Fulton v. Fulton

J-S50028-14
2014 Pa. Super. 270
TILLIE F. FULTON, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
d.b.n.c.t.a. OF THE ESTATE OF : PENNSYLVANIA
FERN O. FULTON, DECEASED, :
:
Appellant :
:
v. :
:
DONALD J. FULTON AND LORA F. :
FULTON, HIS WIFE; RONALD A. :
FULTON AND SYLVIA E. FULTON, HIS :
WIFE; AND ERNEST E. FULTON AND :
MYRNA C. FULTON, HIS WIFE, :
:
Appellees : No. 282 WDA 2014
Appeal from the Order Entered January 22, 2014,
In the Court of Common Pleas of Fayette County,
Civil Division, at G.D. No. 545 of 2011.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.
OPINION BY SHOGAN, J.: FILED DECEMBER 05, 2014
Appellant, Tillie F. Fulton, as Administratrix de bonis non cum
testamento annexo1 (“Administratrix”) of the estate of her mother-in-law,
Fern O. Fulton (“Decedent”), appeals from the January 22, 2014 order of the
Fayette County Court of Common Pleas dismissing this case on the basis of
laches. We affirm.
1
If an executor dies while performing duties, a court will appoint an
administrator d.b.n.c.t.a. to complete distribution of a decedent’s estate. 20
Pa.C.S. § 3159.
J-S50028-14
In an opinion denying Administratrix’s motion for summary judgment,
the trial court explained the basis of this suit, as follows:
The Plaintiff is the Administratrix of the Estate of Fern O. Fulton
(the “Decedent”). [Decedent passed away on June 26, 2008.]
The Defendants [are sons] Donald J. Fulton and [his wife,] Lora
F. Fulton, Ronald A. Fulton and [his wife,] Sylvia E. Fulton, and
Ernest E. Fulton and [his wife,] Myrna C. Fulton . . . . [T]he
Decedent’s son and agent, Donald J. Fulton, . . . conveyed
several properties owned by the Decedent . . . .
The facts of this case are not in dispute. The Decedent
had six children,[2] including Marvin Fulton, who died on July 18,
2008, and [Appellees Donald J.] Fulton, Ronald A. Fulton, and
Ernest E. Fulton. The Decedent’s husband, Solomon L. Fulton,
passed away on July 13, 1999. The Plaintiff is the Decedent’s
daughter-in-law and Marvin Fulton’s widow.
On July 21, 1999, the Decedent executed a [power of
attorney] POA naming [Donald] as her attorney-in-fact. The
POA gave [him], inter alia, authority to exercise control over the
Decedent’s affairs regarding asset management, estate planning,
medical procedures, admission into medical facilities and other
health care decisions.
* * *
Using the POA, [Donald] began dividing up the family
[3]
farm, which was located in Springfield Township, Fayette
2
Decedent’s children are Earnest, Marvin, who is deceased, Brent, Karen,
and twins, Donald and Ronald. Deposition of Donald Fulton, 5/25/12, at 11.
3
During his May 25, 2012 deposition, Donald testified that in 1981 his
mother and father held a family meeting and told their children that they
“wanted the property divided up among the kids . . . . equally divided among
us brothers and sisters.” N.T., 5/25/12, at 12–13. Donald testified that
there was another meeting in 1992, where Decedent and her husband,
Solomon, gathered all of their children, minus spouses, and reiterated “how
the farm was to be subdivided.” Id. at 18. Answers to interrogatories of all
Appellees were consistent. Appellee Ronald Fulton stated in his answers to
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County, Pennsylvania. [Donald] made the first conveyance on
March 20, 2000. He conveyed 9.05 acres to himself and his
wife, Lora F. Fulton.[4] [Donald] then conveyed 39.01 acres to
himself and Lora two years later on March 25, 2002. That same
day, [Donald] conveyed 32.21 acres to Ronald A. Fulton and
[Ronald’s] wife, Sylvia E. Fulton[,] and 29.61 acres to Ernest E.
Fulton and his wife, Myrna C. Fulton. The conveyed parcels were
owned by Decedent[,] and one dollar ($1.00) was paid in
consideration for each of the properties.
