In Re Copelan
Evelyn Copelan appeals the jury verdict of the Superior Court of Putnam County finding her an incapacitated adult as to her person and property. For the reasons discussed below, we reverse.
The standard of review on appeal from the denial of a motion for directed verdict or for judgment notwithstanding the verdict is “any evidence.”
Viewed in this light, the evidence showed that Mrs. Copelan’s husband, Russell Copelan,
Mrs. Copelan actively participated in the day-to-day activities of running the dairy farm prior to, as well as after, her husband’s death. Most notable of these activities as adduced from the record included ongoing bookkeeping, check writing, and her voluntary completion of duly authorized survivor deeds.
After her husband’s death, Mrs. Copelan’s children assisted in some aspects of the dairy business. For example, her oldest son, Thomas, helped Mrs. Copelan manage the farm, while Willie David (“Danny”), the youngest, participated in the physical labor of the business. The other two children, Uyvonna and John, had independent employment and did not work on the farm in any ongoing substantive capacity. In approximately 1995, Uyvonna moved in with Mrs. Copelan.
Approximately two years after Mr. Copelan’s death, the dairy farm business began to go into debt totaling approximately $170,000. Uyvonna testified that Mr. Copelan “always told [Mrs. Copelan], if the business got bad to sell the cows, not to sell the land.” Mrs. Copelan proceeded to sell a herd of dairy cows to alleviate the debt.
This decision to sell the herd caused significant family conflict. Thomas believed that the dairy herd was his and that Mrs. Copelan would never dispose of this property unless something was wrong with her. John concurred in this opinion. The conflict reached such a peak that Christmas activities in 1996 were suspended and threatening words were exchanged among the children, most notably a vituperative phone message left by John on Danny’s answering machine threatening Mrs. Copelan with “embarrassment” in the community and a lawyer who was “chomping at the bit” to take the case.
Consequently, on October 1, 1997, Thomas and John filed a petition for the appointment of a guardian both as to Mrs. Copelan’s person and property alleging that she was an incapacitated adult. The specific incapacities designated by the petition were “mental disability” and “advanced age.” As such, the petitioner alleged that Mrs. Copelan: (1) lacked sufficient understanding or capacity to make significant responsible decisions concerning her person or [was] incapable of communicating such decisions; and (2) [was] incapable of managing her estate, and the property of the proposed ward [would] be wasted or dissipated unless proper management [was] provided or the property of the proposed ward [was] needed for her support or the support of persons entitled to be supported by the proposed ward.
On October 24, 1997, after reviewing the petition and the psychological evaluation report concerning Mrs. Copelan, the probate court found no probable cause to support a finding of incapacity. Significantly, the psychological evaluator of Mrs. Copelan, Jeff Duffey, found that Mrs. Copelan suffered symptoms of clinical depression, but was not incapacitated to such a degree that a guardian should be appointed over her person and property. However, as a result of the unfavorable probate court ruling, Thomas and John Copelan appealed to the superior court on November 24,1997, and a jury trial ensued.
At trial, the jury heard relevant testimony from expert and lay witnesses concerning Mrs. Copelan’s alleged incapacitation. Mrs. Copelan neither testified nor appeared at this trial. John testified that the apparent reason for her absence was “embarrassment,” as she was a “sweet, genteel, epitome of a southern lady” and “never liked to discuss the family business in the community.”
Dr. Anna Marie Paulsen, petitioner’s expert in mental incapacity, testified at trial by deposition. Dr. Paulsen was the psychiatrist who evaluated and treated Mrs. Copelan on several different occasions. The first visit with Dr. Paulsen was March 4,1996. Dr. Paulsen performed a “clinical interview” which entailed a basic review of systems and various counting tests. Significantly, Dr. Paulsen did not give Mrs. Copelan any “mental cognition tests” as she “came across very well in that first session.” However, at this
She [had] trouble sleeping through the night. She said she cries very easily, she said she is not sure why. She said it did start when her husband passed. She felt like she couldn’t stay by herself. She couldn’t remember names. She reported a tremendous amount of anxiety. Then she appeared very depressed and anxious, even a bit slowed, mentally slow and dull. She was self-conscious of information she seemed to be giving to me. She knew her age and she knew the day of the week, but in terms of — and she knew general information. She knew the birthdays of all of her children. But she seemed fuzzy in terms of trying to tell me some information. And she could not do counting by serial sevens down from 100, or threes.
