In re: Kilijian, H. Appeal of: Boghossian, L.

J-A21025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: HILDA KILIJIAN IRREVOCABLE IN THE SUPERIOR COURT OF
TRUST PENNSYLVANIA
APPEAL OF: LYNNE BOGHOSSIAN
No. 3175 EDA 2013
Appeal from the Order Entered October 10, 2013
In the Court of Common Pleas of Montgomery County
Orphans' Court at No(s): 2009-2314
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2014
Lynne Boghossian appeals from the order entered October 10, 2013, in
the Court of Common Pleas of Philadelphia County, granting summary
judgment in favor of the Hilda Kilijian Irrevocable Trust (“HKIT”), and
dismissing Boghossian’s second amended complaint with prejudice. On
November 21, 2006, Hilda Kilijian created the HKIT. She has no children but
has two nieces, Boghassian and Lesley Brown, who are sisters. Upon
Kilijian’s death, the HKIT is to be distributed to Brown and members of her
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*
Retired Senior Judge assigned to the Superior Court.
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family.1 Boghossian is not named as a co-trustee or beneficiary under the
HKIT. Boghossian instituted this action, largely on the basis that the HKIT
was created and executed under the undue influence of Brown and her
husband, John F. Brown. In granting the HKIT’s motion for summary
judgment, the orphans’ court found there was no evidence that the trust was
formed and funded under undue influence. On appeal, Boghossian raises
the following three claims: (1) the orphans’ court abused its discretion
and/or erred when it considered a stipulation that was not part of the
current record but was from a companion matter, and depositions taken in
violation of that stipulation; (2) the orphans’ court abused its discretion by
granting summary judgment prematurely because discovery was still open,
no trial date was set, and less than four months of discovery had
commenced in the matter; and (3) the orphans’ court abused its discretion
and/or erred when it ignored evidence of a confidential relationship, failed to
shift the burden to the HKIT, and decided all inferences in favor of the HKIT
while ignoring the weakened intellect of Kilijian.2 Boghossian’s Amended
Brief at 14. Based on the following, we affirm.
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1
Specifically, 50% to Brown, 25% to Brown in trust for her daughter, and
25% to Brown in trust for her son.
2
We have reordered the first and second arguments based on the nature of
our analysis.
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The facts underlying this appeal are well-known to the parties, and we
need not recite them herein. See Orphans’ Court Opinion, 10/10/2013, at
2-5.3 On October 10, 2013, the orphans’ court granted the HKIT’s motion
for summary judgment, finding Boghossian had “presented no facts which
could establish directly that Ms. Kilijian was unduly influenced by the Browns
or by any other party at the time of the formation of the Trust.” Id. at 9.
The court also dismissed Boghossian’s complaint with prejudice. Seven days
later, Boghossian filed a motion for reconsideration. The court denied the
motion the next day because Boghossian did not file exceptions within 20
days pursuant to Pa.O.C.R. 7.1. On November 12, 2013, Boghossian filed
this timely appeal.4
We begin with our well-settled standard of review:
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3
We note Kilijian was adjudicated an incapacitated person in a separate
proceeding before the orphans’ court on September 30, 2010, and Brown
was appointed plenary permanent guardian of her person. Anna Sappington
now serves as plenary permanent guardian of the estate of Hilda Kilijian.
See Mongomery County Court of Common Pleas, Orphans’ Court Division,
Docket No. 2009-X2351. On September 24, 2010, the orphans’ court
confirmed the appointment of Bryn Mawr Trust Company as successor
trustee of the HKIT, to serve with Brown. On January 22, 2013, the court
accepted the resignation of Bryn Mawr Trust Company as trustee and
confirmed the appointment of Haverford Trust Company as successor
trustee.
4
It merits mention that generally, an appellant has 30 days to file a notice
of appeal from a final order. See Pa.R.A.P. 903. Here, Boghossian’s notice
was timely, as the due date fell on the weekend and because Monday,
November 11, 2013, was a court holiday, Veteran’s Day (observed).
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Our standard of review of the findings of an Orphans’ Court is
deferential.
When reviewing a decree entered by the Orphans’ Court,
this Court must determine whether the record is free from
legal error and the court’s factual findings are supported
by the evidence. Because the Orphans’ Court sits as the
fact-finder, it determines the credibility of the witnesses
and, on review, we will not reverse its credibility
determinations absent an abuse of [] discretion.
