Date: 03-18-2013

Case Style: Kyle West v. Christopher Mansfield

Case Number: CJ-2011-5676

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Phil Frazier and Paula J. Quillin

Defendant's Attorney: Joseph R. ("Joe") Farris for Christopher Mansfield

Barry Reynolds and Kelley G. Loud for J. Edward Vierheller and Mr. Ed's Auction Company, Inc.

Description: Kyle West sued Christopher Mansfield and Mr. Ed's Auction Company, Inc. on a negligence theory claiming:

1. Kyle West is an individual living within Tulsa County, State of Oklahoma. Defendant, Christopher Mansfield (“Mansfield”), is an attorney having offices in Tulsa County, Oklahoma. J. Edward Vierheller (“Vierheller”) is an individual and principal owner of Mr. Ed’s Auction Company (“Mr. Ed’s Auction”) located in Rogers County, Oklahoma, and doing business in Tulsa County The maters giving rise to this ca’se of action generally occurred within Tulsa County, Oklahoma, and this is a court of competent jurisdiction and venue.


2. Mansfield was appointed personal representative of the Estate of Marian K. Jones West, Tulsa County Probate Case No. PB-2009-227. Mansfield assumed the duties, obligations and responsibilities of protecting the estate, including the real and personal property of the estate, as well as taking care of the adminitraive lutis and responsibilities customarily charged to an estate representative. Such duties and responsibilities included a gathering, accounting and preservation of all of the assets of the estate.

3. Subsequent to his appointment as personal representative of the subject estate, Mansfield, for reasons unknown and unexplained to Plaintiff herein, hired the Owens Law Firm. Additionally, Mansfield engaged 3. Edward Vierheller, Mr. Ed’s Auction, as Mansfield’s agent who allegedly provided services to the estate and was presumably charged with preservation of the estate.

4. Plaintiff alleges and states and would further show the Court that thereafter, on or about March 5, 2010, an appraisal was performed on the real property with the determination by the appraiser selected by Mansfield that the property had a value of Two Hundred Thirty Thori4 Dollars.

5. Mr. Ed’s Auction selected by Mansfield performed additional services which constituted an inventory value estimate of personal property within the premises. The personal property contents were valued in excess of Thirty Thousand Dollars.

6. Plaintiff states to the Court that certain pieces of personal property were taken to Mr. Ed’s Auction and although requests for their return have been made, Mr. Ed’s Auction and Vierheller continue to hold and keep from Plaintiff property which is rightfully property belonging to the estate.

7. In addition to the foregoing, the deceased, Marian K. Jones West, owned an automobile which had an approximate value of Fifteen Thousand Dollars. For reasons unknown to Plaintifl Mansfield removed the car from the residence and stored it, without consent or without conferring with either of the heirs of the estate, and caused it to be stored with Defendants Vierhdller and Mr. Ed’s Auction. Such storage caused the estate to incur storage costs in the amount of Four Thousand Two Hundred Three Dollars. In addition, while storing said vehicle, the vehicle sustained damage by way of coffision accident.

8. The property belonging to the estate of Marian K. Jones West became heavily mold contaminated and severely damaged because of negligence and lack of care and performance by Defendants. The damage is beyond repair and the furniture and fixtures so damaged had to be destroyed. Plaintiff states the damaged personal property had a value in excess of Thirty Thousand Dollars.

9. Plaintiff further alleges and states and would show to the Court that the estate included and listed a coin collection. Mansfield and Mr. Ed’s Auction, acting by and through Vierheller, have neglected and failed to list such coin collection on the final appraisal filed with the Court. Neither of Defendants has been able to account for the whereabouts of the coin collection although they included it on the initial property estimate (Item 419). Plaintiff states to the Court that the coin collection had a value in excess of Twenty-five Thotis 4 Dollars.

10. Plaintiff states to the Court that this was a contested probate proceeding between Plaintiff and his sister, Marie K. West, and would further advise the Court that the Plaintiff and his sister came to an agreement to resolve their differences and that the Plaintiff paid to his sister, Marie K. West, an agreed to sum thereby establishing Plaintiff as the only heir to the estate. Upon becoming the only heir to the estate, and the estate no longer being in dispute, Plaintiff asked Mansfield to withdraw as personal representative which he refused to do. Thereafter, Plaintiff filed with the Court a request for an Order directing the withdrawal of Mansfield as the personal representative Such an Order followed testimony presented to the Court. The Court’s Order was entered on September 29,2010. Plaintiff believes that Mansfield attempted to remain in his capacity as personal representative in order to conceal the negligence and depreciation which he and the co-defendants, Vierheller and Mr. Ed’s Auction, acting together and in concert caused the estate to sustain.

