Lavean v. Cowels

• Decision Date: 28 October 1993
• Docket Number: No. 5:92cv 109.,5:92cv 109.
• Citation: 835 F. Supp. 375
• Parties: Barbara Ann LAVEAN, Plaintiff, v. Paul E. COWELS, Defendant.
• Court: U.S. District Court — Western District of Michigan

835 F. Supp. 375

Barbara Ann LAVEAN, Plaintiff, v. Paul E. COWELS, Defendant.

No. 5:92cv 109.

United States District Court, W.D. Michigan, S.D.

October 28, 1993.

COPYRIGHT MATERIAL OMITTED

Steven A. Ramey, for plaintiff.

Steven C. Watt, for defendant.

OPINION

SCOVILLE, United States Magistrate Judge.

This civil action has been tried to the court without a jury. The parties consented in writing to trial and disposition of the matter by a magistrate judge, with appeal to the Court of Appeals (Consent, docket # 12). The following opinion represents my findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

Parties, Jurisdiction, And Claims

This action began with the filing of a one-count complaint to quiet title to a 105-acre farm located in Ionia County, Michigan. Plaintiff, Barbara Ann LaVean, is a citizen of the State of Virginia. Defendant, Paul E. Cowels, is a citizen of the State of Florida. The amount in controversy in the original complaint — the value of the 105-acre farm — exceeds $50,000, exclusive of interest and costs. This court therefore has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Venue over the original complaint was proper under 28 U.S.C. § 1391(a)(2), in that the real property that is the subject of the action is situated in this judicial district.

Plaintiff and defendant are brother and sister. They each claim title to the 105-acre farm as a result of deeds from their mother, Lila B. Cowels, now deceased. Defendant claims under a quitclaim deed dated September 10, 1987. Plaintiff's complaint contends that this deed is a forgery (Complaint, ¶ 13) and, even if valid, did not convey fee simple title to defendant (Complaint, ¶ 17). Plaintiff claims title under a quitclaim deed from her mother dated April 18, 1992. By her original complaint, plaintiff seeks to declare the September 10, 1987 deed to her brother void and to quiet title in herself.

On March 10, 1993, plaintiff was granted leave to file an amended complaint (docket # 28). The amended complaint adds a second and unrelated claim, contained in paragraphs 20-23 of the amended complaint. This claim was asserted after the death of Lila Cowels and is brought by plaintiff as the personal representative of her mother's estate. The added claim seeks an accounting from defendant and recovery of certain funds allegedly owed by defendant to his mother before her death. Although the amended complaint does not contain separate counts, for purposes of clarity this opinion will refer to the quiet title claim as "count 1" and the added claim brought by plaintiff as personal representative as "count 2."

As set forth in the amended complaint, the only clearly pleaded legal theory supporting count 1 is that the 1987 deed from Lila Cowels to her son Paul contained a forged signature of Lila Cowels and was therefore fraudulent (Amended Complaint, ¶¶ 13, 14). As the case progressed, however, plaintiff asserted other, unpleaded theories in support of her claim to the 105-acre farm. Count 2, as pleaded, sought to recover a loan in the amount of $45,000 allegedly made by Lila Cowels to defendant (Amended Complaint, ¶¶ 20, 22) and share-cropping payments in the approximate amount of $3,000 collected by defendant from a tenant on the 105-acre farm (Amended Complaint, ¶ 25).

All claims were tried to the court sitting without a jury on August 12, 1993. Both parties presented witnesses and exhibits. In addition, the deposition of Bruce A. Lincoln, the attorney who drafted two of the deeds in question, was received into evidence pursuant to Fed.R.Civ.P. 32(a)(3), upon a finding that Mr. Lincoln was more than 100 miles from the courthouse at the time of trial and that his unavailability had not been procured by any party. On the basis of the evidence adduced at trial, I make the following findings of fact and conclusions of law.

Findings of Fact

A. Count 1 — Quiet Title Action

1. The real estate that is the subject of count 1 of plaintiff's amended complaint (¶¶ 1-19) is a 105-acre farm situated in Berline and Odessa Townships, Ionia County, Michigan.

