Opinion
No. 1-1006 / 00-1936.
Filed January 28, 2002.
Appeal from the Iowa District Court for Polk County, GLENN E. PILLE, Judge.
In this probate action, defendant appeals the district court judgment, based on a jury verdict, which set aside a will. AFFIRMED.
Robert Kohorst of Kohorst, Early, Gross Louis, Harlan, for appellant.
David A. Morse of Garten, Wanek Morse, Des Moines, and John S. Harding of Harding, Harding, Griffin Rosien, Des Moines, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Roy Baron appeals the judgment entry in this probate action, based on a jury verdict, which set aside a will. He claims the district court erred by determining certain evidence was hearsay and should not be admissible. We affirm on appeal.
Ocala Trites was born in 1912. She did not have any children but had several nieces and nephews, including Phyllis Fusco and Roy Baron. In 1987 she moved to an apartment in Des Moines. Phyllis traveled from Pennsylvania every two months to visit with Ocala and help her with her affairs. In 1993 Ocala executed a will leaving $5000 to a great-niece, Lynn Baron, and the remainder of her estate to Phyllis.
In 1996 Roy saw Ocala's will leaving most of her estate to Phyllis. He and a cousin, Bobby Howell, drew up a new will, which divided Ocala's estate equally among her nieces and nephews, and presented it to Ocala for her signature. After consultation with an attorney, some changes were made so the will specifically provided that any money Ocala received from the Rena I. Simpson Trust should be divided equally between Roy, Bobby, Barbara Howell French, Billy Howell, Louise Poderson, and Janice Lanning. Ocala signed this will on October 24, 1996. In April 1997 she moved to Urbandale Assisted Care because she was not able to live on her own.
Ocala died on March 14, 1999. Roy submitted the 1996 will to probate, and was named executor. Phyllis filed a petition to set aside the 1996 will on the grounds it was the result of lack of testamentary capacity, undue influence, lack of due execution, and fraud. The case was tried to a jury. The jury found for Phyllis. The district court entered judgment determining the 1996 will should be set aside.
Roy filed a motion for a new trial, pursuant to Iowa Rule of Civil Procedure 244. He claimed the district court erred by not permitting him to introduce into evidence the Rena I. Simpson Trust Agreement and a letter from David Amend, a trust officer, regarding the trust. The district court determined the documents were hearsay and denied the motion for new trial. Roy appeals.
An action to set aside a will is triable in probate as a law action. Iowa Code § 633.33 (1999). We review the admission of hearsay for errors at law, not for abuse of discretion. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001). We give deference to the district court's factual findings and uphold such findings if they are supported by substantial evidence. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000).
Under the uniform scheduling order in this case, the parties were to file an exhibit list seven days prior to trial, and unless the opposing party objected within five days after that filing, identification, authentication, and foundation objections were waived. Roy, however, did not file an exhibit list prior to trial. Therefore, Phyllis did not waive any foundation objections, and in fact did object to the trust agreement on foundation and hearsay grounds. Phyllis's objections were sustained by the district court.
Roy contends the trust agreement and Amend letter should have been admitted under section 622.28, which provides:
Any writing or record, whether in the form of an entry in a book, or otherwise, including electronic means and interpretations thereof, offered as memoranda or records of acts, conditions or events to prove the facts stated therein, shall be admissible as evidence if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method of circumstances of their preparation were such as to indicate their trustworthiness, and if the judge finds that they are not excludable as evidence because of any rule of admissibility other than the hearsay rule.
Section 622.28 also provides, "The term business, as used in this section, includes business, profession, occupation, and calling of every kind."
Under section 622.28, records made in the usual course of business may be used as proof of the information they contain. State v. Fisher, 178 N.W.2d 380, 383 (Iowa 1970). In order for a document to be admitted under the statute, a party must first show the reliability of the system under which the document was made and preserved. Id.; see also Madison v. Colby, 348 N.W.2d 202, 204 (Iowa 1984). There was no showing in the present case that the documents were created in the regular course of business. In addition, there was no showing concerning the reliability of the documents. We conclude the district court did not err in concluding the documents were not admissible under section 622.28.
Roy also contends the trust agreement and letter should be admissible under an exception to the hearsay rule found in Iowa Rules of Evidence 803(3) (then existing mental condition). Roy's arguments concerning rule 803(3) were raised for the first time on appeal, and we do not consider them here.
Roy also claims the evidence should have been admitted under the exceptions for statements not covered by any other exceptions. See Iowa R. Evid. 803(24), 804(b)(5). The requirements for admitting hearsay evidence under rule 803(24) are: (1) trustworthiness, (2) materiality, (3) necessity, (4) service of the interests of justice, and (5) notice. State v. Kone, 562 N.W.2d 637, 638 (Iowa Ct. App. 1997). The same requirements are necessary for the admission of a document under rule 804(b)(5). State v. Nance, 533 N.W.2d 557, 559 (Iowa 1995). For the same reasons the documents were not admissible under section 622.28, we determine they are not admissible under the exceptions found in rules 803(24) and 804(b)(5), i.e, lack of evidence concerning how the documents were created and lack of evidence concerning their reliability or trustworthiness.
We conclude the district court did not err in refusing to admit the documents in question. The court properly denied Roy's motion for new trial. We affirm the judgment for Phyllis.
AFFIRMED.