In re Estate of Harrison, 2000 PA Super 19, 745 A.2d 676,
678 (Pa. Super. 2000) (internal citations omitted). If the court’s
findings are properly supported, we may reverse its decision only
if the rules of law on which it relied are palpably wrong or clearly
inapplicable. See id. at 678-79.
Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004).
In Boghossian’s first argument, she asserts the orphans’ court abused
its discretion and/or erred when it considered a stipulation that was not part
of the current record but was from a companion matter, and depositions
taken in violation of that stipulation. Boghossian’s Amended Brief at 29-30.
She claims the court erred in considering these depositions “taken in
violation of [a] governing stipulation without first allowing the proper cross
examination” by her counsel. Id. at 30.
By way of background, Boghossian avers that in 2009, she
commenced an action in Montgomery County Court of Common Pleas,
Orphans’ Court Division, Docket No. 09-2351, in which she sought the
appointment of a guardian for Kilijian. Boghossian states the parties
conducted discovery, but that that evidence is “completely unrelated to the
claims” she asserts in the present matter as it was “limited solely to the
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issue of the competence of Hilda Kilijian at that time and, therefore, whether
she needed the appointment of a guardian for her estate and her person.”
Id. at 30 (emphasis removed). Moreover, she states that in violation of a
stipulation, entered into by the parties in the competency proceeding, John
Brown scheduled three Florida depositions covered by the parties’ stipulation
on dates in which Boghossian’s counsel was unavailable and did not
participate.5 Id. at 32-34. Boghossian concludes it was an error by the
orphan’s court to consider these improper depositions.
Before addressing the merits of this issue, we must determine whether
Boghossian has properly preserved this claim for appellate review.
Boghossian raised this argument for the first time in her motion for
reconsideration of the orphans’ court’s October 10, 2013, order granting the
HKIT’s motion for summary judgment. See Plaintiff, Lynn Boghossian’s
Motion for Reconsideration of the Court’s Order Dated October 10, 2013
Granting Defendant, Hilda Kilijian Irrevocable Trust’s Motion for Summary
Judgment, 11/7/2013, at 16-25. As noted above, the orphans’ court denied
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5
The stipulation provided the depositions could be conducted only “under
very specific guidelines,” including a date convenient to all counsel.
Boghossian’s Brief at 31. Contrary to Boghossian’s claim here, a review of
the record reveals that another attorney from the law firm of Boghossian’s
counsel made telephonic appearances at each of the three depositions and
did raise objections. See, i.e., Deposition of Michael Striar, 3/11/2011, at
15, 22, 25.
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Boghossian’s motion for reconsideration pursuant to Pa.O.C.R. 7.1. See
Order, 11/8/2013.
Pennsylvania Orphans’ Court Rule 7.1 governs the procedure for
challenging the entry of a final order, decree, or adjudication in orphans’
court proceedings. The rule provides, in relevant part:
(a) General Rule. Except as provided in Subdivision (e), no later
than twenty (20) days after entry of an order, decree or
adjudication, a party may file exceptions to any order, decree or
adjudication which would become a final appealable order under
Pa.R.A.P. 341(b) or Pa.R.A.P. 342 following disposition of the
exceptions. If exceptions are filed, no appeal shall be filed until
the disposition of exceptions except as provided in Subdivision
(d) (Multiple Aggrieved Parties). Failure to file exceptions shall
not result in waiver if the grounds for appeal are otherwise
properly preserved.
(b) Waiver. Exceptions may not be sustained unless the grounds
are specified in the exceptions and were raised by petition,
motion, answer, claim, objection, offer of proof or other
appropriate method.
…
(g) Exceptions. Exceptions shall be the exclusive procedure
for review by the Orphans’ Court of a final order, decree
or adjudication. A party may not file a motion for
reconsideration of a final order.
Pa.O.C.R. 7.1(a), (b), (g) (emphasis added).
We agree with the orphans’ court that to the extent that Boghossian
attempts to raise this argument for the first time in her motion for
reconsideration, the issue is waived. Pursuant to Rule 7.1(g), the motion for
reconsideration was an improper filing, and Boghossian failed to raise the
claim either in exceptions to the orphan’s court order or by motion prior to
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the entry of the order. Accordingly, we conclude the claim is not preserved
for our review. See In re Estate of Rosser, 821 A.2d 615, 619 (Pa. Super.
