excuse the error if it were harmless in the sense that the evidence so
favored Steven and Jebediah that the jurors would have come to the same conclusion had
they been properly instructed. To make that assessment, we review all the trial evidence
with no particular deference to either side. State v. Plummer, 295 Kan. 156, 168, 283 P.3d
202 (2012). But Steven and Jebediah, as the parties aided by the error, must establish
harmlessness. Siruta, 301 Kan. at 771-72.


       First, the jurors had sufficient evidence to find Steven maintained confidential
relationships with John and Joyce predating the contracts, and nothing changed the basic
nature of their interaction as the events surrounding the real estate sales unfolded. Steven
largely ran the family farm as John's health declined and Joyce focused on caring for her
husband in his last illness. After John's death, Steven also managed Joyce's personal
finances. Close blood relatives, such as parent and child, may forge confidential
relationships through interactions, including financial dealings, that evince one reposing
trust in the other. But consanguinity alone is insufficient. See Estate of Draper v. Bank of
America, 288 Kan. 510, 519, 205 P.3d 698 (2009) ("'confidential relationship'" may arise
from "blood relationship" when trust reposed, but parent-child relationship alone not
presumptively confidential); Brown, 232 Kan. at 432 (real estate transfers between family
members may create fiduciary or confidential relationships). Ultimately, the Kansas
appellate courts have declined to fashion an overarching definition of confidential
relationships and defer, instead, to an inquiry into the particular facts of a given case. In
re Estate of Farr, 274 Kan. 51, 72, 49 P.3d 415 (2002); Denison State Bank v. Madeira,
230 Kan. 684, 691-92, 640 P.2d 1235 (1982). Steven did not aggressively contest the

                                              11
confidential nature of his relationship with John and Joyce, likely a wise tactical decision
in light of the evidence.


       Second, the instructional error theoretically would be harmless if the trial evidence
clearly established Steven did not exert undue influence over John and Joyce with respect
to the contracts. Steven didn't dispute the terms of the contracts or the general
circumstances under which John and Joyce assented. Rather, he testified that his parents
acted knowledgably and independently in selling the homestead to Jebediah and that he
did not impermissibly influence Joyce later to sell the farmland to Jebediah. Joyce,
however, testified that she felt pressured to sign the contracts. Both Steven and Joyce
were interested witnesses with something to gain. See State v. Scott, 39 Kan. App. 2d 49,
56, 177 P.3d 972 (2008) ("One of the methods or techniques for attacking the credibility
of a witness is to show partiality, including bias, motive, and interest in the outcome.");
Dalton v. Battaglia, 402 F.3d 729, 735 (7th Cir. 2005) ("[A] witness's potential self-
interest in testifying about matters for which he or she has direct knowledge goes to the
weight and credibility of the testimony."). A physician testified that after reviewing
relevant medical records of John and Joyce, he concluded neither of them likely was
sufficiently engaged in May 2014 to make well-informed decisions about major financial
matters. Lay witnesses offered varied assessments of John's and Joyce's mental and
emotional pliability in May 2014 and Joyce's in September 2014.


       Whether a contracting party has been unduly influenced presents a question of fact
turning upon the particulars of the transaction. Frame, 202 Kan. at 468; Leppke v. Heier,
No. 108,377, 2013 WL 5187437, at *4 (Kan. App. 2013) (unpublished opinion). The
question asks if the party "'exercised his [or her] own free agency and acted voluntarily
by the use of his [or her] own reason and judgment.'" Frame, 202 Kan. at 468 (quoting
Cersovsky v. Cersovsky, 201 Kan. 463, 467, 441 P.2d 829 [1968] [quoting Homewood v.
Eggers, 132 Kan. 256, Syl. ¶ 5, 295 P. 681 (1931)]). Undue influence requires that degree
of pressure sufficient to overpower the party's free will. Cersovsky, 201 Kan. at 467. The

                                             12
fact-finder should consider all the circumstances, including the relationship of the parties;
the timing and manner of suggestion, advice, or other pressure; the motive for applying
that pressure; and the effect of the pressure. 201 Kan. at 467.