As a result of the diagnosis, Dr. Paulsen prescribed an antidepressant, Pamelor, to treat Mrs. Copelan’s depression. On two subsequent visits, Mrs. Copelan’s status seemingly improved. Dr. Paul-sen noted Mrs. Copelan’s statements: “ ‘I’m feeling much better, I’m not crying as much. . . . Mentally clearer. . . .’ I noted she looked good, but seemed very sad.” On Mrs. Copelan’s December 11, 1996 visit, Dr. Paulsen stated that Mrs. Copelan was “clear, coherent and oriented,” but Dr. Paulsen noted that she was still “depressed.” As a result, Dr. Paulsen discontinued the Pamelor prescription, but prescribed Serzone to further treat Mrs. Copelan’s seemingly chronic depression. On the December 18, 1996 visit, Dr. Paulsen testified that Mrs. Copelan stated: “ ‘I feel the best I’ve ever felt, wow, a big difference. I feel motivated. I’m not too dizzy, I’m sleeping better and I have no side effects.’ ” As a result, Dr. Paulsen concluded that “she was alert, she was oriented, she was non-psychotic.”
On the next visit, Dr. Paulsen made no note of confusion or disorientation, but changed Mrs. Copelan’s medication to Effexor because the Serzone had not alleviated Mrs. Copelan’s depression. At the next visit, Dr. Paulsen noted in her records that Mrs. Copelan “[took] care of herself, sleeping, eating, clothing.” Finally, on October 8, 1997, Dr. Paulsen diagnosed Mrs. Copelan as: “awake and alert, but very distant . . . she had serious depression. I recommended that she go into a hospital to get help.” Despite her depression, Mrs. Copelan indicated to Dr. Paulsen that she was capable of managing her own affairs, telling her, “[I am] all right — I write my checks on my own.”
Significantly, on cross-examination, Dr. Paulsen was asked if she could state to any degree of medical certainty that Mrs. Copelan “didn’t know where she was, didn’t know what she was doing and couldn’t handle her affairs.” In response, Dr. Paulsen retorted that the date of her last record would “not indicate” such. The most Dr. Paulsen could conclude was that Mrs. Copelan was “sad.” In Dr. Paul-sen’s opinion, Mrs. Copelan needed to be hospitalized because she: “had a history of coming into treatment and out of treatment with irregularity, not following through with medication for any length of time.”
Testimony was also heard from an attorney, George Lawrence, who had been engaged by Mrs. Copelan to enact certain survivor deeds in 1997, but who also knew her personally for approximately 50 years prior. Lawrence testified that in 1997, Mrs. Copelan seemed to be in touch with reality and spoke articulately. Moreover, Mrs. Copelan returned and/or called a second and third time to Lawrence’s
office to discuss and sign the deeds in his presence. When asked if Mrs. Copelan understood the legal implications of the survivor deeds, Lawrence testified that she comprehended the legality of the deeds or “[he] would not have drawn it otherwise.” This discussion occurred after Mrs. Copelan had taken the deeds home to peruse them on her own. Moreover, Lawrence,
Contrary to Dr. Paulsen and Lawrence, Thomas Copelan testified as a lay witness that Mrs. Copelan’s mind was slipping:
Q. Did you ever notice your mom after your dad died, . . . start to forget things or just act different than she did before?
A. Oh Yeah, Oh Yeah. I suppose a lot of it came with age and pressure and all. But she did. Her mind definitely was slipping, and she admitted to me a lot of times, you know, she’d say, I can’t remember this, can’t remember that, you’ll have to help me remember this, have to help me do that.
Thomas testified further that Mrs. Copelan exhibited forgetfulness that got worse with age:
Q. Prior to your dad’s death, had you ever noticed your mother having any problems with forgetfulness?
A. Well, . . . like I say, she was getting older, and it was — you could tell it was a progressive thing. I mean, the older she got the worse it got. And it started, you know, years ago. Of course, I guess I’m starting to forget a few things myself, you know.
