Wheeless v. Gelzer, 1:89-cv-2177-RHH.
| Decision Date | 16 September 1991 |
| Docket Number | No. 1:89-cv-2177-RHH.,1:89-cv-2177-RHH. |
| Citation | 780 F. Supp. 1373 |
| Parties | Elise Gelzer WHEELESS, Jane Gelzer Menendez, and John Granklin Gelzer, Jr., Plaintiffs, v. Carolyn D. GELZER, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
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James Joseph Brissette, Hurt Richardson Garner Todd & Cadenhead, Atlanta, Ga., for plaintiffs.
Jerry Byron Blackstock, Joseph Joel Mercer, Jr., David Graham Ross, Powell Goldstein Frazer & Murphy, Atlanta, Ga., for defendant.
This is an action seeking to set aside two transfers of ownership of certain stocks and securities as based upon fraud and undue influence. Plaintiff Elise Gelzer Wheeless is a citizen of the State of Maryland, Plaintiff Jane Gelzer Menendez is a citizen of the State of Alabama, Plaintiff John Franklin Gelzer, Jr. is a citizen of the State of Georgia, and Defendant Carolyn D. Gelzer is a citizen of the State of California. Thus, diversity jurisdiction is vested with this Court pursuant to 28 U.S.C. § 1332.
This case having come before this Court for trial without jury, the Court, pursuant to Rule 52 of the Federal Rules of Civil Procedure, issues the following findings of fact and conclusions of law.
Plaintiffs Elise Gelzer Wheeless ("Elise"), Jane Gelzer Menendez ("Jane") and John Franklin Gelzer, Jr. ("Franklin") (collectively, "Plaintiffs") are the three natural children of John Franklin Gelzer ("Mr. Gelzer") and his first wife Dorothy, who died in 1962.
At the time of their mother's death in 1962, Plaintiffs Elise, Franklin and Jane were ages 24, 20 and 6, respectively.
Defendant Carolyn Gelzer ("Defendant") is Mr. Gelzer's second wife.
Prior to her marriage to Mr. Gelzer, Defendant was married to Mr. John Eberhart, who died in 1968. They had one child, a daughter.
Prior to Mr. Gelzer's and Defendant's marriage, Defendant had for a number of years lived across the street from the Gelzer family.
Mr. Gelzer and Defendant were married on November 23, 1973. At that time, Mr. Gelzer was 66 years old; Defendant was 48 years old.
At the time of Mr. Gelzer's and Defendant's marriage, Plaintiff Jane was a 17-year-old senior at the Lovett School in Atlanta, and was living at home. Plaintiffs Elise and Franklin were married and living out of state, Elise in Maryland, and Franklin in California.
Mr. Gelzer was engaged during his lifetime in the insurance business, and was employed since sometime in the 1940's with Crawford & Company, an insurance adjusting firm.
During his employment with Crawford & Company, Mr. Gelzer acquired a substantial number of shares of Crawford & Company stock (the "Crawford & Co. stock").
Mr. Gelzer retired from Crawford & Company in 1972, the year preceeding his marriage to Defendant.
In 1974, approximately six months after his marriage to Defendant, Mr. Gelzer executed the will that was in effect at the time of his death. The 1974 will was prepared by Mr. Edward P. Ellis, an Atlanta attorney employed by Mr. Gelzer. The 1974 will provided, inter alia, that upon Mr. Gelzer's death: (1) the marital home would be distributed to Defendant; (2) property remaining from that which Mr. Gelzer had inherited from his first wife would be distributed among Plaintiffs; (3) Mr. Gelzer's personal property, including the furniture and furnishings of the marital home, would be distributed among Plaintiffs; (4) bank accounts held jointly between Mr. Gelzer and Defendant would pass to Defendant; and (5) all of Mr. Gelzer's remaining property would be distributed equally among Plaintiffs and Defendant, each receiving, individually, 25 percent of the total.
Mr. Gelzer died in April, 1987.
From May, 1983 until his death in 1987, Mr. Gelzer suffered numerous medical difficulties, including a stroke in May, 1983 and a second, more severe stroke in March, 1985.
Mr. Gelzer's 1983 stroke required his hospitalization for five days in May, 1983.
Mr. Gelzer's 1985 stroke, which was much more severe than the first, required his hospitalization for nearly six weeks. As a result of the 1985 stroke, commonly referred to as a "minor hemisphere" stroke, Mr. Gelzer suffered permanent impairment to the use of his left arm and leg.
Moreover, during his hospitalization following the 1985 stroke, Mr. Gelzer was diagnosed as having cancer of the prostate, for which he received surgery on or around May 1, 1985.
Following Mr. Gelzer's discharge from the hospital on May 7, 1985, he and Defendant returned to their home.
Sometime in the summer of 1985, Defendant called Mr. Ellis, Mr. Gelzer's attorney, regarding some Eastern Airlines stocks or debentures. During that conversation, the subject of a power of attorney was raised, due to Defendant's recollection that a check or security had previously been returned because her signature on it alone was insufficient. In the course of their discussion, Defendant and Mr. Ellis agreed that Defendant needed to obtain Mr. Gelzer's power of attorney for the purposes of paying household and medical expenses, bills, etc.