       Reviewing the whole trial record, we decline to say the evidence tilted so far in
Steven's direction that an instruction placing the burden on him to disprove undue
influence over John and Joyce would have had no impact on the outcome. On balance,
we see this case viewed from Steven's perspective as, at best, a close one, meaning the
allocation of the burden of proof on undue influence may very well have affected the jury
verdicts. The evidence offered multiple indicators of undue influence:


       • Steven presented the contract to sell the homestead to John as he was dying from
pancreatic cancer. A physician testified that John probably did not fully comprehend the
transaction. The same day, Steven had Joyce sign the contract after she had been admitted
to the hospital. The physician similarly suggested she was in no condition to make
significant financial decisions. Even if John and Joyce had the capacity to enter into
contracts, their weakened conditions could have made them susceptible to pressure from
Steven to act when they otherwise would not have.


       • Jebediah purchased the homestead at a discounted price on especially favorable
terms calling for installment payments to Joyce for 20 years.


       • Four months later, Steven presented Joyce with a contract to sell two parcels of
farmland to Jebediah. The contract was drafted at Steven's request by the law firm that
had regularly done work for John and Joyce. Joyce had not seen the contract before
Steven took her to the law office to sign it.


       • Jebediah purchased the farmland at a steeply discounted price again on favorable
terms with installment payments to Joyce for 30 years.

                                                13
         • As a result of the land sales to Jebediah, the only significant asset left in a trust
John and Joyce had set up years earlier was a quarter section of farmland that would go to
Steven upon their deaths. The land Jebediah bought would have gone to John and Joyce's
other children. Joyce never expressed any interest in or took any steps to change the trust.


         • After John's death, Steven repeatedly told Joyce she needed to let Jebediah buy
the land because her other children would eventually sell off the land they received
through the trust, thereby destroying the family farm. But the trust gave Steven a first
option to purchase any of the land his siblings might wish to sell and established an
appraisal process to set a fair market price.


         • John and Joyce's other children were not informed of the land sales to Jebediah,
even though the transactions adversely affected their beneficial interests created in the
trust.


         Those circumstances show Steven presented the first contract to John and Joyce
when they were especially vulnerable. And Joyce was afforded no opportunity to review
or consider the second contract. Steven engineered the transactions without informing his
siblings, who, as a result, lost the only assets they would have received from the trust.
Steven pressured Joyce to sell the homestead and farmland to Jebediah for much less than
fair value—real property that otherwise would have been gone to Steven's siblings
through the trust. He relied on a plea to Joyce that the family farm would be lost if she
didn't. But Steven actually had the right to purchase that land from his siblings under the
trust, although the price almost certainly would have been considerably higher than what
Jebediah paid.


         The evidence arguably depicts Steven manipulating John and Joyce to secure for
his own benefit (through Jebediah) real property that John and Joyce had already made a

                                                14
deliberative choice to bequeath to John W., Sue, and Wilma. He did so with what could
be characterized as ambush-like presentations of sales contracts to John and Joyce and
wily entreaties to Joyce. Although we decline to speculate about precisely why the jury
found for Steven and Jebediah, we easily conclude they cannot show to a reasonable
probability the result would have been the same had they been required to prove the
absence of undue influence.[1]

       [1] As a legal matter, it makes no difference that Steven exerted the challenged
influence over John and Joyce for the immediate benefit of Jebediah. See Frame, 202
Kan. at 467. Steven benefitted because his son acquired the homestead and farmland at
considerably less than fair market value, removing those properties from the trust John
and Joyce had set up. Steven and Jebediah had already partnered in running the farm.

       The district court's instructional error, therefore, cannot be disregarded as
harmless. The mistake deprived Joyce of fair consideration of her undue influence claims
and requires reversal of those verdicts for Steven and Jebediah with a remand to the
district court for further proceedings.


District Court Erred Even Under Inapplicable Testamentary Law


       Before getting to the appropriate remedy on remand, we pause to explain the
district court's mistaken analysis leading to the instructional error. The district court
concluded that the rule recently repeated in Cresto governing testamentary instruments,
such as wills and trusts, governed this issue, meaning Joyce had to show both a
confidential relationship with Steven and "suspicious circumstances" surrounding the
contracts to shift the burden of proof on undue influence. How the district court came to
that conclusion isn't entirely clear given the longstanding distinction in Kansas law
between contracts and testamentary instruments when it comes to proof of undue
influence when confidential relationships may be involved.