11. Upon his discharge by the Court Order, Mansfield was further ordered and directed to file a final report within 45 days. Thereafter, Plaintiff was requested to grant to Defendant Mansfield additional time to ifie the final report although it was not forthcoming. Plaintiff states that on the 17th day of December, 2010, Mansfield filed the final report; although such final report omits the negligent acts of Mansfield, and further omits the damage and diminution in value sustained by the estate through the negligent acts of Defendants, and each of them. Additionally, such petition for final report did not include all of the receipts and disbursements nor does it include all of the assets of the estate, presumably because the assets had either been converted or lost.

FIRST CAUSE OF ACTION—NEGLIGENCE

Plaintiff, for its First Cause of Action against Defendants, and each of them, realleges those facts as hereinbefore stated, and additionally states as follows:

12. Defendant Mansfield was charged as personal representative to preserve the assets of the estate. Defendant Mansfield elected on his own and without consultation as to the heirs of the estate to hire Vierheller, d/b/a Mr. Ed’s Auction, to assist in the preservation of the estate.

13. Either through the negligence or wrongful intentional acts, Defendants, acting together and in concert, allowed the residence to become mold infested to the point that remediation and repairs in excess of Fifty Thousand Dollars were required to make the residence fit for habitation. The mold infestation also prevented the renting of the property by Plaintiff herein. Such loss of rental income is believed by Plaintiff to be not less than Twelve Thousand Dollars.

14. Plaintiff states that in addition to the damage sustained by the interior of the house through mold and deterioration, the house sustained serious external damage through lack of maintenance and attention. Such lack of maintenance and attention has cat sed further depreciation to the houses Plaintiff believes that the negligent acts by Defendants, and each of them acting together in concert, including remediation, is approximately One Hundred Fifteen Thousand Dollars.

15. Additional negligent acts by Defendants, acting together and in concert, included the failure to properly care for the contents of the house. As a result, the furniture consisting of antique furniture and other expensive heirlooms and quality furnishings with a value in excess of Twenty-five Thousand Dollars sustained mold to the point it had to be destroyed.

16. Plaintiff states that the mold damage necessitated destroying nearly the entire contents of the house.

17. The Defendants, and each of them acting together and in concert, were responsible for unnecessary expense and depreciation in value to the decedent’s automobile. For reasons unknown to Plaintiff, Defendants elected to store the vehicle although the vehicle was insured and had an enclosed garage at the residence where the vehicle could have been kept thereby negating the storage charge by Vierheller and Mr. Ed’s Auction.
18. The negligent and/or intentional acts by Defendants have caused the disappearance of a valuable coin set, believed to be worth in excess of Twenty-five Thousand Dollars. Such coin collection was shown on the initial property list but has been omitted from later reporting including the final report requesting discharge of Mansfield as the personal representative.

SECOND CAUSE OF ACTION—BREACH OF

DUTY/RESPONSIBILITY BY PERSONAL REPRESENTATIVE

Plaintiff realleges each and every material allegation hereinbefore set forth and for his second cause of action arising out of breach of responsibility alleges and states as follows:

19. Defendant Mansfield, as a personal representative of the estate, was charged with the responsibility of preserving and accounting to the heirs as to all assets and liabilities of the estate and distribution thereof.

20. Defendant Mansfield has failed to preserve the estate and has breached his duty to accurately report to heirs of the estate as to assets and liabilities. In the course of performing as personal representative, Defendant Mansfield failed to preserve the assets of the estate and tend to the assets of the estate in the best interest of the estate and the heirs to such estate.

21. Plaintiff states that Mansfield assigned the duties of preservation and accounting as to the value of the estate to his agents, Vierheller and Mr. Ed’s Auction, and that they either carelessly or intentionally failed to perform such assignment as directed by Mansfield and, in addition, proceeded to conduct such activities which created a direct expense to the estate and, in addition, unjustly enriched and benefited Vierheller and Mr. Ed’s Auction.

