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Filing # 85788107 E-Filed 03/04/2019 10:29:16 AM
IN THE CIRCUIT COURT OF THE
EIGHTH JUDICIAL CIRCUIT IN AND
FOR ALACHUA COUNTY, FLORIDA
CASE NO.: 01-2015-CA-4330
DONALD M. SHEPPARD, as Trustee of
The Michel K. and Margaret D. Ochi
Revocable Trust Agreement; UNIVERSITY
OF FLORIDA FOUNDATION, INC.; and
UNIVERSITY OF MARY WASHINGTON
FOUNDATION,
Plaintiffs,
vs.
SHANNON L. SMYTH; and BANK OF
AMERICA, N.A.,
Defendants.
/
DEFENDANT, SHANNON L. SMYTH’S MOTION IN LIME TO PROHIBIT
PYRAMIDING OF INFERENCES
Defendant, Shannon Smyth, (“Smyth”), through his undersigned counsel and before trial
respectfully requests that this Court instruct the parties, all counsel, and witnesses not to mention,
refer to, interrogate concerning, or attempt to convey in any manner, either directly or indirectly,
any of the following information without first obtaining permission from the Court:
To prohibit any reference, express or implied, based upon improper pyramiding of
inferences.
As grounds for this motion, Smyth states:
1 This is a case where Plaintiffs have alleged that Smyth unduly influenced Margaret
D. Ochi, (“Mrs. Ochi”), former Trustee of the Michel K. and Margaret D. Ochi Revocable Trust
Agreement, (“Trust”). Mrs. Ochi transferred funds to an account, payable on her death to Smyth.
Those funds came from various bank accounts. Plaintiffs contend that Mrs. Ochi could not have
"2015 CA 004330" 85788107 Filed at Alachua County Clerk 03/04/2019 10:29:19 AM EST
had the will to gift Smyth and was unduly influenced by Smyth to transfer the funds from the Ochi
Trust Accounts because:
a) Mrs. Ochi executed the Trust in 2002 that did not include the gifts in
question, so she did not have the will to later decide to establish an account
to gift Smyth in 2012;
b) Due to Mrs. Ochi’s close relationship with Smyth, with Smyth serving as
her primary caretaker, Mrs. Ochi could not have had the will to gift funds
to Smyth;
c) Mrs, Ochi did not amend the Trust to include the gift to Smyth, so she did
not have the will to gift funds to Smyth outside the trust; and
qd) Mrs. Ochi Diverted funds to Smyth for his sole benefit after her death and
thus, could not have had the will to gift funds to Smyth.
In sum, Plaintiffs allege that Smyth’s undue influence over Mrs. Ochi caused her to divert funds
that would have gone to the beneficiaries, which tortiously interfered with their inheritance
expectancy as residuary beneficiaries of the Trust.
2. Florida law does not allow a party to pyramid inferences in order to prove a fact.
As the Florida Supreme Court has stated:
if a party to a civil action depends upon the inferences to be drawn from
circumstantial evidence as proof of one fact, it cannot construct a further
inference upon the initial inference in order to establish a further fact unless
it can be found that the original, basic inference was established to the
exclusion of all other reasonable inferences.
Nielsen y. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960). Thus, in Florida, “[iJnferences may
be pyramided only if the initial inference is established to the exclusion of any other reasonable
theory.” See Hurst v. Astudillo, 631 So. 2d 380, 381 (Fla. 3d DCA 1994) (citation omitted). The
general evidentiary rule in Florida against pyramiding one inference upon another has only one
exception: os. when no contrary reasonable inference may be indulged, such inference is elevated
for the purpose of further inference to the dignity of an established fact.” Slitor v. Elias, 544 So.
2d 255, 257 (Fla. 2d DCA 1989) (quoting Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403,
407 (Fla. 1954), describing in detail the inference upon inference analysis required, and ultimately
holding that an internal inference did not rise to the level of fact and thus could not support the
final inference). An alternative way of expressing the Voelker exception is that “...an inference
may be admissible into evidence, even though it is based upon another inference, if the other
inference has been shown to exist beyond a reasonable doubt.” Benson v, State, 526 So. 2d 948,
960 (Fla. 2d DCA 1988). In other words, unless an inference is so concrete that it rises to the
level of fact and excludes any other reasonable implication, it cannot be used to pyramid any
other inference. See id.
