       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           THELMA MULVEY,
                              Appellant,

                                    v.

             SHEILA STEPHENS, JAMES CAMPBELL and
              NANCY J. CAMPBELL, husband and wife,
                          Appellees.

                             No. 4D17-1292

                             [June 27, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; James David Langford, Senior Judge; L.T. Case No.
432015CA000686CAAXMX.

    Joshua D. Ferraro of Lesser, Lesser, Landy & Smith, West Palm Beach,
for appellant.

   Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock &
Heims, P.A., Stuart, for appellee Sheila Stephens.

KUNTZ, J.

   Thelma Mulvey appeals a final judgment finding tortious interference
with an expectancy and awarding $60,000 in damages to the appellee,
Sheila Stephens. She raises two issues on appeal: the court erred in
denying her motion for judgment notwithstanding the verdict (JNOV)
because the plaintiff failed to introduce competent substantial evidence in
support of her tortious interference claim; and the amount awarded in
damages was inconsistent with the testimony. We agree that there was no
competent evidence to support a claim for tortious interference with an
expectancy. Because we reverse the court’s order denying Thelma
Mulvey’s motion for JNOV and remand for entry of judgment in her favor,
we need not address the second issue.

                              Background

   Jack Mulvey (“Decedent”) died testate with two surviving children and
a spouse. His first wife and one son, Kevin Mulvey, predeceased him. The
Decedent’s daughter, Sheila Stephens (“Daughter”), sued the Decedent’s
second wife, Thelma Mulvey (“Widow”). The Daughter claimed the Widow
exerted undue influence on the Decedent and interfered with her expected
inheritance. To provide a general understanding of the issues, we break
our background discussion in three parts: First, we discuss the Decedent’s
will and trust; second, the Daughter’s attempt to challenge the will in the
probate court; and finally, the trial at issue and the Daughter’s claim for
tortious interference with expectancy.

                   i. The Decedent’s Will and Trust

   While married to his first wife, the Decedent established a revocable
trust. The trust’s assets included a piece of property located in St. Lucie
County, known to the family as the “Ranch.” The Decedent created the
trust for the ultimate benefit of his children and grandchildren. His son,
Kevin Mulvey, was the original trustee of the trust. After Kevin Mulvey’s
death, the Daughter became the successor trustee.

    In 1999, after his first wife died, the Decedent married the Widow.
Eight years later, after prior unsuccessful attempts to sell the Ranch, the
Decedent and the Widow sold a portion of the Ranch to their friends. The
initial sale price for the Ranch was $1,150,000, but $758,000 of the sale
was in the form of a mortgage given from the buyers to the Decedent. Five
months later, the mortgage was amended to prohibit the Decedent and the
Widow from “selling, transferring, assigning or in any manner conveying
any interest” in the mortgage. A second modification agreement reduced
the principal due on the mortgage by $250,000.

   In 2008, the Decedent restated his trust. According to the restated
Trust, the Widow would receive $50,000; Kevin Mulvey would receive 16
acres of the Ranch; the Daughter would receive $65,000 cash; and his
other son, Sean Mulvey, would receive $65,000 cash.

    In 2010, the Decedent executed a self-proving will, which revoked all
previous wills. The 2010 will gave the Widow the residue and remainder
of the estate. Significantly, the 2010 will revoked a 2005 will, which was
a pour-over will that distributed all assets to the successor trustee of his
Trust.

  ii. The Daughter’s Challenge to the 2010 Will in Probate Court

   When the Decedent died in 2011, the Daughter petitioned the probate
court for administration of a previous pour-over will executed in 2005,
while seeking invalidation of the 2010 will. She argued the 2010 will was

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the product of the Widow’s undue influence on the Decedent, and she
alleged that the Decedent lacked testamentary capacity when he executed
the 2010 will. After a trial, the probate court found the 2010 will was valid
and not the product of undue influence. According to the probate court,
“[t]hough the decedent suffered physically, there was no credible,
substantial evidence of mental impairment.”

    iii. The Daughter’s Complaint for Tortious Interference with
                            Expectancy

  After the proceedings in the probate court, the Daughter filed a
complaint in the circuit court for tortious interference with expectancy.

