In re Copelan

• Decision Date: 31 July 2001
• Docket Number: No. A01A0851.,A01A0851.
• Court: Georgia Court of Appeals
• Parties: In re COPELAN.

553 S.E.2d 278

250 Ga. App. 856

In re COPELAN.

No. A01A0851.

Court of Appeals of Georgia.

July 31, 2001.

Certiorari Denied January 9, 2002.

Lambert & Roffman, E.R. Lambert, M. Joseph Reitman, Jr., Madison, Barry B. McGough, Atlanta, for appellant.

Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Walter Hamberg III, Duane D. Pritchett, Atlanta, for appellee. ELDRIDGE, Judge.

Evelyn Copelan appeals the jury verdict of the Superior Court of Putnam County finding her an incapacitated adult as to her person and property. For the reasons discussed below, we reverse.

The standard of review on appeal from the denial of a motion for directed verdict or for judgment notwithstanding the verdict is "any evidence." OCGA § 9-11-50(a); Crump v. McDonald, 239 Ga.App. 647, 648, 520 S.E.2d 283 (1999). However, "any evidence" means any evidence "sufficient under the applicable standard"; here, the standard is clear and convincing evidence. OCGA § 29-5-11(a); Kodadek v. Lieberman, 247 Ga.App. 606, 610(2), 545 S.E.2d 25 (2001). As such, under a clear and convincing standard, there must be substantial evidence to constitute "any evidence" to support a verdict under such intermediate standard of proof; a scintilla or slight amount of evidence would not satisfy such a higher standard of proof.¹ OCGA § 29-5-11(a); Kodadek, supra. As the "any evidence" standard means any evidence "sufficient under the applicable standard" in the court below, to determine whether to uphold the jury's finding in this case, the evidence supporting guardianship over Mrs. Copelan's person and property must, indeed, have been clear and convincing.

Viewed in this light, the evidence showed that Mrs. Copelan's husband, Russell Copelan, died on September 11, 1992. Mr. Copelan, by will, left his estate, including a substantial dairy farm, to his wife if she survived him. If she failed to survive him, his four children inherited under the will to be distributed equally among them.

Mrs. Copelan actively participated in the day-to-day activities of running the dairy farm prior to, as well as after, her husband's death. Most notable of these activities as adduced from the record included ongoing bookkeeping, check writing, and her voluntary completion of duly authorized survivor deeds.

After her husband's death, Mrs. Copelan's children assisted in some aspects of the dairy business. For example, her oldest son, Thomas, helped Mrs. Copelan manage the farm, while Willie David ("Danny"), the youngest, participated in the physical labor of the business. The other two children, Uyvonna and John, had independent employment and did not work on the farm in any ongoing substantive capacity. In approximately 1995, Uyvonna moved in with Mrs. Copelan.

Approximately two years after Mr. Copelan's death, the dairy farm business began to go into debt totaling approximately $170,000. Uyvonna testified that Mr. Copelan "always told [Mrs. Copelan], if the business got bad to sell the cows, not to sell the land." Mrs. Copelan proceeded to sell a herd of dairy cows to alleviate the debt.

This decision to sell the herd caused significant family conflict. Thomas believed that the dairy herd was his and that Mrs. Copelan would never dispose of this property unless something was wrong with her. John concurred in this opinion. The conflict reached such a peak that Christmas activities in 1996 were suspended and threatening words were exchanged among the children, most notably a vituperative phone message left by John on Danny's answering machine threatening Mrs. Copelan with "embarrassment" in the community and a lawyer who was "chomping at the bit" to take the case.

Consequently, on October 1, 1997, Thomas and John filed a petition for the appointment of a guardian both as to Mrs. Copelan's person and property alleging that she was an incapacitated adult. The specific incapacities designated by the petition were "mental disability" and "advanced age." As such, the petitioner alleged that Mrs. Copelan: (1) lacked sufficient understanding or capacity to make significant responsible decisions concerning her person or [was] incapable of communicating such decisions; and (2) [was] incapable of managing her estate, and the property of the proposed ward [would] be wasted or dissipated unless proper management [was] provided or the property of the proposed ward [was] needed for her support or the support of persons entitled to be supported by the proposed ward.

On October 24, 1997, after reviewing the petition and the psychological evaluation report concerning Mrs. Copelan, the probate court found no probable cause to support a finding of incapacity. Significantly, the psychological evaluator of Mrs. Copelan, Jeff Duffey, found that Mrs. Copelan suffered symptoms of clinical depression, but was not incapacitated to such a degree that a guardian should be appointed over her person and property. However, as a result of the unfavorable probate court ruling, Thomas and John Copelan appealed to the superior court on November 24, 1997, and a jury trial ensued.