2003) (new claims raised in motion for reconsideration were waived for
failure to properly preserve in accordance with Pa.O.C.R. 7.1(g)), appeal
denied, 831 A.2d 600 (Pa. 2003).
In Boghossian’s second argument, she claims the orphans’ court
abused its discretion in granting the HKIT’s motion for summary judgment
because the motion “was not ripe for consideration and was premature as
only a little over four months of discovery had expired, and discovery was
being propounded and depositions were to be noticed by [Boghossian] as
the additional discovery was necessary to establish additional genuine issues
of material fact.” Boghossian’s Amended Brief at 20. Moreover, Boghossian
asserts the court improperly granted summary judgment “while outstanding
discovery requests were not answered by [the] HKIT, and [was] in direct
disregard of the discovery stipulation signed by the parties.” Boghossian’s
Amended Brief at 22. Specifically, she claims discovery was delayed by the
following: (1) there was a September 8, 2009 order, staying all discovery,
that was not lifted until June 3, 2011; and (2) the defendants chose to file
motions for judgment on the pleadings rather than commence discovery
after that stay was lifted. Id. at 23-26. Boghossian avers that in
September 2012, she attempted to commence discovery by serving
interrogatories but none of the defendants complied with her request as they
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believed it was “premature” until the court decided their motions for
judgment on the pleadings, which did not occur until January 31, 2013,
when it entered its order. Id. at 26. Therefore, she states that “no
discovery was permitted until February 1, 2013 and it is only the defendant
HKIT that failed to respond to [her] initial discovery effort[.]” Id. at 29.
With respect to this claim, we are guided by the following:
Although parties must be given reasonable time to complete
discovery before a trial court entertains any motion for summary
judgment, the party seeking discovery is under an obligation to
seek discovery in a timely fashion. Kerns v. Methodist Hosp.,
393 Pa.Super. 533, 574 A.2d 1068, 1074 (1990). Where ample
time for discovery has passed, the party seeking discovery (and
opposing summary judgment) is under an obligation to show
that the information sought was material to their case and that
they proceeded with due diligence in their attempt to extend the
discovery period. Id., 574 A.2d at 1074.
Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1124 (Pa. Super.
2004). See also Fort Cherry School Dist. v. Gedman, 894 A.2d 135, 140
(Pa. Super. 2006) (reasoning “[t]he Pennsylvania Rules of Civil Procedure do
not give [parties] an unlimited amount of time to conduct discovery”).
However, this Court has previously stated that the purpose of Rule 1035.2
“is to eliminate cases prior to trial where a party cannot make out a claim or
defense after relevant discovery has been completed; the intent is not to
eliminate meritorious claims prematurely before relevant discovery has been
completed.” Burger v. Owens Illinois, Inc., 966 A.2d 611, 618 (Pa.
Super. 2009) (quotation omitted).
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Here, a review of the certified record reveals that Boghossian filed this
action in the Court of Common Pleas of Delaware County, Civil Division
(“Delaware County court”). The defendants, which did not include the HKIT
because it was not named in the original complaint,6 sought to have the
matter transferred to the Court of Common Pleas of Montgomery County,
Orphans’ Court Division. On September 8, 2009, the Delaware County court
granted the petition to transfer and stayed discovery until the orphans’ court
decided whether it was going to accept the transfer. Nevertheless, on
September 30, 2010, the parties entered a stipulation in the related matter
at Docket No. 09-2351, which provided, in relevant part:
Any party and counsel who have entered an appearance in the
underlying action originally designated CCP Delaware County No.
09-153 which was thereafter transferred to Montgomery County
Orphans Court or may have an interest in the potential claims
that might be asserted against the Hilda Kilijian Irrevocable
Trust (“HKIT”) (including the beneficiaries, [Brown’s son and
daughter] and their counsel or the trustees of the HKIT and their
counsel) shall have the right to proceed under the Court’s May 6,
2010 Order issuing a Commission to Obtain Testimony and
Documents Outside the Commonwealth, and promptly subpoena,
notice, and schedule the depositions authorized under that Order
on all topics relevant to the claims asserted in the underlying
action and the potential claims that could arise against the HKIT
from those alleged fact patterns.
