Kibbee v. First Interstate Bank

• Decision Date: 05 November 2010
• Docket Number: No. S-10-0022.,S-10-0022.
• Citation: 2010 WY 143,242 P.3d 973
• Parties: Peter B. KIBBEE, Appellant (Plaintiff), v. FIRST INTERSTATE BANK, Sheridan, Wyoming, as Trustee of the Chandler H. Kibbee Trust Agreement dated May 26, 1987, and the Mercedes K. Kibbee Trust Agreement dated May 26, 1987, as amended March 15, 1996, and any subsequent amendments thereto, the Sharon K. Lobo Charitable Remainder Annuity Trust dated September 10, 2006, the Joshua Kibbee Lobo Charitable Lead Unitrust dated November 2, 2006, the Aurora Lobo Charitable Lead Unitrust dated November 2, 2006, the Peter B. Kibbee Charitable Remainder Annuity Trust dated November 2, 2006, and as Co-Personal Representative of the Estate of Mercedes K. Kibbee, Deceased; Robert Ferril, Trustee of the Chandler H. Kibbee Trust Agreement dated May 26, 1987, and the Mercedes K. Kibbee Trust Agreement dated May 26, 1987, as amended March 15, 1996, and any subsequent amendments thereto; Chandler H. Kibbee and Mercedes K. Kibbee Foundation for Children; Sheridan County Young Men's Christian Association; Sharon K. Delobo, individually, and as Co-Personal Representative of the Estate of Mercedes K. Kibbee, Deceased; Aurora Lobo; Joshua Kibbee Lobo; Laura Galloway; Darryl Kurtz, Sr.; Darryl Kurtz, Jr.; Scott Stewart; Nadeen Iott; Harold Johnson; and Mary Sene; Appellees (Defendants).
• Court: Wyoming Supreme Court

242 P.3d 973

2010 WY 143

Peter B. KIBBEE, Appellant (Plaintiff),

v.FIRST INTERSTATE BANK, Sheridan, Wyoming, as Trustee of the Chandler H. Kibbee Trust Agreement dated May 26, 1987, and the Mercedes K. Kibbee Trust Agreement dated May 26, 1987, as amended March 15, 1996, and any subsequent amendments thereto, the Sharon K. Lobo Charitable Remainder Annuity Trust dated September 10, 2006, the Joshua Kibbee Lobo Charitable Lead Unitrust dated November 2, 2006, the Aurora Lobo Charitable Lead Unitrust dated November 2, 2006, the Peter B. Kibbee Charitable Remainder Annuity Trust dated November 2, 2006, and as Co-Personal Representative of the Estate of Mercedes K. Kibbee, Deceased; Robert Ferril, Trustee of the Chandler H. Kibbee Trust Agreement dated May 26, 1987, and the Mercedes K. Kibbee Trust Agreement dated May 26, 1987, as amended March 15, 1996, and any subsequent amendments thereto; Chandler H. Kibbee and Mercedes K. Kibbee Foundation for Children; Sheridan County Young Men's Christian Association; Sharon K. Delobo, individually, and as Co-Personal Representative of the Estate of Mercedes K. Kibbee, Deceased; Aurora Lobo; Joshua Kibbee Lobo; Laura Galloway; Darryl Kurtz, Sr.; Darryl Kurtz, Jr.; Scott Stewart; Nadeen Iott; Harold Johnson; and Mary Sene; Appellees (Defendants).

No. S-10-0022.

Supreme Court of Wyoming.

Nov. 5, 2010.

Representing Appellant: Patrick J. Crank of Speight, McCue & Crank, P.C., Cheyenne, Wyoming, and Greg L. Goddard and Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming. Argument by Mr. Crank.

Representing Appellee First Interstate Bank: Tom C. Toner of Yonkee & Toner, LLP, Sheridan, Wyoming.

Representing Appellee YMCA and Other Beneficiaries: Dennis M. Kirven and Timothy J. Kirven of Kirven & Kirven, P.C., Buffalo, Wyoming. Argument by Mr. Timothy Kirven.

Representing Appellee Sharon K. de Lobo: Kim D. Cannon of Davis & Cannon, LLP, Sheridan, Wyoming.

Representing Appellees Aurora Lobo and Joshua Kibbee Lobo: Thomas M. Hogan of Hogan & Company Law Offices, Casper, Wyoming.

Before KITE, C.J., and GOLDEN, HILL, VOIGT ^*, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from the granting of multiple summary judgments arising out of a challenge by the appellant, Peter B. Kibbee, to changes made to the estate plan of his step-mother, Mercedes Kibbee. Peter asserts that documents that significantly modified Mercedes' estate plan are invalid because Mercedes lacked the requisite mental capacity, that she was unduly influenced by her previously-estranged daughter, Sharon de Lobo, and that Sharon was guilty of the tort of intentional interference with an inheritance expectancy. Finding no disputed questions of fact surrounding any of the above claims, and finding that the appellees are entitled to judgment as a matter of law, we will affirm.

ISSUES

[¶ 2] 1. Are there disputed questions of fact regarding the decedent's mental capacityat the time she executed the documents in question?

2. Are there disputed questions of fact regarding any activity by the decedent's daughter unduly influencing the decedent?

3. Should the affidavits of expert witnesses have been stricken for failure to attach the documents referenced therein and relied upon in reaching their conclusions?

4. Are there disputed questions of fact regarding whether the decedent's daughter was guilty of the tort of intentional interference with an inheritance expectancy?

