Kuncl v. Fugate (In re Estate of Lowe)

IN RE ESTATE OF ROBERT B. LOWE, DECEASED.

BARBARA LOWE KUNCL, APPELLANT, v. ALLEN L. FUGATE, APPELLEE.

No. A-20-412.

NEBRASKA COURT OF APPEALS

March 9, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lincoln County: MICHAEL E. PICCOLO, Judge. Affirmed.

Timothy P. Brouillette, of Brouillette, Dugan, Troshynski & Bellew, P.C., L.L.O., for appellant.

Bradley D. Holbrook and Elizabeth J. Klingelhoefer, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.

MOORE, Judge.

I. INTRODUCTION

Barbara Lowe Kuncl (Kuncl) appeals from the order of the district court for Lincoln County, which granted summary judgment in favor of Allen L. Fugate (Fugate), the personal representative (PR) of the estate of Robert B. Lowe (Lowe), deceased. Kuncl, who is Lowe's niece, challenged the probate of Lowe's will, which was drafted by Fugate. On appeal, she challenges the court's findings that Lowe had the requisite testamentary capacity to execute his will and that he was not subject to undue influence. She also challenges the court's exclusion of certain evidence as a discovery sanction. Finding no error, we affirm.

II. BACKGROUND

Lowe was a long-time resident of North Platte, Nebraska, and an active volunteer in the community, including serving on North Platte's Salvation Army's board. Lowe never married and never had any children, and he was employed primarily as a realtor.

Lowe's brother was also a long-time North Platte resident, was employed as an attorney, and had one child, Kuncl. Kuncl was 77 years old at the time of her deposition in April 2019; she left North Platte when she was in her early 20s and had been living in Florida for the past 22 years. Prior to that, she lived in Ohio. Kuncl has one child, Kristine Beall (Beall), who lives in Ohio. Beall has one child, Jeffrey Montgomery (Montgomery), who was attending college in Chicago, Illinois, at the time of Beall's deposition in this case. Neither Beall nor Montgomery has ever lived in North Platte.

Fugate is an attorney licensed in Nebraska, and he has practiced in North Platte since 1982. His practice areas have included estate planning and the probate of decedent's estates and probate-related litigation. Fugate had known Lowe since approximately 1975. Fugate was aware of Lowe's connection to various charitable boards upon which Lowe served.

Fugate drafted a will for Lowe dated June 3, 2015, in which Lowe named Fugate as his PR. The 2015 will states that Lowe was revoking all prior wills and codicils made by him and gave all of his "tangible personal property of every nature and wherever situated" as well as "the rest, residue and remainder of [Lowe's] estate, real, personal and mixed, wherever situate[d]," to "the Salvation Army North Platte." In the section entitled "FAMILY INFORMATION," the will states that Lowe was single, had no children, and had "a niece and nephew who are the children of my deceased brother" and specifies that Lowe had not "made any provision in this Will for them as my brother . . . adequately provided for them." In Kuncl's deposition, she acknowledged that after her parents died in 1996, she inherited substantially all of their assets with Beall and Montgomery receiving "a small amount" from Donald's estate. In Fugate's affidavit admitted in the summary judgment proceedings, Fugate states that the reference in the will to Montgomery as being Lowe's "nephew" was a scrivener's error, also indicating that Lowe had confirmed to him that Kuncl was his brother's daughter, that Beall was Kuncl's daughter, and that Montgomery was Beall's son. Lowe was 89 years old when he died on November 1, 2017.

On November 6, 2017, Fugate filed an application seeking informal probate of will and informal appointment of PR in the Lincoln County Court, and he subsequently was appointed and accepted appointment as PR. Kuncl objected and filed a petition to set aside the informal probate and sought supervised administration of the estate. This pleading was subsequently dismissed pursuant to a motion to dismiss filed by Fugate and to a joint stipulation of the parties. On January 23, 2018, through legal counsel, Fugate filed a petition, seeking formal probate of the will, a determination of heirs, and appointment of PR; he again was appointed and accepted appointment as PR.

On February 6, 2018, Kuncl filed an objection to the formal probate petition. She alleged that Lowe was "susceptible to the exercise of undue influence because of his advanced age and physical and mental condition" and that the execution of his will "was caused by the exercise of undue influence by one or more beneficiaries named" in the will. Alternatively, she alleged thatLowe lacked sufficient testamentary capacity to execute the will. On October 22, Kuncl filed a notice of transfer, and the case was transferred to the district court.

