Smith v. Smith-Young
| Decision Date | 05 April 2023 |
| Docket Number | 21A-PL-2535 |
| Parties | Roger Lawrence Smith, Appellant-Defendant, v. Cynthia Smith-Young, Deborah Carroll, Angela Smith, and Christina M. Simmons, Appellees-Plaintiffs |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Knox Circuit Court The Honorable Gregory Alan Smith Special Judge Trial Court Cause No. 42C01-1712-PL-46
ATTORNEYS FOR APPELLANT Charles E. Traylor Justin W. Roberts Vincennes, Indiana
ATTORNEYS FOR APPELLEES Reed S. Schmitt Evansville, Indiana Bruce A. Smith Nathan W. Smith Vincennes, Indiana
[¶1] This action involves a dispute between siblings over real estate following the death of their mother. Cynthia Smith-Young, Deborah Carroll, Angela Smith, and Christina M. Simmons (collectively, Sisters) filed a complaint against Roger Smith (Brother) alleging breach of contract, breach of fiduciary duty, fraud, and detrimental reliance, and seeking imposition of a constructive trust. The matter proceeded to a jury trial and after the presentation of evidence, Sisters moved to dismiss all their claims except for their request for imposition of a constructive trust, which motion the trial court granted. As the only remaining issue was a matter of equity, Sisters asked the trial court to remove the matter from the jury. The trial court denied Sisters' request, and the jury ultimately returned a verdict in favor of Brother. Sisters filed a motion for judgment notwithstanding the verdict (JNOV), which the trial court denied.
[¶2] After the trial court entered final judgment on the jury's verdict, Sisters timely filed a motion to correct error, which the trial court granted. Specifically, the court set aside the jury's verdict, ordered a new trial on Sisters' request for imposition of a constructive trust, and entered judgment in favor of Sisters for breach of fiduciary duty. Brother appeals, presenting five issues for our review, which we consolidate and restate as:
[¶3] We reverse and remand with instructions.
[¶4] Sisters and Brother are the children of Roger L. (Father) and Darlene Smith (Mother). In 2008, Father and Mother met with Attorney Daniel Siewers, who prepared a Last Will and Testament for each of them. In addition, Father and Mother each executed a power of attorney appointing the other as their attorney in fact. In her 2008 will, Mother named Brother as her personal representative.
[¶5] Father died on September 4, 2009. Thereafter, Sisters and Brother looked after Mother. Sisters had a rotating schedule to assist Mother with cleaning, cooking, and shopping, and Brother took care of Mother's five-acre property,[1]made necessary repairs to her home, and drove Mother to most of her appointments. Although Mother was in poor physical health, she was "very sharp" and did not have any issues with diminished mental capacity. Transcript Vol. 3 at 22. Each of the siblings testified that Mother took care of her own business and finances. On September 21, 2009, Mother executed a new power of attorney appointing Brother as her attorney in fact. Brother exercised his power of attorney "a couple of times" to write checks and pay Mother's bills when she was in the hospital or a rehabilitation center. Transcript Vol. 3 at 76.
[¶6] In August of 2014, the siblings met to discuss Mother's ongoing care. According to Sisters, this was not a secret meeting, and, although they discussed the option of a nursing home, they did not vote that day to place Mother in a nursing home. Brother testified to the contrary, claiming that the subject of placing Mother in a nursing home was discussed and that Sisters voted in favor of the idea. Brother testified that he objected and informed Sisters he had power of attorney.
[¶7] Unbeknownst to Brother and Sisters, Mother met with Attorney Siewers in April 2015, and they discussed substantive changes Mother wanted to make to her will. Mother also told Attorney Siewers that she wanted to deed her house and acreage to Brother to protect that asset from being used up if she were to be placed in a nursing home.[2] Attorney Siewers's notes from this meeting indicated that he discussed with Mother the option of deeding her property to one or more of her children and that Mother rejected this suggestion because she "wished to deed [her property] to [Brother]." Exhibits at 75.
