Geduldig v. Posner

EYLER, Judge. In these two consolidated actions, based on claims of undue influence and fraud, claimants seek to (1) set aside a will and a revocable trust, (2) impose a constructive trust, and (3) be awarded compensatory and punitive damages. The question is whether the evidence is legally sufficient to create a fact question and thereby avoid summary judgment in favor of the defendants. We answer that question in the affirmative and, consequently, reverse the judgment of the circuit court.

For the benefit of the court on remand, we shall discuss whether Maryland recognizes the tort of intentional interference with expected inheritance and shall conclude that the tort is not available on the facts of these cases. Introduction Nathan Posner and Rose Posner (Ms. Posner) were married and had three children: David P. Posner (Dr. Posner), appellee, Judith A. Geduldig (Ms. Geduldig), and Carol Jean Posner Gordon (Dr. Gordon), appellants. Nathan Posner died testate, but the terms of his will are not relevant except to observe that it contained a marital trust (“marital trust”). Ms. Posner died on October 28, 1996, leaving a will and revocable trust, both dated January 3, 1996.

In the will, 1 she (1) expressly revoked “all” prior wills, (2) named Dr. Posner as personal representative of her estate, (3) bequeathed a picture to Dr. Gordon, (4) bequeathed $100 to Ms. Geduldig, and (5) bequeathed the residue of her estate, including the marital trust assets pursuant to a power of appointment, to Dr. Posner as trustee of the revocable trust. In the revocable trust, in pertinent part, Ms. Posner provided that, upon her death, the assets would be distributed as follows: (1) $2,500,-000 to Dr. Posner, (2) $80,000 to his spouse, (3) $2,500,000 to ⁴⁹³ certain named charitable organizations, (4) $100,000 in trust for the benefit of Ruth Browne, Ms. Posner’s sister, (5) $10,000 to Ms. Posner’s friends, Barry Webb and Zoe Webb, (6) $1,000,000 in trust for the benefit of Dr. Posner’s children, (7) $100 to Dr. Gordon, (8) $100 to Ms. Geduldig, and (9) the residue to Dr. Posner, including the balance of funds, if any, in the trust, for Ms. Browne and Dr. Posner’s children after compliance with the terms of the trusts. Ms. Geduldig and Dr. Gordon took the position that Ms. Posner did not have a testamentary power of appointment with respect to the marital trust. They filed a declaratory judgment action in the Circuit Court for Baltimore County, and the circuit court agreed.

The case came to this Court on appeal, and we held that Nathan Posner’s will did not grant Ms. Posner a testamentary power of appointment over the assets of the marital trust. Consequently, we affirmed the judgment of the circuit court. Posner v. McDonagh, No. 1574, September Term, 1997 (filed March 11, 1999). The effect of that ruling, according to a pleading in the record before us, was that the assets in the marital trust passed under Nathan Posner’s will, in equal shares, to the three children.

On December 24,1996, Dr. Gordon and Ms. Geduldig filed a petition for caveat in the Circuit Court for Baltimore County, alleging that Ms. Posner’s will, with respect to bequests to Dr. Posner, was the product of undue influence and fraud exercised by Dr. Posner. On July 1, 1997, the Orphans Court transferred the case to the Circuit Court for Baltimore County. On April 28, 1998, Dr. Gordon and Ms. Geduldig filed a complaint in the Circuit Court for Baltimore County against Dr. Posner, his spouse, Nancy Posner, their four children, Jonathan, Melissa, Stephen, and Aleza Posner, and Ruth Browne (additional appellees, hereinafter collectively “Dr. Posner”), seeking a declaratory judgment that Dr. Posner had engaged in fraud and undue influence. Dr. Gordon and Ms. Geduldig alleged tortious interference with their expected inheritance, in addition to independent claims of fraud and ⁴⁹⁴ undue influence.

