MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2014 ME 39
Docket:   Ken-12-594
Argued:   November 19, 2013
Decided:  March 4, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
             JJ.


                             PATRICIA A. McCOLLOR

                                          v.

                       FREDERICK J. McCOLLOR JR. et al.

LEVY, J.

         [¶1] Frederick J. McCollor, Jr. and Cheryl Stanton, who are brother and

sister, appeal from a judgment entered in the Superior Court (Kennebec County,

Mills, J.) in favor of their mother, Patricia A. McCollor, on her claims for violation

of the Improvident Transfers of Title Act (ITTA or Act), 33 M.R.S. §§ 1021-1025

(2013), undue influence, and breach of fiduciary duty. We affirm the judgment.

                                 I. BACKGROUND

         [¶2] The court found the following facts, which are supported by competent

evidence in the record. The late Frederick J. McCollor, Sr., born in 1940, and

Patricia A. McCollor, born in 1944, were married in 1964. They had two children:

Cheryl Stanton, born in 1965, and Frederick J. McCollor, Jr., known as John, born

in 1969.
2

      [¶3] Frederick and Patricia had lived in Maine since 1967 and moved to a

house at 7 Lawrence Street in Waterville in 1996. In 2006, Frederick’s health

began to deteriorate, and he suffered headaches, dizziness, loss of balance,

depression, and a constant fear of falling. By the end of 2006, Frederick stopped

driving. In September 2008, he was diagnosed with inoperable brain tumors and

lung cancer and began chemotherapy treatment. Frederick was in pain, depressed,

and told Patricia that he was not ready to die.

      [¶4]   As Frederick’s condition worsened, Patricia became his primary

caregiver, feeding him, transporting him, and helping him with daily activities.

During this time, John also assisted Patricia with Frederick’s transportation and

tasks around the house. Patricia’s relationship with her daughter, Cheryl, had been

strained since Cheryl was seventeen years old, and communication between them

was minimal.

      [¶5] On October 20, 2008, John informed Patricia that her and Frederick’s

home was at risk of being seized by MaineCare to pay for Frederick’s medical bills

and that Frederick and Patricia had to transfer the title of the house to John and

Cheryl to avoid eviction. Later that day, John drove Frederick and Patricia to the

office of Gateway Title of Maine, where they signed a deed transferring the home

to John and Cheryl. The parties dispute whether Frederick and Patricia met with

John Kirk, an attorney employed by Gateway Title, at this meeting.
                                                                                  3

      [¶6] Over a year later, in June 2010, Frederick suffered a stroke and was

hospitalized for a month. Cheryl traveled to Maine to visit her father and stayed in

the house. During this time, the relationship among Patricia, John, and Cheryl

became increasingly strained. After a dispute in which John accused Patricia of

selling Frederick’s belongings, Patricia came home to find several interior doors

padlocked, effectively preventing her from entering the living and dining rooms as

well as certain areas of the house previously occupied by Frederick. Patricia filed

a complaint in the District Court against John and Cheryl seeking injunctive relief

regarding the use and possession of the house. In March 2011, the parties agreed

to a preliminary injunction pursuant to which no party was to sell, remove, or

encumber the personal property located in the house, and access to the opposing

parties’ claimed areas of the house was to be coordinated through counsel.

      [¶7] Patricia later learned that John had obtained a power of attorney from

Frederick five days after Frederick’s stroke and had opened a joint bank with

Frederick. John transferred over $22,000 from Frederick’s account to this joint

account; the majority of the funds were transferred after Frederick’s death in

December 2010 when John’s power of attorney had terminated. John withdrew all

of the funds in the joint account after Frederick’s death. In October 2010, two

years after the deed conveyance, Patricia learned that MaineCare would not have

seized the house in an effort to collect on Frederick’s unpaid medical bills as John
4

had represented and that, at most, MaineCare would have put a lien on the

property.

        [¶8] Frederick died intestate in December 2010. In 2011, Patricia brought

suit in the Superior Court, both individually and as personal representative of

Frederick’s estate, against John and Cheryl for violation of the ITTA, undue

influence, conversion, and breach of fiduciary duty.

        [¶9] In October 2012, following a jury-waived trial, the court entered a

judgment concluding that the transfer of the real property was obtained through

undue influence and was therefore void pursuant to the ITTA. The court further

found that John had breached his fiduciary duty as the holder of Frederick’s power

of attorney with regard to his transfer and use of Frederick’s money. As remedies,

the court ordered that the 7 Lawrence Street property be held in constructive trust

for the benefit of Frederick’s estate, and that John reimburse the estate in the

amount of $21,198.90 plus pre- and post-judgment interest.1

        [¶10] Patricia subsequently filed a motion to amend the judgment, and John

and Cheryl filed a motion seeking to amend the findings of fact and amend the

judgment, for additional findings of fact, and for a new trial. In November 2012,

the court amended the judgment to further require that John and Cheryl return to
    1
    The remedies described here incorporate the court’s November 2012 amended judgment, which also
amended the damages award to account for a clerical error.
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Frederick’s estate the personal property they removed from 7 Lawrence Street.