At trial, the jury heard relevant testimony from expert and lay witnesses concerning Mrs. Copelan's alleged incapacitation. Mrs. Copelan neither testified nor appeared at this trial. John testified that the apparent reason for her absence was "embarrassment," as she was a "sweet, genteel, epitome of a southern lady" and "never liked to discuss the family business in the community."

Dr. Anna Marie Paulsen, petitioner's expert in mental incapacity, testified at trial by deposition. Dr. Paulsen was the psychiatrist who evaluated and treated Mrs. Copelan on several different occasions. The first visit with Dr. Paulsen was March 4, 1996. Dr. Paulsen performed a "clinical interview" which entailed a basic review of systems and various counting tests. Significantly, Dr. Paulsen did not give Mrs. Copelan any "mental cognition tests" as she "came across very well in that first session." However, at this initial visit, Dr. Paulsen noted that Mrs. Copelan: "was very nervous, she felt anxious. She mentioned her husband's recent death. She was nervous about what to do with the business and she made reference to there being some dissension between her sons about the business." Dr. Paulsen's diagnosis of Mrs. Copelan's condition after the first visit was "major depression, single episode, severe." Significantly, there was no mention of mental illness or mental incapacity. Dr. Paulsen's reasons for this initial diagnosis were the following:

She [had] trouble sleeping through the night. She said she cries very easily, she said she is not sure why. She said it did start when her husband passed. She felt like she couldn't stay by herself. She couldn't remember names. She reported a tremendous amount of anxiety. Then she appeared very depressed and anxious, even a bit slowed, mentally slow and dull. She was self-conscious of information she seemed to be giving to me. She knew her age and she knew the day of the week, but in terms of—and she knew general information. She knew the birthdays of all of her children. But she seemed fuzzy in terms of trying to tell me some information. And she could not do counting by serial sevens down from 100, or threes.

As a result of the diagnosis, Dr. Paulsen prescribed an anti-depressant, Pamelor, to treat Mrs. Copelan's depression. On two subsequent visits, Mrs. Copelan's status seemingly improved. Dr. Paulsen noted Mrs. Copelan's statements: "`I'm feeling much better, I'm not crying as much ... Mentally clearer....' I noted she looked good, but seemed very sad." On Mrs. Copelan's December 11, 1996, visit, Dr. Paulsen stated that Mrs. Copelan was "clear, coherent and oriented," but Dr. Paulsen noted that she was still "depressed." As a result, Dr. Paulsen discontinued the Pamelor prescription, but prescribed Serzone to further treat Mrs. Copelan's seemingly chronic depression. On the December 18, 1996 visit, Dr. Paulsen testified that Mrs. Copelan stated: "`I feel the best I've ever felt, wow, a big difference. I feel motivated. I'm not too dizzy, I'm sleeping better and I have no side effects.'" As a result, Dr. Paulsen concluded that "she was alert, she was oriented, she was non-psychotic."

On the next visit, Dr. Paulsen made no note of confusion or disorientation, but changed Mrs. Copelan's medication to Effexor because the Serzone had not alleviated Mrs. Copelan's depression. At the next visit, Dr. Paulsen noted in her records that Mrs. Copelan "[took] care of herself, sleeping, eating, clothing." Finally, on October 8, 1997, Dr. Paulsen diagnosed Mrs. Copelan as: "awake and alert, but very distant ... she had serious depression. I recommended that she go into a hospital to get help." Despite her depression, Mrs. Copelan indicated to Dr. Paulsen that she was capable of managing her own affairs, telling her, "[I am] all right—I write my checks on my own."

Significantly, on cross-examination, Dr. Paulsen was asked if she could state to any degree of medical certainty that Mrs. Copelan "didn't know where she was, didn't know what she was doing and couldn't handle her affairs." In response, Dr. Paulsen retorted that the date of her last record would "not indicate" such. The most Dr. Paulsen could conclude was that Mrs. Copelan was "sad." In Dr. Paulsen's opinion, Mrs. Copelan needed to be hospitalized because she: "had a history of coming into treatment and out of treatment with irregularity, not following through with medication for any length of time."

Testimony was also heard from an attorney, George Lawrence, who had been engaged by Mrs. Copelan to enact certain survivor deeds in 1997, but who also knew her personally for approximately 50 years prior. Lawrence testified that in 1997, Mrs. Copelan seemed to be in touch with reality and spoke articulately. Moreover, Mrs. Copelan returned and/or called a second and third time to Lawrence's office to discuss and sign the...