                                              15
       The court in Frame reiterated the established rule governing contracts between
parties in a confidential relationship. 202 Kan. at 467. That rule and the distinction
between contracts, on the one hand, and testamentary instruments, on the other, when it
comes to undue influence reach deep into Kansas legal history, as the extended
discussion in Smith illustrates. 84 Kan. at 244-47. Although Smith clearly defines the
differing treatment of contracts and wills, the courts have offered no readily discernible
policy rationale for the dichotomy. We suppose a couple of reasons might be at work.
First, the law strongly favors effectuation of a will over intestate succession. Parsons v.
Smith, Trustee, 190 Kan. 569, 573, 376 P.2d 899 (1962); In re Estate of Crawshaw, 15
Kan. App. 2d 273, 279, 806 P.2d 1014 (1991). Second, a disputed will cannot be
probated or enforced unless the document has been witnessed and the witnesses testify
the testator voluntarily signed it and appeared to be mentally competent or the will is
"self-proved" through an affidavit of the witnesses that the testator "was of sound mind
and under no restraint." See K.S.A. 59-606. Those considerations in tandem arguably
support a more rigorous standard to reverse the usual burden of proving undue influence
for wills than for contracts.


       Nothing in Cresto, a will contest, suggests the law on this point has changed.
While Cresto doesn't discuss undue influence claims in contract cases—law that would
have been irrelevant—it repeatedly relies on Ginter v. Ginter, 79 Kan. 721, 101 P. 634
(1909), another early Kansas case discussing the differences between undue influence in
contract disputes and will contests and a key precedent in Smith, 84 Kan. at 245-46. The
district court incorrectly transplanted into this case the legal test for reversing the burden
of proof on undue influence in will contests, as outlined in Cresto.


       In the district court and again on appeal, Steven relies heavily on Heck v. Archer,
23 Kan. App. 2d 57, 927 P.2d 495 (1996), that unfortunately (and, in our view,
incorrectly) blurs the distinction between contract cases and will contests involving
assertions of undue influence. In that case, Heck set up several pay-on-death bank

                                              16
accounts with substantial deposits. Upon his death, the account balances were to go to a
woman with whom he had an intermittent relationship. An heir of Heck's challenged the
pay-on-death accounts as the product of the woman's undue influence over Heck. By
statute, pay-on-death bank accounts were then and are now considered nontestamentary,
even though they function, in part, to shift assets from someone who has died to a
designated beneficiary. K.S.A. 2017 Supp. 9-1215. This court held that no confidential
relationship existed between Heck and the woman, so she did not bear the burden of
proving the absence of undue influence. 23 Kan. App. 2d at 64. The court, however,
summarized what it characterized as the law governing contracts and wills as "nearly
identical" and as requiring both a confidential relationship and suspicious circumstances
to shift the burden of proving undue influence to the person seeking to enforce the
contract or will. 23 Kan. App. 2d at 62-63. Without acknowledging authority such as
Frame, Smith, and Ginter, the court incorrectly collapsed the rule governing proof of
undue influence in contract disputes into the different rule for will contests. Here, the
district court may have been misguided by the incomplete discussion in Heck and, as a
result, relied on the rule for wills and other testamentary instruments laid out in Cresto.


       Even if we are mistaken and the rule in Cresto actually applies, thereby requiring
both a confidential relationship and suspicious circumstances to shift the burden of proof
on undue influence, the district court erred in fashioning the jury instructions. The district
court considered the trial evidence and concluded Joyce had presented insufficient
evidence to prove suspicious circumstances and, therefore, simply instructed the jurors
that Joyce had to establish undue influence. The district court effectively weighed the
evidence as if it were a super juror and ruled against Joyce. But that is not the correct
standard in determining whether to instruct a jury. The test is whether reasonable jurors
could view the evidence as supporting the disputed proposition—here, under Cresto,
were there suspicious circumstances surrounding either or both contracts? See State v.
Lindemuth, 55 Kan. App. 2d 419, Syl. ¶ 2, 417 P.3d 262 (2018) ("A requested jury
instruction should be given when there is sufficient evidence that a rational fact-finder

                                             17
could use to find for [the party] on that theory."). If so, the district court should instruct
the jurors.