Trial Court Opinion (Summary Judgment), 11/26/12, at 2–3.
interrogatories that “it was agreed between the siblings which portion of the
farm each was to receive.” Defendants, Ronald A. Fulton and Sylvia E.
Fulton’s, Answers to Interrogatories and Response to Request for Production
of Documents, 2/3/12, at ¶ 9; Defendants, Donald J. Fulton and Lora F.
Fulton’s, Answers to Interrogatories and Response to Request for Production
of Documents, 2/3/12, at ¶ 7. In Ernest’s answers to interrogatories, he
described the 1992 meeting of all siblings with their parents as follows:
On a Sunday in 1992, Solomon L. Fulton and Fern O. Fulton held
a meeting in their kitchen with their children and without in-laws
being present. Using maps spread out on the table, they
explained to their children how they wanted the property divided
and which parcels were to go to each child.
Defendant Ernest E. Fulton’s Affidavit in Opposition to Plaintiff’s Motion for
Summary Judgment, attached to Defendant’s Response to Plaintiff’s Motion
for Summary Judgment; 7/27/12; at Exhibit A, ¶ 6.
4
In answers to interrogatories, Donald stated that his parents previously
conveyed a twenty-eight-acre tract to their son, Brent, and his wife, Regina,
in April 1984, and a 23.84-acre tract to their son, Marvin, and his wife,
[Administratrix], in October 1992. Donald also stated that his sister, Karen,
was to “receive the 9.05-acre tract of land upon which the house was
located,” which Donald ultimately conveyed to himself at his parents’
direction because Karen “was undergoing difficulties with the Internal
Revenue Service . . . .” Defendants, Donald J. Fulton and Lora F. Fulton’s,
Answers to Interrogatories and Response to Request for Production of
Documents, 2/3/12, at ¶ 8.
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On April 29, 2003, Decedent commenced an action at law against
Donald, only,5 in the Court of Common Pleas of Fayette County, in which she
sought money damages in connection with the conveyances he made.
Fulton v. Fulton, 952 of 2003, G.D. Decedent died five years later, on
June 26, 2008, leaving a will that named Marvin as executor of her estate.
Trial Court Opinion (Summary Judgment), 11/27/12, at 3. Marvin died one
year later, on June 23, 2009. Administratrix’s Brief at 6. Decedent’s action
at law was not litigated to conclusion before her death or Marvin’s death,
and the common pleas court ultimately dismissed that suit for lack of
activity. Id.; Trial Court Opinion, 1/22/14, at 4. On February 9, 2011,
Administratrix was appointed Administratrix d.b.n.c.t.a. of Decedent’s
estate. Order, 2/9/11: R.R. at 116a; Administratrix’s Brief at 6.
Administratrix brought this action in equity against Donald and his
wife, Lora, Ronald, and his wife, Sylvia, and Ernest, and his wife, Myrna,
(collectively “Appellees”) on March 9, 2011, seeking both that the
conveyances be set aside and the imposition of a constructive trust upon the
conveyed properties. Appellees filed an Answer, New Matter, and
Counterclaim on June 1, 2011, and therein pled the affirmative defense that
Administratrix’s claims were barred by the doctrine of laches. On June 29,
5
The trial court noted that Decedent successfully joined the additional
appellees herein as additional defendants in the 2003 action at law, but the
court later dismissed them “pursuant to the granting of preliminary
objections.” Trial Court Opinion, 1/22/14, at 3.
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2012, Administratrix filed a motion for summary judgment, which the trial
court denied on November 27, 2012, after receiving briefs and holding oral
argument. Thereafter, the parties filed pretrial statements in January and
February 2013, and the trial court held a pretrial conference on March 18,
2013. On that date, the trial court entered an order directing the filing of
briefs on the issue of laches and scheduled a hearing for May 22, 2013. The
trial court entered an order on January 22, 2014, stating, in pertinent part,
as follows: “[T]he doctrine of laches applies to bar the claims in
[Administratrix’s] Complaint. It is further ordered and decreed that the
Complaint is dismissed with prejudice.” Order, 1/22/14. Administratrix filed
a timely notice of appeal, and both the trial court and Administratrix
complied with Pa.R.A.P. 1925.