However, Thomas also proffered evidence that, despite her apparent mental slippage and forgetfulness in his opinion, Mrs. Copelan: (1) maintained the books for the dairy farm, both prior to and after her husband’s death; (2) executed survivor deeds; and (3) drafted checks necessary to operate the dairy business.
Further, Thomas testified that Mrs. Copelan’s conduct, with respect to selling the cows, if not due to her alleged mental slippage, was otherwise promulgated by the undue influence of Uyvonna and Danny Copelan: “I started this litigation because she was giving away her property and not knowing what she was doing, or else under duress doing it. . . . Her life was being controlled by my sister [Uyvonna]. Being totally controlled, and she wasn’t living no kind of life. . . . [S]he was being manipulated.”
Similar to Thomas’ testimony, John testified at trial concerning Mrs. Copelan’s allegedly deteriorating mental condition:
Well, at the time daddy died, . . . she wasn’t able to deal with all of it because even then her mind was starting to slip, and she was nervous or she was taking anti-anxiety drugs all the time because she just couldn’t deal with it. She cried a lot, she just said that everything was driving her crazy. ... It got progressively worse. It got to the point that she was crying daily.
John further testified that Mrs. Copelan “told [him] that she really needed [his] help, that she just couldn’t do things for herself, and told that [John] was the only person that had ever helped her in the right way.”
John alleged that he and Thomas have had almost no contact with Mrs. Copelan as a result of the alleged undue influence of Uyvonna and Danny. “They [Uyvonna and Danny] had absolutely brainwashed her and had beaten that poor woman down until they have sucked every bit of life that she has out of her.”
John’s ex-wife, Ann Copelan, a professional artist and master’s level psychologist, without objection, also testified as to Mrs. Copelan’s mental capacity even though she was neither qualified nor tendered as an expert witness in the case. 2
Specifically, Ann Copelan testified to an isolated occurrence at Phipps Plaza mall where she and Mrs. Copelan were shopping together. She testified that Mrs. Copelan’s: “memory seemed to be failing at that time, because in going to some of the same places and everything, I would tell her to meet me at certain places, and she wouldn’t be there. And I would have to look to find her.” However, she never gave specific facts upon which the jury could weigh her lay opinion — i.e., appeared dazed, disoriented, did not know where she was as opposed to losing track of time shopping. For example, when
Further, Ann Copelan testified that she had engaged in phone conversations with Mrs. Copelan after June 1997, in which Mrs. Copelan seemed confused, had memory loss, and appeared to be deteriorating. Ann Copelan gave no factual examples, and no further evidence was adduced at trial, showing how Mrs. Copelan was confused, exhibited memory loss, or appeared to be deteriorating during these telephone conversations. Again, however, Ann Copelan testified on cross-examination as to the substance of the telephone conversations; a central issue of the conversation was the “tax implications” of her estate. Ann Copelan testified that Mrs. Copelan “did not understand estate tax” and that she “did not know who to go and see.”
In addition, Ann Copelan testified that, from a videotape deposition of Mrs. Copelan taken in 1998, she had “diagnosed” Mrs. Copelan as seemingly “suffering a dementia, a disease associated with memory loss and decreased interest in activities as well as herself.” This lay opinion was proffered solely on the observance of the videotape in comparison to Ann’s past knowledge of Mrs. Copelan; no physical examination or evaluation was conducted, no tests were performed, no written diagnosis was made. She based her opinion on: (1) “all of my experience with persons that I have tested”; (2) “knowing her from the past, . . . and on having seen her in 1996”; and (3) “especially on the videotape deposition.” Importantly, the videotape was not entered into evidence so that the jury could view it to determine the weight and credibility of the lay opinion.
Lastly, Ann Copelan testified to Uyvonna’s alleged undue influence over Mrs. Copelan. She related an occurrence in June 1997, when John had a stroke. Apparently, Mrs. Copelan wished to visit her son in the hospital, but Uyvonna refused to bring Mrs. Copelan to the hospital.
