Elwell v. Stone

• Decision Date: 25 May 1990
• Docket Number: No. 89-CA-1298-MR,89-CA-1298-MR
• Citation: 799 S.W.2d 46
• Parties: Paul ELWELL and Roxanne Elwell, Appellants, v. Sharon STONE, Guardian for Mary Ghee McKenney and Mary Ghee McKenney, Appellees.
• Court: Kentucky Court of Appeals

Page 46

799 S.W.2d 46

Paul ELWELL and Roxanne Elwell, Appellants, v. Sharon STONE, Guardian for Mary Ghee McKenney and Mary Ghee

McKenney, Appellees.

No. 89-CA-1298-MR.

Court of Appeals of Kentucky.

May 25, 1990.

Rehearing Denied Aug. 3, 1990.

Discretionary Review Denied

by Supreme Court Dec. 19, 1990.

Grover S. Cox, Louisville, for appellants.

J. Andrew White, Louisville, for appellees.

Before CLAYTON, DYCHE and LESTER, JJ.

LESTER, Judge.

This is an appeal from a judgment entered upon a jury verdict awarding damages, including punitive in the sum of $41,824, against appellants for their depletion of the estate of Mary Ghee McKenney, an elderly person lacking mental capacity to manage her own affairs.

In early 1987, Mary McKenney, who had passed her 90th birthday, was found to be lacking in informed consent and in need of assistance in handling her financial affairs by an interdisciplinary team of social workers and a psychiatrist. The report led to the appointment of a curator, the Hon. John Mackey of the Louisville Bar, who is now deceased. At some point after the appointment, McKenney moved from a home she owned, together with other realty, namely a farm, into that of Paul and Roxanne Elwell and from that time forward Mary's estate in the form of cash savings and her house found its way into the hands of the appellants. One Sharon Stone, a niece of Mary McKenney, eventually located her aunt and was designated guardian and, in that capacity, brought an action, based in fraud and undue influence, for conversion of the estate. The cause was tried to a jury and a verdict in the sum above mentioned was returned for diminution in the value of real estate ($1,650), conversion of cash ($28,000), loss of interest ($1,500), loss of hospitalization payments ($674), and punitive damages ($10,000), all of which was ordered as joint and several liability as to the Elwells.

It would serve little purpose to recount all the sordid details surrounding the machinations of appellants in their successful efforts to reduce Mary McKenney to something less than a pauper, for all of these are well known to the parties and their counsel having been fully developed in several days of trial and recited to us in both briefs to the extent of some eighteen pages. Even though the six points raised by the Elwells to this Court are couched in language ostensibly presenting legal issues, they collectively seek the substitution of their interpretation of the facts for that of the jury. As an example, we are urged to accept the evidence of a lay person as to McKenney's mental capacity for that of the psychiatrist and the social workers. As to undue influence, it is argued that only a suspicion thereof is insufficient upon which to base a judgment. From the record it is difficult to argue with the cold factual realities that McKenney was ripe for financial exploitation, that she was exploited, that the Elwells did it and they got the elderly lady's estate. The evidence goes far beyond "a scintilla."

Appellants expend a portion of their argument upon reviewing the elements of fraud, but this overlooks the fact that the cause of action was also couched in undue influence as well.

What is most disturbing about this appeal is appellants' complete disregard of CR 76.12(4)(c)(iv) to the effect that a brief must contain:

An "ARGUMENT" conforming to the Statement of Points and authorities, with ample supportive...