Administratrix raises the following two issues on appeal:
I. Is a third party’s lack of due diligence in prosecuting an action
at law imputable to a complaining party so as to bar that party’s
separate equitable action under the doctrine of laches?
II. Does the doctrine of laches bar a claim when no evidence is
presented demonstrating prejudice from a lapse in time?
Administratrix’s Brief at 4 (full capitalization omitted). We will address both
issues together.
The doctrine of laches is an equitable bar to the prosecution of stale
claims and is “the practical application of the maxim that ‘those who sleep
on their rights must awaken to the consequence that they have
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disappeared.’” Kern v. Kern 892 A.2d 1, 9 (Pa. Super. 2005) (quoting
Jackson v. Thomson, 53 A. 506, 506 (Pa. 1902)). The question of
whether laches applies is a question of law; thus, we are not bound by the
trial court’s decision on the issue. United Nat. Ins. Co. v. J.H. France
Refractories Co., 668 A.2d 120, 124 n.4 (Pa. 1995) (citing 2401
Pennsylvania Ave. Corp. v. Federation of Jewish Agencies, 489 A.2d
733, 736 (Pa. 1985)). The question of laches itself, however, is factual, In
re Estate of Scharlach, 809 A.2d 376 (Pa. Super. 2002), and is
determined by examining the circumstances of each case. Sprague v.
Casey, 550 A.2d 184 (Pa. 1988). See also Patten v. Vose, 590 A.2d
1307, 1309 (Pa. Super. 1991) (“The existence of laches is a factual issue to
be decided according to the circumstances in each particular case.”);
Holiday Lounge, Inc. v. Shaler Enterprises Corp., 272 A.2d 175, 177
(Pa. 1971); Dorsch v. Jenkins, 365 A.2d 861, 864 (Pa. Super. 1976).
We have outlined the parameters of the doctrine of laches as follows:
Laches bars relief when the complaining party is guilty of want of
due diligence in failing to promptly institute the action to the
prejudice of another. Thus, in order to prevail on an assertion of
laches, respondents must establish: a) a delay arising from
petitioner’s failure to exercise due diligence; and, b) prejudice to
the respondents resulting from the delay. Moreover, the
question of laches is factual and is determined by examining the
circumstances of each case.
Estate of Scharlach, 809 A.2d at 382–383 (quoting Sprague, 550 A.2d at
187–188). Unlike the application of the statute of limitations, exercise of the
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doctrine of laches does not depend on a mechanical passage of time. Kern,
892 A.2d at 9; United Nat., 668 A.2d at 124–125. Indeed, the doctrine of
laches may bar a suit in equity where a comparable suit at law would not be
barred by an analogous statute of limitations. United Nat., 668 A.2d at
124–25. Moreover,
[t]he party asserting laches as a defense must present evidence
demonstrating prejudice from the lapse of time. Such evidence
may include establishing that a witness has died or become
unavailable, that substantiating records were lost or destroyed,
or that the defendant has changed his position in anticipation
that the opposing party has waived his claims.
Commonwealth ex rel. Baldwin v. Richard, 751 A.2d 647, 651 (Pa.
2000) (internal citations omitted).
In analyzing whether a delay occurred in this case, the trial court
stated as follows:
On July 21, 1999, . . . Decedent executed a power of attorney
appointing Donald J. Fulton as her attorney-in-fact. See,
Complaint ¶ 4. Between March 2000 and March 2002, Donald J.
Fulton conveyed land belonging to the Decedent in Springfield
Township, Fayette County to the Defendants at the within action
for nominal or no consideration. Id. at ¶7–9.
On August 14, 2012,[6] the Decedent, through counsel,
sent a letter to Defendants disputing the legality of such
6
The trial court’s reference to this date is an obvious error, as it does not
“fit” chronologically, and the August 14, 2012 letter is described as being
dated prior to April 29, 2003, in the subsequent sentence by the trial court.
We cannot verify the correct date of that letter, however, because the
complaint at 952 of 2003, G.D. is not in the record certified to us on appeal.