Dr. Gordon and Ms. Geduldig claimed that the revocable trust was a product of the fraud and undue influence and requested compensatory damages, punitive damages, and the imposition of a constructive trust on assets distributable under the trust. On October 26, 1998, the two actions were consolidated. Dr. Posner filed a motion for summary judgment on the ground that (1) there was no legally sufficient evidence of undue influence and fraud because there was no evidence that force or coercion had been exercised upon Ms. Posner; (2) tortious interference with expected inheritance is not recognized as a tort in Maryland; and (3) there was no evidence of expectation of an inheritance. The circuit court, by memorandum opinion and order dated May 6, 1999, granted the motions.

The court found that there was no evidence of undue influence because of the absence of any evidence that Ms. Posner was susceptible to any influence or false statements and further found that there was no evidence that fraudulent statements, if any, had any causative effect on Ms. Posner’s distribution of assets. Facts On July 11, 1985, Ms. Posner executed a "will revoking “all” prior wills, in which she (1) named Dr. Posner and James P. McDonagh, a friend of the family, as personal representatives, (2) bequeathed $100 to Ms. Geduldig and each of her surviving children, and (3) bequeathed the residue of her estate, in equal shares, to Dr. Posner and Dr. Gordon. Ms. Posner and Ms. Geduldig were estranged at that time. On October 9, 1985, Ms. Posner executed a codicil to the “Last Will and Testament dated July 11, 1985,” in which she purported to exercise a power of appointment over the assets of the marital trust created under Nathan Posner’s will.

She appointed the assets, in equal shares, to Dr. Posner and Dr. Gordon. On that same day, Ms. Posner made inter vivos gifts of $750,000 each to Dr. Posner and Dr. Gordon. On February 13, 1986, Ms. Posner executed a will in which she revoked all prior wills and (1) named Dr. Posner and Mr. ⁴⁹⁵ McDonagh as personal representatives, (2) bequeathed $100 to Ms. Geduldig and each of her surviving children, and (3) bequeathed the residue of her estate, including the marital trust assets, to Dr. Posner and Dr. Gordon, in equal shares. According to an affidavit filed by Dr. Gordon, a psychiatrist, Ms. Posner, in later life, “suffered from emphysema, heart disease, insomnia, and other physical ailments.

Her physical condition became progressively worse during the 1980’s, and she eventually was required to use an oxygen dispenser continuously to assist her in breathing.” According to the same affidavit, Ms. Posner suffered from depression after Nathan Posner’s death and from time to time thereafter. She also chronically suffered from shortness of breath. Dr. Gordon testified in her deposition that she began treating Ms. Posner in 1988 for depression, anxiety, and insomnia. She prescribed Klonopin, Prozac, and subsequently, BuSpar. 2 This alleviated Ms. Posner’s anxiety and shortness of breath.

On October 14, 1990, Ms. Posner executed a will, revoking “all” prior wills. Ms. Posner (1) named Dr. Posner and Mr. McDonagh as personal representatives and Dr. Posner as trustee, (2) bequeathed $100 to Ms. Geduldig and each of her surviving children, (3) bequeathed $1,000,000 in trust for the benefit of Dr. Posner’s children, and (4) bequeathed one half of the residuary estate, including the marital trust assets, to Dr. Posner and the other half to Dr. Posner as trustee for the benefit of Dr. Gordon. The income of the trust was to be paid to Dr. Gordon during her lifetime and the principal to Dr. Posner’s children upon Dr. Gordon’s death. Dr. Gordon was given a right to invade principal to provide for her health care and in the event of poverty.

This was the first of Ms. Posner’s wills that was prepared by Mark Willen, an attorney retained for that purpose. Mr. Willen, in his deposition, testified that he had been represent ⁴⁹⁶ ing Dr. Posner for 15 to 18 years and that Dr. Posner introduced him to Ms. Posner. On December 25, 1993, Ms. Posner became ill while in Florida. Dr. Gordon visited her, determined that the medical care she was receiving was inadequate, and arranged for Ms. Posner to be transferred to Lankenau Hospital in Philadelphia, where she came under the care of Ms. Posner’s brother, Laurence T. Browne, an internist.