2. Before November of 1984, title to the farm was in Lila B. Cowels and George E. Cowels, her husband. On November 28, 1984, Lila and George Cowels executed a quitclaim deed conveying the property to plaintiff and defendant as "joint tenants with full right of survivorship and not as tenants in common." (Pl.Ex. C). The quitclaim deed reserved to Lila and George Cowels a life estate in the farm. Both parties testified at trial that the motive behind this transfer was to put Mrs. Cowels' financial affairs in order, because she was suffering from poor health and George E. Cowels was in a nursing home. Supposedly, the purpose for the transfer was to give plaintiff and defendant easy access to the farm as an asset, so that the farm could be liquidated to pay for George and Lila Cowels' upkeep in case they both became incapacitated. It is unclear to me how the deed would have had this effect, as the parents retained a life estate, which would have prevented liquidation of the property during their lifetime without their signatures. It is more likely that the transfer was made in order to shield the farm from claims by the government, which was apparently paying for George Cowels' nursing home expenses under the Medicaid program. It is not necessary, however, to resolve this issue for purposes of the present case, as the motivation of George and Lila Cowels for the transfer to their children is immaterial. The important, and undisputed, fact is that the transfer was made as an accommodation, without consideration, and that plaintiff and defendant were obliged to reconvey the farm to their parents upon request.

3. George Cowels died in December of 1985. By operation of law, the joint life estate created by the November 28, 1984 deed became vested solely in Lila B. Cowels upon George's death.

4. On September 10, 1987, Paul Cowels and his mother Lila B. Cowels went to the office of Bruce A. Lincoln, an attorney in Lake Odessa, Michigan. Mr. Lincoln had been acquainted with Lila Cowels since 1982. Mr. Lincoln had also done some minor real estate work for Paul Cowels before September of 1987. Paul Cowels made the September 10, 1987 appointment with Mr. Lincoln.

5. On September 10, 1987, Lila Cowels told Attorney Lincoln that she wished to convey the farm to her son Paul, the defendant herein. Upon reviewing the state of the title, Mr. Lincoln advised Mrs. Cowels that she did not have complete title to the property, because of the 1984 deed, and would need to receive a quitclaim deed from plaintiff and defendant before delivering a deed to Paul. Lila Cowels told Mr. Lincoln that she wanted to give the farm to Paul because he understood farms and would be able to manage it, whereas her daughter, plaintiff Barbara LaVean, could not manage the farm. Mrs. Cowels said that she had given or would give Barbara other property. These statements were made to Mr. Lincoln in a private meeting between him and Lila Cowels, as Paul Cowels had purposely removed himself from the room so that his mother could confer with the attorney in private.

6. To effect the stated wishes of Lila Cowels, attorney Lincoln prepared two deeds on September 10, 1987. The first deed (hereafter referred to as the "Barbara and Paul/Lila deed") was a joint quitclaim deed transferring the interests of plaintiff and defendant in the farm back to their mother (Pl.Ex. A). This deed was prepared by Mr. Lincoln and his secretary on September 10, 1987, and was signed by Paul Cowels on that day. A counterpart deed for Barbara LaVean's signature was also prepared by Mr. Lincoln and mailed to her. Plaintiff Barbara LaVean was not expecting to receive a deed. She refused to sign it until she received an explanation. Plaintiff spoke to Mr. Lincoln on the phone and he assured her that the deed represented her mother's wishes. Plaintiff persisted in her refusal, until she knew that her brother Paul had signed the deed first. Consequently, Mr. Lincoln sent plaintiff the deed that Paul had previously signed. Plaintiff affixed her signature to the deed on September 22, 1987, and mailed it to Mr. Lincoln.

7. Both plaintiff and defendant executed and delivered the Barbara and Paul/Lila deed because they were bound to do so pursuant to their original understanding with their parents at the time of the 1984 conveyance to them. Plaintiff and defendant had been holding title only as an accommodation to their mother and were bound to reconvey it to her upon her request. Delivery of the Barbara and Paul/Lila deed was complete upon receipt of the deed by Mr. Lincoln, who was acting as attorney for Lila Cowels, in late September, 1987. When Mr. Lincoln received the deed from plaintiff, it had been signed by both plaintiff and defendant. The Barbara and Paul/Lila deed was recorded on October 5, 1987 (Pl.Ex. A).

8. The second deed prepared by Mr. Lincoln on September 10, 1987, was a quitclaim deed from Lila B. Cowels to defendant Paul Cowels (hereafter the "Lila/Paul deed"). This deed (Def.Ex. 1) is the deed by which defendant claims title to the 105-acre farm and is the subject of plaintiff's attack in this quiet title action. The only clearly pleaded theory in plaintiff's amended complaint is that the signature of Lila B. Cowels on the Lila/Paul deed is a forgery. Plaintiff has completely failed to support this allegation with proof. Plaintiff's expert witness, Leonard Speckin, is a document examiner of impressive credentials, whose testimony I credit. Mr. Speckin testified without equivocation that the signature appearing on the Lila/Paul deed is in fact the "true signature" of Lila B. Cowels. The testimony of attorney Lincoln and his secretary Karen Brodbeck, both of whom witnessed the signature, also supports this conclusion. I therefore find as a fact that the signature of Lila B. Cowels on the Lila/Paul deed is true and is not a...