…
Nothing in this paragraph shall preclude any party from
conducting other discovery and is in no way intended to
establish a discovery plan and/or discovery deadline.
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6
The original defendants were Kilijian, Brown, and Brown’s husband.
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R.R. 385a-386a, Stipulation of Counsel, 9/30/2010.
On June 3, 2011, the Montgomery County orphans’ court accepted
jurisdiction and granted Boghossian leave to file a second amended
complaint. On October 6, 2011, Boghossian filed a second amended
complaint, naming the HKIT as a defendant. All defendants filed preliminary
objections, which were dismissed December 1, 2011. The Browns and the
HKIT filed answers with new matter, as well as motions for judgment on the
pleadings. During this time, on September 18, 2012, Boghossian requested
her first set of interrogatories, which were addressed to defendants, Brown
and John Brown, relating to their answer with new matter to her second
amended complaint. See R.R. 1493a-1541a. On January 31, 2013, the
court determined that based upon Boghossian’s voluntary dismissal of
Counts I, II, and III of her second amended complaint and oral argument,
the court dismissed those counts with prejudice but declined to dismiss
Count IV as it related to the HKIT. Thereafter, the HKIT filed a motion for
summary judgment, which the orphans’ court granted on October 10, 2013.
The orphans’ court found the following:
[Boghossian]’s assertion that additional discovery is
needed at this time and that this motion is premature is
unavailing. [Boghossian] commenced this action in January of
2009, and has been engaged in substantial discovery over a
period of several years, and entered into a stipulation concerning
discovery in September of 2010. [Boghossian] has had
adequate time to develop facts in support of her allegations.
Orphans’ Court Opinion, 10/10/2013, at 11.
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We agree with the orphans’ court that Boghossian’s discovery
argument is meritless on several grounds. First, other than several bald
statements that information sought “was necessary to establish additional
genuine issues of material fact,”7 she develops no meaningful argument as
to what facts are still at issue and how they are material to her case. “We
will not consider these bald assertions in our analysis of this issue.”
Reeves, 866 A.2d at 1124, citing Eichman v. McKeon, 824 A.2d 305, 319
(Pa. Super. 2003), appeal denied, 839 A.2d 352 (Pa. 2003). Second,
Boghossian has not demonstrated that she “proceeded with due diligence in
[her] attempt to extend the discovery period.” Reeves, 866 A.2d at 1124.
As of September 30, 2010, by stipulation of the parties, Boghossian was put
on notice that she may depose individuals with respect to “the potential
claims that could arise against the HKIT from those alleged fact patterns.”
R.R. 385a, Stipulation of Counsel, 9/30/2010. Since that time, she made
only one request for interrogatories, which was directed at Brown and John
Brown, not the HKIT. Boghossian does not explain to this Court the efforts
she undertook to procure information from the HKIT.8
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7
See Boghossian’s Amended Brief at 20.
8
Consequently, and contrary to Boghossian’s argument, the proper date to
commence discovery in the matter was not February 1, 2013, when the
court denied the HKIT’s motion for judgment on the pleadings.
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Third, her reliance on Anthony Biddle Contractors, Inc. v. Preet
Allied Am. St., LP, 28 A.3d 916, 919 (Pa. Super. 2011), is misplaced, as
that case is distinguishable from the present matter. In that case, the
plaintiff filed a motion for extraordinary relief because the defendant had
failed to comply with its discovery obligations. The trial court denied the
motion as untimely. In reversing the trial court’s decision, a panel of this
Court found the court’s ruling constituted “an abuse of the trial court's
discretion because [the plaintiff] substantially complied” with the case
management order. Anthony Biddle Contractors, Inc., 28 A.3d at 924.
Moreover, it viewed “the trial court’s denial of [the plaintiff]’s motion for
extraordinary relief as the imposition of a discovery sanction against [the
plaintiff, which was] … unjustifiable in light of the minor nature of [the
plaintiffs]’s violation.” Id. at 925. Here, however, Boghossian did not file a
motion for extraordinary relief or seek any court order regarding the HKIT’s
alleged failure to comply with her discovery requests. Accordingly, we
decline to conclude the orphans’ court abused its discretion in granting the
HKIT’s motion for summary judgment in light of Boghossian’s claim that
additional discovery was necessary to establish genuine issues of material
fact. Therefore, her second argument fails.
