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Weingarten v. Chester

United States District Court, D. Vermont

August 28, 2019

ALBERT VON WEINGARTEN and MARY VON WEINGARTEN, Plaintiffs,
v.
LONNIE CHESTER, Defendant.

         OPINION AND ORDER DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE THE AMENDED COMPLAINT; CONDITIONALLY GRANTING PLAINTIFFS' MOTION TO AMEND; DENYING AS MOOT PLAINTIFFS' MOTION TO STRIKE THE STATEMENT OF UNDISPUTED FACTS; AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docs. 26, 28, 31, 36, 37)

          CHRISTINA REISS, DISTRICT JUDGE.

         Plaintiffs Albert and Mary Von Weingarten (collectively, "Plaintiffs") bring this action against Defendant Lonnie Chester, the administrator of the Estate of Philomena Weingarten (the "Estate"), asserting claims for malicious prosecution, abuse of process, and maladministration of the Estate.

         Harold B. Stevens, III, Esq. represents Plaintiffs. Thomas E. McCormick, Esq. and Duncan F. Kilmartin, Esq. represent Defendant.

         I. Procedural Background.

         On March 1, 2019, Defendant filed a motion to dismiss for failure to state a claim, or in the alternative a motion for a more definite statement and attached a statement of undisputed facts and exhibits. (Doc. 26.) On the same day, he filed a motion to strike Plaintiffs' Amended Complaint on the basis that it differed from the one previously approved by the court. (Doc. 28.) In response, on March 13, 2019, Plaintiffs filed a second motion to amend their Amended Complaint and a motion to strike Defendant's statement of undisputed facts and attached exhibits asserting this information is irrelevant in the instant case. (Docs. 36 & 37.) Defendant opposed Plaintiffs' motion to strike as well as their second motion to amend.

         On March 11, 2019, Defendant filed a motion for summary judgment. (Doc. 31.) On April 5, 2019, Plaintiffs opposed Defendant's motion for summary judgment. Defendant replied on April 26, 2019, at which time the court took the pending motions under advisement.

         Because Defendant's motion to dismiss is subsumed by his motion for summary judgment, the court DENIES AS MOOT Defendant's motion to dismiss and motion to strike the Amended Complaint. The court further DENIES AS MOOT Plaintiffs' motion to strike Defendant's statement of undisputed facts because the case has been fully briefed on summary judgment and because the parties have been afforded the opportunity to "present all material that is pertinent to the motion." Fed.R.Civ.P. 12(d). The court hereby CONDITIONALLY GRANTS Plaintiffs' motion to amend their Amended Complaint so that it may consider the parties' arguments in the context of the Second Amended Complaint.

         II. The Undisputed Facts.

         Philomena Mamie Weingarten died on December 20, 2001, at the age of 98. At the time of her death she lived in Newport, Vermont. Philomena Weingarten had six children: Anthony, Henry Jr., Robert, Albert, Juliet, and Freida. Frieda is now deceased and was survived by her daughter Leann and her son, Defendant Lonnie Chester.

         Following Philomena Weingarten's death intestate, Defendant was appointed administrator of her Estate. On September 1, 2005, the Vermont probate court issued a Decision and Order (the "9/1/05 Decision and Order") wherein it granted Defendant's motion to compel Plaintiff Albert Von Weingarten to disclose and turn over the Estate's assets, and denied Plaintiff Albert Von Weingarten's cross motion to remove Defendant as Administrator concluding, "[i]t is evident from the record, and the court so finds, that the delays in settling this estate have been solely the result of Albert [Von Weingarten's] own actions." (Doc. 29-24 at 10.)

         On October 28, 2005, in his capacity as Administrator, Defendant filed suit against Plaintiffs in the Vermont Superior Court (the "Civil Suit") alleging the following claims: larceny; conversion; embezzlement; fraud, false pretenses, trickery, or deceit; secreting assets; guardians and guardianship de son tort; attorneys in fact and attorneys de son tort; executors/administrators de son tort; fraud and undue influence; deprivation of appropriate health care; false imprisonment; trespass; outrageous conduct; unlawful mischief; and enforcement, judgment, and execution of the probate court's 9/1/05 Decision and Order.

         On December 5, 2005, Defendant obtained the probate court's approval for an ex parte writ of attachment on Plaintiffs' residence based on the probate court's factual findings that Plaintiffs "are extremely deceptive persons who have obtained between $180, 000 and $250, 000 of Philomena Weingarten's assets without cause or right[, ]" had "listed for sale their only Vermont property [, ]" and that "there [was] an immediate danger that the [Plaintiffs] w[ould] sell or convey their property to a bona fide purchaser leaving insufficient attachable property or other assets to satisfy this judgment and protect the estate of the late Philomena Weingarten[.]" (Doc. 29-26 at 15-16.)

         On October 29, 2009, Plaintiffs moved for summary judgment in the Civil Suit. The Vermont Superior Court denied their motion for summary judgment with regard to Defendant's claims for conversion, guardianship de son tort, attorneys in fact de son tort, constructive fraud, false imprisonment, and trespass, but granted their motion for summary judgment with regard to Defendant's remaining claims.

         On November 4, 2011, the parties reached a settlement in the Civil Suit pursuant to which they agreed: "Case is settled. [Plaintiffs] shall pay $50, 000 to the Estate of Philomena Weingarten. There is no admission of fault-none whatsoever - All estate proceedings, claims whatsoever are terminated with prejudice. This suit will be dismissed with prejudice. Full Confidentiality only to the extent possible due to Court procedure." (Doc. 43-2 at 16.) The parties subsequently reported to the Vermont Superior Court that they disagreed over the scope of the settlement agreement's release.

         On February 21, 2012, Defendant filed a motion to enforce the settlement agreement. On April 18, 2012, Plaintiffs moved to set it aside. At an August 15, 2012 hearing held before the Vermont Superior Court, Defendant agreed with Plaintiffs that the settlement agreement did not address the rights of distribution, if any, which Plaintiff Albert Von Weingarten may have as an heir to the Estate. Based on this concession, on August 17, 2012, the Vermont Superior Court issued the following Entry Order:

This matter came before the court on various motions related to the settlement agreement purportedly reached by the parties. The [Defendant] has conceded on the record that the settlement does not reach rights of distribution which Albert Weingarten may have under the intestate estate of Philomena Weingarten; that is, he has not relinquished his rights as an heir.
In light of that concession, the court concludes that there are no further matters in dispute and the case is deemed resolved. The settlement agreement is otherwise enforceable. Payment expected under the agreement shall be made by September 3, 2012. All other claims, including various claims for sanction, are denied. This matter will be dismissed upon payment to the estate of the sums required by the agreement. Interest thereafter at statutory rate.

(Doc. 29-50 at 1.)

         Plaintiffs appealed the August 17, 2012 Entry Order to the Vermont Supreme Court, asserting that there was no meeting of the minds with regard to the settlement agreement. The Vermont Supreme Court denied their appeal and affirmed the Entry Order. See Chester v. Weingarten, 2013 WL 9055957, at *3 (Vt. Oct. 11, 2013) ("We ...


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