Mrs. Copelan’s sister, Lillie Whitaker, also testified concerning Mrs. Copelan’s alleged mental incapacity as well as the alleged undue influence of Uyvonna and Danny. Specifically, Whitaker recounted instances where Mrs. Copelan could independently “drive around.” When asked if Mrs. Copelan was a person losing her faculties during those times, Whitaker responded, “not then.”
Concerning the alleged undue influence of Uyvonna, Whitaker also testified that a “block” was placed on Mrs. Copelan’s phone, allegedly by Uyvonna, after she attempted to contact Mrs. Copelan several times in one day. In addition, Whitaker testified that she last saw Mrs. Copelan at the beauty parlor, but apparently Mrs. Copelan appeared afraid to talk to her because of Uyvonna; however, Uyvonna was not physically present at the hair appointment.
Based on this evidence, a jury verdict was entered on September
22, 2000, in the Superior Court of Putnam County finding that Mrs. Copelan was an incapacitated adult, and that, as such, a guardian should be appointed over both her person and property in accordance with
Mrs. Copelan contends that the verdict is not supported by the evidence. We find that the verdict is not supported by clear and convincing evidence and reverse.
A judge of the probate court may appoint guardians over the person of adults who are incapacitated by reason of mental illness, mental retardation, mental disability, physical illness or disability, chronic use of drugs or alcohol, or other cause, to the extent that such adults lack sufficient understanding or capacity to make significant responsible decisions concerning their personsor to the extent that they are incapable of communicating them.
A judge of the probate court may appoint guardians over the property of adults who are incapacitated by reason of mental illness, mental retardation, . . . physical illness or disability, chronic use of drugs or alcohol, detention by a foreign power, disappearance, or other cause, to the extent that such adults are incapable of managing their estates and that the appointment is necessary either because the property will be wasted or dissipated unless proper management is provided or because the property is needed for the support, care, or well-being of such adults or those entitled to be supported by such adults.
On appeal, the determination of guardianship over a person and property requires a consideration of any evidence under the applicable standard, here clear and convincing evidence, to determine whether the adult is incapacitated as enumerated in
The reliance on Dr. Paulsen’s testimony does not reach the threshold of clear and convincing evidence. Dr. Paulsen testified that the most she could say, to any degree of medical certainty, about Mrs. Copelan’s mental capacity, after several clinical visits, was that she was “sad” — i.e., she had lost a husband and had children fighting over her property. If anything, Dr. Paulsen’s record testimony clearly and convincingly establishes that Mrs. Copelan was clear, lucid, and/ or alert at each visit. At one point, Dr. Paulsen went so far as to declare Mrs. Copelan “alert, oriented . . . non-psychotic.” Dr. Paul-sen’s only concern, as reinforced by her repeated diagnoses and prescriptions, was Mrs. Copelan’s state of depression. The seemingly persistent depression and her failure to follow through on medication appear to be what prompted Dr. Paulsen’s recommendation for hospitalization, not her mental incapacity. Thus, Dr. Paulsen’s expert opinion does not support the verdict.
The unsoundness of mind which will justify an appointment must be more than mere physical disability.
Epperson v. Epperson,
Reliance on Ann Copelan’s testimony places appellees’ argument on even weaker ground because she testified as a lay person. Ann Copelan had sufficient knowledge, training, and experience to be qualified as an expert, but, at trial, she testified only
Aon Copelan’s testimony concerning the occurrence at Phipps Plaza, the telephone conversations in 1997, as well as her testimony based on the videotaped deposition, constituted lay testimony about Mrs. Copelan’s mental capacity. As such, Ann Copelan’s testimony, to be probative, had to be substantiated by laying a proper foundation. At trial, the facts upon which her opinion was based were insufficient. For example, Ann Copelan testified that “I would tell her to meet me at certain places, and she wouldn’t be there. And I would have to look to find her.” It goes without saying that a myriad of exigencies could provide a reasonable explanation for Mrs. Copelan’s absence. However, Ann Copelan did not think it necessary to inquire about Mrs. Copelan’s behavior. She merely speculated that her conduct was probably a result of “stress” arising from “the family situation.” Thus, Ann Copelan’s unsubstantiated conclusion and speculative lay opinion that Mrs. Copelan appeared confused and exhibited memory failure were not probative evidence and should have been disregarded by the jury. While ordinarily the sufficiency of the underlying facts to support the witness’s opinion is a jury question, when the reasons stated by the witness are “plainly and indisputably” insufficient, this Court may on review so hold as a matter of law, and a verdict founded upon such evidence should be set aside as being unauthorized.
