McIntyre v. Moss

• Decision Date: 21 June 2019
• Docket Number: A19A0407
• Citation: 350 Ga.App. 723,830 S.E.2d 262
• Parties: MCINTYRE v. MOSS.
• Court: Georgia Court of Appeals

350 Ga.App. 723

830 S.E.2d 262

MCINTYRE

v.MOSS.

A19A0407

Court of Appeals of Georgia.

June 21, 2019

Brenda C. Rogers, Alpharetta, for Appellant.

Holly Lynn Geerdes, Michael Douglas Robl, Decatur, for Appellee.

Reese, Judge.

Jennifer McIntyre appeals from the grant of summary judgment entered in favor of Jeffrey Moss, as Trustee of the "Louis H. Moss Living Trust" ("Trust") and as Power of Attorney ("Appellee") in the Appellee’s declaratory judgment action. McIntyre argues on appeal that the trial court erred by entering a sua sponte ruling that, as a result of an "in terrorem" clause in the Trust and McIntyre’s challenge to the validity of the Trust, McIntyre had forfeited all of her interests and rights under the Trust. For the reasons set forth infra, we vacate the judgment and remand the case for further proceedings.

Construed in the light most favorable to McIntyre, as the nonmoving party,¹ the record shows the following facts. In November 2015, the Appellee filed a verified declaratory judgment complaint against McIntyre, alleging that, in March 2000, Louis H. Moss ("Grantor") executed the Trust, naming himself (the Grantor) as the original trustee; his wife, Theresa Moss, as the successor trustee; and the Appellee as alternate successor trustee. In March 2000, the Grantor also executed a will, a financial power of attorney, and a durable power of attorney for health care, appointing Theresa Moss as executor of the will and granting her powers of attorney and the Appellee as the alternate executor with powers of attorney. The complaint further alleged that Theresa Moss passed away in 2013, and that, in 2014, the Grantor resigned as trustee and appointed the Appellee.

According to the complaint, while the Grantor was living at home with his daughter (McIntyre) and her husband, the couple failed to provide proper care for the Grantor and withdrew funds from the Grantor’s bank accounts for "undisclosed purposes" instead of for his care. The Appellee alleged that, after the Grantor moved to a senior living facility in September 2015, McIntyre and her husband continued to live in the Grantor’s house "for free" and were "depleting [the Grantor’s] bank accounts and social security checks for their own personal benefit."

In his Prayer for Relief, the Appellee requested that the court declare that he was the trustee of the living trust and the Grantor’s financial power of attorney and durable power of attorney for health care. The Appellee further requested the trial court to declare that he was therefore "authorized to do whatever [was] necessary to preserve the trust assets" and "to do whatever [was] necessary" for the Grantor’s financial benefit and to provide for his health care needs. The Appellee also requested attorney fees and an accounting of all funds that McIntyre had withdrawn from the Grantor’s accounts since 2013.

Attached to the complaint were several exhibits: (A) a "Declaration of Trust[,]" allegedly made by "Louis H. Moss" on March 8, 2000, and amendment; (B) a "Last Will and Testament[,]" allegedly for Louis H. Moss[,]" executed March 8, 2000, with a self-proving affidavit; (C) a "Financial Power of Attorney"; (D) a notarized "Durable Power of Attorney for Health Care"; and (E) a letter dated May 14, 2014, in which, according to the complaint, the Grantor resigned as trustee and appointed the Appellee as successor. Although the verified complaint references the exhibits, it does not specifically state that they are true and correct copies of the documents they purport to be.

McIntyre filed a verified answer, in which she "admit[ted] that her parents, [the Grantor] and Theresa L. Moss, created a trust through which [McIntyre] was to benefit," but stated that she was "without knowledge sufficient to admit or deny the validity of the trust document attached as Exhibit ‘A’ " to the complaint. In a counterclaim, McIntyre alleged that the Appellee had "used undue influence, deceit[,] and trickery to gain appointment as the Trustee"; used the trust document and "bully tactics" to place the Grantor in an assisted living facility and to isolate him from family, friends, and familiar surroundings; and cut off her financial support, contrary to the Grantor’s wishes. In her prayer for relief, McIntyre sought, inter alia, an accounting of the assets of the Grantor and the Trust, declarations voiding the Appellee’s claims to the titles of trustee and power of attorney, declaring the Grantor the valid trustee, and declaring that any asset transfers the Appellee had made as trustee were void. Alternatively, McIntyre requested, inter alia, that the court remove the Appellee as trustee on the grounds that he violated his fiduciary duties and position of trust.