Accordingly, Mr. Ellis in a letter of August 8, 1985 sent to Defendant the forms necessary to execute the power of attorney. Included in those forms was the actual power of attorney, to be signed by Mr. Gelzer, and an affidavit to be signed by Dr. Dennison, Mr. Gelzer's treating physician, stating that in Dr. Dennison's opinion, Mr. Gelzer was competent to convey his power of attorney, and fully capable of understanding its significance.
However, instead of taking Mr. Gelzer to be examined by Dr. Dennison, Defendant herself simply delivered the affidavit to Dr. Dennison, and assured him that Mr. Gelzer was in substantially the same condition as when he was discharged from the hospital in May, some three months previous. Based upon his conversation with Defendant, and without actually examining Mr. Gelzer, Dr. Dennison concluded that Mr. Gelzer was competent to convey the power of attorney, and thus signed the necessary affidavit.
On August 16, 1985, Mr. Gelzer signed the document conveying upon Defendant his power of attorney. However, Mr. Gelzer's signature apparently was not properly witnessed and notarized in accordance with Mr. Ellis' previous instructions to Defendant. Although on its face the power of attorney appears to have been witnessed and notarized, evidence presented at the trial indicated that in fact neither signing party actually saw Mr. Gelzer sign the power of attorney. Nevertheless, Plaintiffs do not dispute the authenticity of Mr. Gelzer's signature itself.
In this lawsuit, Plaintiffs seek to set aside two separate transactions which occurred subsequent to Mr. Gelzer's 1985 stroke.
The first transaction about which Plaintiffs complain involves some 15,000 shares of Crawford & Co. stock acquired by Mr. Gelzer in the course of his employment with the company. Mr. Gelzer was the sole owner of the Crawford & Co. stock, and thus, under the terms of the 1974 will, it would be divided equally among Plaintiffs (75%, or 25% each) and Defendant (25%).
However, a few days before October 2, 1985, Defendant went to the Lenox Square branch of the Trust Company Bank (the "bank"), where Mr. Gelzer and Defendant had an account. During this visit, Defendant spoke with Ms. Carol Culpepper, a Trust Company Bank "personal banker" who served as the Gelzers' private banker. Defendant advised Ms. Culpepper that Mr. Gelzer wished to add Defendant as a joint owner of the Crawford & Co. stock. After discussing the matter, Ms. Culpepper gave to Defendant a number of blank Stock/Bond Power forms to facilitate the requested transfer.
On October 2, 1985, Defendant returned to the bank, at which time Defendant delivered to Ms. Culpepper the twenty-three Crawford & Co. stock certificates evidencing Mr. Gelzer's 15,000 shares of stock, as well as two Stock/Bond Power forms. The Stock/Bond Power forms bore Mr. Gelzer's signature, but were otherwise blank.
Upon receipt of the stock certificates and blank, yet signed, Stock/Bond Power forms, Ms. Culpepper completed the Stock/Bond Power forms with the information necessary to transfer the shares of Crawford & Co. stock from Mr. Gelzer's sole ownership to Mr. Gelzer's and Defendant's joint ownership.
In October, 1985, the Crawford & Co. stock had an approximate value of $340,000.00.
The second transaction about which Plaintiffs complain involves some 215 units or shares of Municipal Investment Trust (the "MIT securities") owned by Mr. Gelzer. Since Mr. Gelzer was the sole owner of the MIT securities, according to the terms of the 1974 will, they would be divided equally among Plaintiffs (75%, or 25% each) and Defendant (25%).
However, on or about December 3, 1985, Defendant visited a local office of the Merrill, Lynch investment firm, and advised them that Mr. Gelzer wished to add Defendant as a joint owner of the MIT securities. Accordingly, a letter of December 3, 1985 was drafted and prepared for her signature, directing that Defendant be added as a joint owner of the MIT securities.
Mr. Gelzer did not sign the letter of December 3, 1985. Rather, Defendant provided Mr. Gelzer's authority for the transfer by using the power of attorney previously conveyed upon Defendant by Mr. Gelzer in August, 1985.
Accordingly, the MIT securities were reissued, not in Defendant's and Mr. Gelzer's names as joint owners, as requested, but rather in Defendant's name as sole owner.
At the time of their transfer, the MIT securities had an approximate value of $30,000.00.
Following Mr. Gelzer's death in April, 1987, Defendant sold both the house in which she had lived during her marriage to Mr. Eberhart and prior to her marriage to Mr. Gelzer, and the marital home shared with Mr. Gelzer. Defendant...
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...as a matter of law and thus would not allow her to make that argument to the jury. See Government Br. at 44 (citing Wheeless v. Gelzer, 780 F.Supp. 1373, 1381 (N.D.Ga.1991)). Richardson states that early in the trial both sides agreed that the power of attorney allowed her to use funds from......
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...as a matter of law and thus would not allow her to make that argument to the jury. See Government Br. at 44 (citing Wheeless v. Gelzer, 780 F.Supp. 1373, 1381 (N.D.Ga.1991)). Richardson states that early in the trial both sides agreed that the power of attorney allowed her to use funds from......
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