In Re the Patricia J. McCallister Living Trust: Lee McCallister v. Ross W. McCallister (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jan 26 2018, 8:29 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Russell T. Clarke, Jr. Robert M. Hamlett
Emswiller, Williams, Carmel, Indiana
Noland & Clarke, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Patricia J. McCallister January 26, 2018
Living Trust: Court of Appeals Case No.
18A04-1704-TR-766
Lee McCallister,
Appeal from the Delaware Circuit
Appellant-Petitioner, Court
v. The Honorable Marianne L.
Vorhees, Judge
Ross W. McCallister, Trial Court Cause No.
18C01-1601-TR-1
Appellee-Respondent
Baker, Judge.
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[1] In November 2015, elderly Patricia McCallister’s five adult children decided
that she could no longer safely live by herself. Some of the siblings agreed that
Ross McCallister, the only one of the five who lived in Indiana, would move
into Patricia’s home to provide the care that she needed. In December 2015,
Patricia amended her living trust (the Trust) to make Ross the sole successor
trustee and provide him with a one-half ownership interest in her home.
Thereafter, the family split down the middle; rancor and distrust reigned even
as Patricia’s health was failing.
[2] In January 2016, Lee McCallister filed a petition seeking reinstatement as a co-
trustee. After Patricia’s death in April 2016, Lee filed another petition seeking
Ross’s removal as trustee. Following a four-day trial, the trial court found that
there was no evidence supporting Lee’s claims and granted an involuntary
dismissal of his petitions. It also found that his claims were unreasonable and
awarded attorney fees to Ross in the amount of $144,909.05. Lee now appeals,
arguing that the trial court should not have involuntarily dismissed his claims
and erred by awarding attorney fees to Ross. Ross also requests an award of
appellate attorney fees. Finding no error and denying Ross’s request for
appellate attorney fees, we affirm.
Facts
[3] Patricia had five children: Lee, Becky, Kathy, Cindy, and Ross. All the adult
children except for Ross live out of state. On July 16, 2014, Patricia executed
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the Trust. Lee and Ross were present when she signed that document and were
named as co-successor-trustees.
[4] Around Thanksgiving 2015, Patricia’s children had conversations about
providing for Patricia’s need for physical assistance. Patricia wished to remain
in her home and none of the children living out of state could move to Indiana
or offer to have Patricia live with them. Therefore, at Patricia’s request, Ross
and his family moved from their home in Indianapolis into Patricia’s home in
Muncie and assumed responsibility for her care despite vehement objections
from Becky and Lee.
[5] On December 16, 2015, Patricia amended the trust, removing Lee as a co-
trustee and providing that, upon her death, a one-half interest in her home
would pass to Ross and he would be permitted to purchase the remaining one-
half interest based on its fair market value. She also executed a new power of
attorney, designating Ross as her sole attorney in fact and removing Lee as an
attorney in fact. On January 15, 2016, Lee filed a petition seeking
reinstatement as a co-trustee.1
[6] Patricia died on April 26, 2016. Following her death, Ross appeared in this
case as successor trustee, Lee’s attorney withdrew, and Lee (a licensed attorney
in New York) continued litigating the case pro se. On May 24, 2016, Lee filed
a petition that Ross be removed as co-trustee and that a constructive trust be
1
He also filed a guardianship petition, but that was dismissed following Patricia’s death.
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created for all of Patricia’s property; he later filed a request for a temporary
restraining order enjoining Ross from spending Trust funds, distributing Trust
assets, or disposing of any proceeds of Patricia’s estate. At the heart of Lee’s
petitions were claims that Ross exerted undue influence over Patricia and that
Patricia was incapacitated at the time she executed the Trust amendment.2
[7] An evidentiary hearing on Lee’s petitions took place on July 6, September 27,
and December 21 and 22, 2016. Lee presented the testimony of six witnesses:
Becky; Kathy; Reverend Katherine Rieder; Myrna McCallister, Lee’s aunt and
Patricia’s sister-in-law; Dr. Larry McCallister, Lee’s father and Patricia’s ex-
husband; and Dr. Jane Heaton, Patricia’s niece. Lee did not testify, nor did he
present testimony of Patricia’s long-time treating physician or any other
medical professional who had actually provided her with medical care.