John and Cheryl filed this appeal.

                                  II. DISCUSSION

A.    The Presumption of Undue Influence Pursuant to the ITTA

      [¶11] The ITTA “protects elderly individuals against making transfers of

property as a result of undue influence.” Sylvester v. Benjamin, 2001 ME 48, ¶ 11,

767 A.2d 297. The Act establishes a presumption of undue influence when an

elderly dependent person transfers property to another person in the context of a

confidential or fiduciary relationship for less than full consideration:

      In any transfer of real estate or major transfer of personal property or
      money for less than full consideration or execution of a guaranty by
      an elderly person who is dependent on others to a person with whom
      the elderly dependent person has a confidential or fiduciary
      relationship, it is presumed that the transfer or execution was the
      result of undue influence, unless the elderly dependent person was
      represented in the transfer or execution by independent counsel.

33 M.R.S. § 1022(1). If the transferor successfully establishes the presumption of

undue influence by a preponderance of the evidence, and the person benefiting

from the transfer fails to rebut the presumption, the transferor “is entitled to avoid

the transfer.” Id.

      [¶12] John contends that the court erred in finding that Patricia successfully

established the presumption of undue influence because, he claims, Patricia was
6

not an “elderly dependent person” as that term is defined by the statute2 and

because Patricia and Frederick were represented by independent counsel in the

execution of the deed. We address each contention in turn.

        1.     Whether Patricia Qualifies as an Elderly Dependent Person

        [¶13] There is no dispute that Patricia, who was sixty-four years old at the

time of the execution of the deed in October 2008, qualifies as an “elderly person”

pursuant to the ITTA. See 33 M.R.S. § 1021(2) (defining “elderly person” as “a

person who is 60 years of age or older”). The Act defines the term “elderly

dependent person” as “an elderly person [who is] wholly or partially dependent

upon one or more other persons for care or support, either emotional or physical,

because the elderly person . . . [s]uffers from a significant limitation in . . .

emotional or mental functioning . . . .” 33 M.R.S. § 1021(1)(A). We review the

court’s factual finding that Patricia was dependent on John for clear error and will

uphold it unless there is no competent evidence in the record supporting such a

finding. See Sylvester, 2001 ME 48, ¶ 9, 767 A.2d 297.

        [¶14] Contrary to John’s contention, ample evidence in the record supports

the court’s finding that Patricia was at least “partially dependent” upon John. The

court found credible Patricia’s testimony that she suffered from considerable stress
    2
     John does not challenge the court’s finding that Frederick was an elderly dependent person for
purposes of the ITTA.
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and a “rollercoaster” emotional state during the course of Frederick’s illness, that

she attempted in vain to obtain information from John about Frederick’s health

care, and that she depended on John for emotional support, advice, and assistance

in taking care of Frederick. See Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d

903 (“Determinations of witness credibility are uniquely within the fact-finder’s

authority . . . .”). Patricia further testified as to her trust in John’s information

regarding the transfer of the house, her fear of losing her home at a time when

Frederick was ill, and her shock in learning that MaineCare would not have seized

the house as John had led her to believe. Further, it was John who made all of the

necessary arrangements to complete the transfer, including driving his parents to

Gateway Title’s office that very same day. The court did not err in finding that

Patricia qualified as an “elderly dependent person” for purposes of the ITTA.

      2.     Whether Frederick and Patricia Had Independent Counsel

      [¶15] John also contends that the court erred by excluding the evidence of a

Gateway Title document purporting to show that Attorney John Kirk, an employee

of Gateway Title, met with Frederick and Patricia prior to the execution of the

deed. We conclude that the court did err in excluding the document for lack of

foundation, but that the error was harmless.

      [¶16] In reviewing a trial court’s ruling regarding the admissibility of a

business record, “we review foundational findings for clear error and the ultimate
8

determination of the record’s admissibility for abuse of discretion.” Beneficial Me.

Inc. v. Carter, 2011 ME 77, ¶ 9, 25 A.3d 96; see also Bank of America, N.A. v.

Barr, 2010 ME 124, ¶ 17, 9 A.3d 816.

          [¶17]     Pursuant to the Maine Rules of Evidence, a business record is

admissible as an exception to the hearsay rule if the party offering the evidence

lays a proper foundation through testimony of “the custodian or other qualified

witness” showing that

          (1) the record was made at or near the time of the events reflected in
          the record by, or from information transmitted by, a person with
          personal knowledge of the events recorded therein;
          (2) the record was kept in the course of a regularly conducted
          business;
          (3) it was the regular practice of the business to make records of the
          type involved; and
          (4) no lack of trustworthiness is indicated from the source of
          information from which the record was made or the method or
          circumstances under which the record was prepared.

State v. Nelson, 2010 ME 40, ¶ 9, 994 A.2d 808 (quotation marks omitted); M.R.