Whorton v. Boatwright,
Notwithstanding the evidentiary problems with Ann Copelan’s testimony, the substance of her testimony fails to establish clear and convincing evidence of a lack of mental capacity in Mrs. Copelan. On cross-examination, her testimony that Mrs. Copelan was discussing division of property at Phipps Plaza unequivocally calls into question her prior testimony and, thus, fails to meet the burden of clear and convincing evidence because Mrs. Copelan was aware of her estate, her children, and her donative intent.
Moreover, Ann Copelan’s telephone conversations with Mrs. Copelan in 1997 are subject to the same evidentiary and substantive deficiencies. At trial, Ann Copelan testified that during these telephone conversations Mrs. Copelan “seemed confused, had memory loss and appeared to be deteriorating.” Again, this lay testimony was proffered without any factual foundation rendering it nonprobative. Whorton, supra; Espy, supra. As with the substantive failure of the Phipps Plaza incident, Ann Copelan, again, called her own testimony into question. On cross-examination, she asserted that Mrs. Copelan discussed “tax implications” of her estate; discourse concerning the matters of Mrs. Copelan’s estate is clear and convincing evidence of her mental competency, not mental incapacity.
Any reliance on Ann Copelan’s apparent diagnosis of Mrs. Copelan based on her observance of a videotape not entered as evidence (neither was the videotape transcript entered) at trial fails. A lay witness must substantiate any opinions with facts admissible as evidence; an opinion based solely on out-of-court hearsay, not subject to any exception to the hearsay rule, is inadmissible.
Carlson v. State,
Ann Copelan’s “diagnosis” included no physical examination, test evaluation or written diagnosis of Mrs. Copelan, only an observance of a videotape not admitted as evidence. Inasmuch as such diagnosis was based on no more than nonprobative hearsay, the jury could not reasonably assess any weight and credibility of her testimony. As weight and credibility could not be reasonably and fairly assessed in this case, this testimony is deficient as a matter of law. As a result, reliance on Ann Copelan’s testimony based on the videotape unequivocally fails to meet the clear and convincing evidence standard required to appoint a guardian over Mrs. Copelan’s person and property.
The fatal blow to appellees’ argument that the evidence adduced at trial showing Mrs. Copelan’s alleged mental incapacity met the clear and convincing standard is the testimony of George Lawrence. Appellees contend that Mrs. Copelan’s mental incapacity is shown by the fact that she did not know what she had signed when she executed the survivor deeds in 1997. Appellees’ argument flies in the face of Lawrence’s testimony which clearly and convincingly shows Mrs. Copelan to have been competent, fully comprehensive, and in touch with reality when she endeavored to execute the deeds. Despite his acquaintance with Mrs. Copelan for over 50 years, Lawrence would have been obliged to refrain from her request if he had doubt of her mental capacity. Mrs. Copelan’s own conduct, in taking one of the deeds to peruse, supports this reasoning.
The lay testimony of Thomas and John Copelan also fails to meet the clear and convincing threshold as their testimony was unsubstantiated and inherently contradictory. Op the one hand, they testified to Mrs. Copelan’s forgetfulness, mental slipping, and memory failure. On the other hand, however, they testified to Mrs. Copelan’s continued and competent bookkeeping and check writing. If anything, their examples provided a clear and convincing foundation for mental competency, rather than mental incapacity.
