Opinion
C. A. KC-2023-0227
08-26-2024
KIMBERLY POLAND, Plaintiff, v. MICHELLE J. RENAUD, AMIE J. SMITH, individually, as Co-Trustees of THE MICHAEL R. DURAND REVOCABLE TRUST - 2004, and as Co-Executrices of the ESTATE OF MICHAEL R. DURAND; THE MICHAEL R. DURAND REVOCABLE TRUST - 2004, as amended; the ESTATE OF MICHAEL R. DURAND; CENTREVILLE BANK, Defendants.
For Plaintiff: Robert G. Flanders, Jr., Esq. For Defendants: Armando E. Batastini, Esq.; Mary C. Dunn, Esq.
For Plaintiff: Robert G. Flanders, Jr., Esq.
For Defendants: Armando E. Batastini, Esq.; Mary C. Dunn, Esq.
DECISION
LICHT, J.
Plaintiff Kimberly Poland (Kimberly) brought this action against Defendants Michelle J. Renaud, Amie J. Smith, individually, as Co-Trustees of the Michael R. Durand Revocable Trust - 2004, and as Co-Executrices of the Estate of Michael R. Durand, the Michael R. Durand Revocable Trust - 2004, as amended, the Estate of Michael R. Durand (collectively, the Non-Bank Defendants), and Centreville Bank (the Bank) seeking preliminary and permanent injunctive relief, together with claims for damages. Pursuant to Rule 56 of the Superior Court Rules of Civil Procedure, Kimberly moves for partial summary judgment regarding Count IV of her Second Amended Verified Complaint against all Defendants and Counts I and IV of the Non-Bank Defendants' counterclaims. The Bank also moves for summary judgment on Count IV of Kimberly's Second Amended Verified Complaint. All parties filed their respective objections. For the reasons stated herein, Kimberly's Motion for Partial Summary Judgment is denied in part and granted in part, and the Bank's Motion for Summary Judgment is denied without prejudice.
This decision will refer to the individual parties by their first names. No disrespect is intended.
I Facts and Travel
This matter arises out of a probate dispute between Kimberly, the second wife of the late Michael Durand (Michael), against his daughters from his first marriage Michelle Renaud (Michelle) and Amie Smith (Amie). See Second Amended Complaint (2d Am. Compl.). Kimberly was married to Michael from October 13, 2013 until his death on February 22, 2023. See Pl.'s Mem. in Supp. of Partial Mot. for Summ. J. (Pl.'s Mem.) Ex. 11 (Kimberly Aff.), ¶ 14. In February 2022, Michael was diagnosed with cirrhosis and liver cancer, along with other related ailments. See id. ¶ 43.
Michael maintained various accounts at the Bank, including a joint savings account (the Disputed Account) with Kimberly, checking accounts, and three money market accounts. See Pl.'s Mem. Ex. 2(a) (Gorton Dep.), 44:17-23, 71:17-20, Sept. 15, 2023. In 2018, Michael and Kimberly signed an Account Agreement associated with the Disputed Account. See generally Pl.'s Mem. Ex. 3 (Account Agreement). Michael added Michelle and Amie to the remaining open accounts at the Bank. See Defs.' Obj. to Pl.'s Mot. for Partial Summ. J. (Defs.' Obj.) Ex. A (Michelle Aff.), ¶ 10.
The Disputed Account was a joint account with rights of survivorship. See generally Pl.'s Mem. Ex. 3 (Account Agreement).
Two years later, Michael executed his Last Will and Testament (Will) with the assistance of his attorney, John Harpootian (Attorney Harpootian) on June 8, 2020. See Pl.'s Mem. Ex. 4 (Harpootian Dep.), 41:15-18, July 18, 2023. In relevant part, Section III, titled "Joint Accounts," states "I give to my wife, Kimberly J. Poland, if she is living at my death, my interest in any funds on deposit in any financial institution standing in our names with right of survivorship." Pl.'s Mem. Ex. 5 (Last Will and Testament of Durand). In addition to the estate-planning documents, Michael executed a Durable Power of Attorney for Health Care (the 2020 HCPOA) and a Short Form Power of Attorney, granting Michelle and Amie as Co-Powers of Attorney (the 2020 POA). See Pl.'s Mem. Ex. 7 (2020 Short Form Power of Attorney).