22. Plaintiff alleges and states and would show the Court that in spite of demand being made upon Vierheller and Mr. Ed’s Auction, said Defendants have failed and refused to return to Plaintiff herein the properties that are rightfully his, and further, have failed to account for personal property entrusted to them by the personal representative. Plaintiff believes that the direct cost for unnecessary activities or negligent handling of the estate matters as directed by Mansfield or approved by Mansfield have cost the estate in excess of Twenty-five Thousand Dollars.

THIRD CAUSE OF ACTION—CONCEALMENT
AND UNJUST ENRICHMENT

Plaintiff realleges each and every material allegation as hereinbefore set forth, and for its cause of action arising out of concealment and unjust enrichment states as follows:

23. Plaintiff alleges and states and would show the Court that Defendant Mansfield has charged excessive fees for work which either was not done, or done improperly, either by him or at his direction, all as hereinbefore alleged. Plaintiff states that Defendant Mansfield’s effort to continue as personal representative of the estate after the estate had been settled as to the dispute between the heirs caused Plaintiff to incur additional fees and costs and/or the estate to incur additional fees and costs, ultimately reducing the value of the estate.

24. Plaintiff has asked Defendant Mansfield to substantiate the need to hire the Owens Law Firm at a cost in excess of Eight Thousand Dollars. Plaintiff further states that Defendant Mansfield has been unable to substantiate to Plaintiff the need for the personal representative, lawyer, to hire another lawyer to represent the personal representative. Defendant Mansfield previously has used every opportunity to employ others to perform various duties which were either unnecessary or one at substantially inflated costs to the estate and to Plaintiff as the only heir of the estate. Plaintiff believes that the breach of duty to the estate and acts constituting unjust enrichment have damaged the estate and Plaintiff not less than Ten Thousand Dollars.

FOURTH CAUSE OF ACTION—FRAUD

Comes now the Plaintiff and for his Fourth Cause of Action alleging fraud, alleges and realleges each and every material allegation as hereinbefore set forth and further alleges and states as follows:
25. Vierheller, dlb/a Mr. Ed’s Auction, acted together and separately, and have conspired to perpetrate fraudulent activity upon Plaintiff.

26. Plaintiff alleges and states and would show the Court that the Defendants, Vierheller and Mr. Ed’s Auction, by and through their duly appointed appraiser, noted a coin collection included with the personal property. Such coin collection has either ben lost or misplaced or converted by Defendants. Plaintiff believes that such collection bad a value in excess of Twenty-five Thousand Dollars.

27. Defendants Vietheller and Mr. Ed’s Auction, acting together and separately, demanded through Mansfield that Plaintiff remain away from the property and indeed locked him out of the property. Defendants Vierheller and Mr. Ed’s Auction have attempted to charge for the preservation of the property although to Plaintiff’s knowledge, they did not preserve the property as represented to the Plaintiff and did in fact neglect the property to the point that it was not cared for or maintained, and further that such negligence and fraudulent activity by Defendants, and each of them, has caused substantial and irreparable value to the real and personal property.

28. Although no necessity existed for the removal of the vehicle belonging to the estate, such vehicle being located at the residence of the decedent, Vierheller and Mr. Ed’s Auction removed the vehicle and during the course of its alleged care it was damaged in a minor collision. The removal of such vehicle was done to enable Vierbeller and Mr. Ed’s Auction to charge Four Thousand Two Hundred Three Dollars for storage of the vehicle and, in addition, caused the estate to incur additional expense. Plaintiff further alleges and states and shows the Court that although the jewelry of the estate was valued by Mr. Ed’s Auction’s agent, said Defendant did thereafter remove only a part of the jewelry and a part of the precious metals. Other parts were left therein. Defendants Vierheller and Mr. Ed’s Auction have failed to account for the present whereabouts and value of that taken and that left behind. The report seeking final accounting by the Court also fails to fully account for the presence of not only valuable coins, but precious metals and jewelry, These acts by Vierheller and Mr. Ed’s Auction constitute fraudulent activity.

29. Plaintiff prays for damages in excess of Ten Thousand Dollars.

FIFTH CAUSE OF AC11ON—PUNIT1VE DAMAGES

Comes now the Plaintiff and realleges each and every material allegation as hereinbefore set forth, and for its cause of action seeking punitive damages states as follows:

30. Defendants, and each of them, have acted together in concert and such activities have either been done negligently, or intentionally, and in either event, seeking to charge to the estate as much money as possible thereby damaging Plaintiff the only remaining heir.