In Boghossian’s final argument, she claims the orphans’ court erred in
granting the HKIT’s motion for summary judgment based on the following:
(1) the court failed to consider factual allegations that unequivocally
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demonstrated a confidential relationship between Brown and Kilijian;9 (2)
the court erroneously concluded that certain key facts were “undisputed,”10
found other undisputed facts based solely upon the improper consideration
of the deposition of Michael Striar, who was never cross-examined by
Boghossian’s counsel, and specifically failed to consider all inferences in
favor of Boghossian as the non-moving party; and (3) the court ignored key
facts that demonstrated the highly weakened intellect of Kilijian in 2006 and
the obvious undue influence imparted upon her by the Browns.11
Boghossian’s Amended Brief at 39.
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9
Specifically, Boghossian claims the court ignored evidence that Brown was
named Kilijian’s power of attorney on April 12, 2006, April 19, 2006, May 8,
2006, May 10, 2006, and December 28, 2007. See Boghossian’s Amended
Brief at 40, R.R. at 21a, 24a, 31a, 58a. However, a review of Boghossian’s
response to the HKIT’s Motion for Summary Judgment reveals that she did
not raise this argument before the orphans’ court or present this evidence
for review. See Plaintiff, Lynne Boghossian’s Memorandum of Law in
Support of Her Response to Defendant, the Hilda Kilijian Irrevocable Trust’s
Motion for Summary Judgment, 7/17/2013, at 13-17. Accordingly, to the
extent she challenges evidence of Kilijian naming Brown power of attorney
during this time, the issue is waived. See Pa.R.A.P. 302.
10
She states that two letters, dated May 8, 2006 and May 23, 2006, were
not authored by Kilijian because she does not have a typewriter or
computer. See Boghossian’s Amended Brief at 42-43. Moreover, with
respect to the May 23rd letter, Boghossian claims this note “was authored by
someone with legal knowledge of sophisticated financial documents (i.e.,
John Brown, Esquire) and not an 86 [year old] unsophisticated woman.” Id.
at 44.
11
Boghossian claims the court ignored the attorney-client relationship
between John Brown and Kilijian, and that “almost every single asset of Ms.
Kilijian was knowingly and voluntarily placed in joint names with Lynne
(Footnote Continued Next Page)
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We begin with our well-settled standard of review:
“[O]ur standard of review of an order granting summary
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law[,] and our
scope of review is plenary.” Petrina v. Allied Glove Corp., 46
A.3d 795, 797-798 (Pa. Super. 2012) (citations omitted). “We
view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.”
Barnes v. Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 (Pa. Super.
2009) (citation omitted). “Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.” Id. The rule governing summary
judgment has been codified at Pennsylvania Rule of Civil
Procedure 1035.2, which states as follows.
Rule 1035.2. Motion
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause
of action or defense which could be established by
additional discovery or expert report, or
(2) if, after the completion of discovery relevant to
the motion, including the production of expert
reports, an adverse party who will bear the burden
of proof at trial has failed to produce evidence of
facts essential to the cause of action or defense
which in a jury trial would require the issues to be
submitted to a jury.
_______________________
(Footnote Continued)
Boghossian in 1996.” See Boghossian’s Amended Brief at 45-46. She
states the court must focus on the “motivation” for the “sudden change” by
Kilijian in 2006 to sever Boghossian as a beneficiary.
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Pa.R.C.P. 1035.2.
“Where the non-moving party bears the burden of proof on an
issue, he may not merely rely on his pleadings or answers in
order to survive summary judgment.” Babb v. Ctr. Cmty.
Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
omitted), appeal denied, 65 A.3d 412 (Pa. 2013). Further,
“failure of a non-moving party to adduce sufficient evidence on
an issue essential to his case and on which he bears the burden
of proof establishes the entitlement of the moving party to
judgment as a matter of law.” Id.Thus, our responsibility as an appellate court is to
determine whether the record either establishes that the
material facts are undisputed or contains insufficient
evidence of facts to make out a prima facie cause of
action, such that there is no issue to be decided by the
fact-finder. If there is evidence that would allow a fact-
finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Id. citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.