On February 4, 1994, Ms. Posner was discharged to the Devon Manor Nursing Home in Philadelphia, where she remained under Dr. Browne’s care. Dr. Browne, in his deposition, testified that, during that time period, he became concerned with respect to the estrangement between Ms. Posner and Ms. Geduldig. He arranged for Ms. Geduldig and her children to visit Ms. Posner at Devon Manor, and the family members reconciled. He further testified that both Ms. Geduldig and Dr. Gordon visited on several occasions in the winter and spring of 1994.

Following the reconciliation, according to Dr. Browne, Ms. Posner told him that she wanted to treat her three children equally. On February 6, 1994, Ms. Posner executed a will revoking “all” prior wills, in which she named Dr. Posner, Dr. Gordon, and Mr. McDonagh as personal representatives and bequeathed the residue of her estate and the marital trust assets to the three children, in equal shares. The record does not reflect who prepared that will, but it was not prepared by Mark Willen. It appears to have been executed in Pennsylvania.

Dr. Browne, in his deposition, testified that as a result of Ms. Posner’s serious illness that began in December, 1993, she was unable to handle her financial affairs, and her sister, Ms. Browne, assumed responsibility. He further testified that she did not do a good job and that Ms. Posner asked him, Dr. Browne, to assume that responsibility. On April 2, 1994, Ms. Posner executed a power of attorney, pursuant to which she granted Dr. Browne authority to manage her financial affairs. On April 7, 1994, Ms. Posner executed a “first codicil to [her] last will and testament dated October 14, 1990.” In this ⁴⁹⁷ codicil, in part, Ms. Posner bequeathed her residuary estate, including the marital trust assets, to her three children, in equal shares.

In his deposition, Dr. Browne testified that when Dr. Posner learned that Ms. Posner had granted a power of attorney to Dr. Browne, Dr. Posner became very angry. He stated that Dr. Posner’s visits to Ms. Posner “increased exponentially,” and he called Ms. Posner on the phone more frequently after learning of the existence of the power of attorney. Dr. Browne testified that Ms. Posner described the phone calls as “angry, threatening, [and] very disturbing to [her].” Ms. Posner was upset by Dr. Posner’s visits, which, according to Dr. Browne, caused a recurrence of shortness of breath, cardiac irregularity, and mental confusion. Sometime between March and early May, Mr. Willen prepared what was described as a “first codicil” to Ms. Posner’s “last will and testament dated October 14, 1990.” Under this codicil, the residue of the estate and the marital trust was to be distributed in equal shares to the three children, except that, similar to the 1990 will, Dr. Gordon’s share was to be distributed to Dr. Posner as trustee to be held in trust for her benefit during her lifetime, and upon her death, the remaining principal was to be distributed to Dr. Posner’s children.

This codicil was never fully executed. Dr. Posner, in his deposition, testified that, when it was presented to Ms. Posner, either he or Ms. Posner, and he was not sure who, suggested that Dr. Gordon’s share should be distributed to her outright instead of in trust. On May 8, 1994, Ms. Posner executed a will, prepared by Mr. Willen, that, in its entirety, revoked THE LAST WILL SIGNED BY ME ON OR ABOUT APRIL 2, 1994, AND DO DECLARE THAT THE ACCURATE, OPERATIVE, AND CURRENT WILL THAT IS TO BE IN EFFECT IS TO BE THE ONE WRITTEN BY MY ATTORNEY, MARK WILLEN, ESQ., AND DATED AND SIGNED BY ME ON OCTOBER 14, 1990. THE ONLY ADDITION TO THIS ACCURATE AND EFFEC ⁴⁹⁸ TIVE WILL IS THE CODICIL WRITTEN BY MY ATTORNEY, MARK WILLEN, ESQ., IN MARCH, 1994, AND SIGNED BY ME, WITH MODIFICATION, DATED MAY 7,1994.

On May 11, 1994, Ms. Posner executed another will, prepared by Mr. Willen. In that will, revoking “all” prior wills, Ms. Posner named Dr. Posner and Mr. McDonagh personal representatives and Dr. Posner trustee, created a $1,000,000 trust fund for the benefit of Dr. Posner’s children, and appointed the marital trust assets to the three children, in equal shares. She further bequeathed her residuary estate to the three children, in equal shares, but provided that, if Ms. Geduldig or Dr. Gordon predeceased her, their shares should be distributed to Dr. Posner, as trustee, to be used for the benefit of Dr. Posner’s children. Aso on May 11, Ms. Posner revoked the power of attorney previously granted to Dr. Browne and granted a power of attorney to Dr. Posner.