[8] After Lee finished presenting his evidence, Ross moved for judgment on the
evidence, arguing that there was no evidence that Patricia was incapacitated
when she amended the Trust or that the amendment was the result of undue
influence. The trial court agreed, ruling in favor of Ross.3 On March 22, 2017,
the trial court entered an order that provides, in pertinent part, as follows:
2
Lee also included a claim of inadequate accounting by Ross and a claim that the amendment was executed
improperly, but does not pursue the denial of those claims on appeal.
3
The trial court issued a preliminary order granting the motion for judgment on the evidence on December
22, 2016, but explicitly noted that the order was not final and appealable. Appellant’s App. Vol. II p. 36.
Ross contends that it was, in fact, a final order and that Lee was required to appeal it within thirty days.
Given that the order stated that it was not final and appealable and that the trial court explicitly stated the
same to the parties, we think it reasonable that Lee waited for a final order before filing his notice of appeal.
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2. The limited medical evidence that Petitioner presented
demonstrated Patricia was competent to make her own
decisions through at least February, 2016, well after the
December, 2015, date when she amended her Trust.
3. In order to prove Patricia’s incapacity or incompetency,
Petitioner needed to bring forward medical evidence. Dr.
McCallister’s [Lee’s father’s] evidence was not sufficient.
He cannot give an opinion based upon a five minute
telephone conversation with Patricia. Dr. Heaton
[Patricia’s niece] testified in order to diagnose Patricia
adequately, a physician would have to meet with her face-
to-face. Dr. Heaton’s e-mail in February, 2016, stated
Patricia had the capacity to make her own decisions.
***
5. As to undue influence, Petitioner did not present evidence
to go forward with the claim. There [was] little to no
evidence related to December, 2015, the relevant time
period. There was evidence that Patricia’s condition
started to deteriorate after the first of the year [2016], when
Patricia suffered several strokes.
6. Petitioner did not present sufficient evidence to go forward
with the undue influence claim. Petitioner did not present
evidence that in December, 2015, when she executed the
Amendment, her will and desires were overcome by
another individual.
Appealed Order p. 1. Ross filed a request for attorney fees in the amount of
$144,909.05, arguing that the lawsuit was frivolous and made in bad faith. The
trial court agreed:
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Lee has filed throughout this litigation and continues to file
pleadings containing multiple pages, including numerous
exhibits, which are not easy to read and understand. He has not
demonstrated he understands the Indiana Trial Rules. Lee’s
filings and his presentation during the trial have made it very
difficult for the Court to discern exactly what his claims are, and
I am sure the reason the Trust’s fees are so high is due in part to
the same factors.
***
Deciding whether to award attorney’s fees does not require the
Court to find the litigant is a bad person or was not sincere in his
beliefs that something was wrong. Lee had a strong belief that
his claim was valid. The question is whether a reasonable
attorney would have considered the claim “worthy of litigation
or justified.”
***
Claims regarding competency: Lee did not present any current,
credible medical testimony regarding his mother’s competency to
execute the amendments to the Trust on December 16, 2015. A
“Google” search would have provided numerous case citations
to the standard in Indiana to show a testator was not competent.
No reasonable attorney would have considered it worthy to press
forward on this claim with the evidence at hand.
The best witness to have testified to Patricia’s competency would
have been the physician she saw on a regular basis, Dr. Lloyd.
For some reason not explained to the Court, Lee did not choose
to call Dr. Lloyd. Notes from Dr. Lloyd’s office approximately
contemporaneous with the time Patricia executed the
amendment indicated she was competent at that time. Lee’s
claims regarding competency would have been stronger had he
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called Dr. Lloyd and had him testify to his observations and his
office records.
Claims regarding undue influence: this was an issue as to which
Lee submitted absolutely no evidence that the undersigned noted
or can recall. A reasonable attorney would have abandoned this
claim, or would have presented some evidence to support it.
Id. at 2-3. The trial court ordered that Lee pay the Trust’s attorney fees in the
amount of $144,909.05. Lee now appeals.
