Court Did Not Err by Permitting Counsel to Reference an Alleged, Unentered Text Message

Businessman looking at the smartphone.The Supreme Court of Nebraska finds that reading an alleged text message on the record did not warrant a new trial, even though the court never received the message in evidence. In Re Estate of Walter R. Koetter (Neb. No. S-21-623, October 7, 2022).

Walter R. Koetter passed away with a 2014 will that left a significant portion of his estate to one of his sons, Richard A. Koetter, the nominated personal representative of the will. A previous version of his will divided his estate equally between his five living children and the children of his deceased son. After Mr. Walter Koetter’s passing, one of his daughters, Debra J. Meyers, contested the will, alleging her brother, Mr. Richard Koetter, exerted undue influence over their father.

At the trial, Ms. Meyers’ counsel cross-examined Dr. Lindsey Wylie, Mr. Richard Koetter’s expert witness. Dr. Wylie had testified that Mr. Walter Koetter was not vulnerable to undue influence, basing her testimony on depositions and exhibits Mr. Richard Koetter’s counsel supplied, including a deposition of Mr. Richard Koetter’s wife.

During the cross-examination, Ms. Meyers’ counsel asked Dr. Wylie about an alleged text message written by Mr. Richard Koetter’s wife stating her husband was “behind it all,” making her and his father “scared to death.” In response, Dr. Wylie testified that such a message could change her opinion about Mr. Walter Koetter’s susceptibility to undue influence. Mr. Richard Koetter’s counsel objected, stating that the message was not in evidence. The court overruled his objection. Ms. Meyers’ counsel referenced the text message in closing but never entered it into evidence because Mr. Richard Koetter’s wife did not testify.

The jury determined that Mr. Richard Koetter had unduly influenced his father, yet the court awarded Mr. Richard Koetter attorney’s fees and expenses for serving as his father’s representative.

Mr. Richard Koetter appealed, asserting that the evidence did not show that he had unduly influenced his father and that the district court erred by failing to strike the reference to the text message from the record and allowing Ms. Meyers’ counsel to reference it in closing. Ms. Meyer cross-appealed the court’s award for attorney’s fees.

There was sufficient evidence for the jury to find that Mr. Richard Koetter unduly influenced his father, the Supreme Court of Nebraska holds. In response to Mr. Richard Koetter’s argument that his father would need a clear mental impairment to be susceptible to undue influence, the Supreme Court notes that a medical condition is not necessary for an individual to be a victim of undue influence. The testator’s advanced age, coupled with evidence indicating that he was afraid of his son and subject to his son's persuasion, was enough for the jury to find undue influence.

The district court had the discretion to allow discussion of the text message as a hypothetical question and to entertain alleged facts when it appeared in good faith that counsel would enter the evidence into the record. Since the evidence never became part of the record, the proper response for Mr. Richard Koetter’s legal team was a motion to strike, which they never attempted. There was no obligation for the district court to interrupt the closing argument, and an interruption would call more attention to the alleged text message.

Although it did not err concerning the text message, the district court lacked the jurisdiction to award fees to Mr. Richard Koetter as the personal representative. Nebraska statutes must establish jurisdiction for the probate court to decide particular issues, and they did not grant jurisdiction to determine attorney’s fees and expenses. Although the county court may consider the district court’s recommendations, the district court lacks jurisdiction to order attorney’s fees and expenses.

Read the full opinion here.