On December 17, 2022, Michael and Kimberly met with Linda Gorton (Gorton), at the Bank's Coventry branch. See Gorton Dep. 25:15-26:12. The purpose of their visit was to have Power of Attorney paperwork notarized; however, Gorton informed Michael and Kimberly that the Bank did not permit its personnel to notarize legal documents, including, but not limited to, Powers of Attorney. See id. at 26:15-27:12. As a result, Kimberly proposed being assigned as an account owner to Michael's checking and business accounts to assist with paying bills. See id. at 28:12-14. In response, Gorton explained that, according to bank policy, everyone on the account was required to approve the addition of a new account holder. See id. at 28:16-19. Gorton provided Kimberly with the paperwork for Michelle and Amie to sign, authorizing Kimberly to be added as a co-account holder. See id. at 30:12-22.
What happened next remains in dispute. Michelle alleges that she and her sister, Amie, visited Michael on December 20, 2022. See Michelle Aff. ¶ 28. During the visit, Kimberly placed the authorization paperwork in front of Michelle and Amie and told them to sign it. See id. ¶ 30. Feeling pressured, they complied; however, Michelle contends that they were not given an opportunity to review the documents before signing. See id. ¶ 31. After leaving the house, they consulted with Attorney Harpootian, who explained to Michelle and Amie that by signing the authorization paperwork, they would be giving Kimberly access to "everything." See id. ¶ 34. Michelle stated that "Attorney Harpootian explained that if we felt [Kimberly] was trying to steal from our Dad, we should immediately transfer all Dad's accounts out of his name in to our name and take over paying his bills for him." Id.
The next morning, Michelle and Amie went to the Bank's Coventry branch and met with Gorton to inquire about the authorization paperwork that Kimberly had given them. See Gorton Dep. 37:13-25; see also Michelle Aff. ¶ 35. Michelle and Amie informed Gorton that they had been asked by Kimberly to sign the authorization paperwork to "update the information" on the accounts because their "driver's licenses had expired." See id. at 38:13-16. Upon discovering that this was not the actual reason, Michelle and Amie told Gorton that Michael had specifically told them that he did not want Kimberly on the accounts. See Gorton Dep. 39:25-40:2. Michelle and Amie then called Attorney Harpootian, who was placed on speakerphone, in Gorton's presence. See Harpootian Dep. 131:16-132:24. Attorney Harpootian confirmed that Michelle and Amie had full power and authority to act on Michael's behalf regarding all his banking matters. See id. Thereafter, Michelle and Amie closed the three money market accounts and opened one money market account in both of their names, "for the benefit of their dad." See Gorton Dep. 47:12-15, 48:17-18. As a result of the foregoing events, Gorton prepared a Suspicious Activity Investigation Report (SAIR) on December 21, 2022. See generally Defs.' Obj. Ex. B (SAIR Reports).
Attorney Harpootian and Michael met on January 5, 2023. See Harpootian Dep. 47:13-17. With the help and assistance of Attorney Harpootian, Michael revoked the 2020 HCPOA and executed on the same day a new Durable Power of Attorney for Health Care naming Kimberly as the "initial power of attorney for health care; first alternate being Michelle; second alternate being Amie" (the 2023 HCPOA). See id. at 47:7-12. However, Michael did not want to make any other changes to his estate plan. See id. at 48:1-3.
On January 7, 2023, Kimberly and Michael met with Gorton at the Bank's Coventry branch to discuss some concerns regarding missing accounts on Michael's online banking. See Gorton Dep. 55:3-5. Gorton informed Michael that Michelle and Amie had withdrawn the money and closed the money market accounts. See id. at 56:21-57:7. Michael then stated that he wanted to remove his daughters from his business account and add Kimberly. See id. at 57:23-25. Since Gorton felt that Michael was being pressured and was not acting of his own volition, Gorton authored another SAIR Report. See generally SAIR Reports. Michael contacted Attorney Harpootian who indicated Michael was upset about his daughters moving the money and Attorney Harpootian contacted the daughters' attorney, Attorney Summer, and asked him to have the daughters return the money to the original account, which they ultimately did. See Harpootian Dep. 135:5-136:1.