Apparently in the alternative, appellees assert that clear and convincing evidence of undue influence falls within the parameters of
Although there is no Georgia guardianship case discussing undue influence as a way of meeting the clear and convincing evidence standard of mental incapacity, there are voluminous cases discussing the same issue in the context of testamentary wills. As this area of law is inextricably related to the legal issues presented in the instant case, it provides fertile ground to determine whether the evidence adduced at trial meets the clear and convincing standard as to undue influence.
However, the evidence in the present case indicated that Mrs. Copelan may have been ignorant as to facts or law, lacked interest in business details, had implicit confidence in her children in whose hands she had placed some of her affairs, and even resented the incompetency proceedings because of embarrassment or since she would much prefer shifting responsibility to the shoulders of others than to worry about them herself, this Court cannot conclude that such confusion as appeared from the testimony showed clear and convincing evidence of a mind laboring under difficulty in functioning.
On the contrary, Mrs. Copelan’s mind was alert, lucid, and clear. Mrs. Copelan was clearly not subject to such undue influence as to undermine her own free will.
Sims v. Sims,
Susceptibility to undue influence arising from deep friendship for, or extreme confidence in others, alone, cannot establish clear and convincing evidence of incompetency of the victim unless it is to an extent which deprives the victim of free will; Mrs. Copelan was not subject to such undue influence undermining her own free will. Sims, supra. As such, susceptibility to undue influence may be the instrumentality used upon an incompetent victim, but there must be other independent evidence of that mental incompetence. Common sense would dictate that strong mentalities are sometimes the victims of undue influence.
In the instant case, the enactment of survivor deeds, while perhaps unfair, does not prove mental incapacity, quite the contrary. Lawrence testified to Mrs. Copelan’s coherency, her apparent awareness of reality, and comprehension of the significance of the survivor deeds. Lawrence saw no evidence of duress and would not have drawn up the deeds if he had reason to question her mental capacity.
Moreover, selling the herd of cows, while perhaps imprudent in her children’s eyes, does not establish clear and convincing evidence of mental incapacity when the estate was in arrears by approximately $170,000.
In the instant case, extensive evidence was proffered in support of Mrs. Copelan’s mental competency, and the probative force of this evidence is not to be ignored. The alleged conflicting evidence presented does not create an issue of fact upon which impartial minds may reach different conclusions; rather, the jury relied on testimony that was inadmissible, inappropriate, nonprobative, and/or unsubstantiated. Any verdict founded upon evidence inadmissible as hearsay should be set aside as being unauthorized. Whorton, supra; Espy, supra; Kodadek, supra.
Typically, the jury is necessarily vested with the primary responsibility of determining fact issues. We are and should be guided by the fact that much must necessarily be left, especially in proceedings of this kind, to the sound judgment of the jury and the trial court that have the advantage of being confronted with the witnesses, typically the alleged incompetent person, and the circumstances surrounding the entire proceeding. The trial court clearly is more capable than we of reaching a clear understanding of the situation and of the mental condition and capacity of the claimed incompetent person.
However, the instant case showed that Mrs. Copelan is not a person of unsound mind, and that there was no clear and convincing evidence to support a finding that her normal mental faculties have deteriorated to the extent that she no longer possesses the degree of mental alertness, stability, and comprehension necessary to avoid the impositions of designing persons, or the waste that results from incompetent management of property as outlined by
Upon review of the trial court’s judgment and the entire record, this Court finds that the jury verdict was unfounded as it was based on insufficient and improper evidence which failed to meet the mandated standard of clear and convincing evidence. Kodadek, supra.
Judgment reversed.
Notes
This Court must therefore view the evidence presented at trial and determine whether some evidence supported the jury’s verdict, and, in doing so, must view the evidence in the light most favorable to the party for whom the verdict was rendered.
Kodadek,
supra. Where a jury returns a verdict and it has the approval of the trial judge, the verdict must be affirmed on appeal if there is “any evidence” to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. Id. This Court “must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [the] motion for . . . new trial will not be disturbed.” (Citations and punctuation omitted.)
MARTA v. Green Intl.,
She is currently employed by Putnam-Jasper Mental Retardation Center and is supervised by John Copelan, the Director of the Center. At the Center, Ann Copelan performs psychological evaluations among other duties.