3 The Plaintiffs’ inferences do not rise to the level of fact and do not exclude the other
reasonable implication. It is reasonable to infer that Mrs. Ochi had the will to gift Smyth funds
from the Ochi Trust Accounts because:
a) Mrs. Ochi was not aware of the level of care Smyth would provide her in
later years when she executed the Trust in 2002;
b) Mrs. Ochi made the gifts to Smyth because of her close relationship with
him and his role as her primary care taker for the last three (3) years of her
life;
c) Mrs. Ochi was not able to amend the Trust because Mr. Ochi was
incapacitated, and therefore could not execute amendments to the Trust; and
d) Mrs. Ochi intended to gift funds to Smyth on her death out of love, affection
and appreciation.
It is clear that a reasonable and contrary inference to Plaintiffs’ inferences exist. Due to Mrs. Ochi’s
inability to amend the Trust to include the gifts to Smyth, she took alterative measures to
compensate him for his role as her primary caretaker by establishing an account payable to him
upon her death. Therefore, Plaintiffs should be barred from pyramiding inferences to prove that,
because Mrs. Ochi did not include the gifts to Smyth when she executed the Trust in 2002, she
could not have the will to gift Smyth funds in 2012. See Slitor v. Elias, 544 So. 2d 255, 257 (Fla.
2d DCA 1989); Hurst v. Astudillo, 631 So. 2d 380, 381 (Fla. 3d DCA 1994).
4 Moreover, the Plaintiffs have no information regarding Mrs. Ochi’s relationship
with Smyth. In fact, the Plaintiffs relied on Smyth to provide information to them regarding Mrs.
Ochi’s health and finances and were not present during the majority of the final years of Mrs.
Ochi’s life, so cannot testify to her intent, her capacity, or her relationship with Smyth.
WHEREFORE, Smyth and Bank of America, N.A., respectfully requests that this Court
enter an order granting the relief requested herein to prohibit any reference, express or implied,
based upon improper pyramiding of inferences.
CERTIFICATE OF SERVICE
T HEREBY CERTIFY on March t { , 2019, I filed the foregoing with the Clerk of the
Court using Florida’s E-Portal System, which will provide electronic notice to the following:
Richard White, Esquire, 5303 S.W. 91“ Drive, Suite 200, Gainesville, FL 32608, rmw@gate.net
and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street,
Suite 1750, Jacksonville, FL 32202, jcole@gunster.com, jvanlenten@gunster.com.
csweet@gunster.com, whystrom@gunster,com, sjustice@gunster.com.
Jenkiter Ces Lester
Flor ja Bar Number: 0945810
Bradford T. Willard
Florida Bar Number: 0062827
Star M. Sansone
Florida Bar Number: 113103
3940 N.W. 16th Blvd., Bldg. B
Gainesville, FL 32605
Telephone: (352) 376-8201
Jen ri@salterlaw.net
Iterlaw.net
mi ah@: rlaw.t et
ond
dito rneyfo w Defendant, Shannon Smyth
Preview
Filing # 85788107 E-Filed 03/04/2019 10:29:16 AM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA CASE NO.: 01-2015-CA-4330 DONALD M. SHEPPARD, as Trustee of The Michel K. and Margaret D. Ochi Revocable Trust Agreement; UNIVERSITY OF FLORIDA FOUNDATION, INC.; and UNIVERSITY OF MARY WASHINGTON FOUNDATION, Plaintiffs, vs. SHANNON L. SMYTH; and BANK OF AMERICA, N.A., Defendants. / DEFENDANT, SHANNON L. SMYTH’S MOTION IN LIME TO PROHIBIT PYRAMIDING OF INFERENCES Defendant, Shannon Smyth, (“Smyth”), through his undersigned counsel and before trial respectfully requests that this Court instruct the parties, all counsel, and witnesses not to mention, refer to, interrogate concerning, or attempt to convey in any manner, either directly or indirectly, any of the following information without first obtaining permission from the Court: To prohibit any reference, express or implied, based upon improper pyramiding of inferences. As grounds for this motion, Smyth states: 1 This is a case where Plaintiffs have alleged that Smyth unduly influenced Margaret D. Ochi, (“Mrs. Ochi”), former Trustee of the Michel K. and Margaret D. Ochi Revocable Trust Agreement, (“Trust”). Mrs. Ochi transferred funds to an account, payable on her death to Smyth. Those funds came from various bank accounts. Plaintiffs contend that Mrs. Ochi could not have "2015 CA 004330" 85788107 Filed at Alachua County Clerk 03/04/2019 10:29:19 AM EST had the will to gift Smyth and was unduly influenced by Smyth to transfer the funds from the Ochi Trust Accounts because: a) Mrs. Ochi executed the Trust in 2002 that did not include the gifts in question, so she did not have the will to later decide to establish an account to gift Smyth in 2012; b) Due to Mrs. Ochi’s close relationship with Smyth, with Smyth serving as her primary caretaker, Mrs. Ochi could not have had the will to gift funds to Smyth; c) Mrs, Ochi did not amend the Trust to include the gift to Smyth, so she did not have the will to gift funds to Smyth outside the trust; and qd) Mrs. Ochi Diverted funds to Smyth for his sole benefit after her death and thus, could not have had the will to gift funds to Smyth. In sum, Plaintiffs allege that Smyth’s undue influence over Mrs. Ochi caused her to divert funds that would have gone to the beneficiaries, which tortiously interfered with their inheritance expectancy as residuary beneficiaries of the Trust. 