Date: 06-21-2023

Case Style:

Diana Wilke v. Angelyn A. Olson, et al.

Case Number: 2:21-cv-00107-NT

Judge: Nancy Torresen

Court: United States District Court for the District of Maine (Cumberland County)

Plaintiff's Attorney: Sigmund Schultz and Andexander Harriman

Defendant's Attorney: and Robert Miller

Description: Portland, Maine civil litigation personal injury lawyers represented Plaintiff who sued Defendants
alleging breach of fiduciary duty under the Maine Uniform Power of Attorney Act (the “MUPA”) (Count I), excessive compensation under the MUPA (Count II), breach of common law fiduciary duty to render an account (Count III), breach of duty of loyalty through expenditures to benefit Olson (Count IV), breach of duty of loyalty through excessive compensation (Count V), and conversion (Count VI). Compl. (ECF No. 1). A little over a month later, in May of 2021, Olson filed six counterclaims against von Hirsch, alleging: fraud (Counterclaim Count I), breach of contract (Counterclaim Count II), anticipatory breach of contract (Counterclaim Count III), promissory estoppel (Counterclaim Count IV), unjust enrichment (Counterclaim Count V), and conversion (Counterclaim Count VI). Def.'s Original Answer to Pl.'s Original Compl., Countercl. Against Pl., and Jury Demand (“Olson's Countercls.”) (ECF No. 5). As part of her counterclaims, Olson also sought exemplary damages.[5] Olson's Countercls. ¶¶ 399-411.

* * *

Andreas von Hirsch (“von Hirsch”) is a German citizen and a retired professor of criminal legal theory. Joint Stipulation of Facts (“Jt. Stip.”) ¶¶ 1-2 (ECF No. 1101). In 1975, while teaching in the United States, von Hirsch purchased a shorefront home on 5.5 acres of land in Vinalhaven, Maine (the “Property”). Jt. Stip. ¶ 9. Von Hirsch typically uses his Vinalhaven home for about three months a year, from early July through the end of September. Jt. Stip. ¶ 12. In 2018, von Hirsch used the house from July 2 to September 21. See Jt. Stip. ¶ 13. In 2019, von Hirsch used the house from July 8 to October 7. See Jt. Stip. ¶ 14. In 2020 and 2021, von Hirsch did not go to Vinalhaven because of the coronavirus pandemic. Jt. Stip. ¶ 15.

Around the time that von Hirsch purchased the Property, von Hirsch hired Bill and Mary Olson as caretakers to assist with the Property's upkeep and maintenance. Jt. Stip. ¶ 16. Von Hirsch and Bill Olson became close friends. Jt. Stip. ¶ 16. Jack Olson, Bill and Mary's son, assisted his parents with von Hirsch's Property since 1975. Jt. Stip. ¶ 17.

Angelyn Olson (“Olson”), began assisting Bill and Mary after she married Jack in 1985. Jt. Stip. ¶ 21. After Mary's death on February 19, 2000, Olson became the primary caretaker of the Property. Jt. Stip. ¶ 23. Between 2000 and 2006, Olson assisted von Hirsch as needed during the summer, but von Hirsch used the Vinalhaven house infrequently and Olson maintained a second job at Inland Seafood. Jt. Stip. ¶¶ 26-27.

Over the years, Olson and von Hirsch developed a “very close family-style” relationship, and the parties agree that von Hirsch “was almost like a member of the Olson household.” Def.'s Opposing Statement of Material Facts and Additional Statement of Facts (“Von Hirsch's SMF”) ¶ 34 (ECF No. 126). Until sometime in 2020, von Hirsch liked and respected Olson and considered her to be a close friend. Jt. Stip. ¶ 33. Olson believed that von Hirsch thought she was loyal to him and that he had “the highest degree of trust and confidence” in her. Von Hirsch's SMF ¶ 39.