The 2003 complaint is discussed in the notes of testimony from the May 22,
2013 oral argument on the applicability of laches, in the trial court opinion,
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J-S50028-14
transfers and requested that the properties be returned to her.
Thereafter, on April 29, 2003, the Decedent, through counsel,
filed a Complaint alleging that Donald J. Fulton “acting with the
Authority of the Durable Power of Attorney” conveyed assets of
the Decedent to himself and to others as more particularly set
forth therein to the “detriment” of the Decedent. See, Complaint
at 952 of 2003, G.D. In 2003, the Decedent requested a
monetary judgment, but did not seek the return of property.
Subsequently, the Decedent sought to join additional
defendants, namely the Defendants herein, which the Court
permitted, but such defendants were dismissed pursuant to the
granting of preliminary objections. In September 2006, the
Decedent filed a Petition to Enforce Agreement wherein she
alleged correspondence from Defendant, Donald J. Fulton, in
settlement negotiations required the transfer of the real property
back to the Decedent. Such Petition was denied by reason of
Decedent failing to appear and being unable to proceed.
Decedent took no further affirmative actions to pursue the
allegations of her Complaint.
On June 26, 2008, the Decedent died, leaving a will
appointing Marvin W. Fulton as Executor. Marvin W. Fulton
subsequently died on June 23, 2009, and by way of Court Order,
Plaintiff was appointed as Administratrix of the Decedent’s Estate
on February 9, 2011.
By way of a delay, approximately eleven years passed
between the time of the conveyances at issue and the time that
Plaintiff, Tillie F. Fulton, Administratrix d.b.n.c.t.a. of the Estate
or Fern O. Fulton, deceased, instituted the within action. The
Court is cognizant that the current Plaintiff lacked standing to
challenge the conveyances until she became the Decedent’s
personal representative. Nonetheless, the Court believes an
examination of the Decedent’s actions are necessary to
determine whether a delay occurred.
and elsewhere. The complaint at 952 of 2003, G.D. apparently was attached
to Appellant’s trial brief on the subject of laches, see N.T., 5/22/13, at 4, but
only the fact of the brief’s filing on May 16, 2013, is noted in the docket; the
brief itself is not included in the record. In our view, the absence of the
complaint at 952 of 2003, G.D., is detrimental to Administratrix’s case.
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J-S50028-14
A review of the Record in the instant case and at Case No.
952 of 2003 reveals that the Decedent filed suit against Donald
J. Fulton and therein alleged his conveyances of land belonging
to her occurred to her detriment. The Court notes that the
Decedent requested monetary relief and did not request to set
aside the conveyances. The Court further notes that on the
Record at Case No. 952 of 2003[,] the Decedent failed to
diligently pursue her legal rights, finding an inactive docket for
many years, finding that the Decedent failed to appear for a
scheduled court hearing, and finding that the case was dismissed
for inactivity. The reason for the Decedent failing to diligently
pursue her actions at Case No. 952 of 2003 is not known, nor
will this Court speculate as to such.
Although Case No. 952 of 2003 is not identical to the
instant action, the basis for the causes of action are similar
enough for this Court to determine that a delay of eleven years
has occurred, and such a delay was the result of the lack of due
diligence of the Decedent and her first Executor of the Estate,
Marvin W. Fulton.
Trial Court Opinion, 1/22/14, at 2–4.
Administratrix argues that in applying the doctrine of laches, the trial
court based its determination that Administratrix lacked due diligence on its
assessment of the Decedent’s conduct in failing to prosecute her separate
action at law to resolution before her death. Administratrix maintains that
this assessment thus permitted the trial court to impute the acts of a third
party—Decedent—to Administratrix in order to find undue delay, rather than
independently evaluating Administratrix’s promptness in bringing the instant
action after her appointment. Administratrix suggests that this
determination overlooks the fact that until she was appointed as personal
representative of Decedent, Administratrix had no standing to challenge the
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conveyances. Therefore, she contends that the conclusion that laches could
run against her, before she had the legal ability to assert her rights, is
flawed.
