Connor v. Mary Schlemmer In Re Estate Of Kathleen T. Connor

Citation996 A.2d 98
Decision Date07 June 2010
Docket NumberNo. 2008-168-Appeal,2008-183-Appeal.,2008-168-Appeal
PartiesLeo CONNOR et al.v.Mary SCHLEMMER et al.In re Estate of Kathleen T. Connor.
CourtUnited States State Supreme Court of Rhode Island

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Samuel D. Zurier, Esq., Providence, for Leo Connor and Eugene Connor.

Lauren E. Jones, Esq., Providence, for Mary Schlemmer and Virginia Schlemmer Lavoie.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

This consolidated appeal involves two cases concerning the estate of the late Kathleen T. Connor (Kathleen). The first case is a declaratory-judgment action in which the plaintiffs, Leo Connor and Eugene Connor (the Connors or plaintiffs), (1) challenged a deed (2001 deed) executed by Kathleen,1 their sister and aunt, respectively, and a power of attorney she executed in 2002 in favor of Virginia Schlemmer-Lavoie (Virginia); and (2) requested the imposition of a constructive trust on Kathleen's former home. The Connors appeal from a judgment in favor of the defendants, Mary Schlemmer (Mary) and her daughter, Virginia, dismissing the plaintiffs' action on the merits.

The second case is an appeal by the Connors from an order of the Probate Court for the Town of Smithfield admitting to probate a will executed by Kathleen in 2002. A jury returned a verdict finding that Kathleen lacked sufficient mind and memory necessary to execute the will. Judgment was then entered in favor of the Connors, declaring the 2002 will null and void and remanding the matter to the Probate Court for further proceedings. Shortly thereafter, however, the trial justice granted the motion of the Estate of Kathleen Connor (the estate) for a new trial in an order entered on December 18, 2007.

The Connors timely filed notices of appeal in both cases. The cases were consolidated for the purposes of this appeal. For the reasons discussed in this opinion, we affirm both the judgment and the order of the Superior Court.

I

Facts 2 and Procedural History

ABackground

Kathleen T. Connor was born in January 1909, one of four children. In 1913, Kathleen's family moved to a farm on Mann School Road in Smithfield, where she would reside almost continuously until her death in 2006. Kathleen's cousin, Mary Donahue (later Schlemmer), also resided on the family farm and regarded Kathleen as [her] big sister.” Kathleen remained close to Mary throughout her life.3 She also enjoyed close relationships with Mary's children, especially her daughter Virginia. At trial, Virginia testified that she loved Kathleen “like a mother.” According to Mary, Kathleen often referred to Virginia as “the daughter I never had.”

Around 1960, Kathleen's two brothers, John, Jr. (Jack) and Leo, moved to New Hampshire and Vermont, respectively. By 1977, Kathleen was the sole occupant of the Smithfield farmhouse. In 1988, a developer bought the land surrounding the farmhouse, but Kathleen's nephews and brother Leo secured a deed for a rental property adjacent to the farmhouse and two-and-one-half acres of land for Kathleen. Although the brothers and their families lived in another state, they tried to visit Kathleen in Rhode Island regularly, and they celebrated holidays and family occasions with her. For many years, Kathleen also wintered with Jack and his family in Florida.

In 1976, Kathleen executed a will leaving the farmhouse to her brothers, Jack and Leo, and her residuary estate to her sisters-in-law, with various other specific bequests going to her extended family. Her nephew, Eugene Connor, testified that he specifically recalled one occasion on which Kathleen stated that she did not include Mary in her estate plan because she was “not a blood relative.” 4 In 1985, Kathleen executed a second will that largely retained the same estate plan as the 1976 will. She requested a copy of her 1985 will from the drafting attorney's office in 1991, but apparently did not make any changes to her estate plan at that time.

By the late 1990s, Kathleen had begun exhibiting some signs of mental deterioration and confusion. At trial, Kathleen's nephew Leo Connor, Jr. (Jerry), testified that around that time he “noticed * * * that she was always asking [him] the same questions and she would get [her brother Leo] mixed up with [her brother Jack] and things of that nature.” One of Kathleen's nieces, Caroline Connor Martone, testified that, in April 2001, she and her family visited Kathleen unannounced and that Kathleen would not let them into her house and seemed “unlike” herself.5 In May 2001, Kathleen was operating an automobile and accidentally struck a telephone pole in Smithfield, causing significant damage.