Attorney Harpootian met again with Michael and Kimberly on January 12, 2023. See id. at 51:9-13. At that meeting, Michael stated that he did not want Michelle and Amie to have the authority to withdraw money from his accounts. See id. at 65:12-14. Michael revoked the 2020 POA and executed that same day a new Power of Attorney (the 2023 POA). See id. at 51:14-15. The 2023 POA ran from Michael to Kimberly, and if she were unable to serve, then to Michael's daughters, Michelle and Amie, respectively. See id. at 51:15-18; see also Pl.'s Mem. Ex. 13 (2023 Short Form Power of Attorney).
Kimberly's last relevant visit to the Bank's Coventry branch occurred on February 10, 2023. On that date, Kimberly visited the Bank, without Michael, and wished to close Michael's money market accounts. See Gorton Dep. 61:1-2. Kimberly presented Gorton with the 2023 POA documentation; however, the Bank determined that the 2023 POA did not provide her with the authority to close the accounts. See id. at 62:3-5. Kimberly then requested to be added to the accounts, on which Michelle and Amie were also named as owners. See id. at 60:17-24. Gorton reiterated to Kimberly the Bank's policy that she would need to notify the remaining account holders and obtain permission in order to be added to the account. See id. at 60:12-24. Kimberly decided not to go through with this request. See id. at 60:24-25. In the alternative, Kimberly transferred money from two of the money market accounts into the Disputed Account, apart from leaving the minimum required balance of $10,000 in each. See id. at 64:11-19, 71:18-20. Kimberly then attempted to withdraw those funds, approximately $400,000, from the Disputed Account. See Pl.'s Mem. Ex. 16 (Hapgood Aff.), ¶ 6.
At this point, Michael was in the Intensive Care Unit at the hospital. See Defs.' Obj. Ex. A (Michelle Aff.), ¶ 46.
Kimberly was not able to transfer funds out of the third jointly owned money market account. See Gorton Dep., 69:14-16.
Due to the unusual timing and amount of the withdrawal request, the Bank requested to speak with Michael in which Kimberly responded that he was not available to speak to the Bank. See Hapgood Aff. ¶¶ 5-7. As a result, Gorton authored another SAIR Report on February 10, 2023, and the Bank initiated an Elder Abuse, Neglect, Financial Exploitation and Self-Neglect Report with the Rhode Island Office of Healthy Aging (OHA) and placed a hold on the Disputed Account. See id. ¶ 8; see also generally SAIR Reports.
Michael passed away on February 22, 2023.
On March 9, 2023, the Non-Bank Defendants, Michelle and Amie, were appointed as co-custodians by the Coventry Probate Court (the Probate Court). See 2d Am. Compl. ¶ 45. While the probate matter continued, Kimberly filed a Verified Complaint on March 28, 2023. See generally Complaint (Compl).
On May 16, 2023, Kimberly moved to amend her Verified Complaint by (1) adding The Estate of Michael Durand, the Michael R. Durand Irrevocable Trust - 2004, and WithumSmith + Brown, PC as parties, (2) dropping Rhode Island DMV, and (3) adding claims for defamation, tortious interference with a contractual relationship, and intentional infliction of emotional distress. See First Amended Complaint (1st Am. Compl.). Plaintiff's motion to amend by rule of court was granted and her First Amended Complaint was filed on June 14, 2023. See Docket.
On June 28, 2023, Plaintiff filed a Motion for Leave to File a Seconded Amended Verified Complaint. Id. The Second Amended Verified Complaint against Michelle, Amie, individually, as Co-Trustees of the Michael R. Durand Revocable Trust - 2004, and as Co-Executrices of the Estate of Michael R. Durand; the Michael R. Durand Revocable Trust - 2004, as amended; the Estate of Michael R. Durand; and Centreville Bank asserts the following causes of action: Defamation (Count I), Intentional Infliction of Emotional Distress (Count II), Tortious Interference with a Contractual Relationship (Count III), and Breach of Contract and Claims for Equitable Relief (Count IV). The Non-Bank Defendants filed their Answer and Counterclaim on October 23, 2023. The Non-Bank Defendants' counterclaim asserts the following causes of action: Breach of Fiduciary Duty (Count I), Conversion (Count II), Unjust Enrichment (Count III), and Declaratory Judgment (Count IV). See Counterclaim (Countercl.).