The delay in this case extended over a nine-year period. The
conveyances occurred in March of 2000 and March of 2002. The present suit
was instituted in 2011. While Administratrix had no standing to proceed
before that time, Decedent certainly did, as did Adminstratrix’s husband,
Marvin, the executor of Decedent’s estate. Decedent, who obviously had
some misgiving about the conveyances, timely filed suit against Donald only,
apparently seeking only money damages.7 Decedent did not seek to have
the conveyances set aside nor seek the imposition of a constructive trust
upon the conveyed properties.
We disagree with Administratrix that the trial court’s consideration of
the existence of a prejudicial delay must be based solely on Administratrix’s
actions because she had no standing to proceed until her appointment. It is
noteworthy that Administratrix stood in the shoes of her predecessor,
Decedent’s executor, Marvin, who stood in the shoes of Decedent, in
instituting a cause of action, pursuant to 20 Pa.C.S. § 3373 (“An action or
proceeding to enforce any right or liability which survives a decedent may be
7
While we cannot ascertain this information from the complaint filed at 952
of 2003, G.D., the trial court did have the 2003 complaint before it, and we
rely on the trial court’s description of that suit. Trial Court Opinion, 1/22/14,
at 3.
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brought by or against his personal representative alone or with other parties
as though the decedent were alive.”). Further, after Executor Marvin’s
death, Administratrix, as administrator d.b.n.c.t.a., “shall stand in [her]
predecessor’s stead for all purposes . . . .” 20 Pa.C.S. § 3326. Thus, we
observe no abuse of discretion in the trial court’s consideration of Decedent’s
non-action, as well as Marvin’s non-action, when evaluating whether delay
occurred herein sufficient to support the doctrine of laches.
In suggesting that the trial court erred by failing to consider
Adminstratrix’s acts, alone, in evaluating whether laches barred this claim
and ignoring that she did not attain the ability to challenge the conveyances
until she was appointed as Decedent’s personal representative,
Administratrix disregards the fact that she is acting on Decedent’s behalf,
not her own behalf. As such, it was proper for the trial court to look to
Decedent’s and Marvin’s non-actions, as well, in evaluating whether laches
precluded this claim. In determining whether a party exercised due
diligence, the focus is on what the party reasonably should have known “by
the use of the means of information within his reach, with the vigilance the
law requires,” not on what he actually knew. Sprague, 550 A.2d at 188
(quoting Taylor v. Coggins, 90 A. 633, 634 (1914)). “What the law
requires . . . is to discover those facts which were discoverable through the
exercise of reasonable diligence.” Sprague, 550 A.2d at 188.
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As noted previously, and as expressed by the trial court, Decedent,
herself, did not file suit against all Appellees, and importantly, did not seek a
constructive trust on the conveyed properties. Rather, she sought money
damages from her personal representative, Donald. For five years, that
action languished. Upon Decedent’s death, her executor, Marvin, took no
affirmative action to pursue the allegations of the 2003 complaint. He did
not move the action at law forward, nor did he pursue imposition of a
constructive trust on the conveyed properties in equity. We have no
hesitation in concluding that the nine-to-eleven-year passage of time, from
the time of the conveyances until Administratrix instituted this suit in equity,
constituted sufficient delay for purposes of the doctrine of laches.
Moreover, we likewise agree that Appellees were prejudiced by the
delay. Prejudice may be shown “if relevant records have disappeared, if a
key witness is now deceased, or cannot be located, or if the defendant
changed his position based on the expectation that plaintiff did not intend to
pursue the claim.” See Del–Val Electrical Inspection Service, Inc. v.
Stroudsburg–East Stroudsburg Zoning and Codes Office, 515 A.2d 75,
76 (Pa. Cmwlth. 1986) (citing Class of Two Hundred Administrative
Faculty Members v. Scanlon, 466 A.2d 103 (Pa. 1983)).
The party asserting laches as a defense must present evidence
demonstrating prejudice from the lapse of time.
Commonwealth v. Gilligan, 195 Pa. 504, 46 A. 124 (1900).
Such evidence may include establishing that a witness has died
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or become unavailable, that substantiating records were lost or
destroyed, or that the defendant has changed his position in
anticipation that the opposing party has waived his claims. Kay
v. Kay, 460 Pa. 680, 334 A.2d 585, 587 (1975).