Evid. 803(6).3 “A qualified witness is one who was intimately involved in the


    3
        The business records exception in the Maine Rules of Evidence provides:

          The following are not excluded by the hearsay rule, even though the declarant is available
          as a witness:
          ...
          (6) Records of regularly conducted business. A memorandum, report, record, or data
          compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or
          near the time by, or from information transmitted by, a person with knowledge, if kept in
          the course of a regularly conducted business, and if it was the regular practice of that
          business to make the memorandum, report, record, or data compilation, all as shown by
                                                                                                      9

daily operation of the business and whose testimony showed the firsthand nature of

his knowledge.” Barr, 2010 ME 124, ¶ 19, 9 A.3d 816 (quotation marks omitted)

(alteration omitted). A qualified witness can provide the proper foundation even if

the witness “did not prepare or supervise the preparation of the record” and was

not the custodian of the record at the time of its creation. Id.

       [¶18] Although Attorney Kirk was not the custodian of and did not prepare

the document, his testimony demonstrated that he was intimately involved in and

had first-hand knowledge of Gateway Title’s business operations. Attorney Kirk

was therefore a qualified witness for purposes of Rule 803(6).                            Because the

evidence in the record established that other requirements of Rule 803(6) were

satisfied, the Gateway Title document should have been admitted.

       [¶19] Even so, this document, titled “Order Summary” and consisting of a

single printout, stating, “10/15/2008 03:42 PM . . . parents spoke with John [Kirk]

and deed Ok per John [Kirk],” established nothing beyond that Attorney Kirk had a

conversation with Frederick and Patricia. Kirk testified that he had no recollection


       the testimony of the custodian or other qualified witness, or by certification that complies
       with Rule 902(11), Rule 903(12) or a statute permitting certification, unless the source of
       information or the method or circumstances of preparation indicate lack of
       trustworthiness. The term “business” as used in this paragraph includes business,
       institution, association, profession, occupation, and calling of every kind, whether or not
       conducted for profit.

M.R. Evid. 803.
10

of his conversation with the couple. This evidence falls far short of satisfying the

ITTA’s definition of “[i]ndependent counsel” as “an attorney retained by the

elderly dependent person to represent only that person’s interests in the transfer.”

33 M.R.S. § 1021(3). There was simply no evidence in the record that Frederick

and Patricia “retained” Kirk as their attorney or that Kirk represented only their

interests in the transfer.

         [¶20] The court did not err in finding that Frederick and Patricia did not

have independent counsel for purposes of the ITTA. Any error in excluding the

order summary was harmless.              M.R. Civ. P. 61; see also Shaw v. Packard,

2005 ME 122, ¶ 13, 886 A.2d 1287.4

B.       The Return of Personal Property

         [¶21] The ITTA defines a “[m]ajor transfer of personal property or money”

as “a transfer of money or items of personal property which represent 10% or more

of the elderly dependent person’s estate.” 33 M.R.S. § 1021(5). John contends

that the court erred in ordering the return of the personal property that John and

Cheryl had removed from Frederick and Patricia’s house because the value of the

property did not amount to a “major transfer” pursuant to the ITTA.



     4
      We are not persuaded by and do not separately address John’s additional arguments regarding the
court’s finding of undue influence.
                                                                                  11

      [¶22] John’s contention is without merit. The warranty deed executed by

Frederick and Patricia conveyed not only the land and buildings located at 7

Lawrence Street but also “the contents therein.” As such, the real estate and the

personal property were conveyed in a single transfer. The court’s rescission of the

transfer included the personal property contained in the house.

C.    Determination of Damages

      [¶23] John also argues that the court erred in its determination of damages

by ignoring contradictory evidence. We will vacate a damages award “only when

there is no competent evidence in the record to support the award.” Woodworth v.

Gaddis, 2012 ME 138, ¶ 9, 58 A.3d 1109 (quotation marks omitted). Here, in

determining the amount of damages, the court was free to credit—over other

contradictory evidence—the summary exhibit of Frederick’s account and related

testimony introduced by Patricia. See Dyer v. Superintendent of Ins., 2013 ME 61,

¶ 12, 69 A.3d 416 (“No principle of appellate review is better established than the

principle that credibility determinations are left to the sound judgment of the trier

of fact.” (quotation marks omitted)). Further, the court’s damages award was

based in part on the amount that John withdrew from Frederick’s account after

Frederick had died and John’s power of attorney had terminated. John did not

dispute this amount. The court’s damages award was supported by ample evidence

in the record.
12

        The entry is:

                           Judgment affirmed.



On the briefs:

        Walter F. McKee, Esq., and Matthew D. Morgan, Esq., McKee
        Billings, LLC, P.A., Augusta, for appellants Frederick J.
        McCollor, Jr., and Cheryl Stanton

        Michael J. Levey, Esq., Levey, Wagley & Putnam, P.A.,
        Winthrop, and Peter B. Bickerman, Esq., Readfield, for
        appellee Patricia A. McCollor


At oral argument:

        Walter F. McKee, Esq., for appellants Frederick J. McCollor,
        Jr., and Cheryl Stanton

        Peter B. Bickerman, Esq., for appellee Patricia A. McCollor



Kennebec County Superior Court docket number RE-2011-39
FOR CLERK REFERENCE ONLY