The Second Amended Verified Complaint dropped WithumSmith + Brown, PC as a party and corrected typographical errors.
Kimberly now moves for partial summary judgment on two grounds: Count IV (Breach of Contract and Claims for Equitable Relief) of the Second Amended Verified Complaint and Count I (Breach of Fiduciary Duty) and Count IV (Declaratory Judgment) of the Non-Bank Defendants' counterclaims. On June 7, 2024, the Bank objected and asserted a cross-motion for summary judgment regarding Count IV (Breach of Contract and Claims for Equitable Relief) of the Second Amended Verified Complaint. The parties filed their respective objections and the Court heard oral argument on July 15, 2024.
II Standard of Review
"Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously." Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 451 (R.I. 2013) (internal quotation omitted). "[S]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the Court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, 93 A.3d 949, 951 (R.I. 2014) (internal quotations omitted); see Super. R. Civ. P. 56. The moving party "bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). Then the burden shifts and, as reiterated by the Rhode Island Supreme Court:
"The party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute. The opposing party will not be allowed to rely upon mere allegations or denials in the pleadings but rather, by affidavits or otherwise the opposing party has an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Henry v. Media General Operations, Inc., 254 A.3d 822, 834 (R.I. 2021) (citations omitted).
The "purpose of the summary judgment procedure is issue finding, not issue determination." Long v. Dell, Inc., 93 A.3d 988, 995 (R.I. 2014) (internal quotation omitted). In deciding a motion for summary judgment, the Court "views the evidence in the light most favorable to the nonmoving party[,]" Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013), and "does not pass upon the weight or the credibility of the evidence[.]" Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992).
III
Analysis
A
The Bank's Cross-Motion for Summary Judgment
This Court must first set forth the procedural posture of this issue. On September 25, 2023, the Bank moved to bifurcate and stay "first, to determine [Kimberly's] claims to ownership and/or control of certain bank accounts that Centreville holds; and, second, to determine whether Centreville is liable to [Kimberly] for Centreville's filing of certain Suspicious Activity Investigation Reports and for freezing the accounts that are the subject of this litigation." Def.'s Mot. to Bifurcate and Stay, at 1. On October 19, 2023, this Court entered an Order agreed to by the parties that granted the motion to bifurcate and stay except for discovery regarding "Plaintiff's claims to ownership and control of certain bank accounts that Centreville holds." See Order Oct. 19, 2023, Licht, J.
The Bank never asked for relief of stay when filing its cross-motion for summary judgment. Its cross-motion refers to Count IV of the Second Amended Verified Complaint which only seeks equitable relief. It is Count III which makes the allegations concerning breach of contract by the Bank. Notably, while Kimberly never raised the stay issue, she did request in her Reply that this Court reserve its ruling on the breach of contract claim as it relates to the Bank. See Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. for Partial Summ. J. (Pl.'s Reply), at 3 n.2. The Bank's Motion focuses almost exclusively on the Bank's alleged breach of the Account Agreement by freezing assets in the Disputed Account and denying Kimberly access to them. However, Kimberly asserts that her Partial Motion for Summary Judgment "is addressed to the defenses and counterclaims of Defendants [Michelle and Amie] insofar as those defenses and counterclaims relate to [Kimberly's] entitlements to the funds in the [Disputed Account] that [Kimberly] maintained at the Bank with [Michael]." Id. Specifically, "but for this litigation and the [N]on-Bank Defendants' defenses and counterclaims, [Kimberly] is entitled to the ownership and possession of such funds." Id. It is important to note that the Bank does not take a position on who is the rightful owner of the funds in the Disputed Account. See Def.'s Mem. in Supp. of Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Partial Summ. J. (Def.'s Cross-Mot.), at 9.
Nor to the Court's recollection did anyone raise the issue directly in filings or at oral argument.
In short, at this time, Kimberly is only asking that the Court rule that she is the rightful owner of the Disputed Account and order the Bank to remove the freeze and allow her to access those funds. Consequently, in light of the stay and the fact that the Bank's Motion only requests Partial Summary Judgment on Count IV (notwithstanding that its memorandum in support of its motion argues issues relating to Count III), this Court will deny without prejudice the Bank's Motion for Summary Judgment.