Discussion and Decision
I. Involuntary Dismissal
[9] Lee first argues that the trial court improperly granted Ross’s motion for
judgment on the evidence on Lee’s claims of incapacity and undue influence.
While Ross moved for judgment on the evidence and the trial court used the
same terminology in granting the motion, our Supreme Court has squarely held
that judgments on the evidence are not applicable to bench trials. Vega v. City of
Hammond, 80 N.E.3d 904, 909 (Ind. 2017). In the context of bench trials, a
motion for judgment on the evidence should be treated as an Indiana Trial Rule
41(B) motion for involuntary dismissal. Id. A Trial Rule 41 motion to dismiss
tests the sufficiency of the plaintiff’s case-in-chief, and our review is limited to
an examination of the evidence most favorable to the non-movant that was
presented before the motion to dismiss was filed. Id.
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[10] Additionally, Lee is appealing a negative judgment because he bore the burden
of proof. As such, he “must show that the evidence points unerringly to a
conclusion different from that reached by the trier of fact, or that the judgment
is contrary to law.” Alexander v. Alexander, 980 N.E.2d 878, 880 (Ind. Ct. App.
2012).
A. Incapacity
[11] Lee argues that the trial court erroneously ruled that he failed to present
sufficient evidence that Patricia was incapacitated at the time she executed the
amendment to the Trust. This Court has explained the showing that must be
made to support a claim of incapacity:
“The capacity of a settlor that is required to . . . amend . . . a
revocable trust is the same as the capacity of a testator that is
required to make a will.” Ind. Code § 30-4-2-10(b). Every
person is presumed to be of sound mind to execute a will. To
rebut this presumption, a party must show that the testator, at the
time of executing his will, lacks the mental capacity to know:
“(1) the extent and value of [her] property; (2) those who are the
natural objects of [her] bounty; and (3) their deserts, with respect
to their treatment of and conduct towards [her].” [Gast v. Hall,
858 N.E.2d 154, 165 (Ind. Ct. App. 2006).] It is the testator’s
mental capacity or soundness of mind at the time she executes
the document at issue that is controlling. Id.
In re Rhoades, 993 N.E.2d 291, 299 (Ind. Ct. App. 2013) (some internal citations
omitted; internal alterations original).
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[12] The evidence in the record related to Patricia’s competency at the time she
executed the Trust amendment can be summarized as follows:
• In December 2015, Patricia underwent a mental health examination, but
no doctor was present and no formal medical diagnosis was made. Tr.
Vol. II p. 139-40. A nurse practitioner later concluded based on the
examination that while Patricia had cognitive decline, she was “able to
make decisions and ask for help[.]” Tr. Ex. Vol. V p. 2.
• Myrna (Patricia’s sister-in-law) testified that in December 2015, Patricia
was unable to read or drive but could make some decisions. Tr. Vol. II
p. 239. Myrna did not see Patricia between September or October 2015
and March 2016. Id. at 247.
• Becky testified that Patricia had had a series of strokes that affected her
mental capacity but did not offer a time frame except that Patricia had a
stroke in early January 2016—after the amendment was executed. Id. at
20. She testified that Patricia’s capacity had gradually diminished over
the prior two years and that, at times, she was unable to read, but Becky
was unable to testify as to Patricia’s capacity at the time of the execution
of the Trust amendment. Id. at 61-62.
• In January 2016, Patricia visited her long-time physician, Dr. Lloyd, for
a routine follow-up visit. He found her affect and mood to be
appropriate and found her to be alert and oriented. Tr. Ex. Vol. V p. 75.
• In February 2016, Dr. Heaton (Patricia’s niece), who is a geriatric
physician, sent an email to Lee indicating that Patricia was “quite
mentally clear” and was “content and satisfied with[]her situation.” Tr.
Id. at 28. She also noted that Patricia’s “physical situation” had
deteriorated far more “than her mental capacity to understand the
consequences of her decisions.” Id. at 84.
• Dr. Heaton also testified that she had not seen Patricia face-to-face since
2008 and that “you cannot evaluate someone unless you see them face to
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face . . . and I . . . have had . . . just superficial, familial conversations
with her. . . . I certainly have not performed a mental status exam on
[Patricia].” Tr. Vol. III p. 190.