That document was also prepared by Mr. Willen. In the April-to-May time frame, according to Dr. Gordon and Ms. Geduldig, Dr. Posner and Ms. Browne were planning to remove Ms. Posner from Devon Manor without telling Dr. Browne of their intent to do so. Dr. Browne learned about it and was concerned about Ms. Posner’s health and well being. Dr. Browne testified that, because of his concern for Ms. Posner’s health and his concern that her removal was not related to her welfare, he, Dr. Gordon, and Ms. Gedúldig, filed a complaint in the Court of Common Pleas for Chester County, Pennsylvania.

The action was filed against Dr. Posner, Ms. Browne, and Ms. Posner, and sought a temporary restraining order and preliminary injunction to prevent Ms. Posner’s removal from Devon Manor. On May 12, 1994, the Court of Common Pleas issued a temporary restraining order. Dr. Browne, in his deposition, testified that, after Ms. Posner executed the May 11 will and the May 11 power of attorney, he discussed her financial situation and her estate with her. He testified that she told him that she wanted to stay at Devon Manor and that she also wanted to treat her ⁴⁹⁹ three children equally.

Dr. Browne had prepared a will and a power of attorney, the latter authorizing him to handle her financial affairs. Ms. Posner signed both of those documents on May 16, 1994. In the will, in part, Ms. Posner bequeathed the residue of her estate, including appointment of the marital trust assets, to her children, in equal shares. Again referring to Dr. Browne’s deposition, Dr. Browne testified that Ms. Posner informed him that she had been informed that there was a conspiracy to get control of her assets and to keep her imprisoned in Devon Manor.

In pertinent part, he testified as follows: Q. Dr. Browne, could you read the notation that you made in your progress note on May 17 th, 1994 regarding Dr. David Posner’s statements to Rose? A. Well, this is a progress note made as indicated at 1800 hours by me and it reads like this: Agitated, hostile, dyspneic, sweating and emotionally distressed by recent visit of son and lawyer dash telling patient, quote, conspiracy and, quote, unquote, guarding here. Told patient of explanations and Bill, Jean, Judi, Dawn and Dan who were there tried to contribute to her reassurance and hopes for getting better. She had sternal retractions.

Her respiration rate was 30. Her blood pressure was 100 and 50 slash 80. Her ventricular rate was 120 and irregular. Her chest revealed a few wheezes.

And rhonchi, there was dullness in the left base. The skin was sweaty and the abdomen showed modest distension. Mentally, she was confused, the reason, the conspirators and guarding — the conspiracy and guarding. And now she knows what it is all about.

But, quotes, but she wants to be left alone, unquote. On May 18, Ms. Posner was examined by Dr. Bruce Bogdanoff, a neurologist practicing in Pennsylvania, who concluded that Ms. Posner’s intermittent cognitive and behavioral problems were related to cerebral hypoxia, resulting from her lung and heart disease. He also stated in his report that family ⁵⁰⁰ problems could have contributed to her ailments. He noted that Ms. Posner was alert, oriented, with no definite signs of dementia.

Dr. Bogdanoff saw Ms. Posner, accompanied by Dr. Gordon, in consultation in his office, apparently located near Philadelphia. Dr. Bogdanoff wrote in his report that Ms. Posner had a history of depression, had taken Prozac in the past, and was then taking BuSpar, Klonopin, and other medications that we cannot decipher from the report. On May 24, in the action seeking injunctive relief, a judge of the Court of Common Pleas interviewed Ms. Posner. The transcript of that interview indicates that Ms. Posner expressed an awareness that there were two groups within her family who disagreed with respect to her welfare.