       The existence of suspicious circumstances typically presents a question of fact.
But what constitutes suspicious circumstances is especially elastic and turns on the
particulars of a given case. Cresto, 302 Kan. at 836; In re Estate of Haneberg, 270 Kan.
365, 376, 14 P.3d 1088 (2000); In re Estate of Bennett, 19 Kan. App. 2d 154, 170, 865
P.2d 1062 (1993). What may be suspicious in one case may not be in another case.
Cresto, 302 Kan. at 835-36.


       The trial evidence we have laid out as indicative of undue influence also, by and
large, could reasonably be considered suspicious circumstances. For example, the
contracts effectively disinherited John W., Sue, and Wilma in contradiction of the trust
John and Joyce had set up. See Cresto, 302 Kan. at 836-37 (unexplained disinheritance of
children likely suspicious). Joyce's apparent lack of interest in or initiative to alter the
trust only heightens the suspicious character of the contracts. The particularly favorable
terms of sale could be suspicious, especially given the conditions under which each
contract was signed. And Steven's repeated pleas to Joyce that the sale of the farmland to
Jebediah was essential to preserve the family business when the trust gave Steven a right
to purchase that land, albeit at a fair market price, could be characterized suspicious.


       In short, the pattern of Steven's conduct in preparing and presenting the contracts
coupled with the substantial benefit accruing indirectly to him and directly to Jebediah
and the concomitant disadvantage to John W., Sue, and Wilma establishes more than
enough to allow a fact-finder to conclude the transactions were rife with suspicion. Had
Cresto governed here (though we think it did not), the district court should have
instructed the jury on confidential relationships and suspicious circumstances in
conjunction with who bore the burden of proving undue influence. Even under its view of


                                               18
the controlling law, the district court committed reversible error in failing to submit the
question of suspicious circumstances to the jurors for their determination.[2]

       [2]We do not delve into the best way to have presented those interlocking issues to
the jurors. Who bore the burden of proof of undue influence—Joyce or Steven—would
have depended upon the jurors' factual findings on whether there were confidential
relationships and suspicious circumstances. One option would have been to give the
jurors a conditional instruction that informed them that if they found confidential
relationships and suspicious circumstances, then Steven had to prove the absence of
undue influence but otherwise Joyce had to prove there was undue influence. Another
option would have been to bifurcate the issues, entailing sequential instructions,
arguments, and jury determinations first on confidential relationships and suspicious
circumstances and then on undue influence with the burden of proof fixed by the initial
determinations. See ABA Civil Trial Practice Standards § 10.e (2007) (trial court should
consider submitting issues to jury sequentially if determination of one issue may moot
others).

       By any measure, the district court failed to adequately instruct the jurors on the
law applicable to Joyce's undue influence claims. The error prejudiced Joyce and, given
the trial evidence, cannot be dismissed as harmless. We reverse the verdicts in favor of
Steven and Jebediah finding neither contract to be the product of undue influence. On
appeal, Joyce challenged the jury instructions in other ways she contends deprived her of
fair consideration of her undue influence claims. We need not and do not consider those
arguments given our decision to otherwise reverse those verdicts.


         JOYCE FAILED TO ESTABLISH REVERSIBLE ERROR ON CAPACITY CLAIMS


Factual and Procedural Background


       At trial, Joyce contended that neither she nor John had the required mental
capacity to enter into a binding contract when they agreed in May 2014 to sell the
homestead to Jebediah. And she likewise argued she lacked capacity to contract in
September when she sold the farmland to Jebediah. The jury returned verdicts in favor of


                                             19
Steven and Jebediah on the lack of capacity claims. On appeal, Joyce challenges those
verdicts on factually interrelated bases of improper closing argument by Steven and
Jebediah's lawyer and juror misconduct during deliberations. We find insufficient
grounds to reverse the verdicts for those reasons. Those arguments, if well-taken, also
would have required reversal of the verdicts for Steven and Jebediah on undue influence.