• In February 2016, Patricia visited Dr. Lloyd again because of stress
relating to the tension in the family. Dr. Lloyd found as follows: “affect
and mood appropriate. Alert and oriented, a little slow with response.
Expressive aphasia.”4 Tr. Ex. Vol. V p. 70. Dr. Lloyd further stated that
he “[h]ad a long discussion with patient alone about the direction of care
she wishes to pursue, with out [sic] any cues, she wishes for son Ross and
his family from Indianapolis to be her support physically and
mentally . . . I do believe that her wishes are with Ross.” Id. at 70-71.
• Kathy testified that she had “an impression” that at the time Patricia
executed the amendment, she was not competent to do so. Tr. Vol. II p.
133. Kathy admitted, however, that she “didn’t really know enough” to
determine whether Patricia was competent at that time. Id. at 105.
• Larry, Patricia’s ex-husband and a physician, testified that at some point
after Ross moved into Patricia’s house, Larry had a three- to five-minute
phone call with Patricia. Based solely on that phone call, he concluded
that Patricia had dementia. Tr. Vol. III p. 139-41, 148-49.
As noted in the trial court’s order, Lee did not call Dr. Lloyd to testify.
[13] While the record tends to suggest that Patricia had some degree of physical and
verbal impairment resulting from age and a series of strokes over the years,
there is no competent evidence establishing that she was incapacitated. Her
primary care physician found her to be alert and oriented in the months after
4
In Dr. Heaton’s words, for Patricia, expressive aphasia meant that “[s]he knew what she wanted to say, but
she couldn’t come up with the words.” Tr. Vol. III p. 185.
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she executed the Trust amendment. Myrna and Dr. Heaton had not seen
Patricia for months leading up to the execution of the Trust amendment, and
Dr. Heaton found Patricia to be quite mentally clear and to have sufficient
mental capacity in multiple phone conversations. Becky and Kathy were
unable to testify regarding Patricia’s capacity at the time she executed the Trust
amendment. And, while Larry concluded that Patricia was suffering from
dementia and/or Alzheimer’s, he did so based on one three-to-five-minute
phone call.
[14] This evidence simply does not establish that, at the time Patricia executed the
Trust amendment, she lacked the mental capacity to know (1) the extent and
value of her property; (2) those who are the natural objects of her bounty; and
(3) their deserts, with respect to their treatment of and conduct towards her.
Therefore, the trial court did not err by granting Ross’s motion for involuntary
dismissal of this claim.
B. Undue Influence
[15] Next, Lee argues that the trial court should not have involuntarily dismissed his
claim based on undue influence. Undue influence is defined as “the exercise of
sufficient control over the person, the validity of whose act is brought into
question, to destroy his free agency and constrain him to do what he would not
have done if such control had not been exercised.” In re Estate of Wade, 768
N.E.2d 957, 962 (Ind. Ct. App. 2002). A confidential relationship sufficient to
support an undue influence claim may arise as a matter of law; included in this
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category is the relationship between a parent and child. Rhoades, 993 N.E.2d at
301. These relationships raise “a presumption of trust and confidence as to the
subordinate party on the one side and a corresponding influence as to the
dominant party on the other.” Supervised Estate of Allender v. Allender, 833
N.E.2d 529, 533-34 (Ind. Ct. App. 2005) (noting that while generally the parent
is the dominant party in the parent-child relationship, when an adult child is the
caretaker for an elderly parent, the roles reverse).
[16] The law will impose a presumption that a transaction was the result of undue
influence where the plaintiff’s evidence shows that (1) there was such a
relationship and (2) the dominant party benefits from a questioned transaction.
Rhoades, 993 N.E.2d at 301. The burden then shifts to the dominant party to
rebut the presumption by providing clear and convincing evidence that the
dominant party acted in good faith and did not take advantage of the position
of trust, and that the transaction was fair and equitable. Id.
[17] We agree that Lee’s evidence established a confidential relationship between
Ross, as the dominant party, and Patricia, as the subordinate party. We also
agree that Ross benefited from the Trust amendment, as Patricia gave him a
one-half interest in her home and the opportunity to buy the other half at fair
market value. Therefore, Lee is correct that the burden should have shifted to
Ross.