B
The Non-Bank Defendants' Counterclaims
1
Discovery Issues
In their Memorandum opposing Kimberly's Motion, the Non-Bank Defendants contend that they had "a limited opportunity to cross-examine" Attorney Harpootian. See Defs.' Obj. at 5. They also assert that Kimberly's Motion should be denied because she has refused to provide relevant documents in discovery. See id. at 8-9. The Non-Bank Defendants' counsel repeated these contentions at oral argument.
The Court has read Attorney Harpootian's deposition transcript and notes that Kimberly's attorney examined him for 86 pages and the Non-Bank Defendants' attorney cross-examined him for 88 pages. There was then approximately one page of redirect. Therefore, this Court is of the opinion that, for the purposes of this motion, the Non-Bank Defendants had ample opportunity to cross-examine Attorney Harpootian. As to the pending discovery requests, these matters pertain to the disposition of Michael's tangible personal property and do not relate to the Disputed Account or the Non-Bank Defendants' claims of undue influence. Such matters are before the Court's Special Master and are not the subject matter of the pending motions.
Nevertheless, if there were merit to the Non-Bank Defendants' concern, the Rules of Civil Procedure provide a solution. Rule 56(f) permits a party opposing a motion for summary judgment to ask the court for a continuance "to permit … depositions to be taken or discovery to be had or may make such order as is just." Super. R. Civ. P. 56(f). No such request was ever made.
2
Count IV - Declaratory Judgment
i
Lack of Capacity and Undue Influence
The Non-Bank Defendants request that this Court declare, among other things, that the 2023 POA be rescinded, and declared null and void because it was procured through undue influence by Kimberly and that Michael lacked the capacity to execute it. See Countercl. ¶ 118(a).
The Court will address the lack of capacity issue first. In Rhode Island, the capacity to contract is presumed in the absence of probative evidence to the contrary. See 17B C.J.S. Contracts § 939. Kimberly argues that there are no genuine issues of material fact as to the validity of the 2023 POA. See Pl.'s Mem. at 15. To substantiate her argument, Kimberly highlights Attorney Harpootian's testimony and Dr. Irun Bhan's (Dr. Bhan) affidavit. When asked if Michael was of sound mind and capacity to make the changes, Attorney Harpootian's reply was "absolutely." See Harpootian Dep. 49:9-11. He testified that he asked Michael "straight up if he understood the nature and extent of his assets, the natural objects of his bounty . . . He knew everything that he was doing. Absolutely convinced me that he had full capacity to execute legal documents." See id. at 50:4-9.
Furthermore, Dr. Bhan, who is board-certified in gastroenterology and transplant hepatology, was Michael's treating hepatologist at Massachusetts General Hospital. See Pl.'s Mem. Ex. 14 (Dr. Bhan Aff.), ¶ 5. Dr. Bhan expressed an opinion "to a reasonable degree of medical certainty, that [Michael] maintained the requisite mental capacity to make complex personal, legal, and medical decisions for himself from the period of December 2022 and January 2023, at least until his worsening symptoms on January 28, 2023." Id. ¶ 28. Dr. Bhan disclosed that Michael was treated for Hepatic Encephalopathy (HE), which is a global dysfunction of the brain due to liver disease. See id. ¶¶ 7, 8. Dr. Bhan expressed that even if Michael periodically suffered from HE prior to January 28, 2023, that "[did] not mean he lacked the requisite mental capacity to make complex personal, legal, or medical decisions." Id. ¶ 21. Dr. Bhan further opined that "[a] person can suffer from or be diagnosed with HE and still maintain the requisite mental capacity to make complex personal, legal, or medical decisions." Id. ¶ 22. He stated, "[a]t no time did I observe, conclude, or suspect that Mr. Durand lacked the requisite mental capacity to make complex personal, legal, or medical decisions." Id. ¶ 23.
On cross-examination, HE was explained to Attorney Harpootian and he was asked if knowledge of this condition at the time the 2023 POA was executed would have changed his opinion that Michael was of sound mind. See Harpootian Dep. 167:9-21. The response was "No. Because I asked him the questions that I always ask. Nature - did he know the natural objects of his bounty? Did he understand the nature and extent of his assets? Did he understand what - what a fiduciary duty is? And the answer is that he had full capacity . . . he passed all those with, you know, glaring (sic) colors." See id. at 167:18-168:7.
