Justia Civil Procedure Opinion Summaries

The trust that was intended to establish a charitable foundation. When Shine became trustee, its value was about $40 million. The conservator of the incompetent trustor sought an accounting, which revealed a significant loss in value and that Shine had not funded the foundation. The Attorney General sought Shine’s removal and surcharge based on his mismanagement, Gov. Code 12598. An interim substitute trustee was appointed. Shine successfully sought advanced fees from the trust for defense of the petition, subject to repayment if he was ultimately found not entitled to indemnification. The court of appeal reversed, holding that the probate court applied an incorrect legal standard in focusing on the “inequity of forcing the former trustees to fund their own defense against the unlimited resources of the Attorney General’s office” but did not expressly weigh the balance of relative harms to Shine, the People, and the charitable beneficiaries of the Trust. A mere imbalance in resources is not, alone, a proper equitable consideration supporting an award of interim fees; the court must consider whether Shine will be unduly prejudiced by having to bear his own attorney fees until resolution of the petition and whether the charitable beneficiaries would be unduly prejudiced if the fees were advanced and not repaid. View "Harris & Becerra v. Shine" on Justia Law

Gregory and Adam Piccione (“the Picciones”), grandchildren of testator Virginia Arp (“Virginia”) and children of Donna Piccione (“Donna”), appealed the superior court’s denial of their motion for summary judgment in this action against their three uncles, Sam and Dwayne Arp, individually and in their capacities as executors of Virginia’s estate, and David Arp. The Picciones contended they had a combined one-fourth interest in the property that comprised Virginia’s estate and sued in superior court, asserting actions for conversion, fraud, and trespass regarding those property interests, and moved for summary judgement. The trial court denied their motion, concluding that Virginia’s use of the words “PER CAPITA” in the phrase: “I give, bequeath and devise unto my children, Sam Arp, Donna Piccione, David Arp and Dwayne Arp, all of the property that I may own at the time of my death, both real and personal, of every kind and description and wherever located, PER CAPITA” was a “limitation” under the anti-lapse statute, OCGA § 53-4-64 (a); the anti-lapse provisions of the statute therefore did not apply to the gifts to Virginia’s children; as Donna predeceased Virginia, the testamentary gift to Donna lapsed; and thus, the Picciones had no property interest upon which to base their claims. Finding no reversible error in that judgment, the Georgia Supreme Court affirmed the trial court’s judgment. View "Piccione v. Arp" on Justia Law

Alice Lynn Harper Taylor ("Alice") petitioned the Alabama Supreme Court for a writ of mandamus directed to the Monroe Probate Court, requesting that court enter orders: (1) reinstating her petition to probate a will allegedly executed by Alice Earle Harper in 2007; (2) reinstating her petition contesting the 2007 will; and (3) transferring her contest of the 2007 will to the Monroe Circuit Court pursuant to 43-8-198, Ala. Code 1975. The decedent died in 2013. Alice filed to probate the decedent’s 1995 will in Monroe County. Approximately one year later, one of Alice’s brothers, William, moved to dismiss Alice’s petition, and filed in Escambia County a will drafted in 2007, purporting to revoke the 1995 will. Alice challenged the validity of the 2007 will; William challenged the 1995 will. The Probate court determined Monroe County was the proper venue, but ruled in favor of William and the 2007 will. The Alabama Supreme Court found neither the 1995 will nor the 2007 will was determined to be the decedent’s last will. Where several wills and will contests are filed, the Supreme Court has approved of the consolidation of such proceedings. Monroe County was the proper venue to hear the matter. The Court found the Monroe Probate Court erred in dismissing Alice’s petition to probate the 2007 will and her contest of that will. There was no dispute at to whether Alice made the prima facie showing required under 43-8-198. Thus, she was entitled to an order transferring that will contest to the Monroe Circuit Court. View "Ex parte Alice Lynn Harper Taylor." on Justia Law