FACTS

[¶ 3] Mercedes and Chandler Kibbee were married in 1947. Both Mercedes and Chandler had been married previously. Chandler had a successful career in business, rising to become the Chief Financial Officer of Philip Morris in that company's New York City office. When Chandler retired, he and Mercedes bought land near and moved to Sheridan, Wyoming. Over the years, the Kibbees amassed a substantial estate valued at approximately $32,000,000.00. Chandler died in 1992.

[¶ 4] The appellant, Peter Kibbee, is Chandler's adopted son. Peter was raised primarily by his adoptive mother and her new husband in California, and then attended boarding school. Peter worked in Washington, D.C., but came to Wyoming almost every summer. One of the appellees, Sharon de Lobo, is Mercedes' daughter from her previous marriage. Sharon went to finishing school in Switzerland from 1955 to 1960, and then married and lived in Spain for a time but ultimately settled in New York. Although Sharon went long periods of time without visiting Wyoming, her daughter, Aurora, spent significant time at the family ranch.

[¶ 5] After Chandler's death, Mercedes established a revocable trust in 1996 ("1996 Trust"), which trust provided that upon her death: 1) the trust would pay Sharon $50,000 per year; 2) one-half of the remainder of the trust property was to go to Peter; and 3) the other one-half was to be held in trust for Sharon's daughter, Aurora.

[¶ 6] On May 18, 2000, Mercedes gave a durable power of attorney for health care to Peter and Aurora. On July 4, 2005, Mercedes fell and broke her hip and was admitted to Westview Health Care Center, a nursing home in Sheridan, Wyoming. On October 27, 2005, after Mercedes had been in the nursing home for nearly four months, her primary physician, Dr. Thomas Niethammer, noted that there was no medical reason to keep her in the nursing home, stating:

Mercedes has been in the nursing home for several months after her severe hip fracture. Rather surprisingly she has done very well. She has had no pulmonary difficulty, no exacerbation of or congestive heart failure. Recent films demonstrate at least some healing of the fracture. She is able to now stand with assistance and no weight bearing and really gone up to much discomfort.

At this point she really wants to go home. [Aurora] does not want her to go home for fear she will fall or have other trouble.....

....

At this point I have no medical reason to keep her in the nursing home environment as the care being provided can certainly be done in a home environment with the resources that she has available to her. [Mercedes] certainly has the resources to be cared for at home. [Aurora] does not want her at home but I do feel from a medical-legal standpoint that the patient has the right to go home and fail as long as she understands that risk which I think she does.

At this point I feel that I am in the middle of a family dispute. The patient's attorney will be a[d]dressing this issue. I do have to state that from a medical standpoint she can certainly return home with adequate caregivers.

[¶ 7] As the settlor and trustee for the 1996 Trust, Mercedes was responsible for making all decision regarding trust property. However, the 1996 Trust also provided that if two physicians certified that Mercedes had become incapable of managing her trust affairs, then she would cease to be trustee andPeter and two other individuals would act as successor trustees. On December 22, 2005, Aurora and Peter came to Dr. Niethammer's office without an appointment and insisted that he sign an affidavit certifying that Mercedes was incapable of managing her own financial affairs. Although Dr. Niethammer signed the document, he later expressed regret, stating that it was an "intimidating situation" and indicated that he felt that he signed "under significant duress." The same day Dr. Niethammer signed the affidavit, Aurora fired him as Mercedes' physician. A second affidavit certifying that Mercedes was unable to manage her financial affairs was signed by Dr. Michele Bennett, who had not seen Mercedes since 2004, when Dr. Niethammer took over her care.

[¶ 8] A few months later, Laura Galloway, Mercedes' long-time secretary and bookkeeper visited Mercedes in the nursing home. During that visit, Mercedes asked Ms. Galloway how she could get her out of the nursing home. Ms. Galloway told Mercedes that she needed an attorney and Mercedes asked for recommendations. Ms. Galloway first recommended the attorney who assisted in administration of the 1996 Trust. Mercedes rejected this recommendation stating that she wanted her own attorney. Ms. Galloway then suggested a local attorney, Deb Wendtland. Mercedes immediately called Ms. Wendtland and left a message saying she would like to speak with her.

[¶ 9] On April 5, 2006, Ms. Wendtland answered Mercedes' second telephone call. At that time, Mercedes told Ms. Wendtland that she needed help getting out of the nursing home and that her granddaughter was forcing her to stay there. Ms. Wendtland agreed to meet with Mercedes. They met that same day and Mercedes explained that she had given Aurora a medical power of attorney, that her doctor had said she could go home with help, but that Aurora had told her she could not afford to go home, and that she wanted to hire Ms. Wendtland to get her out of the nursing home. Mercedes explained that she had plenty of money to hire help to assist her at home and while she loved Aurora, she had grown to fear her and that she had to beg Aurora to hire caregivers to be with her at the nursing home. Mercedes said that Aurora required the staff at the nursing home and her caregivers to report to her if Mercedes had any visitors and who they were. Mercedes also expressed anger that she was not allowed to even have money to take friends to lunch.

[¶ 10] Ms. Wendtland explained that getting Mercedes out of the nursing home might damage her relationship with Aurora. Mercedes acknowledged the risk and said that she was to have lunch with Aurora the next day and would discuss her desire to leave the nursing home and give Aurora another chance to allow her to go home. Finally, Ms. Wendtland explained that Mercedes would have to revoke the medical power of attorney and indicated that it would be helpful if Mercedes had a medical checkup to confirm her mental state. Ms. Wendtland suggested Dr. Hugh K. Batty to assist her with this, and Mercedes said she would contact him and request that he meet with her.

[¶ 11] On April 8, 2006, Mercedes called Ms. Wendtland...