She described Dr. Browne, Dr. Gordon, and Ms. Geduldig as constituting one group and Dr. Posner as the other group. She stated that she wanted to treat them all equally. We note, however, that it is not clear to us from the transcript whether, when she made that statement, she was referring to distribution of assets or general familial relationships. Ms. Posner also indicated in the interview that she wanted to remain at Devon Manor and that she was happy with Dr. Browne.

Dr. Browne, apparently in May, had counsel prepare a petition to be filed in the Court of Common Pleas, seeking his appointment as limited guardian for Ms. Posner, based on an alleged partial physical incapacity to handle her financial affairs. Pennsylvania counsel for Dr. Posner wrote a letter dated May 27,1994, to Dr. Browne’s counsel stating that there was no need to file such a petition, and that Dr. Posner had agreed not to move Ms. Posner until June 3 in order to provide time to work out an agreement. It is' not clear from the record when the petition was filed. On May 31, Dr. Posner’s immediate family and friends moved Ms. Posner to Mercy Hospital in Baltimore.

Dr. Posner, a gastroenterologist, practiced at Mercy Hospital. Dr. Posner, in his deposition, testified that this was done without his knowledge. ⁵⁰¹ Also on May 31, Ms. Posner executed another codicil, also prepared by Mr. Willen. The codicil recited that it was a codicil to her May 11, 1994, will and expressly revoked “any and all prior wills as well as my Will dated May 16, 1994.” The codicil made a few changes to the May 11 will, including bequeathing $20,000 to Ms. Browne, $250,000 to a grandson, Daniel Geduldig, and disinheriting Ms. Geduldig’s remaining children “for reasons known to them.” 3 On July 10, 1994, Ms. Posner executed another will, prepared by Mr. Willen. The will revoked “all” prior wills and named Dr. Posner and Mr. McDonagh as personal representatives and Dr. Posner as trustee.

Pursuant to the terms of that will, Ms. Posner reduced the inheritance of Dr. Gordon and Ms. Geduldig by $25,000 each and provided that such sums should go to a named charitable organization. The will explained that she did this because she believed that they had attempted to have her declared incompetent. The will recited that she was “deeply hurt and outraged” by the actions. It further recited that she reduced the inheritance “to not only receive damages for my aggravation, unnecessary stress and difficulties, the legal fees and related expenses, but also as a punitive measure which I feel I must express.” The will bequeathed $20,000 to Ms. Browne, $250,000 to Daniel Geduldig, $1,000,000 in trust for the benefit of Dr. Posner’s children, and the residue, including the marital trust assets, to the three children, in equal shares, reduced by $25,000 each as mentioned above.

Ms. Geduldig and Dr. Gordon assert that Dr. Posner told Ms. Posner that the daughters had attempted to have her declared incompetent and that this statement was untrue. We have not found any direct evidence that he made that statement to her. Dr. Posner did testify in his deposition, however, that he made that statement to Ms. Posner’s doctors at Mercy Hospital. He also testified that he had conversations with Ms. Posner concerning the actions by the daughters, and ⁵⁰² that these conversations occurred in the summer of 1994.

It is unclear whether Ms. Posner brought up the subject and he responded and agreed that the daughters had taken action against her, including a scheme to over-medicate her, or whether he was the first one to make such statements to her. On September 12, 1994, Dr. Posner filed a complaint with the Pennsylvania Board of Medicine against Dr. Browne. In that complaint, he alleged that Dr. Browne had prescribed medication to Ms. Posner in doses calculated to cause confusion in order to gain control over her assets and to keep her in Devon Manor. There is evidence that many of the medicines and doses being prescribed by Dr. Browne were at the suggestion of and as recommended by Dr. Gordon, and that at some point Ms. Posner was aware of that.

Dr. Posner, in his deposition, testified that he had received information from the physicians at Mercy Hospital, after Ms. Posner arrived there, indicating that Dr. Browne had over-medicated her. As stated, it is not clear whether Dr. Posner first advised Ms. Posner, but in any event, he did discuss the situation with her. He suggests in his deposition that she complained and wanted to file a malpractice action against Dr. Browne. He stated that he filed the complaint with the State licensing authority in lieu of the malpractice action that she wanted to file.