31. Plaintiff states that such acts were done negligently, and that the negligence was gross negligence and through such gross negligence, M.. field failed to properly perform those duties or to exercise reasonable standard of care and responsibilities customarily associated with the position of personal representative. Defendants, and each of them, are responsible to Plaintiff for punitive damages as may be determined just and proper by the Court and necessary to dissuade Defendants from similar conduct toward others.

SIXTH CAUSE OF ACTION—TORT OF NUISANCE

Plaintiff, for his sixth cause of action, alleges a tort of nuisance.

32. Plaintiff states that the Defendant, Christopher Mansfield, and his agent, J. Edward Vierheller and/or Mr. Ed’s Auction Company, Inc., engaged in a course of conduct which was unreasonable, unwarranted and unlawful upon the use or conduct of standard of care duly owed to the Plaintiff The lack of proper standard of care and nuisance perpetrated by the Defendants iipcn the Plaintiff constituted an obstruction and injury to the rights of the Plaintift As a result of the wrongful and tortuous conduct perpetrated by the Defendants upon the Plaintifi Plaintiff suffered personal inconvenience, annoyance and discomfort resulting from such nuisance and wrongful conduct. Such damages are personal injury separate and apart from any injury to the property. Action by each of the Defendants, jointly and severally, constituting the tort of nuisance, included the wrongful removal of an automobile belonging to the estate with the intent and purpose to allow J. Edward Vierhell r d/b/a Mr. Eds Auction to charge unreasonable and unnecessary storage fees against the estate; the wrongful and egregious conduct by Mansfield in interfering with and prohibiting full funeral services for the decedent, Marian K. Jones West, mother of the Plaintifl such services having been previously paid for and arranged; and banning of the Plaintiff from the residence, prohibiting his inspection of the property, effecting unreasonable and unnecessary loss of his mother’s personal property and possessions as well as the outright conversion of property belonging to the estate of Marian K. Jones West.

33. Plaintiff further alleges that such wanton negligence and egregious conduct by the Defendants and each of them, not only caused financial loss to the Plaintiff as well as emotional distress but, in addition, effected diminished value to the estate property. Plaintiff prays for damages in excess of Ten Thousand Dollars arising out of personal inconvenience, annoyance, discomfort and nuisance.

WHEREFORE, premises above considered, Plaintiff, having hereinbefore stated multiple causes of action, prays the Court that Plaintiff receive damages against Defendants, and each of them, in excess of Ten Thousand Dollars, as prayed for herein, and further, Plaintiff prays for damages for fraud as to Defendants Vierheller and Mr. Ed’s Auction, jointly and severally.

Defendant Mansfield appeared and answered as follows:

1. Admitted.

2. Mr. Mansfield was appointed Special Administrator of the Estate of Marian K. Jones West on April 27, 2009 and Personal Representative on February 23, 2010. Mr. Mansfield was discharged September 29, 2010 and Plaintiff, Kyle West, was substituted as personal representative without bond. Mr. Mansfield filed his final report and final account December 27, 2010.

3. Admitted that Mr. Mansfield hired Ed Vierheller to assist him. Mr. Mansit&d has no knowledge of what Plaintiff knew or what was explained to Plaintiff or what laintiff presumed, and therefore denies the remainder of the allegations of paragraph 3.

4. Mr. Mansfield obtained an appraisal from A Appraisal Services, Inc. which was used in the inventory.

5. Mr. Mansfield admits Mr. Ed’s Auction performed additional services and estimated the value of the personal property within the premises.

6. Mr. Mansfield has no knowledge of the allegations concern property allegedly held by Mr. Ed’s Auction and Vierheller.

7. Mr. Mansfield admits the automobile was stored to protect it. Mr. Mansfield has no knowledge of alleged collision damage. Mr.Mansfield has no knowledge of what was known or unknown to Plaintiff.

8. Mr. Mansfield denies that any mold contamination and damage occurred during the time he was administrator of the estate.

9. The allegations of paragraph 9 are denied.

10. The allegations of paragraph 10 are denied.

11. The allegations of paragraph 11 are denied.

12. Mr. Mansfield was appointed Special Administrator of the Estate of Marian K. Jones West on April 27, 2009 and Personal Representative on February 23, 2010. Mr. Mansfield was discharged September 29, 2010 and Plaintiff, Kyle West, was substituted as personal representative without bond. Mr. Mansfield filed his final report and final account December 27, 2010. Mr. Mansfield admits hiring Vierheller. Mr. Mansfield denies the remaining allegations of paragraph
12.

