Lucitte v. Lucitte (In re Estate of Lucitte), Court of Appeals No. L-10-1136

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtHANDWORK
Citation2012 Ohio 390
PartiesIn re: The Estate of Louise Lucitte, Deceased Earnest Lucitte Appellee v. Kenneth Lucitte, et al. Appellants
Decision Date03 February 2012
Docket NumberCourt of Appeals No. L-10-1136,Trial Court No. 2008 ADV 1751

2012 Ohio 390

In re: The Estate of Louise Lucitte, Deceased Earnest Lucitte Appellee
v.
Kenneth Lucitte, et al.
Appellants

Court of Appeals No. L-10-1136
Trial Court No. 2008 ADV 1751

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Decided: February 3, 2012


DECISION AND JUDGMENT

Richard Kolb, for appellee.

William T. Maloney, for appellants.

HANDWORK, J.

{¶ 1} This appeal is from the November 25, 2009 judgment of the Lucas County Court of Common Pleas, Probate Division, which granted judgment to appellee, Earnest Lucitte, following a jury trial on all of his claims. Upon consideration of the assignments of error, we affirm the decision of the lower court. Appellants, Kenneth Lucitte, Steven Lucitte, and Patricia Lucitte, assert the following assignments of error on appeal:

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Assignment of Error # 1: The Lower Court Erred In Admitting The Opinion Testimony Of Plaintiff's Expert.
Assignment of Error #2: The Lower Court Erred In Failing To Grant The Defendants' Motions For Dismissal (Or A Directed Verdict On The Claims Of Incompetency And Undue Influence.)
Assignment of Error #3: The Lower Court Erred In Admitting Plaintiff's Exhibit 1 Into Evidence Over Defense Counsel's Objections.
Assignment of Error #4: The Lower Court Erred In Its Instructions To The Jury On Presumptions And Undue Influence.
Assignment of Error #5: The Judgment Of The Trial Court Is Against The Manifest Weight Of The Evidence.
Assignment of Error #6: The Probate Court Lacked Subject Matter Jurisdiction To Impose A Constructive Trust On, Reform, Or Otherwise Invalidate The Title To Real Estate Acquired By And From The Decedent In An Inter Vivos Transaction. The Common Pleas Court Is The Appropriate Forum For Adjudication Of Such Claims.

{¶ 2} Louise Lucitte died intestate on May 24, 2007, and the final account of her estate was approved by the probate court in 2007. On August 6, 2008, appellee, Earnest Lucitte, one of decedent's brothers, filed a complaint against appellants, Kenneth Lucitte (decedent's other brother), Steven Lucitte (Kenneth Lucitte's son), Patricia Lucitte (Steven's spouse), and the administrator of the estate. Earnest asserted that Louise was

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incompetent and under undue influence at the time she entered into certain inter vivos transactions. Earnest Lucitte alleged that Kenneth Lucitte had undue influence over Louise and breached the fiduciary relationship he had with her. Earnest also alleged appellants have been unjustly enriched by the improper transfers of Louise's funds to Kenneth. Appellee sought to have the probate court declare the inter vivos transfers invalid, set aside the transfers, and impose a constructive trust on Louise's home at Northbrook Drive, Sylvania, Ohio, and other assets held in the names of appellants.

{¶ 3} Appellants counterclaimed that Earnest had withdrawn funds from the joint accounts and wrongfully converted these funds to his own use in an amount not yet determined. They also asserted that Earnest made the allegations in the complaint without reasonable investigation. They sought declaratory and injunctive relief as well.

{¶ 4} At trial, the following evidence was presented. The case involves three siblings: Earnest Lucitte, the oldest, Kenneth Lucitte, and Louise Lucitte, the youngest who was born deaf. While she was college-educated, Louise worked only for a short time in a bank, and lived with her parents in the family home during their lifetimes. Earnest, who was married to Doris, was unable to testify to great length about the matters in dispute because at the time of trial he had begun to suffer from short term memory loss and confusion. Doris testified to great length about the matters at issue.