Having presented testimony from his treating physician and his attorney that he had the capacity to execute the 2023 POA, the Non-Bank Defendants must come forth with evidence to establish a disputed issue of material fact as to Michael's capacity to execute the 2023 POA. "[M]edical evidence is necessary to establish that a person lacked the capacity to contract due to the existence of a mental condition." Sparrow v. Demonico, 960 N.E.2d 296, 304 (Mass. 2012). "The inquiry as to the capacity to contract focuses on a party's understanding or conduct only at the time of the disputed transaction." Id. at 303. While the 2023 POA technically is not a contract, the same inquiry is in order.
The Non-Bank Defendants submitted an affidavit from Debra Radigan (Radigan), Nurse Case Manager at Newport Hospital. See Defs.' Obj. Ex. C (Radigan Aff.), ¶ 1. Radigan concluded her affidavit with "an opinion about [Michael's] mental capacity to a reasonable degree of medical certainty. That opinion is that as early as September of 2022, Mike suffered the onset of hepatic encephalopathy, which would have adversely affected his mental capacity for executive functioning, and thus adversely affected his ability to make any important decisions." Id. ¶¶ 16-17. For the Court to consider this opinion, it would need to be admissible under Rule 702 of the Rhode Island Rules of Evidence. Rule 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion." However, this Court finds Radigan's opinion to be inadmissible evidence. Radigan does not have the knowledge, skill, experience, training or education to render this opinion. While she claims to have "treated" patients with liver disease, Id. ¶ 3, she has no medical degree, her resume does not indicate that she has had any special training in liver disease, and in fact, her resume does not even mention liver disease when describing her experience. Accordingly, this Court finds there is no genuine issue of material fact concerning Michael's capacity to execute the 2023 POA.
Radigan is the former partner of Michael's sister, Linda Durand. See Defs.' Obj. Ex. C (Radigan Aff.), ¶ 6. According to Kimberly she was referred to as Aunt Debby. Her relationship to the family does not affect the admissibility of her testimony but could be considered in judging her credibility.
Additionally, the Non-Bank Defendants argue that the 2023 POA was procured through undue influence by Kimberly. See Defs.' Obj. at 9. "'Undue influence is the substitution of the will of the dominant party for the free will and choice of the subservient party.'" Bettez v. Bettez, 114 A.3d 82, 85 (R.I. 2015) (brackets omitted) (quoting In re Estate of Picillo, 99 A.3d 975, 982 (R.I. 2014)). "The evidence of opportunity, unaccompanied by evidence, direct or indirect, that such influence was exerted, does not warrant the submission of the issue to the jury, nor will it support a finding that the instrument was the result of undue influence." Campbell v. Rhode Island Hospital Trust Co., 125 A. 220, 221 (R.I. 1924). "When determining what constitutes undue influence, 'a trial justice ordinarily examines the totality of [the] circumstances, including the relationship between the parties, the physical and mental condition of the [subservient party], the opportunity and disposition of [the] person wielding influence, and his or her acts and declarations." In re Estate of Picillo, 99 A.3d at 982. The evidence of influence whether direct or circumstantial must be connected with and relevant to the time that the challenged will was executed. Brousseau v. Messier, 79 R.I. 106, 110, 84 A.2d 608, 610 (1951).
Attorney Harpootian stated that he knew of no facts which would invalidate what Michael had done. See Harpootian Dep. 49:19-20. He testified that he met with Michael "privately" before he met with Michael and Kimberly. See id. at 52:5-6. Furthermore, the 2023 POA was executed after Michelle and Aime used the 2020 POA to move money from Michael's accounts to accounts in their own names. Michael did not approve of this. In fact, Attorney Harpootian contacted Attorney Summer, counsel to Michelle and Aimie, and asked that the money be returned to the original accounts. See id. at 72:20-21. Michael told Attorney Harpootian that he no longer wanted his daughters to have the authority with respect to his money and that is why he wanted Kimberly to have the authority to move accounts. See id. at 65:12-17, 80:22-81:4. Attorney Harpootian also stated that he did not believe Michael was being abused by anyone. See id. at 78:14-17. Dr. Bhan also "never observed, concluded, or suspected that Mr. Durand's wife, Kimberly Poland, in any way unduly influenced Mr. Durand to make any personal, medical, or legal decisions, much less did she engage in any elder abuse towards Mr. Durand." See Dr. Bhan Aff. ¶ 31.