Dr. Gordon, in her deposition, testified that Ms. Posner told her that Dr. Posner had advised Ms. Posner that she, Dr. Gordon, was “a thief and a burglar.” Dr. Gordon testified that the underlying basis was that she had removed some items from her mother’s home for safekeeping while she was away. Apparently, she returned the items after being challenged. On February 2, 1995, Ms. Posner executed a will prepared by Mr. Willen. In that will, revoking “all” prior wills, she named Dr. Posner and Mr. McDonagh as personal representatives, and Dr. Posner trustee.

She bequeathed $250,000 to Daniel Geduldig, $1,000,000 in trust for the benefit of Dr. Posner’s children, appointed the marital trust assets to the ⁵⁰³ three children in equal shares, and the residue of the estate to Dr. Posner. In 1995, Dr. Gordon gave Ms. Posner a picture of Dr. Gordon and her father, Nathan Posner, taken at Dr. Gordon’s graduation from medical school. Subsequently, while visiting Ms. Posner in her apartment, Dr. Gordon noticed that the picture had been placed where it could not be seen. Dr. Gordon asserts that it was placed there by Dr. Posner, but we find no evidence of that other than her assumption.

Dr. Gordon indicated that she was hurt by the placement of the picture and removed the picture from Ms. Posner’s home. Subsequently, Ms. Posner, represented by Mr. Willen, filed an action in the District Court of Maryland for Baltimore County to recover the picture. Dr. Gordon returned the photograph, and the suit was dismissed prior to trial. Appellants assert that this suit was filed at the suggestion of Dr. Posner, but we find no direct evidence of that fact.

On January 3, 1996, Ms. Posner executed the will and revocable trust described in the beginning of this opinion. Dr. Posner, in his brief, points to testimony by several witnesses describing Ms. Posner as strong-minded, independent, intelligent, knowledgeable, determined, opinionated, and sharp. There is evidence indicating that the relationship between Ms. Posner and Ms. Geduldig was strained and that they spoke only once from 1975 to 1994. They reconciled in 1994, but appellees assert that the relationship subsequently deteriorated.

James McDonagh testified, in his deposition, that Ms. Posner told him in the summer of 1996 that she was very upset with her daughters because they stopped visiting her in August, 1995. Delores Kennedy, one of Ms. Posner’s private nurses, and Dr. Browne, both testified that Ms. Posner had stated that she disliked Dr. Gordon’s husband. There is also evidence that Ms. Posner was angry with Dr. Gordon with respect to the photograph and for removing personalty from her apartment, and she was angry with both daughters because of the actions filed in Pennsylvania. ⁵⁰⁴ Finally, the record contains two videotapes of Ms. Posner. The first depicts the execution of the will and trust on January 3, 1996, and the second depicts the re-execution of those documents on March 8, 1996.

We will reference the above plus additional evidence in our discussion of the issues. Standard of Review The primary issue before us is whether the circuit court erred in granting summary judgment in favor of Dr. Posner. Maryland Rule 2-501(e) provides that a court may grant a motion for summary judgment “in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In considering a motion for summary judgment, the trial court does not determine any disputed facts, but instead rules on the motion as a matter of law. See Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); White v. Friel, 210 Md. 274, 285 , 123 A.2d 303 (1956).

The court views the facts, including all inferences, in the light most favorable to the party against whom the court grants the judgment. See Beard v. American Agency Life Ins. Co., 314 Md. 235, 246 , 550 A.2d 677 (1988). Discussion I. Ms. Geduldig and Dr. Gordon contend that tortious interference with expected inheritance is a viable cause of action in Maryland.

They acknowledge that it requires proof of intentional misconduct, such as undue influence or fraud, and assert that such evidence exists in this case. Ms. Geduldig and Dr. Gordon, acknowledging that Dr. Posner argued below that it is not a viable cause of action, assert that the circuit court did not reach that issue. Dr. Posner, on the other hand, contends that the circuit court ⁵⁰⁵ addressed the issue and held that it is not a viable tort in Maryland. Dr. Posner urges that same