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Estate of Lyons v. Lyons

Supreme Court of Mississippi

April 6, 2017

ESTATE OF KATHERINE M. LYONS, DECEASED: ANTHONY LOBRED
v.
LARRY LYONS

          DATE OF JUDGMENT: 01/27/2016

         WARREN COUNTY CHANCERY COURT TRIAL JUDGE: HON. VICKI R. BARNES

          ATTORNEY FOR APPELLANT: DAVID M. SESSUMS

          ATTORNEY FOR APPELLEE: HENRY DEAN ANDREWS, JR.

          BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

          COLEMAN, JUSTICE.

         ¶1. The instant interlocutory appeal arises from a will contest between the testator's brother, Larry Lyons, and her nephew, Anthony Lobred. Larry filed a motion to strike the deposition testimony of Dr. Lara Clement, a treating physician of the testator, due to Lobred's counsel's alleged ex parte communication with Dr. Clement prior to her deposition. The trial court ordered that any testimony of Dr. Clement that was not discernable from the testator's medical records would be inadmissible at trial. Lobred sought permission to file an interlocutory appeal and the Court granted Lobred's petition. We hold that the communication between Dr. Clement and Lobred's attorney was acceptable ex parte communication; accordingly, we reverse and remand.

         FACTUAL BACKGROUND

         ¶2. On September 23, 2005, the testator, Katherine M. Lyons, executed a document purporting to be her last will and testament ("2005 will"). The 2005 will designated her nephew, Lobred, as executor and provided that all of Katherine's real and personal property would be devised to Lobred. The 2005 will also provided that, in the event Lobred predeceased Katherine, the sole beneficiary would be her nephew, Kenneth Lyons.

         ¶3. On July 17, 2012, Katherine executed a document purporting to be her last will and testament ("2012 will"). The 2012 will designated Katherine's brother, Larry Lyons, as executor. The 2012 will provided that all of Katherine's real and personal property would be devised to Larry's son, Kenneth Lyons, while reserving a life estate for her residence for her brother, John Lyons. Upon John Lyons's death, the residence would revert to Kenneth Lyons.

         ¶4. On March 29, 2014, Katherine passed away at the age of eighty-three. Katherine was not married and had no living children at the time of her death. Katherine's death certificate identified her immediate cause of death as cardiopulmonary arrest due to or as a consequence of Alzheimer's Disease. Larry disputed that Katherine died from complications associated with Alzheimer's Disease and further disputed that Katherine had suffered from Alzheimer's from 2012 until her death.

         ¶5. On April 22, 2014, Lobred filed a petition to probate the 2005 will as muniment of title to real property in Warren County. In the petition, Lobred claimed that Katherine had conveyed to him certain real property in Warren County and had reserved a life estate for herself. Lobred claimed that because Katherine's personal estate did not exceed the sum of $10, 000, no reason existed to have an administration of the estate or to appoint an executor. The trial court entered an order probating the 2005 will as muniment of title to real property in Warren County. On July 18, 2014, Larry filed a petition to probate the 2012 will in common form. The trial court entered an order admitting the 2012 will to probate and appointing Larry as executor.

         ¶6. The trial court consolidated the two separate cases. On November 4, 2014, Lobred filed a petition contesting the validity of the 2012 will. Lobred argued that Katherine had lacked testamentary capacity at the time she had executed the 2012 will. Lobred also argued that the will was invalid because it was the product of undue influence from an individual or individuals having a fiduciary relationship with Katherine.

         ¶7. On November 6, 2014, Larry filed a petition contesting the validity of the 2005 will as muniment of title to real property. Larry argued that the 2012 will revoked all wills and codicils previously made. Larry requested that the trial court declare the 2005 will void as a muniment of title. Larry filed a response to Lobred's petition contesting the 2012 will. Larry disputed Lobred's claim that Katherine had lacked testamentary capacity at the time she had executed the 2012 will and further disputed that the 2012 will was a product of undue influence.

         ¶8. During discovery, Lobred served Dr. Clement with a subpoena duces tecum requesting Katherine's medical records. Katherine's medical records were provided to both Larry and Lobred. Dr. Clement, a family medicine physician, saw Katherine as a patient on fourteen occasions from 2001 to 2006. Dr. Clement saw Katherine as a patient on five occasions from January 31, 2011, to May 17, 2012. Dr. Clement last saw Katherine as a patient on May 17, 2012. On November 6, 2015, Lobred filed a notice of deposition scheduling Dr. Clement's deposition to be held at David M. Sessums's law office on December 10, 2015.

         ¶9. On December 10, 2015, Larry's counsel, Dean Andrews Jr., arrived at Sessums's office and waited in the deposition room. Lobred's counsel, Sessums, entered the room with Dr. Clement. Andrews asked Sessums if he had been discussing Katherine's medical records with Dr. Clement; Sessums replied affirmatively.

         ¶10. Dr. Clement's deposition is not in the record, but the substance of Dr. Clement's deposition testimony is not in dispute. According to Lobred's petition for permission to appeal, Dr. Clement testified that Katherine had been competent to execute a valid will in 2005, but had been incompetent to execute a power of attorney in favor of Larry on May 8, 2012, and also incompetent to execute a valid will on July 17, 2012. Larry claimed that Dr. Clement testified that she had spoken with Sessums in preparation for her deposition. Larry also claimed that Dr. Clement testified that no one had authorized her to speak with anyone about Katherine's medical records and that she was familiar with privacy laws.

         ¶11. On January 8, 2015, Larry filed a motion to strike the testimony of Dr. Clement. Larry argued that Dr. Clement's testimony should be excluded due to unauthorized ex parte communication between Dr. Clement and Lobred's counsel. Larry sought to strike all of Dr. Clement's testimony and did not limit the motion to specific testimony. Larry also claimed he had discovered that Sessums's law firm had represented Dr. Clement in an unrelated medical malpractice case. Larry argued that the ...


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