The Non-Bank defendants have offered Michelle's Affidavit and Gorton's testimony to create a genuine issue of material fact. While Michelle describes what she believed is an unpleasant marriage between Kimberly and Michael, there are no facts offered which indicate that Kimberly exerted undue influence that caused Michael to execute the 2023 POA. Much of her recitation deals with matters long before January 12, 2023 and then with matters in the hospital and after his death. For example, Michelle stated that "[s]tarting in 2016 and onward, [Michelle and Amie] began to realize that [Michael] would not pick up the phone at night when he was home with [Kimberly] . . . [Michelle and Amie] came to realize the 'available window' to speak with [Michael] was generally when he was not with [Kimberly]." Michelle Aff. ¶ 5. Additionally, Michelle mentioned that "[Michael] stopped seeing family and friends he'd been close with for the prior 20+ years, and those he did see, he would meet outside the house, away from [Kimberly]." Id. ¶ 6. Michelle indicated that several times in 2021 and continuing into January 2022, Michael would call Amie "threatening to 'off himself.'" See id. ¶ 14. At times, Michelle and Amie had to meet Michael in public to talk to him, at a restaurant or high school parking lot, anywhere except his home where Kimberly resided. See id. However, none of this is evidence that Kimberly exerted undue influence on Michael to sign the 2023 POA.
Gorton expressed concern for Michael and stated that she witnessed "a lot of manipu[lation] between [Kimberly] and Michael." Gorton Dep. 116:13-19. Gorton testified that when Kimberly and Michael first came into the Bank to get the Power of Attorney paperwork notarized, and Gorton explained the Bank's policy, it was Kimberly's idea to then add herself to the Disputed Account. See id. at 32:3-7. Gorton explained that: "[Kimberly] said to Michael that she needed to be added, Michael said, I don't know. I thought we were here just to sign power of attorney paperwork." Id. at 34:8-12. Gorton expressed that "[Michael] felt - he just felt like he was being pushed into something." Id. at 34:12-13. Gorton testified that "[Michael] didn't feel comfortable with adding, from my perspective, [sic] adding anything to that account that day." Id. at 34:12-17. What she omits is that nothing was done that day. Gorton offers no testimony concerning the execution of the 2023 POA. Although Gorton filed two SAIR Reports with the OHA, a Division of the State of Rhode Island Department of Human Services (the Department), regarding the events that occurred in December of 2022 and February of 2023, the Department found the complaints to be inconclusive and unsubstantiated. See Pl.'s Mem. Ex. 17 (Kent Aff.), ¶ 4.
Therefore, this Court finds no evidence offered by the Non-Bank Defendants which creates a genuine issue of material fact that Kimberly exerted undue influence on Michael to compel him to execute the 2023 POA.
3 Count I - Breach of Fiduciary Duty
Under Rhode Island law, to prevail on a breach of fiduciary duty claim, a plaintiff must establish: (1) the existence of a fiduciary duty; (2) the defendant breached that duty; and (3) the damage proximately caused by the breach. See Burt v. Rhode Island Hospital Trust National Bank, No. C.A. PC/02-2243, 2006 WL 2089254, at *8 (R.I. Super. July 26, 2006); see also Pope v. City of Providence, No. PB133634, 2014 WL 2134482, at *3 (R.I. Super. May 15, 2014).
"A fiduciary relation exists between two persons when one of them is under a duty to act for or give advice for the benefit of another upon matters within the scope of the relation." Restatement (Second) Torts § 874 (1979). Furthermore, "[a] 'fiduciary relation' arises whenever confidence is reposed on one side, and domination and influence result on the other; . . . [or] when there is a reposing of faith, confidence and trust, and the placing of reliance by one upon the judgment and advice of the other." Lyons v. Midwest Glazing, 265 F.Supp.2d 1061, 1076 (N.D. Iowa 2003) (quoting Economy Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 647-48 (Iowa 1995)). Although our Supreme Court has refrained from establishing a hard-and-fast rule as to when a fiduciary relationship arises, such an inquiry involves "a variety of factors, including the reliance of one party upon the other, the relationship of the parties prior to the incidents complained of, the relative business capacities or lack thereof between the parties, and the readiness of one party to follow the other's guidance in complicated transactions." Poletti v. Glynn, 234 A.3d 941, 945-46 (R.I. 2020).
