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Date: 02-15-2013

Case Style: Lisa Lenihan v. Mary Beth Smith

Case Number: CJ-2012-1601

Judge: Carlos Chappelle

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: P. Gae Widdows

Defendant's Attorney: Benjamin C. Faulkner

Description: Lisa Lenihan sued Mary Beth Smith, individually and as trustee of the Edmond P. Lenihan Revocable Trust on a constructive trust theory claiming:

A. Petitioner and her now deceased ex-husband. Edmond P. Lenihan, (hereinafter “Decedent”)
entered into an Agreed Decree of Dissolution of Marriage in September, 2009, (hereinafter
“Decree”) which was filed of record on January 14, 2010. The Decree awarded Petiticner certain financial assets, held solely in the Decedent’s name, and Decedent was also ordered
to pay support alimony and child support. Petitioner made numerous requests of Decedent to transfer these assets to her and to comply with his support obligations to no avail. She
subsequently filed an Application for Citation for Contempt in the divorce matter, Lenihan v. Lenihan; CaseNo: FD-2008-2098; Tulsa County, State ofOklahoma. Decedent continued
to refuse to transfer the assets or satisfy his financial obligations prior to his passing in April of 20 11.

B. After Decedent learned that he had a terminal illness, he formed the Edniond P. Lenihan Revocable Living Trust, dated October 21,2010. (hereinafter “Trust”), naming himself and his sister, Mary Beth Smith, as Co-Trustees. Decedent’s surviving Trustee and Defendant herein, Mary Beth Smith, took possession of the financial assets from Decedent’s employer and financial institutions and without Petitioner’s knowledge titled these financial assets in the Decedent’s Trust after both Defendant and Decedent’s employer were placed on notice of Petitioner’s claim thereto.

C. Upon learning that Decedent’s employer had distributed the financial assets to the Trust, Petitioner placed demand upon Defendant to satisfy Decendant’s financial obligations as set forth in the Decree. To date, Defendant has refused to satisfy the terms of the Decree on behalf of the Decedent, and thereby holds funds and assets lawfully belonging to Petitioner.

D. Shortly after Decedent’s passing, Defendant approached Petitioner and requested that Petitioner file an Application for Guardianship of the Decedent and Petitioner’s two minor children, so as their Guardian, Petitioner would execute documentation on their behalf to enable a large insurance policy to fund the Trust. To induce Petitioner to perform these functions, Defendant offered to pay Petitioner’s legal expenses incurred in establishing the guardianship and executing the necessary documents to fund the Trust, Petitioner, at her own expense, filed and obtained guardianship of her two minor children and executed the documents as requested by the Defendant. To date, Defendant has failed and refused to satisfy the agreement between the parties by reimbursing the Petitioner for her legal fees incurred therein.

E. As the Trustee, the Defendant is obligated by Article 3 of the Trust to “apply the net income and principal of the Trust for the health, support. maintenance and education of all of the children of the Senior as the Trustee in its sole discretion may deem proper, without regard to the duty of any person to support such children. . .“ Defendant has embarked on a course of conduct wherein she commits Trust financial assets to provide for the children and to allow them to pursue designated religious. extracurricular, and/or sporting activities per the above referenced authority. After Defendant makes a partial payment, committing the children to the event, Defendant subsequently notifies Petitioner that she has no intentions of paying the balance of the proceeds and that it is Petitioner’s responsibility to pay the balances and cover the remaining financial obligations as the children’s mother.

F. The names and mailing address of the Trust beneficiaries having an interest in the Edmond P. Lenihan Revocable Living Trust, dated October 21, 2010, who may intervene in this action pursuant 600. S. § 175.18 are as Follows:

a. Ryan Patrick Lenihan; 5005 E. 109t11 Place, Tulsa, OK 74137;

b. M. V. Lenihan, a minor child; 5005 E. l09t1 Place, Tulsa, OK 74137

c. Attorney Robbie Burke has been appointed as the attorney for the minor child, M. V. Lenihan, in the guardianship action pending in Tulsa County, State of Oklahoma; Case No:
PG-201 1-450.

FIRST CAUSE OF ACTION DECLARATORY JUDGMENT

Petitioner requests that pursuant to 12 0.S. § 1652, this Court determine Petitioner’s
ownership of financial accounts and monies owed for support alimony and child support, which Defendant wrongfully transferred to the Trust and co-mingled with other Trust assets.

SECOND CAUSE OF ACTION CONVERSION

Petitioner requests this Court find that the Defendant Trustee has converted Petitioner’s
personal property and co-mingled said funds with other Trust assets. The Court should award Petitioner ajudgment for the value of the property at the time of conversion with interest, or for the highest market value of the property at any time between the conversion and the verdict without interest, together with ajudgment for attorney fees and costs incurred in the pursuit of the property and the bringing of this matter.

THIRD CAUSE OF ACTION BREACH OF CONTRACT AND DECEIT

Petitioner respectfully requests this Court find that the Defendant has breached the contract with Petitioner to pay for legal services upon the completion of the guardianship action wherein the Trust benefitted by receipt of a large insurance policy. Petitioner requests the Court find that Defendant breached the contract or deceived Petitioner with intent to induce her to alter her position to her financial detriment and award Petitioner all damages suffered thereby.

FOURTH CAUSE OF ACTION UNJUST ENRICHMENT

Petitioner asserts Defendant Trustee unjustly enriched the Trust by taking financial assets awarded to Petitioner in the Decree, although titled in Decedent’s name. Petitioner asserts that the Defendant Trustee’s refusal to return the propcrty has cost Petitioner investment opportunities, interest income, and other financial harm. Petitioner further asserts that the Trust has been unjustly enriched by Defendant Trustee’s commitments to make payments for the minor children’s health, education, and welfare expenses and her subsequent refusal to follow through. Petitioner also asserts that the Trust has been unjustly enriched by the Petitioner expending hinds to obtain a guardianship
of her own children, for which Defendant agreed to compensate her, to allow an insurance policy to fund the Trust.

FIFTH CAUSE OF ACTION CONSTRUCTIVE TRUST AND/OR EOUITABLE LIEN

Petitioner respectfully requests this Court place a constructive trust or equitable lien
on the sums owed to Petitioner, which are currently held in the Trust, as such funds and financial assets were knowingly and wrongfully titled and transferred to the name of the Trust, though they were rightfully owned by Petitioner, depriving Petitioner therefrom since January 14, 2010.

WHEREFORE, Petitioner respectfully requests this Court grant her judgment in excess of TEN THOUSAND dollars ($10,000.00), against Defendant, individually and as the Trustee of the Edmond P. Lenihan Revocable Living Trust, dated October 21, 2010, for declaratory judgment, conversion, breach of contract and deceit, unjust enrichment, and impose a constructive trust and/or equitable lien upon the assets currently held in the name of the Trust, for attorney fees and costs of bringing this action, and for such other and further relief due which this Court deems just and equitable.

Defendant appeared and answered as follows:

A. Defendants admit the allegations in paragraph A of the Petitioner’s Petition, only insofar as consistent with the following statement:

Defendants admit that Petitioner and Edmond P. Lenihan (“Decedent”) were divorced pursuant to the Agreed Decree of Dissolution of Marriage filed January 14, 2010 in Case No. FD-2008-2098. Tulsa County. State of Oklahoma (“the Divorce Matter”). Petitioner filed an Application for Contempt in the Divorce Matter. The documents speak for themselves. Not having facts sufficient to admit or deny the other allegations in this paragraph, Defendants deny same and demand strict proof thereo B. Defendants deny the allegations of paragraph B of the Petition except to the extent consistent with the following statement:

Decedent formed the Edmond P. Lenihan Revocable Living Trust dated October 21, 2010 (“the Trust”) and named himself and his sister, Mary Beth Smith, as CoTrustees. Defendants state affirmatively that as Co-Trustee Mary Beth Smith has received in Trust only assets which were payable to the Trust, and which she has the duty to administer pursuant to the Trust instrument.

C. Defendants deny the allegations in paragraph C of the Petitioner’s Petition.

Defendants state affinnatively that Co-Trustee Mary Beth Smith is answerable to the Trust and Trust beneficiaries and owes no duties to the Petitioner.

D. Defendants admit the allegations of paragraph D of the Petition only to the extent consistent with the following statement and deny the remaining allegations:

Trustee approached Petitioner and requested that she obtain the authority necessary as guardian of Decedent’s minor children, to approve the payment of life insurance proceeds to the Trust for the benefit of the minor children, as expressly authorized by Decedent through beneficiary designations made during his lifetime.

F. Trustee denies the allegations in paragraph E of the Petition, except to state that the Trustee’s responsibility is to exercise and makc discretionary payments in her sole discretion on behalf of the beneficiaries named in the Trust as expressed in the Trust instrument. Trustee owes no duties to Petitioner.

F. Defendants dcny the allegations in paragraph F of the Petitioner’s Petition except to admit that the named individuals are beneficiaries of the Trust. Defendants state affirmatively that the Trustee has not entered into any contract with the Petitioner which would or could give
rise to a cause of action against the Trustee or the Trust.

G. Defendants admit the allegations in paragraph 0 of the Petitioner’s Petition.

FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT

In response to the request for relief stated under the First Cause of Action for Declaratory Judgment, Defendants assert that this claim fails to state a claim for which relief can be granted.

Petitioner asserts claims of ownership of accounts between herself and Decedent for an unliquidated and uncertain sum of property, alimony and child support, arising from a divorce case, which claims were not reduced to judgment before decedent’s death. Such claims have not been approved as legitimate claims against Decedent’s estate. Any claim of the Petitioner against the Decedent or his property is barred until approved pursuant to 58 OS §33 1 et seq. Defendants are not the proper parties to litigate claims between the Petitioner and the Decedent’s estate. In order for the Petitioner to have any rights stemming from alleged debts owed to her by Decedent, she must have a proven claim approved as a creditor’s claim from the Estate of the Decedent, and she has not alleged that she has such, and the public records are devoid of any such claim.

Additionally, the Decedent’s Personal Representative is the proper and necessary party to adjudicate these claims pursuant to 12 OS. § 2019.

SECOND CAUSE OF ACTION

CONVERSION

In response to the request for relief stated under the Second Cause of Action for Declaratory Judgment, Defendants assert that this claim fails to state a claim for which relief can be granted.

Trustee incorporates by reference and reitcrate her denials, admissions and affirmative allegations contained in the foregoing paragraphs.

Trustee denies the allegations in Petitioner’s Petition which suggest Trustee wrongfully converted Petitioner’s personal property and co-mingled said funds with other Trust assets. Trustee states affirmatively that she has exercised her duties as Trustee to marshall assets payable to the Trust.

THIRD CAUSE OF ACTION
BREACH OF CONTRACT AND DECEIT

Defendants incorporate by reference and reiterate their denials, admissions and affirmative allegations contained in the foregoing paragraphs.

In response to the request for relief stated under the Third Cause of Action for Declaratory Judgment, Defendants assert that this claim fails to state a claim for which relief can be granted.

Defendants deny the allegations in Petitioner’s Petition which suggest Defendants have breached any contract or deceived Petitioner with intent to induce her to alter her position to her financial detriment.

FOURTH CAUSE OF ACTION
UNJUST ENRICHMENT

Defendants incorporate by reference and reiterate their denials, admissions and affirmative allegations contained in the foregoing paragraphs.

In response to the request for relief stated under the Fourth Cause of Action for Declaratory Judgment, Defendants assert that this claim fails to state a claim for which relief can be granted.

Defendants deny the allegations in Petitioner’s Petition which suggest Defendants have unjustly enriched the Trust. Defendants deny that Petitioner was or is entitled to any assets in their possession or in possession of the Trust at the present time. Petitioner’s claims against the financial assets of the Decedent are unliquidated. uncertain, and not established. Defendants also deny the allegation that the Trust has been unjustly enriched by the Petitioner who obtained guardianship of Petitioner’s own child.

FIFTH CAUSE OF ACTION

CONSTRUCTIVE TRUST AND/OR EOUITABLE LIEN

Defendants incorporate by reference and reiterates their denials, admissions and affirmative allegations contained in the foregoing paragraphs.

In response to the request for relief stated under the Fifth Cause of Action for Declaratory Judgment, Defendants assert that this claim fails to state a claim for which relief can be granted.

Defendants deny the allegations in Petitioner’s Petition which suggest that funds and financial assets were knowingly and wrongfully titled and transferred to the name of the Trust, depriving Petitioner since January 14, 2010.

Defendants deny that the Trust wrongfully came into possession or holds assets belonging to Petitioner.

Defendants state affirmatively that Petitioner has not established a legal claim to any assets which may have belonged to Decedent during his lifetime, or thereafter, and has not stated a claim or entitlement to the Trust or its assets.

AFFIRMATIVE DEFENSES

1. The Petition must fail for failure to join an indispensable party, pursuant to 12 O.S. § 2019, to-wit, the legal representative of the estate of Decedent, Edmond P. Lenihan, whose property rights and interest form the basis for all Petitioner’s claims.

2. The Petition fails to state claims for relief against the Defendants, Mary Beth Smith, individually or as a Trustee of the Trust upon which relief may be granted. In particular, each and every claim of Petitioner’s is grounded in a claim against Edmond P. Lenihan, a deceased individual, and his estate for property or for past due alimony and child support. These claims are unliquidated and uncertain. No claim has been presented or approved for payment by Decedent’s estate, and until such occurs. Petitioner has no right, title or interest in the sums, funds or causes of action that are the subject of her Petition. 58 05 §331 etseq.

3. Failure of consideration.

4. Waiver and estoppel.

WHEREFORE, premises considered, Defendants pray that the relief requested by the Petitioner herein be denied; and that the Court find for Mary Beth, an individual and as Trustee on all issues and award her attorney’s fees and costs; and such other relief as this Court may deem appropriate.


Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
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