Leppke v. Heier
| Decision Date | 13 September 2013 |
| Docket Number | No. 108,377.,108,377. |
| Citation | 308 P.3d 31 |
| Parties | Lillian L. LEPPKE, Appellee, v. Marilyn K. HEIER and Harold E. Heier, Husband and Wife, Appellants. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Marion District Court; Steven L. Hornbaker, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellants.
Charles R. Rayl, of Charles R. Rayl, LLC, of Law Office of Seth Meyer, LLC, of Cottonwood Falls, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
Lillian Leppke and her husband, Elmer Leppke (now deceased) executed a deed to property they owned granting joint tenancy with rights of survivorship to themselves and their three children, including Marilyn Heier. Lillian filed this lawsuit requesting the deed be declared void on the grounds it had been executed under undue influence by Marilyn and Marilyn had breached her fiduciary duty to Lillian as her attorney-in-fact by engaging in self-dealing. The district court granted summary judgment to Lillian along with attorney fees under K.S.A.2012 Supp. 58–657(g). Marilyn and her husband, Harold Heier, appeal that ruling. We conclude that Lillian's motion and Marilyn's response to it presented disputed facts that precluded summary judgment. We further conclude that the award of attorney fees should be reversed in light of our ruling on the summary judgment issue. We reverse and remand to the district court for further proceedings.
We first summarize the facts alleged in the summary judgment motion and the response to it.
From 2006 to 2009, Marilyn regularly served as caregiver for Lillian and Elmer. She left her own family and stayed with her parents on a regular basis for days, weeks, and months at a time. She cleaned and cooked for them, gave them medications, nursed them, and drove for them.
In 2008, Lillian and Elmer engaged attorney J. Robert Brookens to advise them on estate planning and real estate matters. On October 9, 2008, Brookens conferred with Lillian and advised her to retain control and ownership of her real estate during her lifetime because she might need the proceeds of any rental or sale of the real estate for her own care and maintenance. In his affidavit, Brookens claims that on October 23, 2008, with Marilyn present, he again shared this same advice. Marilyn denies she heard Brookens give this advice. In December 2008, Brookens drafted for Lillian and Elmer durable power of attorney documents for health care and financial decisions. Lillian appointed Elmer and Marilyn jointly or individually as her agents, and Elmer appointed Lillian and Marilyn jointly or individually as his agents.
On April 8, 2009, while running errands with Lillian and Elmer in downtown Marion, Kansas, Marilyn left them in the car and went inside Hannaford Title Company (Hannaford) to inquire about including herself and her siblings on the titles to her parents' real property. She also called Brookens' office to inquire about the cost of changing the deed. Upon learning that Hannaford could do the job for $100 as opposed to the $200 Brookens would charge, Marilyn informed her parents of the prices. She then had Hannaford prepare a deed naming Lillian, Elmer, and their children as joint tenants of the real property. Marilyn provided Hannaford with all the instructions on how to prepare the deed. Lillian and Elmer did not provide any directions. Marilyn and a Hannaford notary public brought the deed out to the car. The notary watched Lillian and Elmer sign the deed and she then notarized it. The notary stated in her affidavit that Lillian and Elmer “signed the deed at Marilyn K. Heier's direction.”
The next day, Marilyn filed the deed with the Marion County Register of Deeds office using a check signed by Lillian for the filing fee. That office then mailed the receipt and deed to Marilyn at her address. As we stated, the deed showed Elmer and Lillian Leppke as grantors and Elmer Leppke, Lillian Leppke, Merle Leppke, Robert Leppke, and Marilyn Heier as grantees as joint tenants with rights of survivorship. Lillian stated in her petition that Marilyn had represented to her and Elmer that the deed only transferred the property with their home on it, but the deed in fact transferred all of their real estate. In her response, Marilyn claimed she clearly represented to her parents that the deed would transfer both of their properties onto one title. She asserted the deed was only executed after the consent and verbal agreement of Lillian and Elmer.
Marilyn's two siblings, Merle and Robert, later executed deeds reconveying the property to Lillian. Brookens sent letters on April 27, 2010, and June 2, 2010, requesting that Marilyn and Harold quitclaim the real estate to Lillian. They never did so. On December 14, 2010, Lillian filed a petition alleging the deed was void because of Marilyn's undue influence and Marilyn had breached her fiduciary duty as attorney-in-fact by transacting with herself. Marilyn filed a response on January 4, 2011, in which she admitted that as attorney-in-fact for Lillian and Elmer she “occupied a fiduciary and confidential relationship with ... Lillian L. Leppke and her now deceased husband, Elmer H. Leppke and such relationship was in existence when ... Marilyn K. Heier discussed adding all three children's names on each of the two real estate titles.” Although Marilyn further admitted to being present in Brookens' office on October 23, 2008, she claimed she was unaware of his legal advice to Lillian regarding the real property. She also stated that when she was attorney-in-fact for her parents, she had many discussions with them about adding the names of the children to the land deeds.
On May 3, 2011, Lillian filed a motion for summary judgment. She noted she had told Brookens she wanted to appoint someone else as executor of her estate because that person “would not try to ‘sneak one in [on her] like Marilyn did.’ “ In her affidavit in response to the motion, Marilyn stated that even though Lillian maybe did not want to sign the deed, Lillian knew what she was doing when she signed and did so in accordance with Elmer's wishes.
Upon a review of the petition, response, summary judgment motion, memoranda, affidavits, and oral arguments, the district court found there was no disputed issue of material fact as to any of the claims set forth and granted summary judgment on August 2, 2011. At the hearing and in its journal entry, the court found Marilyn admitted she had a continuing fiduciary and confidential relationship with her parents at the time the deed was recorded. Finding Marilyn was aware of Brookens' advice regarding her parents' disposition of their real estate, the court held she had breached her duty and was self-dealing for her own interest and not in the best interest of Lillian. The court found Lillian had received no benefit or consideration from the execution of the deed creating the joint tenancy. The court further found Marilyn had unduly influenced Lillian under suspicious circumstances when a confidential relationship existed between them because Marilyn instructed Lillian and Elmer who were inside a car and outside the presence of their legal counsel to execute a deed transferring all their real estate assets to Marilyn and her siblings against the previous advise of their legal counsel. The court granted Lillian's request to void the deed and awarded her attorneys fees pursuant to K.S.A.2012 Supp. 58–657(g).
Marilyn and Harold subsequently filed a motion to dismiss for lack of jurisdiction, which the court denied. They also filed a motion to amend and/or reconsider challenging the court's finding that there were no controverted material facts. Marilyn and Harold noted they had denied the application of any undue influence because Marilyn asserted in her response and affidavit that she had spoken to her parents several times about a joint tenancy deed and the deed was the independent wish and desire of Lillian and Elmer. They also argued there was a disputed material fact as to whether Lillian was influenced to sign the deed by being in the car when the deed was brought to them or if this was merely a matter of convenience for an elderly couple on a cold day. Moreover, Marilyn and Harold asserted this was not enough to establish undue influence. They finally claimed that even if a presumption of undue influence had arisen, the burden shifted to them and thus summary judgment was not appropriate because they would then have the opportunity to reply and meet that burden. However, the court denied their motion and adopted its prior order granting summary judgment, noting that Marilyn and Harold had failed to satisfy their duty to refute the factual statements made by Lillian.
We will list additional facts as they pertain to the specific issues on appeal.
The relevant rules pertaining to summary judgment have been stated many times and are well known. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
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