The petition underlying this appeal challenged a trial court order summarily adjudicating a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (the Act), a cause of action for fraud by concealment, and another for medical battery, while allowing other claims, including one for medical negligence, to proceed to trial. Petitioner Maxine Stewart was the representative of Anthony Carter, a man who died after admission to a hospital owned by real parties in interest, St. Joseph’s Health (et al.). She alleged the hospital “denied and withheld from Mr. Carter the right to refuse an unnecessary surgery, denied and withheld from Mr. Carter the right to be involved in secret hospital meetings to invalidate his designated consent, and denied and withheld from Mr. Carter his right to a second opinion prior to proceeding with an unwarranted surgery that resulted in a hypoxic injury, brain damage, cardiac arrest and his untimely death.” Having concluded the petition might have merit, the Court of Appeal stayed the action in the trial court and requested an informal response. Having received and read the “return by verified answer” that was filed by real parties in interest, the Court then set an order to show cause and requested further briefing on a specific issue. Real parties in interest decided to stand on their informal response in lieu of filing another brief, and Stewart declined to file a traverse. After review, the Court then granted the petition: in the published portion of this opinion, the Court discussed the cause of action for elder abuse to explain how, in its view, a substantial impairment of this right can constitute actionable “neglect” of an elder within the meaning of both the little-invoked catchall definition contained in Welfare and Institutions Code section 15610.57(a)(1), and two of the types of neglect set forth in section 15610.57(a)(2). View "Stewart v. Superior Court" on Justia Law

An interlocutory appeal arose from a 2010 civil suit filed by Carol Clement against Russell Puckett. After Puckett’s death in 2014, Clement substituted the Estate of Russell Puckett (the “Estate”) as the defendant in the suit and served the Estate. The Estate moved to dismiss the suit due to failure to timely serve process under Mississippi Rule of Civil Procedure 4(h). The Estate argued that the statute of limitations had expired before Clement perfected service. The trial court denied the motion to dismiss. The Estate appealed, arguing the trial court erred in denying the motion to dismiss because: (1) Clement failed to show good cause for failing to serve Puckett within the statute of limitations; and (2) it did not waive its statute-of-limitations defense. Clement argued the trial court properly denied the motion to dismiss since she demonstrated good cause and the Estate waived its defense of the statute of limitations. Assuming all of Clement’s extensions of time were proper and tolled the statute of limitations, the Mississippi Supreme Court concluded she still failed to perfect service before the expiration of the statute of limitations, and her suit was thus barred. The statute of limitations began running in this case on September 11, 2009. On June 11, 2010, Clement filed the complaint and tolled the statutes with ninety-three days remaining. The statute began running again in the interim periods between the third and fourth extensions of time and the fourth and fifth extensions of time. After the fifth extension expired on February 28, 2012, the statute of limitations resumed running and expired on March 16, 2012. Clement did not serve process on Puckett or the Estate until August 25, 2014. Therefore, Clement’s suit was barred by the statute of limitations, and the trial court erred in denying the Estate’s motion to dismiss. View "Estate of Russell Puckett v. Clement" on Justia Law

John Gassmann died in February 2012. Margaret Oakland was his only child. Under a generation-skipping trust created by his parents, Gassmann had a special power of appointment over the trust estate, which included family farmland. The power was exercisable "by appointment, outright or in trust, in such portions as my child may appoint in a valid testamentary instrument that specifically refers to this special power of appointment." The trust prohibited Gassmann from exercising the power in favor of himself, his estate, his creditors, or creditors of his estate. The generation-skipping trust provided that unless Gassmann exercised the power of appointment in a valid testamentary instrument, all trust assets would pass to Gassmann's descendants at Gassmann's death. Gassmann exercised the special power of appointment through both his will and revocable living trust executed in 2011. Gassmann exercised his special power of appointment by distributing all of the real estate in his generation-skipping trust to the Valley Township Land Trust ("land trust") and the residue of the trust estate to the Canadian Mineral Share Trust ("mineral trust"), which were both created under Gassmann's revocable living trust. Oakland was a primary beneficiary of the mineral trust, not of the land trust. After Gassmann's death, Oakland contested his will and revocable living trust. Oakland argued Gassmann's will was invalid, alleging he executed the will under an insane delusion. Oakland appealed the district court order granting Bell Bank's petition to approve the accounting, distribution, and termination of the John T. Gassmann generation-skipping trust. She also appealed an order denying her motion for relief from the order approving Bell Bank's petition, arguing Gassmann improperly exercised a special power of appointment over the trust estate and that Bell Bank breached its fiduciary duty of impartiality. Finding no reversible error in the district court judgment, the North Dakota Supreme Court affirmed. View "Matter of John T. Gassmann Trust" on Justia Law

