Caplan v. Benator

• Decision Date: 16 March 2018
• Docket Number: 2160904
• Citation: 262 So.3d 672
• Parties: Rosalyn M. CAPLAN v. Patty BENATOR and Linda Fleet
• Court: Alabama Court of Civil Appeals

262 So.3d 672

Rosalyn M. CAPLAN

v.Patty BENATOR and Linda Fleet

2160904

Court of Civil Appeals of Alabama.

March 16, 2018

Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for appellant.

Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee Patty Benator; and John W. McClurkin of Vernis & Bowling of Southern Alabama, LLC, Mobile, for appellee Linda Fleet.

THOMPSON, Presiding Judge.

Rosalyn M. Caplan instituted this tort action against Patty Benator and Linda Fleet ("the daughters"), the executors of the estate of their late father, Edgar K. Simon, Jr., in connection with conduct that occurred in the days and weeks after Simon died. After a trial in the Montgomery Circuit Court ("the trial court"), a jury returned a verdict in favor of Caplan and awarded her $1 in damages. The trial court entered a judgment on the jury's verdict, and Caplan appeals.

The evidence adduced at trial indicates the following. Caplan, who was 93 years old at the time of the trial, testified that she had been in a romantic relationship with Simon for about 14 years. Caplan and Simon lived together at Simon's house ("the house") in Montgomery for approximately ten years before his death in 2015. Caplan had no ownership interest in the house.

Simon executed a will ("the will") on June 2, 2009. Among other things, the will provided:

"At the time I make this Will, I currently own [the house] and all contents located therein .... If I own such at the time of my death, I hereby will, devise and bequeath [the house] and all contents therein and all insurance thereon, to my two surviving children, in equal shares, share and share alike, subject to the holdover period provided herein. Provided she is living in [the house] at the time of my death, I give and grant to my friend, Rosalyn Caplan, the right to live and remain in [the house] for a period of ninety (90) days following my death. During such time, she shall be allowed to continue to occupy and continually occupy [the house] for a period of ninety (90) days and enjoy the contents therein.

"During said holdover period, Rosalyn Caplan shall not be responsible for any cost, maintenance, repair or upkeep of [the house]. She shall not be responsible for the payment of any insurance or any ad valorem taxes assessed against [the house].

"....

"Upon vacating [the house] Rosalyn Caplan shall notify my Executors, in writing, at which time all right, title, and interest in and to [the house] along with its beneficial use shall pass immediately to my surviving children, in equal shares, share and share alike."

Simon appointed the daughters as the executors of his will. The will "authorize[s] and empower[s] my Executors and each Executor to exercise all powers as are granted to my Trustee and to make all distributions that the Trustee is permitted to make under this Will, regardless of whether or not any trust authorized by this Will shall have then become operative."

Regarding the powers of the trustee, the will states:

"A. "Without limitation of the powers conferred by statutes or general rules of law, the Trustee shall have the following powers and authorities, in addition to others now or hereinafter conferred by law with respect to any property or rights held by each trust:

"....

"(d) To sell, transfer, assign and convey any of the property of the trust or any interest therein, or to exchange the same for other property, in a public or private sale or transaction, for such price or prices and upon such terms and conditions as in its absolute discretion and judgment may be deemed for the best interest of the trust and the beneficiaries hereunder, and to execute and deliver any deeds or conveyances (with or without warranty), receipts, releases, contracts, leases, subleases, assignments, transfers or other instruments necessary or appropriate in connection therewith;

"....

"(f) To make all repairs and improvements at any time deemed necessary or proper to and upon real estate and any buildings or improvements situated thereon ...;

"....

"(m) To appoint, employ, remove and compensate such accountants, attorneys, agents, ... and representatives, ... as the Trustee deems necessary or desirable for the administration of the trust ...;

"....

"(t) To do all other acts which in the Trustee's judgment are necessary or desirable, for the proper and advantageous management, investment and distribution of any of the trusts;

"....

"C. The powers herein granted to the Trustee may be exercised in whole or in part, from time to time, and shall be deemed to be supplementary to and not exclusive of the general powers of trustees pursuant to law, and shall include all powers and authority reasonably necessary to carry the same into effect."