McIntyre also filed an emergency motion for an order granting unimpeded visitation between the Grantor and persons of his choosing and unimpeded compliance with the "Bill of Rights for Residents of Long-Term Care Facilities" ("Bill of Rights").²

In March 2016, McIntyre filed a motion to strike certain portions of affidavits attached to the Appellee’s response to her emergency motion. Meanwhile, the trial court denied the emergency motion and referred the entire case to mediation.

However, in April 2016, the Appellee filed a motion to quash a subpoena for the Grantor to appear for a deposition and for the Grantor and non-parties to produce certain documents. The Appellee asserted that McIntyre was engaging in abusive discovery in retaliation for having to participate in mediation. The Appellee also sought a protective order. On May 10, 2016, the trial court held a hearing that had been scheduled to address McIntyre’s motion to strike and "any other pending ripe motions[.]"

On August 17, 2016, the trial court entered two separate orders. In the first order entered on the docket ("First Order"), the trial court found that the Appellee was the Grantor’s financial power of attorney and durable power of attorney for health care, and that the Appellee became the trustee of the March 8, 2000 living trust when the Grantor resigned as trustee in 2014. The court noted that McIntyre had raised the issue of what right she had to continue living on the property owned by the Grantor. The court found that she "ha[d] no title or claim to the property while [the Grantor was] living[,]" and that the Appellee, as the trustee and financial power of attorney, had the right, inter alia, to evict McIntyre and any other residents of the Grantor’s home in order to sell the property to care for the Grantor.

The trial court found further that the Appellee had not violated or breached any of his duties and responsibilities as the trustee, financial power of attorney, and durable power of attorney for health care, and that he had not violated any of the Grantor’s rights under the Bill of Rights. The trial court also set the terms and schedule of visitation for the Grantor’s relatives and other visitors.

In a separate order entered the same day ("Second Order"), the trial court granted the Appellee’s motion to quash the subpoena and for a protective order, ruling that there would be "no discovery or deposition of and/or through [the Grantor]." The trial court ordered further that McIntyre not use any of the Grantor’s social security income, which was to be solely reserved for the Grantor’s care and needs, to be managed by the Appellee, as his trustee and power of attorney.

Six months later, the Appellee filed a motion for summary judgment on McIntyre’s counterclaim. In his supporting brief, the Appellee provided a "statement of facts[,]" which repeated certain allegations in his complaint, i.e., that the Grantor had executed the Trust in March 2000 and that the Appellee had later been appointed trustee. The brief also noted generally that, "[t]he Trust provided [for] the children, [the Appellee] and [McIntyre,] to split equally the assets of the estate upon [the Grantor’s] death."

The Appellee recited the trial court’s findings from the First Order, and argued that the trial court’s August 17, 2016 orders entitled him to summary judgment in his favor and to dismissal of McIntyre’s counterclaims. According to the Appellee:

[b]ased on [the trial court’s orders entered] on August 17, 2016, [the trial court] already ruled and adjudicated in favor of [the Appellee’s] request for declaratory judgment. In addition, [the trial c]ourt’s Orders also addressed all of the frivolous allegations set forth in [McIntyre’s] Answer and Counter-Claim. Therefore, summary judgment should be granted in favor of [the Appellee] as to his request to dismiss as a matter of law [McIntyre’s] Answer and counter-claim.

The Appellee did not raise the issue of the "in terrorem" clause in either the motion for summary judgment or supporting brief.

McIntyre voluntarily dismissed her counterclaims without prejudice, but did not otherwise respond to the summary judgment motion.

More than a year later, the trial court granted summary judgment in favor of the Appellee. The court ruled that the Trust contained an "in terrorem" (or "no contest") clause that provided:

The distributions designated in this trust are intended to be in lieu of any other claims, of whatever nature and whether arising by statute or otherwise, by any taker hereunder, and any taker who asserts any other claim or contests this trust shall forfeit all interest in any property, income or other benefit to him/her. Any property, income or other benefit forfeited by the operation of this paragraph shall be distributed as part of the net proceeds of this living trust as if the taker asserting the claim did not survive.³

The trial court concluded that, "[a]s a result of the in terrorem clause in the Trust and McIntyre’s challenge to the validity of the Trust, she has forfeited all interest and rights under the Trust. McIntyre is not entitled to any real or personal property [or] any distribution of funds, or [to] have any other rights under the Trust." Finding there was...