    The Daughter’s claim proceeded to a jury trial. At trial, the Daughter
testified that she heard the Widow make belittling comments to the
Decedent and heard her say that “your kids hope you die so they get all
your money.” The Daughter also testified that after the Decedent’s stroke
in 2010, he required assistance with grooming, eating, and moving
around. During this time, the Widow publicly commented on the number
of times he needed her assistance.

   As for the sale of the Ranch, the Daughter acknowledged that before its
sale, she tried to sell the property for the Decedent. She learned about the
sale only after the fact and, at that time, her understanding was the
Decedent would receive mortgage payments during his lifetime, and his
children would receive any remaining funds from those and any additional
payments.

    The Daughter stated that she had no evidence that the Widow forced
the Decedent to sell the Ranch, and also acknowledged that she never
heard the Widow lie to the Decedent. That is consistent with the testimony
of each of the other witnesses at trial. Sean Mulvey, the Decedent’s son,
testified that although he once heard the Widow state “[y]ou’re getting
nothing out of what your father has,” he never heard her lie to the
Decedent or try to coerce the Decedent into leaving her any property.
James Mulvey, the Decedent’s grandson who had a significant relationship
with his grandfather, testified that the Widow never tried to interfere with
their relationship. He also never heard the Widow tell the Decedent to
leave her the Ranch.

   There was one other issue significant to the Daughter. The Daughter
claims the Widow blocked her brother, Sean Mulvey, from talking to the
Decedent while Sean was in prison for several years. The Daughter claims
that the Widow blocked her brother from making collect calls to speak with

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their father. Sean Mulvey testified that the Widow seemed to resent him
and made it difficult for him to speak to the Decedent. However, he did
not think his imprisonment changed the Decedent’s views of him, and he
believed the family would receive the Decedent’s assets.

   Finally, the Widow herself testified that she and the Decedent did not
consolidate their finances. She did not know the Decedent had held the
Ranch in a revocable trust. Her understanding was that the Decedent put
the Ranch in the name of her and her husband because she loaned him a
substantial sum of money and paid many of his bills.

    The Widow moved for a directed verdict, arguing the Daughter had
presented no evidence to support her claims for tortious interference. The
court denied the motion and submitted the case to the jury. The jury
found in favor of the Daughter and awarded her $60,000 in damages. The
trial court denied the Widow’s motion for judgment notwithstanding the
verdict, issued a final judgment in accordance with the verdict, and the
Widow appeals.

                           Standard of Review

   We review the court’s denial of a motion for JNOV de novo. Alterra
Healthcare Corp. v. Campbell, 78 So. 3d 595, 601 (Fla. 2d DCA 2011). A
JNOV is appropriate only when there is no evidence upon which the jury
could rely in finding for the non-moving party. Id.

                                  Analysis

    A claim for tortious interference of a testamentary expectancy includes:
“(1) the existence of an expectancy; (2) intentional interference with the
expectancy through tortious conduct; (3) causation; and (4) damages.”
Whalen v. Prosser, 719 So. 2d 2, 5 (Fla. 2d DCA 1998) (citations omitted).
“[T]he law permits a claim for tortious interference of a testamentary
expectancy ‘if the circumstances surrounding the tortious conduct
effectively preclude adequate relief in the probate court.’” Wolf v. Doll, 229
So. 3d 1280, 1283 (Fla. 4th DCA 2017) (internal quotations omitted).

   For example, in DeWitt v. Duce, 408 So. 2d 216, 219 (Fla. 1981), our
supreme court held the plaintiffs had an adequate remedy to challenge a
will in the probate court but failed to do so, barring any claims for tortious
interference of expectancy. But the court recognized a distinction for
trusts because a revocable trust is “apparently outside of probate
jurisdiction.” DeWitt, 408 So. 2d at 219 (citing Davison v. Feuerherd, 391
So. 2d 799 (Fla. 2d DCA 1980)). We have since recognized that “[t]here are

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simply too many distinctions, both procedural and substantive, between
wills and trusts, for the reasoning of DeWitt, and the purpose of section
733.103(2), as it was articulated in DeWitt, to preclude a claim for tortious
interference with expectancy.” Martin v. Martin, 687 So. 2d 903, 907–08
(Fla. 4th DCA 1997). 1

    This “evolving” tort emanates from the Restatement (Second) of Torts.
See DeWitt, 408 So. 2d at 218 n.2; see also Restatement (Second) of Torts
§ 774B (Am. Law Inst. 1979) (“One who by fraud, duress or other tortious
means intentionally prevents another from receiving from a third person
an inheritance or gift that he would otherwise have received is subject to
liability to the other for loss of the inheritance or gift.”). It is “an unusual
tort because the beneficiary is authorized to sue to recover damages
primarily to protect the testator's interest rather than the disappointed
beneficiary's expectations.” Whalen, 719 So. 2d at 6.