In April 2015, Simon, who had been diagnosed with cancer

, was under hospice care. Caplan notified the daughters that Simon's death was imminent, and the daughters and their husbands arrived at the house on April 21, 2015. Simon died in the early morning hours of April 22, 2015.

Caplan testified that, on the day Simon died, Fleet asked Caplan to give her the joint credit card that Caplan had with Simon. Caplan said the card had been used for joint expenses such as groceries and that Simon had paid the credit-card bill each month. At Fleet's request, Caplan said, she also gave Fleet the extra set of car keys to Simon's automobile. Caplan had her own vehicle. On the day Simon died, Caplan also enabled Fleet to see Simon's accounts on the computer. Caplan said that the daughters also began removing "things" from the walls and putting things in boxes.

Benator testified that, on April 25, 2015, four days after Simon had died, she received a telephone call from Caplan's son, Stan Caplan ("Stan"), who lived in San Diego. The next day, Benator said, she received an e-mail from Stan, who was following up on the telephone conversation. The e-mail read, in part: "You and your family are not welcome to visit [the house] and are formally noticed not to communicate directly with my mother. In the event of an emergency, you may contact me." Benator testified that Stan was the intermediary between Caplan and the daughters.

The daughters next came to the house on April 29, 2015, accompanied by an attorney and a real-estate agent. Caplan acknowledged that that visit had been arranged before the daughters arrived and that she was agreeable to that visit. She said that she believed that Stan had made the arrangements. Caplan said that she had no interaction with the daughters that day; she spoke only with the attorney. She also agreed that no one threatened or harassed her on that day. The real-estate agent did a walk-through of the house to assess the house and to see what repairs might be needed. Benator said the visit lasted 30 minutes at the most.

Benator and her daughter, Jaime, returned to the house on May 14, 2015. Caplan testified that she was aware they were coming to the house that day so that Jaime could see the contents of the house, but she did not recall how she learned Benator and Jaime were coming. Caplan was aware that, after she vacated the house, Jaime was going to take some of Simon's furniture and household items for her apartment. Once again, Caplan testified that she was agreeable to that visit.

However, at that visit, Benator took silverware from the house, which upset Caplan. Caplan explained that, at the time of Simon's death, she and Simon had been using the silverware that had been kept in a vault until about five or so years before. Caplan said that they had discarded the "old silver" Simon had had for about 35 years or so. However, when Benator and Jaime came to the house on May 14, 2015, Caplan said, Benator took the silverware and "ran out the door." Caplan said that she had asked Benator not to take the silverware because she was using it. The evidence was undisputed that there was other silverware in the house that Caplan could use. Caplan also conceded that she knew the silverware Benator took from the house had belonged to Simon's wife, the daughters' mother. The silverware was engraved with the initials of the daughters' mother. After Benator left with the silverware, Caplan notified the police, but she did not execute a warrant.

Caplan said that she had no communications with the daughters between the time Benator left the house on May 14, 2015, and when the daughters next came to the house on June 8, 2015. Caplan also testified that, during that period, she had had no problems with her heart other than what she called her "usual complications," which included angina. Caplan also testified that she "had a problem" with her heart and began seeing a cardiologist in 2005. As a result of her heart problems, Caplan said, she takes "a lot of medication" and has to exercise.

However, Caplan said, on June 8, 2015, she was awakened by the sound of keys in the door. She said that she believed someone was breaking into the house. Caplan said that she went into the kitchen and saw the daughters "trying to break in my house." She added that she saw Fleet at the back door and Benator "running all around the house, trying all the doors and windows." She said that she did not let the daughters in the house because, she said, she "did not want to be bothered or disturbed or made sick."

Caplan testified that, even after she recognized the daughters, she felt panic and was scared. She said that she could feel her blood pressure rising. She said that the daughters saw her, and she indicated to them that she was calling the police. Caplan testified that the daughters told her "in a very menacing way" that they would be back to the house, and they left.

Benator testified that the daughters had arranged to come to the house on June 8, 2015, to meet with an estate-sale representative. An e-mail from the daughters to Caplan dated June 4, 2015, a copy of which was sent to Stan, informed Caplan that they would be in Montgomery on June 8 and needed access to the house. Benator...