United States District Court, D. Vermont
KINDRED NURSING CENTERS EAST, LLC d/b/a KINDRED TRANSITIONAL CARE AND REHABILITATION -BIRCHWOOD TERRACE, Plaintiff,
ESTATE OF BARBARA L. NYCE, KINSLEY F. NYCE, and ROGER G. NYCE, Defendants.
OPINION AND ORDER (DOC. 110)
Geoffrey W. Crawford, Judge United States District Court
case concerns claims by the estate of Barbara Nyce that her
sons drained her bank accounts and persuaded her to transfer
her home to them during her lifetime in order to avoid any
obligation to pay for the cost of her nursing home care.
lawsuit is filed in federal court on diversity grounds.
Plaintiff Kindred Nursing Centers East is a Kentucky
corporation. (Doc. 91 at 1.) Defendant Estate of Barbara Nyce
is a Vermont estate created pursuant to Title 14 of the
Vermont Statutes Annotated. Defendants Kinsley Nyce and Roger
Nyce are residents of Ohio and Massachusetts, respectively.
(Doc. 90 at 1.) Third-party defendant Stuart Bennett, Esq. is
a Vermont resident. Third-party defendants Stuart M. Bennett,
P.C. and Bennett & Zaikowski, P.C. are Vermont
case originated as a simple collections dispute between
Kindred-which supplied nursing care to the late Barbara Nyce
in the final years of her life-and her estate and sons. That
aspect of the case has been resolved by the acceptance of
Medicaid reimbursement by Kindred and a determination by the
Medicaid administrator that no further payment is due from
the estate. (See Doc. 88 at 2 ("The parties now
agree that the payments to Plaintiff by the Vermont Medicaid
program represent payment in full for the nursing home
services provided to Barbara Nyce.")-)
twist, it became necessary for Kindred to open an estate on
behalf of Barbara Nyce in order to bring suit. Neither
surviving son had opened an estate themselves. The attorney
selected by Kindred for this task, Renee Mobbs, has filed
cross-claims against the two sons seeking to recover funds
they received from their mother during her lifetime. (Doc.
seeks payment from the sons of the money it has spent on
attorneys fees in this matter. (Doc. 97 Â¶ 44.)
Nyce has never appeared in this case. There is a dispute
among the parties over whether he has been served. The issue
has not been resolved through a motion for default or in some
other fashion. (See Doc. 103 at 1-2.)
Nyce has appeared and has filed claims of his own against
Kindred. He seeks indemnification for his attorney fees.
(Doc. 98.) He has filed a third-party action against Attorney
Bennett, Stuart M. Bennett, P.C., and Bennett &
Zaikowski, P.C., seeking indemnification in connection with
an alleged shortcoming in the execution of the power of
attorney by which he conveyed his mother's interest in
her home to himself and his brother in 2006. (Doc. 37.) He
alleges that Bennett committed attorney malpractice when he
served as both the notary public and the witness in violation
of 14 V.S.A. § 3503(a) when Ms. Nyce executed the power
issue before the court on the motion for summary judgment
filed by the Bennett defendants (Doc. 110) is whether the
transfer of the home to the sons as joint tenants with right
of survivorship at the time of her death renders any defect
in the power of attorney moot.
NOT IN DISPUTE
following facts are not in dispute.
August 25, 2006, nine years before her death, Barbara Nyce
conveyed an interest in her residence at 2 Wild Ginger Lane
in Shelburne, Vermont to her sons. She made both her sons
joint tenants with right of survivorship. She retained a
joint tenancy for herself and continued to live in her home.
There is no claim that the deed which she executed to
accomplish this transfer is defective in any way. (Doc.
110-1, Statement of Undisputed Material Facts
("SUMF"), Â¶ 1.)
same time that she transferred her interest in the property
to her sons, she executed a power of attorney. The power of
attorney became effective only if she lost competency. The
power of attorney was defective because her attorney Stuart
Bennett served as witness and notary public in violation of
14 V.S.A. § 3503(a). For purposes of the motion for
summary judgment, the court will assume that any transfer of
Ms. Nyce's joint interest in the property undertaken
through the use of the power of attorney is ineffective
because of the defect in its execution.
years later in March 2014, Ms. Nyce was admitted to a nursing
home in Burlington operated by Kindred. In August 2014,
Kinsley Nyce made use of the defective power of attorney to
transfer his mother's one-third ...