Com. ex rel. Baldwin v. Richard, 751 A.2d 647, 651 (Pa. 2000).
In finding prejudice herein, the trial court stated as follows:
Next, we consider whether the delay caused prejudice to
accrue to Defendants. See Stilp [v. Hafer, 718 A.2d 290 (Pa.
1998)], at 293. Of particular relevance for our consideration of
this element is the fact that the two material witnesses to this
case, the Decedent and Attorney Michael J. Macko, who
witnessed the real estate transfers, are deceased. It is well-
settled law that the doctrine of laches is applicable peculiarly
where the difficulty of doing justice arises through the death of
the principal participants in the transactions complained of, or of
the witnesses or witnesses to the transactions, or by reason of
the original transactions having become so obscured by time as
to render the ascertainment of the exact facts impossible. In re
Wallace’s Estate, 149 A. 473, 475 (Pa. 1930).
The Court also notes that the passage of eleven years in
relation to the upkeep, maintenance, and improvements on and
to the properties at issue would cause prejudice to the
Defendants if such conveyances were set aside or held in trust.
Therefore, considering the absence of living witnesses to
the alleged events and the sum of money and labor expended by
the Defendants maintaining the properties, this Court holds that
the Defendants are at a disadvantage to defend this lawsuit, that
the relief requested would cause distinct prejudice, and as such
the doctrine of laches must be applied to bar the claims in
Plaintiff’s Complaint. Stilp, 718 A.2d at 293; see also Wallace’s
Estate, 149 A. at 475.
Trial Court Opinion, 1/22/14, at 4–5.
We previously considered whether a delay prejudiced the appellees in
Kern, 892 A.2d 1. Referencing Stilp, we noted the following:
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Of particular relevance for our consideration of this element [of
prejudice] is the fact that the two material witnesses to this
case, John and Rayburn, are deceased. It is well-settled law
that the doctrine of laches is applicable peculiarly where
the difficulty of doing justice arises through the death of
the principal participants in the transactions complained
of, or of the witnesses or witnesses to the transactions, or
by reason of the original transactions having become so
obscured by time as to render the ascertainment of the exact
facts impossible. See In re Wallace’s Estate, 299 Pa. 333,
340, 149 A. 473, 475 (1930).
The record indicates that there are no living witnesses to
[the decedent’s business partner’s] alleged acts of subversion
and control . . . . Therefore, it is clear that the absence of living
witnesses to the alleged events has left Appellees at a distinct
disadvantage in defending this law suit and, therefore, they are
prejudiced by the delay in this case. See Stilp, at 134, 718
A.2d at 293; see also Wallace’s Estate, at 340, 149 A. at 475.
Therefore, we are satisfied that the trial court did not err when it
determined that counts II and III of [the plaintiff’s] complaint
were barred by the doctrine of laches.
Kern, 892 A.2d at 10 (emphasis added). As we noted in another case
finding prejudice:
[T]he ultimate issue . . . was the decedent’s intent in drafting
the trust deed. Due to the fact appellant waited until after the
decedent and all of the witnesses to the creation and revocation
of the trust had passed away to prosecute this action, appellees
have suffered substantial prejudice by not being afforded the
opportunity to question witnesses about the creation of the trust
deed. In that appellant’s delay was unreasonable and resulted in
prejudice to appellees, we find the doctrine of laches bars
appellant’s claim.
In re Estate of Devine, 910 A.2d 699, 702 (Pa. Super. 2006) (internal
citation omitted) (citing Estate of Scharlach, 809 A.2d at 382–383). In
addition, and as noted by the trial court, all Appellees represented either in
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depositions or answers to interrogatories that they have had to expend sums
relating to the upkeep, maintenance, or improvements to the properties
during the passage of the eleven years from the time of the conveyances
until the imposition of the suit in equity, all of which would cause prejudice
to Appellees if the conveyances were set aside. Trial Court Opinion,
1/22/14, at 5.
Therefore, we are satisfied that the trial court did not err when it
determined that Administratrix’s complaint was barred by the doctrine of
laches. Consequently, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2014
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