       A person lacks the capacity to enter into a contract if he or she hasn't the mental
wherewithal "to understand in a reasonable manner the nature and effect" of the
agreement. DeBauge Bros., Inc. v. Whitsitt, 212 Kan. 758, 762, 512 P.2d 487 (1973).
Because the appellate challenges Joyce presses do not depend on the trial evidence
related to capacity, we need not recite that evidence or comment further on the law
governing the lack of capacity to contract. But we do need to add some other facts and
procedural history to put the challenges in context.


       In her petition, Joyce sued the law firm for professional negligence and breach of
fiduciary duty for its role in preparing both contracts and its participation in the
September 2014 meeting at which Joyce signed the contract selling the farmland. She
sought money damages on those claims. Before trial, Joyce dismissed the law firm as a
defendant. Information in the record indicates Joyce and the law firm reached some sort
of settlement.


       During the trial, the jurors heard no evidence about Joyce's specific complaints
about the law firm's conduct, that the law firm had been sued, or that some resolution
between Joyce and the law firm had been reached. But the lawyer who prepared the
contract for sale of the homestead and the lawyer who prepared the contract for the sale
of the farmland and participated in the September 14 meeting with Joyce both testified.


       In closing argument, Joyce's lawyer told the jurors those lawyers had violated their
duty to Joyce and had "failed in a key job" by acting as they did on behalf of Steven.

                                              20
Steven and Jebediah's lawyer countered that if Joyce believed the lawyers acted
inappropriately, she should "make a claim against them . . . . There's no evidence." Joyce,
of course, did make a claim against the lawyers, so the counterargument was, at the very
least, deceptive and improper. Her lawyer did not immediately object but requested a
bench conference before beginning his rebuttal to the jury. The bench conference was off
the record, so we don't know what the lawyers or the district court said. In their briefs, the
parties agree the discussion focused on the remark of Steven and Jebediah's lawyer
suggesting Joyce should have made a claim against the lawyers involved in preparing and
presenting the contracts.


       In his rebuttal, Joyce's lawyer told the jurors:


               "[Steven's counsel] implied to you that if we had a problem with [the lawyers],
       that we should have made a claim against them. Do you remember him saying that to
       you? Implying that if we really felt that way, we should do something about it. We all
       have been very diligent this entire trial of not exposing you guys to the fact that they were
       sued for breach of duty to Joyce Moore, for breach their duty they owed to her, because
       we agreed to keep it confidential. [Steven's counsel] opened the door by implying that if
       we really meant it, we should bring a claim against them. Well, we did. And they got
       their carrier involved and they paid for breaching their duty to Joyce Moore. We thought
       we would do this case without that fact being known to you, but now it is because the
       door was opened. Factor that into your deliberations, too. I think you're entitled to that."


Joyce's lawyer offered that rebuttal argument without objection from Steven and
Jebediah's lawyer or admonition from the district court. We, therefore, presume that
during the off-the-record conference, the district court authorized the gist of the rebuttal
as a remedy for the improper argument from Steven and Jebediah's lawyer. We, of
course, don't know if Joyce's lawyer preferred some other fix or if they even considered
an alternative, such as a curative instruction from the district court.



                                                    21
       In a motion for a new trial, Joyce cited the remark of Steven and Jebediah's lawyer
as sufficiently prejudicial to deprive her of a fair trial. She also asserted two instances of
purported juror misconduct, one of which ties back to the closing argument kerfuffle.
Joyce alleged several jurors talked about the settlement with the law firm during
deliberations and suggested Joyce would be financially secure as a result of that
settlement combined with what she would receive from the land sales to Jebediah. Joyce
also alleged that during deliberations the presiding juror said he knew her and the Moore
family. In jury selection at the start of the trial, he did not disclose that he knew any of
the parties. Joyce submitted a short affidavit from one juror with her motion confirming
both assertions. The motion itself recites that Joyce's lawyer spoke with two other jurors
who said the settlement with the lawyers came up during deliberations.


       The district court held a hearing on Joyce's motion for a new trial. A transcript of
that hearing has not been included in the record on appeal. The district court denied the
motion in an order entered several months later that simply identified and denied without
explanation the points Joyce had raised.


Juror Misconduct


       On appeal, Joyce reprises the juror misconduct arguments and submits the jurors'
discussion of her settlement with the lawyers demonstrates actual prejudice flowing from
the closing argument. We first look at the claimed misconduct and then turn to the
closing argument.


