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Comeau v. Nash

June 1, 2010

WILLIAM J. COMEAU, A/K/A WILLIAM COMEAU, APPELLANT (DEFENDANT),
v.
CAROL NASH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH T. MCGRATH, APPELLEE (PLAINTIFF).



Appeal from the District Court of Uinta County The Honorable Dennis L. Sanderson, Judge.

The opinion of the court was delivered by: Hill, Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Appellant, William J. Comeau (Comeau), challenges the district court's factual findings and legal conclusions to the effect that Comeau breached a fiduciary duty he owed to Kenneth T. McGrath (McGrath, or Mac). McGrath is deceased and Comeau is one of his heirs. During McGrath's lifetime, Comeau obtained control of McGrath's health care decisions and his financial assets via powers of attorney. Upon McGrath's death, Comeau essentially had possession of all of McGrath's assets via pay-on-death directives, accounts in joint tenancy with right of survivorship, and other means. Comeau maintained that that result was in accordance with McGrath's intentions, which he clearly expressed during the final months of his life. McGrath lived with Comeau and his wife (who was a nurse) in their home, or was in nursing home care near Comeau's home, during the last seven months of his life. In addition to challenging the district court's findings that Comeau breached fiduciary duties owed to McGrath, Comeau challenges the district court's findings that McGrath was susceptible to undue influence and that Comeau exercised actual control and undue influence over McGrath. Appellee, Carol Nash (Nash) is the personal representative of McGrath's estate and she is also one of McGrath's heirs. We will affirm.

ISSUES

[¶2] Comeau raises these issues:

1. Was the district court's finding that Kenneth T. McGrath was susceptible to undue influence clearly erroneous in light of the testimony of numerous witnesses that McGrath was competent.

2. Was the district court's finding that [Comeau] exercised actual control and undue influence over McGrath clearly erroneous in light of the evidence that McGrath himself directed [Comeau's] transactions.

3. Whether the district court's finding that [Comeau] breached a fiduciary duty was clearly erroneous.

Nash's statement of the issues tracks those raised by Comeau.

FACTS AND PROCEEDINGS

[¶3] The principal parties to this litigation are Comeau and Nash. They were once married to each other. Nash is McGrath's granddaughter. Comeau was once, in essence, McGrath's grandson-in-law and not a blood relative to him. Comeau characterized himself as McGrath's ―great-grandson's dad-or granddad.‖ Mr. McGrath spent his working career as a banker.

[¶4] Comeau met Mac in 1972, when he came to the Evanston/Layton, Utah, area to meet his new great-grandson, the child of Nash and Comeau. Nash and Comeau divorced long before the events that are pertinent to this appeal. Nonetheless, Comeau remained very close with McGrath and McGrath continued to treat Comeau as if he were one of his grandchildren. Indeed, their friendship deepened after Comeau was divorced from Nash.

[¶5] McGrath's family (including Comeau) thought McGrath lived on a modest pension. For the most part, McGrath went to the Veterans Administration medical facilities in Salt Lake for his medical care. In fact, McGrath owned his home, had over $300,000.00 in checking and savings accounts, and owned a valuable piece of real estate in Florida. Comeau learned of McGrath's considerable wealth after McGrath's health began to fail and after McGrath had moved in with Comeau and his wife (who was a nurse experienced in caring for the elderly). By the time of McGrath's death, Comeau had come into possession of almost all of McGrath's assets, except for the land in Florida. Comeau's possession of the bulk of McGrath's estate did not reflect the testamentary intentions evinced by his Last Will and Testament.

[¶6] There is no dispute between the parties as to the steady deterioration of McGrath's health. That process began in early 2005 and became increasingly evident because he had difficulty walking during an annual trip he and Comeau took to Las Vegas in October of 2005, at a time when Mac was nearing his 88th birthday. McGrath did not want to talk to Nash about his ―slowing down.‖ However, Comeau got McGrath to agree to see Comeau's family physician, Joel G. Porter, M.D., a family physician in Layton, Utah. McGrath was examined by Dr. Porter on February 6, 2006. This was the first time Dr. Porter had met Mac. Nash was aware of what Comeau was doing with respect to McGrath's health and the health care provider(s) involved. Nash was comfortable with Comeau and his wife taking care of Mac because Comeau's wife was a registered nurse and had been a director of nursing at a nursing home for many years.

[¶7] Dr. Porter had an independent recollection of seeing Mac on February 6th, and Porter made lengthy notes about his examination. Dr. Porter diagnosed Mac as ―possibly‖ suffering from ―early dementia,‖ but he also noted that observation over time is required to diagnose that condition. Dr. Porter's report indicated that Comeau and his wife were McGrath's grandchildren, but he did not recall if Comeau told him that, or if Mac told him that, or if he just assumed it.

[¶8] Mr. McGrath experienced a fall at home in Layton, Utah, on March 6, 2006. Comeau and his wife found him on the floor of his home in a semi-conscious and somewhat incoherent condition. He was unable to get up off the floor without assistance. McGrath was taken to the hospital emergency room by Comeau after the fall. The hospital records indicate that Comeau identified himself there as a ―friend‖ of McGrath. McGrath was treated at the emergency room and released. After that incident, McGrath agreed that he should move to Evanston with the Comeaus, and none of McGrath's ―blood‖ relatives appear to have had any objections to that.

[¶9] Comeau took Mac to see Dr. Porter for a second time on March 13, 2006, shortly after the fall. The upshot of the follow-up visit with Dr. Porter was that McGrath was suffering from dehydration (at the time of the fall), and had probably suffered a stroke. He was having more difficulty getting around (a lightweight wheelchair was ordered). Dr. Porter continued Mac on a prescribed medication to treat hypertension (that was prescribed during the hospital visit), and added a second anti-hypertensive medication. Dr. Porter also provided a letter to Comeau, at Comeau's request, to the effect that McGrath ―is still able to manage his own funds and financial affairs.‖

[¶10] After the incident described immediately above, McGrath moved to Evanston to live with the Comeaus. That McGrath moved to Evanston, and that he did so voluntarily, and that it was his wish to be there, is not disputed by any evidence in the record. The day following that move, McGrath told the Comeaus that he no longer wanted to have to deal with bill paying and managing his various bank accounts. He also expressed his trust of Comeau, in part on the basis that he was the only one who had never tried to borrow money from him.

[¶11] On March 9, 2006, McGrath gave Mr. and Mrs. Comeau a general power of attorney. It was a form downloaded from the Internet and McGrath filled in the blanks. His handwriting is legible (especially his signature), although it does evince the weakness that McGrath was described as experiencing at that time. That document was witnessed by a neighbor who attested that McGrath was ―lucid,‖ that she had no ―concerns about his competency at ...


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