13. The allegations of paragraph 13 are denied.

14. The allegations of paragraph 14 are denied.

15. The allegations of paragraph 15 are denied.

16. The allegations of paragraph 16 are denied.

17. The allegations of paragraph 17 are denied.

18. The allegations of paragraph 18 are denied.

19. Mr. Mansfield was appointed Special Administrator of the Estate of Marian K. Jones West on April 27, 2009 and Personal Representative on February 23, 2010. Mr. Mansfield was discharged September 29, 2010 and Plaintiff, Kyle West, was substituted as personal representative without bond. Mr. Mansfield filed his final report and final account December 27, 2010.

20. The allegations of paragraph 20 are denied.

21. The allegations of paragraph 21 are denied.

22. The allegations of paragraph 22 are denied.

23. The allegations of paragraph 23 are denied.

24. The allegations of paragraph 24 are denied.

25. The allegations of paragraph 25 are denied.

26. The allegations of paragraph 26 are denied.

27. The allegations of paragraph 27 are denied.

28. Mr. Mansfield admits the automobile was stored to protect it. Mr. Mansfield has no knowledge of alleged collision damage. The remaining allegations of paragraph 28 are denied.

29. Mr. Mansfield denies that Plaintiff is entitled to damages “in excess of Ten Thousand Dollars.”
Having filly answered, Mr. Mansfield requests that Plaintiff take nothing; that he be awarded his costs and attorney fees; and for such other and further relief to which he is entitled.

AFFIRMATIVE DEFENSES

1. Plaintiff’s claim is barred by laches, waiver, and estoppel.

2. Plaintiff’s claim is foreclosed by the fact that Mr. Mansfield was discharged as personal representative September 29, 2010.

3. Mr. Mansfield has fully discharged his duties and responsibilities in connection with the estate of Marian K. Jones West.

4. Plaintiffs claimed damages, if any, were caused by his own acts and omissions.

5. Plaintiffs damages, if any, were caused by the acts of others over whom Mr. Mansfield had no control.

6. Plaintiff failed to mitigate his damages.


The Pre-Trial Order provided the following in part:

General Statement of Facts: Christopher Mansfield (“Mansfield”) was appointed special administrator of the estate of Marian K. Jones West on April 27, 2009. On February 23, 2010, Mansfield was appointed special representative. On April 29, 2009, Mansfield employed Mr. Ed’s Auction Company, Inc. (“Mr. Ed’ s”), as his agent to assist in the administration, preservation, maintenance and protection of the estate. Mansfield and Mr. Ed’s served in their respective capacities until Mansfield was discharged September 29, 2010, at which time Kyle West (“West”) was substituted as personal representative. Mansfield filed his Final Report and Final Accounting and Request for Discharge on December 27, 2010. Upon review of the Final Accounting as filed, West entered an objection alleging negligence in general, tortious conduct as to each of the defendants, and multiple causes of wrongful activity and damages.

By agreement, appearing on the Final Accounting and acceptance thereof, including discharge, was stayed pending resolution of this case, Case No. CJ-20 11-
05 676.

The cases have been consolidated and it has been agreed that the decision in Case No. CJ-201 1-05676 will also control the issues remaining in PB-2009-227. Specifically, as a part of the Final Accounting, Mansfield requested authority to pay an administrative claim by Mr. Ed’s for services rendered to the estate of Marian K. Jones West. As a part of this proceeding, the Court should determine whether Mr. Ed’s claim should be: i) ordered to be paid by the estate, ii) set-off against any damages awarded to the estate, or iii) denied as against the estate.

Plaintiff Contended:

1. List All Theories of Recovery and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.
Plaintiff has alleged six causes of action. The first cause of action is negligence. Plaintiff contends that Mansfield was negligent in the performance of his duties as directed by the Court to preserve, protect and maintain the estate. Mansfield was further negligent in his supervision or direction of his agent, Mr. Ed’s. Mansfield has admitted that Mr. Ed’s, in all respects, acted as his agent, and with his knowledge and supervision. Although both defendants were paid throughout these proceedings to perform their responsibilities, the estate has sustained damages to real and personal property, as well as false and/or conversion of personal property. Plaintiff contends that the defendants were negligent, in addition to the foregoing, by neglecting to pay or assure continuing presence of utility service within the residence, such negligence leading to the mold damage not only of the real property but also as to the personal property.