       As the party alleging error, Joyce must furnish a record that supports the claimed
mistakes. See State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011); State v. Paul, 285
Kan. 658, 670, 175 P.3d 840 (2008). Thus, "[w]hen there are blanks in that record,
appellate courts do not fill them in by making assumptions favoring the party claiming


                                              22
error in the district court." Harman v. State, No. 108,478, 2013 WL 3792407, at *1 (Kan.
App. 2013) (unpublished opinion). And that poses a problem here.


       As a sworn statement containing firsthand observations, the affidavit from the
juror, though cursory, was procedurally sufficient to warrant a hearing on the issue.
Cornejo v. Probst, 6 Kan. App. 2d 529, Syl. ¶ 2, 630 P.2d 1202 (1981); cf. Douglas v.
Lombardino, 236 Kan. 471, 489-90, 693 P.2d 1138 (1985) (motion for new trial based on
newly discovered evidence requires supporting affidavit, deposition, or comparable
foundation). The unsupported representations in the motion reciting what other jurors
later said about their deliberations probably were not. An affidavit, however, typically
would not be admissible as substantive evidence at a hearing. It is the out-of-court
declaration of the affiant and, thus, inadmissible hearsay. In re Marriage of Lynn, No.
114,154, 2016 WL 3856630, at *3 (Kan. App. 2016) (unpublished opinion) ("Affidavits
are generally treated as inadmissible hearsay at trial and in most evidentiary hearings,
since the declarants cannot be cross-examined and the factfinder cannot gauge their
demeanor."). Here, the affiant's own statements about what happened in the jury room fit
within no hearsay exception. Nothing in the record indicates the juror signing the
affidavit appeared or testified at the hearing on Joyce's motion for a new trial. See K.S.A.
2017 Supp. 60-460(a) (hearsay exception for out-of-court statements when declarant
present and available for cross-examination).


       Because we have no transcript, we don't know what the parties presented (or
objected to) as evidence at the hearing. And we don't know why the district court denied
Joyce's point. What we can and do say is that while the juror affidavit alone may have
been sufficient to trigger a hearing, it failed to provide a sufficient evidentiary basis to
grant the motion at a hearing. From what we have before us, we cannot find the district
court erred in denying Joyce a new trial because of juror misconduct. We have no basis to
conclude Joyce presented any admissible evidence at the hearing in support of the claim.
Given the paucity of evidence, we offer no opinion on the substantive merits of either

                                              23
allegation of misconduct. The product of that endeavor would be inappropriately
speculative and advisory. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659,
367 P.3d 282 (2016) ("Kansas courts do not issue advisory opinions.").


Improper Jury Argument


       Turning to the improper jury argument, we begin with the general principle that
district courts have broad authority in remedying lawyer error or misconduct during trial.
See State v. Sherman, 305 Kan. 88, 118-19, 378 P.3d 1060 (2016) (district court denial of
mistrial for alleged prosecutorial error reviewed for abuse of discretion); Thompson v.
KFB Ins. Co., 252 Kan. 1010, 1030, 850 P.2d 773 (1993). If the district court acted
within that authority in addressing the comment from Steven and Jebediah's lawyer, then
Joyce can show neither a sound basis for a new trial nor an error in denying her motion.
We apply an abuse of discretion standard in reviewing the district court's handling of the
objectionable argument. A district court exceeds that discretion if it rules in a way no
reasonable judicial officer would under the circumstances, if it ignores controlling facts,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State
v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).


       As with the juror misconduct issue, we are hamstrung by an incomplete record,
most notably the off-the-record bench conference. We obviously haven't a transcript. And
nobody later summarized on the record the gist of the discussion and the resulting ruling.
So we don't know why the district court decided to permit a brief rebuttal argument
disclosing the claim Joyce brought against the lawyers and the resulting settlement as the
best remedy for the comment from Steven and Jebediah's lawyer. Particularly pertinent to
our task, we have no idea whether Joyce's lawyer requested that remedy or really wanted
something else. If that were the corrective Joyce sought, she can't complain about it now
as a basis to upset the jury verdicts. That would be an invited error precluding appellate

                                             24
relief. See State v. Hargrove, 48 Kan. App. 2d 522, 531, 293 P.3d 787 (2013). From the
appellate record, we can't say. In a civil case, we might infer Joyce's claimed error to
have been invited based on a silent record.