[18] Even though the burden shifted, however, we find sufficient evidence in the
record to support the trial court’s determination that the evidence did not
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establish undue influence. Most of Lee’s evidence was conclusory and not
based on personal knowledge, and the vast majority of it related to whether
Patricia actually wanted Ross and his family to move in with her rather than
whether undue influence related to the execution of the Trust amendment.
[19] But even if we gave that evidence the benefit of the doubt, nearly all of it covers
January through April 2016—after the amendment was executed—or has no
time frame attached whatsoever.
• Becky testified in a conclusory way that Ross isolated Patricia from
friends and family, but eventually acknowledged that the cut-off did not
occur until February 2016. Tr. Vol. II p. 78. The remainder of her
testimony has no time frame attached. Becky did not even see Patricia
between Thanksgiving 2015 and January 2016. Tr. Vol. III p. 41.
• Kathy testified that in late January, Ross took Patricia’s phone and told
her friend she was no longer permitted to visit. Tr. Vol. II p. 149-50.
• Kathy testified that she and Ross coached Patricia about certain things to
say, but did not provide a time frame for these actions. Tr. Vol. III p.
117-19.
• Rev. Rieder testified that near the beginning of 2016, she visited Patricia
and Ross was reluctant to leave the room. The remainder of her
testimony relates to visits made in the months leading up to Patricia’s
death. Id. at 170-75, 184-85.
• Myrna did not see Patricia in November or December 2015 and only has
second-hand knowledge about the situation. Id. at 239. She admitted
that most of what she knows about Ross is not based on personal
knowledge. Id. at 5.
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Indeed, the only contemporaneous evidence regarding the situation in
December 2015 was Kathy’s December 10, 2015, email in which she stated the
following:
. . . I don’t know why there is still a discussion [about whether
Ross should move in with Patricia] because Mom clearly said
that she wants Ross and his family to move up there. Her exact
words were ‘I think I could adjust to having Ross and his family
here’ and ‘the status quo [in which she lived by herself] is not
OK”. We all heard her say that. And she said the same thing
several other times during the last two weeks[.]
Tr. Ex. Vol. V p. 46. Kathy admitted that, while she was not always honest
with her siblings about the situation, she would not have been dishonest about
the content of the email because everyone witnessed Patricia making those
statements. Tr. Vol. III p. 126.
[20] We agree with the way in which the trial court evaluated the evidence in the
record regarding undue influence:
. . . [T]he evidence indicated that everything seemed to go well
through Thanksgiving, 2015, that Mrs. McCallister was having
some physical issues that she could not live on her own at that
time. It seems pretty much unanimous by everybody that she
wanted to stay in her own home, she did not want to go to a
nursing home . . . , all the other children were far away from her,
so the best option to keep her in the home was that Ross would
live with her. . . .
***
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The undue influence claim . . . . Yes, Mrs. McCallister was
living in the home, she was in her own home. She had friends
come over, she had the, the church friends that talked the first
time, she had, it looks like other neighbors came in and checked
on her. Again, focusing in on December of 2015, there was no
evidence that she was isolated or that her will was overcome [or
that] she didn’t want to make that trust amendment but somehow
her will was overcome so that she did make the trust
amendment.
Id. at 238-40. Given the dearth of evidence regarding the brief time between the
date on which Ross moved in with Patricia—which was after Thanksgiving
2015—and the date of the execution of the Trust amendment, which occurred
mere weeks later on December 16, 2015, we find that the evidence supports the
trial court’s conclusion that Ross acted in good faith and did not take advantage
of the position of trust, and that the transaction was fair and equitable.
Consequently, we affirm the trial court’s involuntary dismissal of the undue
influence claim.
II. Attorney Fees
[21] Finally, Lee argues that the trial court erroneously granted Ross’s request for
attorney fees. The trial court awarded fees pursuant to Indiana Code section
34-52-1-1, which provides that a trial court may award attorney fees to the
prevailing party if the court finds that the non-prevailing party:
(1) Brought the action or defense on a claim or defense that is
frivolous, unreasonable, or groundless;
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(2) Continued to litigate the action or defense after the party's
claim or defense clearly became frivolous, unreasonable,
or groundless; or
(3) Litigated the action in bad faith.
