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Kindred Nursing Centers East, LLC v. Estate of Nyce

United States District Court, D. Vermont

October 3, 2017


          OPINION AND ORDER (DOC. 110)

          Geoffrey W. Crawford, Judge United States District Court

         This 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.

         The 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 professional corporations.

         The 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.")-)

         In a 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. 20.)

         Kindred seeks payment from the sons of the money it has spent on attorneys fees in this matter. (Doc. 97 ¶ 44.)

         Roger 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.)

         Kinsley 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 of attorney.

         The 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.


         The following facts are not in dispute.

         On 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"), ¶ 1.)

         At the 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.

         Eight 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 ...

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