In July 2018, Kuncl responded to written interrogatories from Fugate, which included a specific request that she disclose experts that she expected to call at trial, the subject matter to which the expert was expected to testify, the qualification of each expert, the substance of facts and opinions to which the experts were expected to testify, and a summary of the grounds for each opinion. Kuncl answered that her attorney had not made a final determination as to which experts would testify at trial, but she stated that "[o]nce this determination has been made, counsel for [Kuncl] will supplement this answer to Interrogatory." Then at Kuncl's deposition taken in April 2019, in response to an inquiry from Fugate's counsel as to whether Kuncl had retained an expert in the case, Kuncl stated, "I haven't. No." At that point, Kuncl's counsel stated, "I think for the record we have consulted -- Have not received any reports, but we have consulted with Dr. Lee Kimzey in town." Kuncl's counsel also stated, "He has not reviewed anything as of yet concerning this case."

On January 2, 2020, Fugate filed a motion for summary judgment and an index listing the evidence in support of the motion.

A summary judgment hearing was held before the district court on January 27, 2020. The court accepted the exhibits offered by Fugate, including various pleadings, a copy of Lowe's 2015 will, an affidavit from Fugate, and various depositions. The court also accepted the deposition of a long-time acquaintance of Lowe's offered by Kuncl. Fugate objected to Kuncl's offer of an affidavit of her expert, Kimzey, because Kuncl had not filed an index of evidence as required by Neb. Ct. R. § 6-1526 (rev. 2018), the affidavit had not been not timely served pursuant to Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020), and Kimzey was not disclosed in discovery as requested. Fugate also objected on the grounds of relevance, reliability, foundation, and lack of an actual opinion contained within the affidavit and argued that the affidavit accordingly was not admissible under Neb. Rev. Stat. § 27-702 (Reissue 2016) as an expert opinion. The court took the objections under advisement, and it ultimately excluded the affidavit from evidence.

Dr. Jeffrey Brittan had been Lowe's primary care doctor for several years, beginning in approximately 2004 and continuing until Lowe's death in November 2017. Brittan described Lowe's health overall as "pretty good." Lowe was diagnosed with lymphoma in October 2004, but he had reached remission status by October 2005. In subsequent followup appointments, Lowe's oncologist noted that Lowe was fairly active at age 79 and walked approximately 2 miles a day.

Brittan's medical records for Lowe do not show any treatment from 2010 to 2015. Brittan did not know of Lowe seeking medical treatment from any other doctor during this period and testified that he always believed he was Lowe's primary healthcare doctor. Brittan believed that the gap was due to Lowe not having to be seen, explaining that he was provided with Lowe's medical records from third parties, including Lowe's oncologists, hospitals, and nursing home/assisted living facilities for coordination of care.

Brittan testified that Lowe became physically weak as he aged but that he did not notice any issues with Lowe "from a mental standpoint." Brittan did not have any concerns about Lowe's vision after he had cataract surgery in March 2010. Lowe was approved to drive after a physical in March 2016 when Brittan characterized Lowe's heath as "pretty good." Lowe was admitted tothe hospital in May and again in June 2017 for pneumonia. During followup appointments, Brittan found that Lowe was a little weak and recovering from his admission to the hospital but Brittan did not find him to be confused. Brittan explained that any noted confusion by hospital staff during the admissions would have been resolved by the time of Lowe's followup appointments with Brittan. He further testified that any such confusion noted by hospital staff would be typical of a hospitalized 89-year-old man, recovering from pneumonia.

By July 2017, Lowe had fallen and was living in a nursing home. Brittan started Lowe on "some breathing treatments" due to increased leg swelling and edema. In August, Lowe was admitted to the hospital for frequent falls due to weakness in his legs. Although Lowe was physically weak, Brittan did not have any concerns about Lowe's mental capabilities. Lowe had an appointment with Brittan on August 18, 2017, due to "just not feeling good." Brittan testified that Lowe's only medications at the time were Vicodin and Albuterol, which Brittan characterized as "pretty darn good for an 89-year-old." By September, Brittan had prescribed additional medication to reduce fluid due to Lowe's continued problems with edema. From approximately September through his death in November, Lowe...