Janice Pickens appealed a probate court order denying the admission to probate of a will on the basis that the will was not signed by at least two witnesses as required by section 43-8-131, Ala. Code 1975. The Alabama Supreme Court found section 43-8-131 was not ambiguous, and that there was “simply nothing in the statute that would prohibit a notary public from serving as a witness. Indeed, the fact that Ingram signed the will in her capacity as a notary public is immaterial to her qualification to serve as a witness to the will because 43-8-131 does not require that the signatures of the testator or the witnesses be notarized. The important fact here is not the capacity in which Ingram executed the document, i.e., as a notary public, but rather that she observed [the testator’s] signing of the document and affixed her signature thereto. We see no reason to exclude Ingram as a witness simply because she signed in her official capacity as a notary public.” View "Pickens v. Estate of Donald Harrison Fenn" on Justia Law

Plaintiffs Wayne and Ruth Ross, trustees of the Wayne Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appealed a superior court order in favor of defendants Donald Ross and Rossview Farm, LLC (the LLC). Plaintiffs contested findings that the parties entered into a lease for the plaintiffs’ lifetimes and that they had no right to evict the defendants pursuant to RSA 540:2, II(d) or (e) (2007). The trial court found that plaintiffs conceded that a June 23, 2006 document satisfied the statute of frauds because, in their post-trial memorandum, plaintiffs explained their position that the June 23, 2006 document “is a writing signed by all the parties that states the terms of the parties’ agreement. This document satisfies the statute of frauds and governs their relationship.” The “clear” language of the June 23, 2006 document, plaintiffs posited, created a yearly lease. However, plaintiffs also argued in the post-trial memorandum that defendants’ introduction of parol evidence of the parties’ intent to create a perpetual lease violated the statute of frauds because “the intent of the parties to create a perpetual lease must be clear from the face of the document and there must be a document to satisfy the statute of frauds.” Thus, plaintiffs did not concede that the June 23, 2006 document satisfied the statute of frauds for all purposes; instead, they contended that it “satisfies the statute of frauds” if the document was read to create a yearly lease. The New Hampshire Supreme Court vacated and remanded, finding the trial court’s finding that plaintiffs conceded the issue lacked evidentiary support, and concluded plaintiffs did not waive their statute of frauds argument by concession. View "Ross v. Ross" on Justia Law

Darlene Slamen, Charles Martin, Wilhelmina Martin, and Harris Partnership, LLP ("Harris LLP") (collectively "the defendants"), appealed a circuit court order granting Herbert Slamen's motion for a preliminary injunction. Herbert and Darlene married in 1981 and later formed Harris LLP, of which Herbert, Darlene, Charles, and Wilhelmina each owned a 25% share. In 2008, Herbert was diagnosed with chronic obstructive pulmonary disease, and, in 2010, he moved to Thailand because, Darlene said, he wanted "to enjoy what remained of his life." After moving to Thailand, Herbert was dependent upon Darlene to send him the proceeds generated from his assets so that he could pay for living expenses and medical treatment. Payments in an agreed amount were deposited in a checking account in Thailand set up in Herbert's name. In addition to his interest in Harris LLP, Herbert's assets included a house in Alabama, a house in Florida, and an interest in the dental practice from which Herbert had retired. In 2013, Herbert, via his attorney in fact, established the Herbert A. Slamen Revocable Living Trust ("the trust") to facilitate the management of his assets, and he thereafter transferred his assets, including his interest in Harris LLP, to the trust. Herbert was the beneficiary of the trust, and both he and Darlene were the appointed cotrustees. In 2016, Herbert sued the defendants, alleging that he had revoked the trust but that Darlene, purportedly under her authority as cotrustee, had nevertheless transferred the assets of the trust to herself. As a result, Herbert alleged, the defendants had "failed to distribute proceeds from [Harris LLP] to [Herbert] and instead made all payments directly to Darlene." Herbert filed a motion for a preliminary injunction in which he requested that the trial court enjoin the defendants "from disbursing funds and profits from [Harris LLP] and requiring [the defendants] to keep all funds and profits in the regular business account of [Harris LLP] until the resolution of this case." The motion was granted, and the defendants appealed. The Alabama Supreme Court reversed, finding the underlying causes of action asserted in Herbert's complaint were actions at law that alleged only monetary loss and sought only to recover monetary damages for that alleged loss. Thus, Herbert's alleged injury was not irreparable, given that it can be adequately redressed with the monetary damages he sought if he was able to prove that the defendants wrongfully divested him of the proceeds generated from his assets. View "Slamen v. Slamen" on Justia Law

This case involves the revocation of a will due to after-born children of the testator. The probate court determined the will did not contemplate the birth of future children, and therefore their birth revoked the will. The named beneficiary appeals. Finding no reversible error in that decision, the Georgia Supreme Court affirmed. View "Hobbs v. Winfield" on Justia Law