[¶8] On May 6, 2015, Brother drove Mother, at her request, to meet with Attorney Siewers. Mother went into the office by herself while Brother waited outside in the car. A short time later, Mother asked Brother to come into the office where she informed Brother of her decision to deed her house to him. Brother tried to talk Mother out of deeding her property to only him but Mother was "adamant" that Brother "gets" the property. Transcript Vol. 3 at 77.
[¶9] Before leaving Attorney Siewers's office that day, Mother executed a Transfer-On-Death-Deed (the Deed) and a revised will. The Deed conveyed Mother's property to Brother and included a provision that transferred the property to Christina upon Brother's death. Mother retained a life estate in the property. With her revised will, Mother made one substantive change, specifically, removal of one of the sisters as a successor personal representative. Like her original will, Mother's revised will named Brother as personal representative and contained the following residuary clause:
All the rest and residue of my property and estate, real, personal and mixed, of whatsoever kind and nature and wheresoever situated shall pass to my children, share and share alike.
Exhibits at 5-6. Mother died on November 18, 2016.
[¶10] Two days after Mother's death, Brother removed her revised will and a letter handwritten by Mother (the Letter) from Mother's safe and read them to Sisters. In the Letter, Mother mentioned her "new will" and stated that her "[o]ld will" should be used "to reference [her] wishes if they are too vague in the new one." Exhibits at 8. She also wrote: "If [Brother] asks for everyone but Christina to turn in their keys to the house when I die . . . Page 2 explains why." Id. On Page 2 Mother explained:
On May 6, 2015, I signed over the house to [Brother]. He was just as surprised then as you are now that I would do that. I did it to save my house if I have to go to a nursing home.... I asked him to share the money with you 4 after he sells it - or if he wants to keep it arrange to pay you 4 your shares.
Id. at 9. A picture of a second note handwritten by Mother was also admitted into evidence.[3] In this note, Mother wrote: Id. at 42-43.
[¶11] Shortly after Mother's death, Deborah asked Brother if he was going to keep the house or sell it, and Brother indicated that he had not decided but also indicated that he did not have to share the value thereof with Sisters as Mother stated in the Letter. On April 27, 2017, Brother executed a Transfer on Death Deed Revocation, revoking the provision in the Deed that transferred the property to Christina in the event of his death. To date, Brother has not paid Sisters their proportionate shares of the value of Mother's property to which they claim they are entitled pursuant to Mother's wishes.
[¶12] On December 6, 2017, Sisters filed their complaint against Brother. Sisters did not make a jury demand. Brother filed his responsive pleading on January 30, 2018. He likewise did not make a jury demand. On October 16, 2019, the trial court issued an order setting, among other things, a three-day jury trial to commence on October 6, 2020. No objections were made to the jury trial setting.
[¶13] On June 22, 2020, Brother filed a motion for summary judgment. Before Sisters filed their response, a special judge was appointed to hear the case. On December 10, 2020, the special judge entered an agreed case management plan that included a three-day jury trial set for May 17-19, 2021. Neither party objected to the new trial setting. Following a hearing on Brother's summary judgment motion, the trial court denied the motion on April 14, 2021.
[¶14] Prior to the jury trial, Sisters filed their proposed jury instructions, including instructions defining constructive trust as well as the various theories alleged in support of imposition thereof. The jury trial commenced on May 17. At the conclusion of all the evidence, Sisters orally moved to amend their complaint to conform to the evidence. Specifically, Sisters moved to dismiss their breach of contract claim, acknowledging that there was no evidence to support it, and to combine the remaining enumerated claims into a single claim seeking imposition of a constructive trust. Brother did not object except to the extent Sisters' motion was being made for the purpose of trying to remove the action from being decided by the jury.
[¶15] After the court granted Sisters' request to amend their complaint, Sisters requested removal of the case from the jury, arguing that because the only remaining issue was equitable in nature, it would be "error" to submit the matter to the jury. Transcript Vol. 3 at 182. Brother objected, arguing that the circumstances demonstrated "the most profound example of waiver."...
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