On January 12, 2023, with the help and assistance of Attorney Harpootian, Michael executed a new Power of Attorney, naming Kimberly as his Power of Attorney. See Harpootian Dep. 51:9-18. The 2023 POA granted her the following authority: "In my name, place and stead in any way which I myself could do, if I were personally present, with respect to the following matters as each of them is defined in the Rhode Island Statutory Short Form Power of Attorney Act to the extent that I am permitted by law to act through an agent: . . . (D) banking transactions; (J) all other matters." Pl.'s Mem. Ex. 13 (2023 Short Form Power of Attorney). Under the terms of the 2023 POA, Kimberly held a fiduciary relationship with Michael as his agent. See Connor v. Schlemmer, 996 A.2d 98, 110 (R.I. 2010) (acknowledging that those granted Power of Attorney authority owed a fiduciary duty to the grantor).
Kimberly assumes arguendo, and solely for the purposes of this Partial Motion for Summary Judgment, that Michael and she formed a fiduciary relationship when Michael granted her the authority to act on his behalf pursuant to the January 12, 2023 Power of Attorney. See Pl.'s Mem. at 22.
Kimberly contends that Michael was fully aware that "[she] could do whatever he himself could do with his financial assets, including, among other things, open and close [Michael's] bank accounts." See Pl.'s Mem. at 23. Kimberly maintains that she "was simply transferring money at [Michael's] request via [her] lawfully executed POA." Pl.'s Mem. Ex. 8 (Pl.'s Answers to Defs.' Interrogs.), 28. Kimberly asserts that "Michael asked me to close out all accounts that had Michelle's and Amie's names on them and to move the monies from those accounts into our jointly held accounts to secure the funds and allow us to both have full access. Michael no longer trusted his daughters after they emptied out his three (3) money market accounts and knew we needed to be prepared as he moved towards transplant for him and wanted me to be able to manage our home, businesses, and bills without the insecurity of funds going missing again." Kimberly Aff. ¶ 67.
To support the Non-Bank Defendants' contention that Kimberly breached her fiduciary duty, they provided testimony that "[Michael] was adamant that he did not want [Kimberly] added to his accounts." Michelle Aff. ¶ 11. In particular, Michelle stated that:
"[Michael] gave us very specific instructions when it came to [Kimberly] - 'Prepare Now or Get Fucked Later.' [Michael] then detailed that he had set up everything in advance of his death, that 'Anything in RI is not [Kimberly's], that [Kimberly] would have 3 months to get out of the house, would get his social security, and could have a savings account that then had approximately $11,000 in it, but that was all she was to get. [Michael] was adamant that [Michelle and Amie] get to the bank the next morning after he died or [Kimberly] would take everything she could get her hands on." Id. ¶ 12.
Furthermore, Attorney Harpootian testified that, when discussing Michael's marriage, "the generality was that he did not want to provide for Kimberly." See Harpootian Dep. 35:23-36:2. Attorney Harpootian believed that Michael made it "very clear" to exclude Kimberly from inheriting any of his assets. See id. at 115:9-15. Michael instructed Attorney Harpootian to not send any estate planning drafts or mail to the house because "he did not want Kimberly to see it." See id. at 25:18-24. Also, Gorton testified that Michelle and Amie told the Bank that "[Michael] told [Michelle and Amie] specifically that he did not want [Kimberly] on the accounts." See Gorton Dep. 39:25-40:2; see also SAIR Reports.
Therefore, viewing the evidence in the light most favorable to the Non-Bank Defendants, this Court finds that there is a genuine issue of material fact as to whether Kimberly breached her fiduciary duty to Michael granted by the 2023 POA.
IV Conclusion
For the foregoing reasons, this Court DENIES without prejudice Defendant Centreville Bank's Partial Cross-Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART Plaintiff Kimberly Poland's Partial Motion for Summary Judgment. That Motion is granted as to the Non-Bank Defendants' counterclaim asserting undue influence regarding the grant of the 2023 POA but is denied as to the counterclaim asserting breach of fiduciary duty.
Counsel shall confer and present the appropriate orders.