Mary and her children, who took Kathleen to most of her medical appointments, informed Kathleen's primary-care physician, Stephen A. Fanning, III, D.O., that she was becoming “increasingly forgetful.” According to a medical report prepared by Dr. Fanning on July 19, 2001, his “initial impression” of his patient was that she was suffering from dementia. He recommended that she “should not drive [her] car” and suggested a living will and a power of attorney.

Soon thereafter, Mary's financial advisor prepared a power of attorney for Kathleen to sign. When Kathleen appeared reluctant to execute the power of attorney, her brother Leo and his son Michael came to Rhode Island at Mary's request 6 and persuaded her to do so on August 1, 2001. According to Michael, his father “thought Kathleen's care would best be given to Mary Schlemmer[,] and so he had no reservation about giving her the power of attorney.” Virginia's name was added to the power of attorney form shortly thereafter.7 At trial, Michael and Mary agreed that Kathleen seemed competent to sign the power-of-attorney form.

On August 17, 2001, Mary's daughter, Alice Schlemmer, told Dr. Fanning that Kathleen was not eating, displayed increased memory loss, refused to let visitors enter her home, and was reluctant to visit her doctor. Doctor Fanning recommended placing Kathleen in an assisted-living facility, fearing that otherwise she “may wind up in [the] hospital.” In September of that same year, Mary took Kathleen to see Jon Stoukides, M.D., director of geriatrics at Roger Williams Hospital, who made a “presumptive diagnosis” of Alzheimer's disease following some “cursory mental status testing to assess * * * memory and cognitive function * * *.” At trial, Dr. Stoukides had “absolutely no recollection of” having treated Kathleen. Upon reviewing his office notes, however, Dr. Stoukides testified that Kathleen “scored 19 out of 30” on the Folstein Mini-Mental State Exam. This score indicated that Kathleen was operating at a “medium level” indicating “some degree of [mental] impairment * * *.” In his opinion, “her judgment seemed fair in spite of her illness * * * and * * * her mood and affect seemed appropriate.” After a second appointment on October 23, 2001, Dr. Stoukides reaffirmed his impression that Kathleen was experiencing “memory loss consistent with Alzheimer's * * *.”

In September 2001, Mary met with Kathleen Biddle, a registered nurse at the Dora C. Howard Centre (Centre). According to Ms. Biddle's trial testimony, Kathleen spent one day (approximately four hours) at the Centre in October 2001. During that time, Ms. Biddle prepared various application materials and intake surveys with information supplied by Mary. According to these documents and Ms. Biddle's testimony, Mary described Kathleen's short-term memory loss as “severe” and her long-term memory loss as mild to moderate. Mary also informed her that Kathleen was not able to make financial and healthcare decisions independently. Ms. Biddle testified on cross-examination, however, that Kathleen was able to make decisions about personal relationships; she knew her family members and could relate to them. Ms. Biddle found Kathleen “very sociable,” articulate, and appropriately behaved while at the Centre.

In November 2001, Kathleen moved into North Bay Manor, an assisted-living facility in Smithfield. Mary visited her there “almost every day” and often took her out for church, errands, and family holidays. According to Mary, her five daughters visited with Kathleen on a daily basis, especially Virginia, whom Kathleen dubbed “Ginny on-the-spot.” Virginia often took Kathleen to “spend the day” at the farmhouse during this period. At trial, Raymond Maxwell, the executive director of North Bay Manor, testified that Kathleen appeared to be of sound mind when she moved into the assisted-living facility and that she remained in that condition for “quite a bit of time.” Mr. Maxwell also stated that Mary, Virginia, and other members of the Schlemmer family were regular visitors, although he saw Kathleen's Connor relatives visiting on only one occasion. Rose Marie Paul, a licensed practical nurse at North Bay Manor during Kathleen's residence there, testified similarly to Mr. Maxwell. Additionally, Ms. Paul testified that Kathleen's low score on a March 2002 Folstein Mini-Mental State Exam probably was due to the fact that Kathleen was suffering from a urinary-tract infection at the time because “knowing her, there had to have been something going on [to explain the low score].”

According to Mary, Kathleen “had told [her] over the years that she had intentions * * * [of putting Virginia's] name on [the deed of] her house because [Virginia] had always been so good to her.” At trial, Virginia testified that Kathleen had mentioned a similar plan to her over the course of several years and expressed a definite intention to add Virginia's name to the deed shortly after moving into North Bay Manor.8

In December 2001, Kathleen conveyed the family residence to herself and Virginia as joint tenants by way of a quitclaim deed. Kathleen's attorney, Frank Mastrati, Jr., was referred to her by the Schlemmers' financial advisor upon inquiry by Virginia. Virginia paid some or all of Mr. Mastrati's fee.

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