         But maybe Joyce's lawyer asked for a mistrial or an instruction from the district
court to the jurors and had to settle for a limited disclosure about the litigation with the
lawyers. If the record showed as much, we could assess the relative merits of the
requested relief as against the relief the district court allowed. We don't have the
necessary information to do so, and Joyce had the obligation to furnish that information
to us.


         Given those constraints, we cannot say the district court abused its discretion on
this point. We presume the district court understood the factual circumstances. It had
handled the case for months and was familiar with Joyce's claims against the lawyers. It
heard the trial evidence and the closing arguments. Nothing in the record suggests the
district court misapprehended what happened. We don't see a patent legal error in the
relief afforded Joyce, although we suppose there might have been more efficacious ways
to repair the damage done. That's not the test. We have the luxury of hindsight and
virtually unlimited time to contemplate an unusual situation the district court had to
resolve with dispatch. Because the appellate record establishes neither a factual
misunderstanding nor a clear legal mistake, we are left to ask whether another district
court would have handled the problem essentially the way this district court did. Our
answer is yes. The district court's solution came within the broad range of reasonableness
that characterizes judicial discretion.




                                              25
                             RESOLUTION OF APPELLATE ISSUES


         As we have described, Joyce challenged two contracts selling land to Jebediah on
the grounds of lack of capacity and of undue influence. Those are independent bases for
vitiating the contracts. So the trial centered on four claims.


         We have found instructional errors sufficiently misinformed the jurors about the
law governing the undue influence claims to deprive Joyce of a fair hearing on those
claims. Those verdicts in favor of Steven and Jebediah on both contracts must be set
aside, along with that part of the judgment.


         We have found no reversible error with respect to the verdicts for Steven and
Jebediah on the lack of capacity claims as to both contracts. Those verdicts remain in
place.


         The verdicts that John and Joyce had the capacity to enter into contracts do not,
however, have any direct legal effect on the undue influence claims or the instructional
defects rendering those verdicts legally insufficient. That's because individuals with the
mental capacity to enter into contracts may still be unduly influenced to agree to things
they otherwise would not, thereby rendering any contract void. See Rezac v. Rezac, 115
Kan. 482, 484, 223 P. 295 (1924) (district court decision finding deeds valid affirmed
where evidence supports finding grantor had capacity to contract and was not subject to
undue influence); Linn v. Blanton, 111 Kan. 743, 749, 208 P. 616 (1922) ("[T]hat
Blanton had mental capacity to make the deed . . ., we do not think [that] establishes
undue influence."). Were the law otherwise, lack of capacity would be a necessary
condition for a successful undue influence claim. In turn, undue influence claims would
become vestigial, since lack of capacity would void any contract without the need to
consider undue influence.


                                               26
       The judgment for Steven and Jebediah must be reversed. The case has to be
remanded to the district court for further proceedings on Joyce's undue influence claims
as to both contracts.
                                  PROCEEDINGS ON REMAND


       Ordinarily when a party has been deprived of a fair trial because jurors have been
incorrectly instructed on the law, the party would be entitled to a do-over with a new jury.
As we explain, Joyce had no right to a jury trial in the first place, so she can't be entitled
to another one as a remedy here. But she is and always has been entitled to a fair hearing
in front of an appropriate fact-finder. Because Joyce has asserted equitable claims, the
district court properly acts as the fact-finder in a bench trial. So what Joyce should
receive on remand is a fair bench trial, and that does not require a new trial.


       Both claims Joyce pursued at trial—lack of capacity and undue influence—were
equitable rather than legal in that they effectively would void or rescind the contracts
rather than yield money damages for breach. See In re Estate of Johnson, 176 Kan. 339,
345, 270 P.2d 293 (1954) (undue influence in transfer of real property presents equitable
claim); Peterson v. Peterson, 10 Kan. App. 2d 437, Syl. ¶ 2, 700 P.2d 585 (1985)
(characterizing undue influence as claim "cognizable in equity"). Rescission is
recognized as an equitable remedy. Waggener v. Seever Systems, Inc., 233 Kan. 517, Syl.
¶ 4, 664 P.2d 813 (1983); Harnden v. Hadfield, 113 Kan. 525, 527, 215 P. 441 (1923). A
successful claim for rescission does not call for money damages as a remedy. Money
damages for what historically would have been a claim at law typically triggers the right
to a jury trial. Waggener, 233 Kan. at 523; In re Estate of Heiman, 44 Kan. App. 2d 764,
771-72, 241 P.3d 161 (2010).