II. Olson Takes on More

Bill died on July 2, 2006, and, in the years following, Olson began taking on more responsibilities for von Hirsch and his Property. Jt. Stip. ¶¶ 28-29. In 2008, Olson stopped working at Inland Seafood; in 2009, Olson worked her first full-time summer for von Hirsch as a caretaker for the Property. Jt. Stip. ¶¶ 30-31. By 2012, von Hirsch relied on Olson to manage, maintain, and care for the Property, to pay Property-related expenses, and to hire and oversee contractors performing work on the Property. Jt. Stip. ¶ 37. Von Hirsch trusted Olson and gave her unrestricted access to his Maine-based bank accounts so that she could easily pay his bills and cover expenses. Jt. Stip. ¶¶ 38-40.

In October or November of 2016 (the exact date is not specified on the document), von Hirsch executed a written Power of Attorney (“POA”) appointing Olson as his agent with “full power to act for and represent me in connection with” the Property. Jt. Stip. ¶ 41. The POA granted Olson authority for “signing checks” and “contracts” and gave Olson “full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done to effectuate the foregoing purpose, as fully and with the same intents and purposes as I might or could do if personally present.” Jt. Stip. ¶ 41.

Beginning in 2016, Olson oversaw numerous renovation projects on the Property. For example, in 2016, Olson consulted multiple contractors and oversaw the renovation of an apartment over a barn on the Property. Jt. Stip. ¶ 43. In 2018, Olson oversaw renovations to replace a 2,500 square foot outdoor deck and attached cedar shingle skirting. Jt. Stip. ¶ 47. Olson signed at least one of the contracts with a construction company hired to perform the deck renovations. Jt. Stip. ¶¶ 47-48.

In addition to managing the Property, Olson arranged travel and transportation, shopped for food, clothing, and other necessities for von Hirsch, cooked meals, and hired staff. Jt. Stip. ¶ 51. Despite her growing responsibilities, Olson never had a written employment contract with von Hirsch. Jt. Stip. ¶ 58. Indeed, over the forty-year course of dealing with the Olson family, von Hirsch did not keep any accounts or documents related to their work or expenditures on his property. Pl.'s Opposing Statement of Material Facts and Additional Statement of Facts (“Olson's SMF”) ¶ 41 (ECF No. 124).

III. Von Hirsch's Health Problems

By 2015, von Hirsh had been diagnosed with Parkinson's disease, a progressive nervous system disorder that affects movement, causing stiffness, tremors, and difficulty with walking, balance, and coordination. Jt. Stip. ¶ 62. Von Hirsch was also diagnosed with a memory disorder and cognitive impairment, another progressive condition. Jt. Stip. ¶ 63.

During this period, von Hirsch came to rely on Olson for personal caretaking assistance. Jt. Stip. ¶ 51. Olson administered von Hirsch's medications as directed by medical professionals and scheduled and accompanied von Hirsch to medical appointments.[2] Jt. Stip. ¶ 51. In 2017, Olson began living at the Property during von Hirsch's summer stays to provide him care. Jt. Stip. ¶ 45. When von Hirsch broke his leg on July 13, 2018, Olson took him for emergency medical treatment at a medical center on Vinalhaven and then flew with him to Penobscot Bay Medical Center in Rockport, Maine. Jt. Stip. ¶ 49. Von Hirsch had limited mobility as a result of his leg injury and Olson's caretaking work increased even further as von Hirsch recovered. Jt. Stip. ¶ 50.

By June of 2018, Olson knew that von Hirsch had been diagnosed with a memory disorder and cognitive impairment, as well as with dementia. Jt. Stip. ¶¶ 64-65; Von Hirsch's SMF ¶¶ 26-27. The parties dispute the extent to which von Hirsch was affected by these conditions during the relevant time period.[3]