Plaintiff contends that the defendants were negligent in failing to maintain insurance on the premises, as well as on the vehicle removed from the residence. Although no damages were sustained to the vehicle for lack of insurance, the residence sustained substantial damage. Under continuation of the previous policy which was in effect at the time the defendants were assigned the responsibility to “preserve, protect and maintain” the estate, the property was insured in such perils. During the defendants period of absolute care, custody and control, the house sustained broken pipes, severe mold damage, roof damage and loss of substantial landscaping of significant value. Further, as a result of the negligence giving rise to the mold contamination, nearly all of the furniture and interior contents of the property, including clothing, had to be destroyed.


directed to “preserve, protect and maintain the estate.” Huff on Probate specifically provides within Chapter 25, Section 25.1 the duty of the personal representative to account as well as further providing within Chapter 14, Section 14.81 responsibility of the special administrator to “preserve, protect and maintain.” The case of Hooker v. Hoskyns, 328 P.2d 404, said that the main purpose for the appointment of personal representative/special administrator is to conserve the assets/preserve the estate. Further, 58 Okia. Stat. § 215 provides that the special administrator must enter upon and preserve from damages, waste and injury, to real estate. Huff on Probate, Section 14.81, Special Administrator, provides that the function of a special administrator is similar to that of a receiver. He must collect and preserve all assets of the estate. He must preserve the estate from damage and waste. Plaintiff contends that the defendants’ negligence and inattention to the property was the cause of severe mold contamination both as to real and personal property therein, as well as physical damages including rot, interior mold contamination, broken pipes, and general dimunition of value.

Plaintiffs third contention, that of concealment and unjust enrichment, consists in general of the defendants removing an automobile, which was at the time insured, from the residence, which at the time was insured, and taking it to Mr. Ed’s for “safekeeping storage.” This resulted in the attempt by the defendants to charge the estate in excess of $4,000 for a car which could have been stored in the garage of the residence for the “preservation, maintenance and protection” of the estate. Additionally, Plaintiff discovered an irregularity between the defendants’ initial appraisal inventory and the Final Accounting filed by Mr. Mansfield. This led to the discovery that Mr. Ed’s had sold property belonging to the estate (a box of coins) as a part of another estate without ever advising Mr. Mansfield of the conversion until after the fact and the discovery by plaintiff. Plaintiff contends that the value now sought to be placed upon the coins converted by defendants is substantially less than the true value. Defendants have admitted to these activities except for the value of the coins.

Additionally, substantial items of jewelry were taken from the house although some was left behind. The defendants have been unable or unwilling to account for the jewelry or disposition thereof. The defendants charged substantial sums of money to the estate for goods and services reportedly expended for the “preservation, protection and maintenance” of the estate. Plaintiff contends that the defendants did not perform these duties and responsibilities although charges were impressed against the estate and approved by the defendant Mansfield prior to his removal. Plaintiff relies on Title 58, Section 254, as well as Title 58, Section 253.

Defendants’ negligence and misconduct in performing those duties which were assigned by the Court and accepted by the defendants are not proper under Title 58, Section 491.

Plaintiff alleges a second cause of action consisting of breach of duty and responsibility by a personal representative. By Court Order, Mansfield was The Plaintiff’s fourth cause of action alleging fraud against defendants arises out of the defendants’ concealed sale of coins which belonged to the West estate. There is no argument or disagreement between the parties that coins were present and were so noted when the defendants took their initial inventory and appraisal. Also, after the plaintiff discovered that the coins were no longer included within the West estate, defendants later admitted that they had sold the coins as a part of another estate. It was not until several weeks after plaintiff called this to the attention of Mansfield that Mansfield was able to obtain an explanation from Mr. Ed’s as to how this had occurred. Even now, there is dispute as to not only how this could happen but also as to the value of the coins. Plaintiff argues that the coins were worth at least $25,000.00, which the defendant Mr. Ed’s eventually placed a value of approximately $900.00 on the coins. Mansfield has admitted that even in the course of selling the coins, Mr. Ed’s acted as his agent.