       Since undue influence entails an equitable claim for which Joyce sought
rescission, she had no right to a jury trial. See Waggener, 233 Kan. 517, Syl. ¶ 4
("Rescission is a suit in equity[,] and the party is not entitled to a jury trial as a matter of
                                               27
right."); In re Estate of Johnson, 176 Kan. at 345. Steven and Jebediah pursued no
counterclaims, so they had no independent basis to request a jury trial.[3]

        [3]By contrast, Joyce's claims against the lawyers for professional malpractice and
breach of fiduciary duty, for which she sought money damages, were legal rather than
equitable and would have supported a request for a jury trial. But Joyce dismissed those
claims before trial and could no longer demand a jury trial as a matter of right. Steven
and Jebediah did not object to a jury trial at that point, although they could have. And the
district court could have required the parties to proceed with a bench trial. The district
court also had the option to empanel an advisory jury, but it didn't do that either. See
K.S.A. 2017 Supp. 60-239(c) (district court may seat advisory jury or otherwise try any
issue to a jury with consent of the parties).

        Before trial, Joyce suggested that if she prevailed on either of her claims for lack
of capacity or undue influence, she would be entitled to at least a portion of the profits
Steven and Jebediah realized from the farming operation from 2014 forward. The record
isn't clear about the status of her position; there is some indication she withdrew her
request for that relief. Even if she didn't, the request entailed an accounting and
disgorgement, although Joyce did not use that terminology. Those are equitable remedies
and would not have supported a right to jury trial. See Petrella v. Metro-Goldwyn-Mayer,
Inc., 572 U.S. ___, 134 S. Ct. 1962, 1978, 188 L. Ed. 2d 979 (2014) (disgorgement of
"unjust gains" form of equitable relief); Karnes Enterprises, Inc. v. Quan, 221 Kan. 596,
603, 561 P.2d 825 (1977) (accounting constitutes equitable relief); Carnes v.
Meadowbrook Executive Bldg. Corp., 17 Kan. App. 2d 292, 297, 836 P.2d 1212 (1992)
(same). They are also closely allied remedies in that an accounting may be necessary to
determine the amount to be disgorged as improper financial gain or profit. See SCA
Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. ___, 137 S.
Ct. 954, 964, 197 L. Ed. 2d 292 (2017); Roberts, Supreme Disgorgement, 68 Fla. L. Rev.
1413, 1427 (2016) (noting "historical affiliation" of disgorgement "with the equitable
remedy of accounting").

       Here, the error on which we reverse tainted the jury deliberations, resulting in
deficient verdicts on the undue influence claims. But the error did not infect other parts of
the trial. The district court saw the witnesses and examined the documentary evidence
along with the jurors. The district court is, therefore, in a position to make findings of fact
and conclusions of law based on the testimony and other evidence admitted during the
jury trial. The witnesses need not again assemble to testify to what they have already said
under oath before the district court.

                                              28
       In her appeal, Joyce has not asserted any material issues with the evidentiary
record. That is, she has not complained that the district court erred in admitting or
excluding evidence during the trial. Even if there were evidentiary problems, they would
not require a complete do-over. The district court could simply disregard improperly
admitted evidence and would have the authority to supplement the existing record by
receiving any improperly excluded evidence. But neither appears to be necessary here.


       On remand, the district court certainly can ask the parties for proposed findings
and conclusions or invite additional argument from their lawyers on the undue influence
claims as to both contracts if that would be helpful. In short, the district court should now
treat the 2015 jury trial as a bench trial and make findings of fact and conclusions of law
resolving Joyce's undue influence claims based on the trial evidence.


       Finally, we do not now and have not intended to suggest how the district court
should decide those claims or the scope of any appropriate equitable remedy to be
afforded Joyce if she prevails in any respect.


       Affirmed in part, reversed in part, and remanded with directions.




                                             29