Super. 2011), quoting Jones v. Levin, 940 A.2d 451, 452-454
(Pa. Super. 2007) (internal citations omitted).
Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).
As stated above, the crux of Boghossian’s argument is that the Browns
unduly influenced Kilijian during the creation and execution of the HKIT
based upon a confidential relationship between Kilijian and the Browns.
Here, the orphans’ court judge found the following:
[Boghossian] attempts to prove undue influence indirectly,
by showing that there was a confidential relationship between
the Browns and Ms. Kilijian. [Boghossian] points to several
interactions that she claims establish a confidential relationship
between Ms. Kilijian and the Browns. First, that Ms. Brown holds
power of attorney for Ms. Kilijian. Second, that Mr. Brown
represented Ms. Kilijian in the sale of her house in 2004. Third,
[Boghossian] alleges that the Browns “developed a [sic] extreme
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and bizarre confidential relationship” with Ms. Kilijian, and that
Ms. Kilijian “relied upn the Browns for not only legal decisions
but also, decisions affecting [Ms. Kilijian’s] life generally.”
[Boghossian]’s Memorandum, Response to Motion for Summary
Judgment at 15. Lastly, in her affidavit [Boghossian] claims that
“J. Brown and/or L. Brown have unduly influenced Kilijian to
liquidate numerous joint bank accounts, to terminate numerous
annuities for which myself, or my two (2) children, were the
beneficiary(ies), and to otherwise funnel assets into the HKIT.”
[Boghossian]’s Affidavit at 2-3. These unsupported allegations
are insufficient to establish clear and convincing evidence of a
confidential relationship at the time of formation of the Trust.
Although Ms. Brown was named as agent under power of
attorney for Ms. Kilijian, this power of attorney was signed in
2008. The Pennsylvania Supreme Court has held that [when] a
person grants power of attorney to the person who allegedly
exercised undue influence, it can be a clear indication of a
confidential relationship. Foster v. Schmitt, 429 Pa. 102, 108,
239 A.2d 471, 474 (1968); Estate of Clark, 461 Pa. at 63, 334
A.2d at 633-34 (citing Foster). Nevertheless, the mere
existence of a power of attorney does not establish a confidential
relationship as a matter of law. See Estate of Ziel, 467 Pa. 531,
542, 359 A.2d 728, 734 (1976). In addition, the evidence of a
confidential relationship must be specific to the point in time
when the challenged transaction occurred. Hera v. McCormick,
425 Pa. Super. 432, 447, 625 A.2d 682, 690 (1993); Leedom v.
Palmer, 274 Pa. 22, 27, 117 A. 410, 412 (1922) (a power of
attorney executed ten months after the will “is not sufficient
evidence to establish a preexisting confidential relation”).
The evidence of a power of attorney is relevant only
if it corresponds to the same point in time as the disputed
transaction. Ms. Kilijian named Ms. Brown as her agent
under a durable power of attorney in June 2008, nearly
two years after the HKIT was formed. Therefore, because of
the 19-month gap between the Trust’s formation and the
execution of power of attorney, [Boghossian]’s argument
that this power of attorney establishes a confidential
relationship between Ms. Kilijian and Ms. Brown at the
time the HKIT was created, is without merit.
Similary, [Boghossian]’s assertion that Mr. Brown’s legal
representation of Ms. Kilijian in the sale of her New Jersey home
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in 2004 does not demonstrate a confidential relationship and is
also irrelevant to the time of the creation of the HKIT. Mr.
Brown’s legal representation appears to be limited to the sale of
the home, and did not extend to representation in other financial
matters. [Boghossian] has not produced any evidence to the
contrary. Specifically, Mr. Brown’s legal relationship with Ms.
Kilijian was unrelated to her decision to form the HKIT, did not
make Ms. Kilijian dependent upon Mr. Brown, and was
sufficiently limited that it does not raise a concern of a
confidential relationship.
Lastly, [Boghossian] contends in an unspecified manner
that the Browns’ relationship with Ms. Kilijian was “extreme” and
“bizarre,” and that the Browns made both legal and personal
decisions for Ms. Kilijian. According to [Boghossian,] the Browns
“unduly influenced” Ms. Kilijian to make financial decisions that
would divert assets away from [Boghossian] and finance the
HKIT. See [Boghossian]’s Affidavit at 2-3. In order to establish
a genuine issue of material fact in dispute, a party must identify
specific facts in the record and cannot rely on general assertions.