IV. September 18, 2018 Conversation & Testamentary Disposition

On September 18, 2018, von Hirsch had a conversation with Olson, which Olson recorded. Jt. Stip. Ex. C-9-18-18 Tr. (“Sept. 18, 2018 Recording”) (ECF No. 110-4); Jt. Stip. ¶ 77. During this conversation, Von Hirsch and Olson discussed Olson's compensation. Von Hirsch noted that Olson was one of “the people most important in maintaining my welfare,” and that, in light of the fact that he had given another employee a house, he “should make a provision in my will that you [(Olson)] get a corresponding sum.” Sept. 18, 2018 Recording 2:12-2:19. Von Hirsch went on to specify that Olson would “get [the Property] when I no longer can use it.” Sept. 18, 2018 Recording 10:20-10:21. Von Hirsch also stated that Olson should get money “to run [the Property]” and asked Olson how much money she thought it cost per year to cover the costs of the Property; Olson told him “it's probably 40 [to] $50,000 a year[.]” Sept. 18, 2018 Recording 18:12-18:15, 19:12. Von Hirsch explained that he could set up a trust to administer the yearly $50,000 upkeep payments, and, after commenting that the lawyer setting up the trust would need to know how many years it would be in place, added that the trust would provide those payments for fifteen years. Sept. 18, 2018 Recording 41:11-41:12, 46:19-48:12.

During the conversation, Olson informed von Hirsch that she and David Perry, von Hirsch's boat captain, had both made the same salary-$60,000 per year-for the past two years. Sept. 18, 2018 Recording 15:17-15:21; Jt. Stip. ¶ 11. Von Hirsch responded, “[t]hat's crazy[,]” and “I think that's chicken shit. I think you should get a hundred and twenty . . . as salary” starting on January 1, 2019. Sept. 18, 2018 Recording 15:20, 16:10-16:19. Olson reminded von Hirsch that, “[w]hen you broke your leg, you had told me that you wanted to pay me [an] additional [$50,000 this year]” because of the extra work Olson took on. Sept. 18, 2018 Recording 16:22-17:1. “Okay. That's also done[,]” von Hirsch responded. Sept. 18, 2018 Recording 17:4. Later, von Hirsch raised that “special payment” amount to “80 [thousand dollars],” because, he told Olson, “you were extremely generous to me. I mean, . . . if you . . . had not been there [when I broke my leg], I would have just shit myself and given up the whole fucking place.” Sept. 18, 2018 Recording 24:19, 25:25-26:7. During this part of the discussion, von Hirsch emphasized that Olson would also “get the house,” which “is worth something.” Sept. 18, 2018 Recording 18:2-18:6.

Later on, von Hirsch asked for a piece of paper and began taking notes. Sept. 18, 2018 Recording 19:18-19:23. At the top of the paper (the “Angie's Compensation Document”), von Hirsch wrote the date and the heading, “Angie's
Compensation.” Def.'s Original Answer to Pl.'s Original Compl., Countercl. Against Pl., and Jury Demand (“Olson's Countercls.”) Ex. A (ECF No. 5-1). Von Hirsch then wrote out the following items:

1) This year ([2]018):

- Salary: 60k pa [(per annum)] (now)

- Spec. comp. 80k

2) Subs. [(subsequent)] yrs (2019 + seq. [(et sequitur)])

- Salary 120k (including design and implementation of changes on house + small boat)

3) Testamentary Disposition

- Maine house

- Upkeep: enough for 50k yearly for 15 years

Olson's Countercls. Ex. A. Von Hirsch and Olson signed their names at the bottom of the page. Olson's Countercls. Ex. A.

Von Hirsch did not keep his intentions for the Property to himself. He told, for example, his neighbors on Vinalhaven about the plan. Pl.'s Opposing Statement of Material Facts and Additional Statement of Facts (“Von Hirsch's Additional Facts”) ¶¶ 30-31 (ECF No. 124). And, in October of 2019, von Hirsch told his estate planning lawyer, Ernst Schwartz, that he wanted to transfer title of the Property to the Olson family. Jt. Stip. ¶¶ 8, 54. On October 11, 2019, von Hirsch expressed his desire to create a life tenancy for himself and give the Olson family the Property rather than transmit the Property in a last will and testament, though a life tenancy was never actually created. Jt. Stip. ¶ 55. Instead, on December 21, 2019, and January 23, 2020, von Hirsch wrote one-page addendums to his will leaving the property to Olson. Jt. Stip. Ex. 009-Testamentary Doc. (ECF No. 113-14); Jt. Stip. Ex. 013-Testamentary Doc. (ECF No. 113-18). And, on April 29, 2020, von Hirsch signed a notarized testamentary document bequeathing the Property, as well as €50,000 and a hippo sculpture, to Olson. Jt. Stip. ¶ 90; Jt. Stip. Ex. 015- Testamentary Doc. 3-4, 6 (ECF No. 113-20).