This Court has defined “unreasonable” as follows:
A claim is “unreasonable” if, based upon the totality of the
circumstances, including the law and facts known at the time, no
reasonable attorney would consider the claim justified or worthy
of litigation.
Landmark Legacy, LP v. Runkle, 81 N.E.3d 1107, 1113-14 (Ind. Ct. App. 2017)
(internal citations omitted). An award of attorney fees is within the trial court’s
discretion, and we will reverse only if its decision clearly contravenes the logic
and effect of the facts and circumstances or if the trial court has misinterpreted
the law. Id.
[22] The trial court found that each of Lee’s claims were unreasonable. Specifically:
Claims regarding money Ross had spent: Even though Lee
submitted numerous documents and argued Ross had spent
money in an inappropriate manner, the only claim at trial
concerned one dinner that Ross charged to his mother’s credit
card. A reasonable attorney would have realized that (l) Lee had
no claim for inappropriate expenditures or (2) Lee should have
saved this argument until after Ross filed his accounting and the
accounting was open to objections. All the testimony and
exhibits related to money spent by Ross caused the proceedings
extra time and extra work by the attorney for the Trustee and was
unreasonable.
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Claims regarding competency: Lee did not present any current,
credible medical testimony regarding his mother’s competency to
execute the amendments to the Trust on December 16, 2015. A
“Google” search would have provided numerous case citations
to the standard in Indiana to show a testator was not competent.
No reasonable attorney would have considered it worthy to press
forward on this claim with the evidence at hand.
The best witness to have testified to Patricia’s competency would
have been the physician she saw on a regular basis, Dr. Lloyd.
For some reason not explained to the Court, Lee did not choose
to call Dr. Lloyd. Notes from Dr. Lloyd’s office approximately
contemporaneous with the time Patricia executed the
amendment indicated she was competent at that time. . . .
Claims regarding undue influence: this was an issue as to which
Lee submitted absolutely no evidence that the undersigned noted
or can recall. A reasonable attorney would have abandoned this
claim, or would have presented some evidence to support it.
Claims regarding execution of the amendment: Lee submitted
no evidence at the trial concerning how the amendment was
executed. Again, the best witness to have testified to the
execution would have been the attorney who prepared the
document and who could have testified to how he worked with
Patricia in its preparation and how Patricia executed it. . . . A
reasonable attorney would have known a claim without some
evidence as to the document’s execution was frivolous and not
worthy of litigating.
Appealed Order p. 3-4. We see no reason to second-guess the trial court’s
conclusions regarding the manner in which Ross spent Trust funds or the claim
that the amendment was somehow improperly executed—Lee simply did not
present evidence suggesting that these claims were reasonable to maintain.
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[23] Lee argues that the trial court erred by concluding that he had presented no
evidence regarding undue influence. As noted above, however, we agree with
the trial court, inasmuch as almost none of Lee’s evidence regarding undue
influence related to the relevant period of time—the days leading up to and
including the day on which the Trust amendment was executed. Given that,
we do not find that the trial court erred by concluding that this claim was
unreasonable.
[24] Lee argues that the trial court erred by concluding that he presented no credible
medical evidence regarding Patricia’s alleged incapacity. He presented
absolutely no evidence from a medical provider who had evaluated Patricia’s
mental acuity. Testimony from Dr. McCallister or Dr. Heaton does not
suffice—neither of those individuals performed a medical evaluation in the
context of a doctor-patient relationship. He did not call Dr. Lloyd as a witness,
and records from Dr. Lloyd indicate that, in fact, he found Patricia to be alert,
oriented, and clear in January and February 2016. Under these circumstances,
the trial court did not err by finding that this claim was unreasonable.
[25] Given that the trial court did not err by finding that Lee’s claims were
unreasonable—or that, at the least, he continued to litigate after those claims
became unreasonable—we find no error in the trial court’s award of attorney
fees to Ross. We likewise find no error in the amount of fees ordered by the
trial court. We deny Ross’s request for appellate attorney fees.
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[26] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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