Dominik Spang v. Bonnie Huizenga ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BONNIE HUIZENGA, No. 20-17515
Defendant-Appellant, D.C. No. 3:18-cv-08320-JJT
v. MEMORANDUM*
DOMINIK SPANG,
Defendant-Appellee,
and
SONJA DITTMAN; HERRN DOMINIK
SPANG,
Defendants.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted April 20, 2023
Phoenix, Arizona
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Bonnie Huizenga appeals the district court’s grant of summary judgment in
favor of Dominik Spang in this interpleader action filed to determine the beneficiary
of Dirk Spang’s life insurance and the proceeds from his 401(k) plan.
Dirk was diagnosed with lung cancer in 2018, and his close friend, Sondrea
Liska, helped care for him during this time. According to an unsworn letter from
Liska, Dirk told Liksa “in several conversations” over a period of many weeks, that
he wanted to change his beneficiary designation from Huizenga to his brother in
Germany, Dominik. Dirk was in a serious car accident in Arizona on May 29, 2018,
that left him in the hospital in “critical condition.” While in the hospital, Dirk
allegedly again told Liska that he wanted his beneficiary changed to Dominik and
asked Liska to change it. Dirk was then moved to hospice care on June 3, 2018. He
was “unable to move” at that time and “lost the ability to speak.” Liska, using Dirk’s
login and password information, changed the beneficiary designation on June 6,
2018, at 4:57 PM. Dirk died roughly fifteen hours later, at 8:10 AM on June 7, 2018.
Dirk did not have a durable power of attorney designating Liska as his attorney in
fact.
The district court found that prior to his death Dirk was competent—in April
and May 2018—to make the decision to change his beneficiary designation on his
life insurance and 401(k) plan from Huizenga to Dominik. In making this finding,
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the district court relied on the unsworn letter from Liska. The district court also
rejected the sworn affidavit of the physician caring for Dirk in hospice, Dr. Carrie
Monroy, that stated her professional opinion that Dirk lacked the necessary capacity
to make the decision to change his beneficiary designation on the day before he died.
We review de novo a district court’s grant of summary judgment. Vaz v. Neal,
33 F.4th 1131, 1135 (9th Cir. 2022). Evidentiary rulings made in ruling on a motion
for summary judgment are reviewed for abuse of discretion. Sandoval v. Cnty. of
San Diego, 985 F.3d 657, 665 (9th Cir. 2021). We reverse and remand for
redetermination because (1) the district court erred in examining Dirk’s competency
during the incorrect time period, and (2) abused its discretion by not considering Dr.
Monroy’s affidavit in its analysis.
1. In Arizona, a durable power of attorney may be used to delegate decision
making from a principal to a third party who may act on behalf of the principal. See
Ariz. Rev. Stat. § 14-5501(A) (“A durable power of attorney is a written instrument
by which a principal designates another person as the principal’s agent.”). But an
agency relationship can be formed without the existence of a durable power of
attorney. See In re Sky Harbor Hotel Props. LLC, 443 P.3d 21, 23 (Ariz. 2019).
However, unlike durable powers of attorney, unwritten agency relationships
terminate upon the incapacity of the principal. Golleher v. Horton, 715 P.2d 1225,
1229 (Ariz. Ct. App. 1985) (“As a general rule of common law, the power of an
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agent does not survive the incompetency of his principal.”)
Because Dirk lacked a durable power of attorney, the relevant time frame the
district court should have focused upon was his competency on the day before he
died, June 6, 2018, when Liska changed his beneficiary designations. Even if Liska
acted as Dirk’s agent in the months prior to his death in managing his fiscal affairs,
any agency relationship that may have existed terminated upon Dirk’s
incompetency. Id. Therefore, the district court’s analysis that Dirk was fully
competent when he made the decision to change the beneficiary designation in April
and May 2018 is not relevant to the analysis required under Arizona law, which
directs the district court to analyze Dirk’s competency on June 6, 2018. See Nunez
v. Duncan, 591 F.3d 1217, 1222–23 (9th Cir. 2010) (in reviewing a district court’s
grant of summary judgment, we determine “whether there are any genuine issues of
material fact and whether the district court correctly applied the relevant substantive
law” (quotation omitted)).
2. Additionally, the district court abused its discretion when it chose not to
consider the sworn affidavit of Dr. Monroy. The district court demanded too much
from Dr. Monroy as she was stating her professional opinion, as Dirk’s treating
physician, as to Dirk’s mental state at the relevant time, and not writing a legal
treatise on testamentary capacity covering the earlier time period. Any evidence the
parties may offer from witnesses with relevant knowledge at the proper time may be
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considered along with Dr. Monroy’s opinion as relating to the June 6, 2018, mental
capacity inquiry. See, e.g., In re Walters’ Estate, 267 P.2d 896, 898 (Ariz. 1954)
(noting, when analyzing capacity, that “nurses and hospital employees” who
witnessed the testator execute his will stated that he “was conscious, mentally alert
and of sound mind at all times”). The evidentiary standards for summary judgment
should be applied. See Shepard v. Quillen, 840 F.3d 686, 687 n.1 (9th Cir. 2016).
Dr. Monroy’s opinion, coupled with the fact that the beneficiary designation
change occurred fifteen hours before Dirk’s death while Dirk was in hospice care at
minimum presents a genuine issue of material fact as to whether Dirk had the
requisite capacity at the time Liska actually made the change. We vacate the
summary judgment previously entered in favor of Dominik Spang and remand on an
open record for such evidentiary proceedings as the district court may deem
necessary. Each party shall bear its own costs on appeal.
REVERSED AND REMANDED with instructions.
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