Despite von Hirsch's repeated promises to leave Olson the Property, Olson and her husband understood that von Hirsch could still change his mind about who to leave the house to. Von Hirsch's SMF ¶¶ 45-47. And Olson states that she “never discussed what would happen [with those promises] if I ended the job.” Olson Dep. Tr. Vol. I, at 123:17-123:18 (ECF No. 111-1).

V. Olson's Compensation and Spending

Between the years 2000 and 2017, Olson was paid by the hour for the work she performed for von Hirsch. Jt. Stip. ¶ 24. In 2018, Olson was to be paid $5,000 per month for the entire year, but, in the months of May and June of 2018, she paid herself double. Von Hirsch's Additional Facts ¶¶ 17, 19. By the end of 2018, Olson had paid herself $90,000. Von Hirsch's Additional Facts ¶ 20. It is not clear how much money Olson was paid in 2019, though von Hirsch made her out a check that year for $80,000 with a memo line reading: “Bonus 2016/2017/2018.” Olson's SMF ¶ 26; Olson Depo Ex. 039 (ECF No. 111-18).

During the relevant time period, Olson also made expenditures from von Hirsch's accounts. In the fall of 2016, for example, Olson bought her husband, Jack, a $53,000 tractor with von Hirsch's money. Von Hirsch's Additional Facts ¶ 26. In July of 2017, Olson paid her son, Ladd, $17,200, though he has no information about what, if anything, he did in exchange for that payment. Von Hirsch's Additional Facts ¶ 25. On July 7, 2019, Olson loaned Ladd over $10,000 of von Hirsch's money, but later told him it was a gift and not to worry about paying it back. Von Hirsch's

Additional Facts ¶ 22. Between 2017 and 2019, Olson spent thousands of dollars on alcohol from a liquor store on Vinalhaven while von Hirsch was not in Maine, even though von Hirsch has been under doctor's orders not to drink alcohol since 2016. Von Hirsch's Additional Facts ¶¶ 28-29. Between 2015 and 2019, Olson used von Hirsch's money to pay for over $7,500 in products from a retailer of “personal care oils,” even though von Hirsch does not use these products. Von Hirsch's Additional Facts ¶¶ 30-31. While von Hirsch was not in Maine, Olson spent thousands of dollars of von Hirsch's money on restaurants, groceries, personal shopping, salon/spa visits, hotel stays, her personal credit card debt, and online shopping. Von Hirsch's Additional Facts ¶ 32. In 2016, Olson used von Hirsch's money to buy herself a Peloton exercise bike for $2,849.55, and then, from January of 2018 to mid-2019, Olson charged von Hirsch $41.55 per month for her Peloton subscription. Von Hirsch's Additional Facts ¶¶ 33-34.

VI. Trouble Brewing

In 2018, von Hirsch expressed concern about his finances to Diana Wilke, who had been hired as an academic research associate for von Hirsch at Goethe University and then began to assist von Hirsch with personal and financial matters as a fiduciary with power of attorney. Jt. Stip. ¶ 35; Von Hirsch's SMF ¶¶ 16, 49; Decl. of Diana Wilke (“Wilke Decl.”) ¶¶ 3-4, 6 (ECF No. 110-10). Von Hirsch asked Wilke to look into his financial affairs. Von Hirsch's SMF ¶ 49; Wilke Decl. ¶ 12. In doing so, Wilke came to believe that Silvia Bracher, von Hirsch's personal assistant and
fiduciary, had been misappropriating money for her own personal benefit.[4] Von Hirsch's SMF ¶ 50; Wilke Decl. ¶ 9. On July 4, 2019, von Hirsch and Wilke called Olson to tell her about Bracher's alleged misconduct, and, that month, von Hirsch ended Bracher's authority. Von Hirsch's SMF ¶ 51; Jt. Stip. ¶ 36.