{¶ 5} Both Kenneth and Earnest testified that they had a close relationship with Louise and celebrated holidays and birthdays with her as well as other family events. Kenneth testified that he and his family visited his mother almost every Sunday, which

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was a 120 mile drive. However, after his mother passed away, he did not visit Louise as often, but he recalled seeing her about once or twice a month and always for family celebrations and holidays. His wife, Dolores, testified that her relationship with Louise grew stronger over the years after the mother's death. Submitted into evidence were pictures and video clips of Louise at gatherings with Kenneth's family from the time Kenneth and Dolores were married in 1960 through 2007. Kenneth knew that Louise spent more time with his family because she was always with him for family events and when he asked her if she had heard from Earnest, she would rarely say that she had. Patricia Lucitte testified that she became close to Louise when she started dating Steven in 1987. They saw each other throughout the years at family gatherings and Patricia mailed pictures and letters to Louise.

{¶ 6} Doris testified that she and Earnest also exchanged gifts and kept in contact with Louise. Doris believed that Earnest was very protective of Louise. It was Earnest and his daughter, Lisa, who were with Ernest and Kenneth's mother when she died and not Kenneth. Doris also testified that Earnest had kept in contact with Louise over the years through a special TTD machine he was able to take with him while he traveled for work. Doris and Earnest both testified that they would go out to dinner with Louise occasionally. When Louise lived in the nursing home, Earnest was able to visit Louise several times a day.

{¶ 7} For about two years prior to the death of Ernest and Kenneth's mother, Earnest's daughter, Lisa, lived with her grandmother and Louise. Kenneth testified that

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his mother did not get along with Lisa because of her lifestyle and Louise did not like Lisa because her behavior affected Louise's mother. Lisa, however, testified that she got along well with her grandmother despite her strict rules. Lisa also recalled having conversations with Louise about art, which had been her major in college. Louise taught Lisa some sign language. Lisa described Louise as quiet and creative. She seldom left the home and Lisa never saw her drive anywhere. At her grandmother's funeral, Kenneth informed Lisa that Louise did not want Lisa living with her any longer and that her things would be packed up. When Lisa returned to the home after the funeral, she found that her belongings had been packed and were on the porch. Lisa did not talk to Louise about the matter again because Lisa believed it was true. After that time, Lisa generally lost contact with Louise, except for updates from her father. They spoke once at the funeral of Lisa's husband in 1995 and Louise seemed happy to see Lisa. Later when Lisa visited Louise at the nursing home in Adrian, she was happy to see Lisa and her children.

{¶ 8} Louise was favored in her mother's will because of her disability and subsequent medical issues. Louise inherited the family home and substantial assets. Both brothers were asked to care for Louise following their mother's death in 1987. Earnest believed that Kenneth told him that he was doing Louise's taxes after their mother died. Before her death, their mother had begun to transfer half of her stock holdings into Louise's name (20 or 30 shares of stock) with one-quarter of that stock held jointly with one brother and one-quarter being held jointly with the other brother as their father had planned. When she became too ill to continue, Kenneth testified, the brothers

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completed their mother's plan. Earnest testified, however, that he did not know about the estate plan at that time. Kenneth testified that it was his mother's desire to put the stock in joint names so that no one would be able to trick Louise out of her money. However, all of the money was intended for her benefit. With her social security income and the dividend income from the stocks, her net income in 2004 was $47,000 and in 2005 was $37,400.

{¶ 9} Louise remained in the family home for the next 17 years. During that time, Doris and Earnest lived about 90 miles away and only visited Louise a few times. Sometimes when Earnest and Doris attempted to visit, Louise did not answer the door. They presumed that it was because she could not hear the doorbell and kept the curtains closed. Earnest would send Louise messages on a special machine for the first five years but Louise did not respond as well. When they learned that her machine was broken in 1992, Earnest left messages in Louise's mailbox. He did not discuss her ability to take care of herself because he did not want to pry.

{¶ 10} Kenneth testified that in the summer of 2004, Louise wanted to purchase a new home in Temperance to be closer to Kenneth and his family. When they went to pick her up, she met them in the garage and they were suspicious why she did not invite them into her home as before. While Kenneth and Dolores went with Louise to look at a home, she limped and stumbled. They convinced her to see a doctor and she made an appointment. Kenneth called Earnest and they went to the doctor appointment together. They learned that Louise had an ulcer that was so severe that the doctor feared it had

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infected the bone. Louise was also suffering from macular degeneration and took medicine for high cholesterol and depression. Afterward, they discussed who would take her home for the night. Earnest agreed at first and then stated that he could not do it, so Kenneth took her home with him. That night she became very ill from the oral antibiotics and they had...

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