   At issue in this appeal is the second element: intentional interference
with expectancy through tortious conduct. The Widow argues that there
was insufficient evidence to support the jury’s verdict that she tortiously
interfered with the Daughter’s expectancy. She argues the Daughter failed
to present any evidence to establish she committed a tort, or tortious
conduct, against the Decedent. In response, the Daughter admits that
although there was no direct evidence of the Widow’s intentional
interference with the expectancy, there was competent and substantial
indirect evidence of the Widow’s undue influence supporting the verdict.

    Generally, “[u]ndue influence must amount to ‘over persuasion, duress,
force, coercion, or artful or fraudulent contrivances to such an extent that
there is a destruction of free agency and willpower of the testator.’” Henry
v. Jones, 202 So. 3d 129, 133 (Fla. 2d DCA 2016) (quoting Estate of Kester
v. Rocco, 117 So. 3d 1196, 1199 (Fla. 1st DCA 2013)). Merely changing a
document such as a trust or will is insufficient because undue influence
requires some showing that the alleged tortfeasor took improper actions.
See Newman v. Brecher, 887 So. 2d 384, 385 (Fla. 4th DCA 2004);
Restatement (Second) of Torts § 774B cmt. c (1979) (stating that “one who
by legitimate means merely persuades a person to disinherit a child and

1 In Martin, we noted that the claim would still be barred by DeWitt “if the trust
had been a testamentary disposition incorporated by reference in the will.” 687
So. 2d at 906. Here, we question whether DeWitt permits the same parties to
challenge the same purported tortious conduct in two separate actions, one in
the probate court and one in the general civil division. But the Widow does not
assert the probate court’s decision has preclusive effect on the subsequent civil
action. Thus, for purposes of this appeal, we assume it does not.

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to leave the estate to the persuader instead is not liable to the child.”). In
other words, it requires actions that are independently tortious. Id. (“In
the absence of conduct independently tortious, the cases to date have not
imposed liability”).

    Here, there was no evidence of an independent tort committed by the
Widow. The Daughter, the Decedent’s son, and the Decedent’s grandson
all testified that they had no evidence the Widow interfered with the
Decedent’s property. The uncontradicted testimony was that the Widow
did not even know the Decedent held the Ranch in a trust. The Ranch was
removed from the trust and placed in his and the Widow’s names because
the Widow loaned him a substantial sum of money and “that was his way
of paying it back.” There is no other evidence that the Widow had any
involvement with the Ranch’s ownership or ever sought to exert influence
over its ownership.

   Nor was there any evidence the Widow lied to the Decedent. It is true
that the Daughter testified the Widow made comments about assisting the
Decedent after his stroke. But because the Decedent’s stroke occurred
after the transfer of the Ranch, so too did the comments. Similarly, the
Daughter testified that the Widow interfered with her brother’s attempts
to speak to the Decedent from prison. But, the brother spoke to the
Daughter and on occasion spoke to the Decedent. It is unclear whether
these calls took place before or after the Ranch was transferred.
Regardless, the Daughter could only state that she assumed the Widow
blocked the son’s calls from prison. Even so, the brother testified that
there was no impact on his relationship with the Decedent.

                                Conclusion

   Because there was no evidence of tortious conduct by the Widow, the
Daughter could not prevail on her claim for tortious interference with
expectancy. The trial court erred when it denied the Widow’s motion for
judgment notwithstanding the verdict. Accordingly, we reverse the final
judgment and remand with instructions to grant the Widow’s motion for
judgment notwithstanding the verdict.

   Reversed and remanded.

TAYLOR and MAY, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.

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