2. Florida law does not allow a party to pyramid inferences in order to prove a fact. As the Florida Supreme Court has stated: if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences. Nielsen y. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960). Thus, in Florida, “[iJnferences may be pyramided only if the initial inference is established to the exclusion of any other reasonable theory.” See Hurst v. Astudillo, 631 So. 2d 380, 381 (Fla. 3d DCA 1994) (citation omitted). The general evidentiary rule in Florida against pyramiding one inference upon another has only one exception: os. when no contrary reasonable inference may be indulged, such inference is elevated for the purpose of further inference to the dignity of an established fact.” Slitor v. Elias, 544 So. 2d 255, 257 (Fla. 2d DCA 1989) (quoting Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 407 (Fla. 1954), describing in detail the inference upon inference analysis required, and ultimately holding that an internal inference did not rise to the level of fact and thus could not support the final inference). An alternative way of expressing the Voelker exception is that “...an inference may be admissible into evidence, even though it is based upon another inference, if the other inference has been shown to exist beyond a reasonable doubt.” Benson v, State, 526 So. 2d 948, 960 (Fla. 2d DCA 1988). In other words, unless an inference is so concrete that it rises to the level of fact and excludes any other reasonable implication, it cannot be used to pyramid any other inference. See id. 3 The Plaintiffs’ inferences do not rise to the level of fact and do not exclude the other reasonable implication. It is reasonable to infer that Mrs. Ochi had the will to gift Smyth funds from the Ochi Trust Accounts because: a) Mrs. Ochi was not aware of the level of care Smyth would provide her in later years when she executed the Trust in 2002; b) Mrs. Ochi made the gifts to Smyth because of her close relationship with him and his role as her primary care taker for the last three (3) years of her life; c) Mrs. Ochi was not able to amend the Trust because Mr. Ochi was incapacitated, and therefore could not execute amendments to the Trust; and d) Mrs. Ochi intended to gift funds to Smyth on her death out of love, affection and appreciation. It is clear that a reasonable and contrary inference to Plaintiffs’ inferences exist. Due to Mrs. Ochi’s inability to amend the Trust to include the gifts to Smyth, she took alterative measures to compensate him for his role as her primary caretaker by establishing an account payable to him upon her death. Therefore, Plaintiffs should be barred from pyramiding inferences to prove that, because Mrs. Ochi did not include the gifts to Smyth when she executed the Trust in 2002, she could not have the will to gift Smyth funds in 2012. See Slitor v. Elias, 544 So. 2d 255, 257 (Fla. 2d DCA 1989); Hurst v. Astudillo, 631 So. 2d 380, 381 (Fla. 3d DCA 1994). 4 Moreover, the Plaintiffs have no information regarding Mrs. Ochi’s relationship with Smyth. In fact, the Plaintiffs relied on Smyth to provide information to them regarding Mrs. Ochi’s health and finances and were not present during the majority of the final years of Mrs. Ochi’s life, so cannot testify to her intent, her capacity, or her relationship with Smyth. WHEREFORE, Smyth and Bank of America, N.A., respectfully requests that this Court enter an order granting the relief requested herein to prohibit any reference, express or implied, based upon improper pyramiding of inferences. CERTIFICATE OF SERVICE T HEREBY CERTIFY on March t { , 2019, I filed the foregoing with the Clerk of the Court using Florida’s E-Portal System, which will provide electronic notice to the following: Richard White, Esquire, 5303 S.W. 91“ Drive, Suite 200, Gainesville, FL 32608, rmw@gate.net and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street, Suite 1750, Jacksonville, FL 32202, jcole@gunster.com, jvanlenten@gunster.com. csweet@gunster.com, whystrom@gunster,com, sjustice@gunster.com. Jenkiter Ces Lester Flor ja Bar Number: 0945810 Bradford T. Willard Florida Bar Number: 0062827 Star M. Sansone Florida Bar Number: 113103 3940 N.W. 16th Blvd., Bldg. B Gainesville, FL 32605 Telephone: (352) 376-8201 Jen ri@salterlaw.net Iterlaw.net mi ah@: rlaw.t et ond dito rneyfo w Defendant, Shannon Smyth