FIFTH DIVISION
MERCIER, C. J.,
MCFADDEN, P. J., and RICKMAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
September 23, 2024
In the Court of Appeals of Georgia
A24A0986. ESTATE OF BUTLER v. PATTERSON et al.
RICKMAN, Judge.
This case involves several transactions regarding transfers of money and
property of the decedent, Alva Patterson Butler to her brother and nephew, Kenneth
and Sheldon Patterson. The Estate of Alva Patterson Butler through its administrator,
Traci Cunningham, the decedent’s daughter, filed suit against the Pattersons
challenging the transfers as void due to undue influence, conversion, breach of
fiduciary duty, and fraud. The Pattersons filed a motion for summary judgment, which
was granted by the trial court. On appeal, Cunningham contends that the trial court
erred by granting the Pattersons’s motion for summary judgment. We agree and
reverse.
“Summary judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Citation and punctuation omitted.) In re Estate of
Henry, 366 Ga. App. 638, 639 (883 SE2d 855) (2023). Furthermore, if summary
judgment is granted, it enjoys no presumption of correctness on appeal, and an
appellate court must satisfy itself that the requirements of OCGA § 9-11-56 (c) have
been met. Id. “In conducting this de novo review, we are charged with viewing the
evidence, and all reasonable conclusions and inferences drawn from the evidence in
the light most favorable to the nonmovant.” (Citation and punctuation omitted). Id.
at 639-640 (883 SE2d 855) (2023).
So viewed, the evidence showed that Cunningham was the decedent’s only
child. During her life, the decedent was a banker and had, along with her deceased
husband, accumulated money and property. Beginning in 2018, the decedent’s
nephew, Bradd Parker averred that he began to notice “signs of mental deterioration”
in the decedent. By mid-2020 the decedent’s “decline became significant and was
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impossible to ignore.” Parker further averred that the decedent “had a total change
in personality.”
The branch manager at First Bank of Dalton deposed that sometime before
February 2021, the decedent came in the bank by herself, checked her balance and
then stated, “I just want to make sure nobody took my money out of my account.”
Cunningham averred that “[i]n late 2020 . .. I had serious concerns for [the
decedent’s] mental capacity, [the decedent] believed that Kenneth [Patterson] wanted
to take her house, and she wanted to put the house in my name to prevent him from
doing so.”
Cunnigham and Parker became concerned about the decedent’s ability to care
for herself. Parker contacted Kenneth Patterson to see if he could help care for the
decedent. Initially, Kenneth Patterson expressed reluctance about helping, but then
agreed. Kenneth Patterson hired helpers to assist with the decedent and installed
cameras outside the decedent’s house. The decedent gave Kenneth Patterson one of
her checkbooks.
In January 2021, Kenneth Patterson contacted a legal assistant at a law firm and
indicated that the decedent wanted to transfer her property to himself and Sheldon.
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On January 15, 2021, the decedent and the Pattersons came into the legal assistant’s
office. The legal assistant deposed that she explained to the decedent that she had
prepared deeds transferring her property to the Pattersons because Kenneth called
and expressed that the decedent wished to transfer her property to him and Sheldon.
The decedent agreed and signed the deeds. No attorney was present for the transfer
of the property. Five days later, the decedent signed over all of her vehicles to the
Pattersons.
Cunningham was unaware that anyone else had interest in the decedent’s
fiances and asked her mother to give her power of attorney so that she could help her
with her finances. The decedent also added Cunningham to one of her bank accounts
and told a banker that she needed help managing her accounts.
On February 8, 2021, Cunningham took the decedent to the doctor to address
her declining mental state. The doctor performed a “mini mental status exam” and
he deposed that “she was doing poorly, very poorly.” The doctor ended up stopping
the exam because of the decedent’s poor performance. The doctor explained that the
decedent “wasn’t oriented [to] place or time. She didn’t know what the building was
or what time of the year was or the date. . . . [S]he knew who she was, but that was
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about it.” The doctor’s diagnosis was Alzheimer’s which was ultimately confirmed
by a neurologist.
Four days following the doctor’s visit, the Pattersons took the decedent to
several banks and transferred money from her accounts into accounts controlled by
the Pattersons. On February 19, 2021, the decedent had another doctor’s visit. The
doctor deposed that she was “still confused” and that it was “likely she probably
wouldn’t have been . . . in her best state of mind to [execute documents]” on the date
of the appointment.