Plaintiff contends that the removal of the vehicle from the residential garage was also an act of fraud designed to permit Mr. Ed’s to charge $9.00 per day for storage and “safekeeping” of the vehicle. Plaintiff’s contention is that it was unnecessary to remove an insured vehicle from the garage of an insured residence and incur to the estate a daily charge of $9.00 which ultimately exceeded a total charge of over $4,000.00 to the estate.

Plaintiff has alleged a fifth cause of action for punitive damages arising out of the gross negligence and culpability of the defendants. The defendants have admitted they were acting together and in concert and, further, each has acknowledged the agency relationship between Mansfield and Mr. Ed’s. Plaintiff contends that the negligence in this case was gross negligence and the conduct and lack of attention to the estate was so egregious that it calls for punitive damages. Plaintiff contends that the defendants’ negligence in “preserving, protecting and maintaining” the estate effected such gross mismanagement and gross misconduct as to exceed ordinary negligence. The Courts have concluded that gross misconduct or mismanagement at a minimum includes (1) any willful omission to perform a legal duty, (2) any intentional commission of a wrongful act, and (3) any breach of a fiduciary duty that results in actual harm to a beneficiary’s interest. Geeslin v. McElhenney, 788 S.W.2d 683, (Tex. App. 1990).

Plaintiff has alleged the tort of nuisance. Plaintiff contends that the egregious conduct of the defendants and their wanton negligence impressed upon the estate not only severe financial loss to the estate but severe emotional distress to the personal representative, Kyle West, who is acting for and on behalf of the estate after the discharge of Mansfield. Plaintiff contends that Mr. West suffered personal inconvenience, annoyance and discomfort arising out of the nuisance of negligence. Such damages are considered personal injury separate from injury to property when occurring from conduct as demonstrated by the defendants. Such damages are considered personal injuries, separate and apart from any injury to the property of the estate. Truelock v. City of Del City, 1998 OK 64.
2. List Damages or Relief Sought.
Plaintiff seeks damages for that property which could be repaired and substantially restored to its former condition. Where damages sustained of a permanent nature or not repairable, Plaintiff seeks the value of such lost or destroyed goods. Plaintiff seeks recovery for costs which were expended by the Plaintiff as a direct result of the negligence of the defendants and also for costs incurred which were of no value to the estate such as monies paid for services which were either not rendered or unjustifiably and needlessly appropriated against the estate. The Plaintiffs itemized prayer for damages is as follows:

Itemized Damages to Estate:

Lost Value of House ($242,500 vs. $230,000) $ 12,500.00

Lost Rent ($2000 x 36 months) $ 72,000.00

Mold Remediation Cost (TRC) $ 47,746.62

Loss of House Contents $109,494.00

Cost of Appraisal (Foote) $ 9,000.00

Ad Valorem Taxes (2864 x 3 years) (1/2 of 8592) $ 4,296.00

Homeowners Insurance (1 year) $ 1,490.36

Mediation Cost $ 771.84

Coin Collection Sold by Ed’s or Missing $ 25,000.00

Remediation Assessment Fee (Liberty OHN) $ 4,100.00

Attorney Fees—Mansfield/Owens $ 18,000.00

Replacement of Frozen Pipes $ 7,011.00

Mr. Ed Auto Storage (Estate paid to get car released) $ 1,500.00

Copy Costs $ 1,200.00

Court Costs $ 275.00

Deposition Costs $ 2,021.50

Attorney Fees (CJ- 11-5676) To Be Determined

Missing Jewelry $ 5,000.00

Defendant contended:

1. Plaintiffs contentions go beyond the standard of care required of the defendants.

2. General denial of cause and effect.

3. Plaintiff’s claim is barred by laches, waiver and estoppel.

4. Plaintiffs claim is foreclosed by the fact that Mr. Mansfield was discharged as personal representative September 29, 2010.

5. Mr. Mansfield has fully discharged his duties and responsibilities in connection with the estate of Marian K. Jones West.

6. Plaintiffs damages, if any, were caused by his own acts and omissions.

7. Plaintiffs damages, if any, were caused by the acts of others over whom Mr. Mansfield has no control.

8. Plaintiff has failed to mitigate damages.

Defendants’ Claims for Relief:

1. Set off/claim by Mr. Ed’s Auction Company for expenses incurred for benefit of the Estate.

Outcome: Settled and dismissed with prejudice for an undisclosed sum.

Plaintiff's Experts:

Defendant's Experts: Dr. Richard Shaughnessy, Ph.D. mold

Comments: