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Henry F. Hartlove, Personal Representative of the Estate of Claude Faye Bass v. The Maryland School for the Blind, No. 1706, September Term 1995. HEADNOTE: MARYLAND RECOGNIZES AN INDEPENDENT CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY - THE SUBMISSION OF AN EQUITABLE CLAIM TO A JURY DOES NOT CONSTITUTE A "JURISDICTIONAL" DEFECT - BECAUSE A TRIAL JUDGE HAS LATITUDE AS TO THE PRECISE WORDING AND FORM OF JURY INSTRUCTIONS, THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BASED ON THE FORM OF THE INSTRUCTION.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1706 SEPTEMBER TERM, 1995 ___________________________________

HENRY F. HARTLOVE, PERSONAL REPRESENTATIVE OF THE ESTATE OF CLAUDE FAYE BASS v. THE MARYLAND SCHOOL FOR THE BLIND ___________________________________ Wilner, C.J., Cathell, Hollander, JJ. ___________________________________ Opinion by Hollander, J. Dissenting Opinion by Cathell, J. ___________________________________ Filed: August 30, 1996

Henry

F.

Hartlove,

appellant

and

cross-appellee,

is

the The

personal representative of the Estate of Claude Faye Bass.

Maryland School for the Blind ("the School"), appellee and crossappellant, is the residuary legatee under Ms. Bass's will. The

School instituted suit against Hartlove, both in his representative and individual capacities, in the Circuit Court for Baltimore County, alleging, inter alia, that Hartlove had mismanaged Ms. Bass's estate and had misappropriated estate assets. In

particular, the School contended that certain bank accounts owned jointly by Hartlove and the decedent, with right of survivorship, were actually property of the estate, and that Hartlove unlawfully converted the funds in these accounts after Ms. Bass's death. The trial judge submitted to the jury the School's claims of breach of fiduciary duty, conversion, and unjust enrichment. The

jury found in favor of the School on the breach of fiduciary duty count, but found in favor of Hartlove on the remaining counts. Hartlove now presents two issues for our determination: I. Whether the Jury Instruction on Breach of Fiduciary Duty constituted reversible error since Maryland law does not recognize a separate or independent cause of action for Breach of Fiduciary Duty? II. Whether the trial Court committed reversible error in submitting Count II of the Complaint, Breach of Fiduciary Duty, to the jury as fact finder since it is an equitable claim exclusively within the province of the trial judge? In its cross-appeal, the School presents three issues for our consideration: I. Did the jury instructions constitute reversible error where the judge instructed the jury that they "may wish to consider" rather than "must" consider whether Mrs.

Bass made a gift of the bank accounts to Defendant during her lifetime and where the judge instructed the jury that the signature cards alone could be considered sufficient evidence of an intent to make a gift of the bank accounts to Defendant? II. Did the refusal by the trial judge to instruct the jury that they could not rely upon the signature cards alone to establish gifts constitute reversible error? III. Did the refusal by the trial judge to give the jury an instruction as to the definition of "clear and convincing evidence" constitute reversible error? As we perceive no reversible error, we shall affirm.

FACTUAL SUMMARY Claude Faye Bass, who was known as Faye, died on November 28, 1992. Pursuant to her will, appellant was appointed personal On May 25, 1994, the School filed The complaint and

representative of the estate.

suit against Hartlove and requested a jury trial.1 sought multiple forms of relief, including

compensatory

punitive damages, injunctions, a constructive trust, an accounting, and Hartlove's removal as personal representative of the estate of Ms. Bass. The School principally disputed appellant's right to the money that remained in four bank accounts at the time of Ms. Bass's death. One account was opened at First Bankers of Indian River

County (later called First Union National Bank of Florida), two savings accounts were opened at Loyola Federal Savings and Loan,

The School also initiated proceedings against appellant in the orphans' court, which are not at issue in this appeal. -2-

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and the fourth account was at Maryland National Bank.

The School

claims that the funds in the bank accounts belong to the estate, and that Ms. Bass did not intend for appellant to receive these funds. It asserted in its suit that,

The bank accounts were opened for the sole purpose of providing convenience accounts such that [Hartlove] would be in a position to manage the financial affairs of Bass and such that [Hartlove] would be better able to review and pay Bass's bills. Bass's personal funds were placed in those accounts not as a gift to [Hartlove], but for the sake of convenient money management. The School also argued at trial that, to the extent that Ms. Bass did have such an intent, her method constituted an attempt to make a future transfer that would take effect at her death, and thus was an ineffective testamentary distribution without the required

formalities of a will. Faye Bass was described as a kind but strong-willed and independent woman, who did not hesitate to let others know how she felt and who would never let anyone dominate her. She had no

mental or physical impairments, lived in her own house, and drove a car until the time of her death. in 1981. Her husband, Johnny Bass, died

The Basses had no children.

The Hartlove family moved next door to the Basses in 1960. The family consisted of Henry W. Hartlove (appellant's father), Sophie Hartlove (appellant's mother), and their children,

appellant, Nancy, and Craig.

The two families formed a very close

friendship and were "like family." Ms. Bass became particularly close with appellant. Indeed,

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she referred to him as her son.

According to appellant's father, She thanked me. She

Ms. Bass "looked upon my son as her son.

said, Henry, I thank you and Sophie both for, you might say, letting me have a son." The younger Hartlove, who is an

accountant, became a trusted advisor to his "second mother," assisting her with her finances and checkbook. The elder Henry Hartlove was both a certified public From

accountant and an attorney, now retired from his practices.

time to time, Ms. Bass would seek advice from him, including financial advice. her checkbook. He prepared Ms. Bass's tax returns and balanced

The elder Hartlove also drafted Ms. Bass's will, He testified that the will Richard and witnessed her

which she executed on June 13, 1992.

was "based strictly on what Faye Bass told me." Theresa Krejci, two of Ms. Bass's neighbors,

execution of the will.

They testified that Ms. Bass was competent

at the time and understood what she was signing. In her will, Ms. Bass made several bequests to the elder Hartlove's relatives. Item 2(c) of the will provided for a $20,000 Item 3 of the will instructed the

special bequest to appellant.

personal representative to sell Ms. Bass's Florida condominium and distribute the proceeds equally between George Graffe and appellant as trustee for his minor son, John A. Hartlove, until the son reached the age of twenty-five. Further, the will named the School

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as the residuary legatee.2

The School, according to David L.

Evans, its chief operating officer, "is an educational institution, known nationwide for the education of the visually impaired and blind." According to Jacqueline Hartlove, Ms. Bass said "that she

wanted to leave [the School] a little something, because she had had cataract surgery and she knew the importance of eye sight." After Ms. Bass died, appellant made the arrangements for her funeral. Subsequently, appellant filed a petition for probate with

the Register of Wills for Baltimore County to open Ms. Bass's estate. See Maryland Code (1974, 1991 Repl. Vol.)

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