Later that day, the Pattersons took the decedent to another bank. The decedent
indicated that she wanted to open an account with her name and the Pattersons names
on it. The decedent’s individual account was then closed and all of the money
previously in that individual account was transferred to the joint account with the
Pattersons. At some point later, Kenneth came back to the bank and closed the joint
account and transferred the money to an account that just had the Pattersons’ names
on it.
Eventually Cunningham became suspicious of the Pattersons because the
decedent told her “on several occasions that ‘those men’ are taking me to the banks
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and taking all of my money and they are coming to get my vehicles.” When
Cunningham discovered that the decedent had signed her property and land over to
the Pattersons, she spoke to the decedent about it and the decedent “immediately
began crying and became very upset.”
Kenneth Patterson ultimately placed the decedent in a nursing home, informing
Cunningham after that he had made the decision and moved her furniture into the
facility. The decedent died shortly after.
Cunningham filed suit against the Pattersons challenging the transfers of both
money and property as void due to undue influence, conversion, breach of fiduciary
duty, and fraud. The Pattersons filed a motion for summary judgment. At the hearing
on the Pattersons’ motion, the trial court told Cunningham’s counsel that the
evidence regarding the decedent’s severe dementia was “hearsay.” When
Cunningham’s counsel explained that the decedent’s diagnosis was not hearsay
because of her doctor’s testimony explaining that she was diagnosed with
Alzheimer’s, the trial court seemingly disregarded the testimony.
The trial court granted the Pattersons’ motion for summary judgment
concluding that it “does not find any evidence supporting the application of a
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presumption of undue influence” and in “[c]onstruing the evidence most favorably
for [Cunningham], the [trial court] finds no evidence to support [undue influence and
fraud] and that no genuine issue of material fact remains as to whether undue
influence existed.” The trial court concluded that [b]ecause the [trial court] finds no
evidence of undue influence in this case, [Cunningham’s ] claim for undue influence
fails.”
Cunningham contends that the trial court erred by granting the Pattersons’s
motion for summary judgment. We agree.
“Generally, the question of undue influence is for the factfinder.” (Citation and
punctuation omitted.) Welborn v. Welborn, 295 Ga. App. 661, 662 (673 SE2d 44)
(2009). “Undue influence may be shown by circumstantial evidence as well as by
direct evidence, and slight evidence of fraud and undue influence may authorize the
jury to cancel the deed.”(Citation and punctuation omitted.) Mathis v. Hammond, 268
Ga. 158, 160 (3) (486 SE2d 356)(1997). Our Supreme Court has held that,
[e]vidence of a confidential relationship between the grantor and the
grantees; the advanced age of the grantor; the grantor’s terminally ill
physical condition; the grantor’s living arrangement; and evidence of the
grantor’s reliance on the grantees, especially the daughter with whom
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she was residing, for care, shelter and transportation was sufficient to
present the issue of undue influence to the jury.
Id.
Here, in its order granting summary judgment, the trial court inexplicably found
that there was no evidence of undue influence. That assertion, however, is belied by
the record. There was plenty of evidence, including testimony from the decedent’s
doctor, that the decedent was of an advanced age, relied upon the Pattersons for care,
was suffering from advanced dementia and Alzheimer’s, and that there existed a
confidential relationship between the decedent and the Pattersons. There was even
evidence that days after the decedent had a doctor’s appointment in which the doctor
opined she was not oriented to time or place, the Pattersons took her to banks and
transferred money from her to them. Even more compelling, there was evidence that
on the exact same day as another doctor’s appointment where the decedent was still
confused and the doctor opined that she was likely not in the best state of mind to
execute documents, the Pattersons took the decedent to another bank and transferred
all of her money from her account at the bank to a joint account with their names on
it and later took her name off of that account.
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When considering the evidence in the light most favorable to Cunningham, the
trial court erred by finding there was no evidence of undue influence and thus granting
summary judgment to the Pattersons on all counts. Because genuine issues of material
fact relevant to the issue of undue influence exist, we reverse the trial court’s grant of
summary judgment. See Milbourne v. Milbourne, 301 Ga. 111, 118 (III) (799 SE2d 785)
(2017) (holding that the trial court did not err in denying a motion for summary
judgment where there was evidence that a confidential relationship existed between
the beneficiary and the testator, that the beneficiary exercised a great deal of control
over the testator, and that the beneficiary may have actively taken part in the planning
and execution of a will); Mathis, 268 Ga. at 160 (3) (where our Supreme Court held
that there existed a jury question as to whether a transfer of property was the product
of undue influence).
Judgment reversed. Mercier, C. J., and McFadden, P. J., concur.
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