Here, [Boghossian] does not identify specific facts in the record
as required, and the facts she does specify as to the Brown’s
alleged influence (Ms. Brown’s power of attorney in 2008 and Mr.
Brown’s legal representation in 2004) neither pertain to the
formation of the Trust, nor do they correspond to the period
when the HKIT was created. As for the accusation that the
Browns are responsible for Ms. Kilijian’s choice to “funnel assets
into the HKIT,” the facts in the record do not support such an
assertion. The only specific actions that [Boghossian] identifies
are not indicative of a confidential relationship and reference a
period significantly later than November 2006, when the trust
was signed.
[Boghossian] has presented no facts which could establish
directly that Ms. Kilijian was unduly influenced by the Browns or
by any other party at the time of the formation of the Trust. On
the contrary, all the evidence concerning the formation of
the HKIT establishes that Ms. Kilijian acted independently
and of her own accord. Ms. Kilijian instructed Michael
Striar, an attorney in Florida, to prepare the Trust, and
she paid for the legal work Mr. Striar performed in setting
up the Trust. See Striar Dep. 18:3-5, 25:7-24, 27:24-28:6.
Based on Mr. Striar’s assessment as well as that of Adam
Karron, Ms. Kilijian’s financial planner, at the time of the creation
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of [the] HKIT, Ms. Kilijian was in full possession of her mental
facilities, she understood the legal and financial implications of
her actions, and she was not in a weakened intellectual state.
See Striar Dep. 26:6-28:6, 32:6-33:14, 33:22-37:11; Karron
Dep. 20:16-21:7, 24:24-26:1. [Boghossian] has presented
no evidence that the Browns were in communication with
Ms. Kilijian about the Trust or guiding her in its structure
or formation, nor that they were in Florida at the time the
HKIT was formed, nor that Mr. Striar was acting under the
Brown’s instructions.
In addition, [the HKIT] in its Motion for Summary
Judgment calls attention to the proximity in time between the
creation of the HKIT on November 21, 2006 and [Boghossian]’s
agreement with Ms. Kilijian on December 15, 2006.
[Boghossian] signed a legal agreement with her Aunt, Ms.
Kilijian, in December of 2006. It is incongruous for
[Boghossian] to assert that Ms. Kilijian had capacity to
sign that Agreement but was of a weakened intellect and
subject to undue influence with regard to the creation of
the HKIT 25 days earlier. The fact that [Boghossian] was
willing to enter into the December 2006 Agreement tends to
support the other evidence that Hilda Kilijian was able to make
her own decisions in November and December 2006.
[Boghossian] has failed to identify any evidence to the contrary.
Because [Boghossian] has failed to point to any evidence
that places at issue a material fact as to whether there was a
confidential relationship between the Browns and Ms. Kilijian, or
whether Hilda Kilijian was of a weakened intellect in 2006, the
burden does not shift to [the HKIT] under Estate of Clark.
[Boghossian] has also failed to present any specific evidence
that could establish directly that the Browns unduly influenced
Hilda Kilijian to create or fund the HKIT.
Orphans’ Court Opinion, 10/10/2013, at 7-10 (emphasis added).
We conclude the orphans’ court judge’s analysis properly addresses
Boghossian’s argument and the law of undue influence. The judge
emphasizes the following: (1) the operable date was November 21, 2006
when the trust was formed; (2) Killijian did not name Brown as her agent
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under a durable power of attorney until June 2008; (3) John Brown’s legal
representation of Kilijian in 2004 was limited to the sale of her home and did
not extend to other financial matters; (4) Kilijian employed Striar as her
attorney and instructed him to draft the trust document; and (5) Boghossian
does not dispute that Kilijian had the capacity to sign a legal agreement with
her in December of 2006, which was only 25 days after the trust was
created. Boghossian’s averments, as provided in her affidavit, go to either
John Brown’s representation in selling Kilijian’s home or subsequent acts
that took place after the trust was formed in 2006. See Affidavit of Lynne
Boghossian, 7/15/2013, at 1-5. Accordingly, we discern no abuse of
discretion and/or error on the part of the orphans’ court in granting
summary judgment in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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