In the aftermath of these revelations, Wilke and von Hirsch sought more information about what Bracher did and how to resolve the situation. Olson Depo Ex. 005, at 000463 (ECF No. 111-5). On June 10, 2020, Wilke wrote to Olson that von Hirsch “is very concerned because of all the money that went to America. Can you provide us with documents explaining what it was spent on?” Von Hirsch's SMF ¶ 67; Olson Depo Ex. 005, at 000463. Olson responded, “I'll work on it today. Reassure him that America is all fine. It went into boat repair and house. No funds were returned to Silvia [Bracher], if that is a concern of his.” Von Hirsch's SMF ¶ 68; Olson Depo Ex. 005, at 000463-64. Olson, however, never provided documentation about the spending from von Hirsch's accounts in Maine, nor did she provide an explanation about her reasons for being unresponsive to the request. Von Hirsch's SMF ¶¶ 69-70.

On July 6, 2020, von Hirsch wrote a handwritten note in German that reads in English:

Supplement to the will I, Professor Andreas Theodor Wilhelm Rudolf Freiherr von Hirsch, have made a will on April 29, 2020. I supplement this will as follows:

Ms. Angelyn Olson currently residing at 50 Main St. Vindhaven [sic] ¶ 04863 (USA) has cared for me and my estate at 14 Kingsbury Point Rd in Vindhaven [sic] ¶ 04863 (USA) for many years. In light of this, I have bequeathed this property in Vindhaven [sic] in the above will.

To cover my expenses incurred in the USA during my annual visits, especially for employees there, the property and my sailboat, I have regularly given funds to Mrs. Olson.

During the period April 2015 to July 2019, I have transferred approximately 3.8 million Euros to Ms. Olson from my German bank account at Behlmann Bank in Munich.

I wish that Ms. Olson provide a complete account of the use of these funds no later than six months after my death. Should she fail to do so, or should it turn out that Ms. Olson has used some of these funds for her own purposes, I shall cancel the bequest in favor of Ms. Angelyn Olson in full.

Jt. Stip. Ex. 017-Testamentary Doc. (ECF No. 113-22); Jt. Stip. ¶ 91.

In another handwritten note, dated August 9, 2020, von Hirsch wrote that he “revoke[d] the bequest in favor of Angelyn Olson in full.” Jt. Stip. Ex. 019- Testamentary Doc. (ECF No. 113-24); Jt. Stip. ¶ 92. A little under a year later, in June and July of 2021, von Hirsch signed notarized testaments cancelling the bequests of the Property, €50,000, and the hippo sculpture to Olson. Jt. Stip. ¶¶ 94-95.

VII. Breaking Ties

On December 24, 2020, in a letter sent on his behalf by Wilke, Von Hirsch fired Olson and informed her that she had been replaced by another caretaker. Jt. Stip. ¶ 34. Around the same time, the locks to the Property were changed, after which point Olson could not enter to retrieve her personal property. Jt. Stip. ¶¶ 67-68. On January 25, 2021, Olson, through counsel, provided a list of personal property that Olson requested be returned to her. Jt. Stip. ¶ 69. On March 24, 2021, Olson, through counsel, demanded the return of her property by April 2, 2021. Jt. Stip. ¶ 69. Olson did not receive her property on April 2, but, on April 5, von Hirsch's new caretaker agreed to meet with Olson and her husband to allow Olson to regain possession of her property. Jt. Stip. ¶ 70; Olson Dep. Tr. Vol II, at 318:22-318:25 (ECF No. 111-2). The new caretaker was cooperative and allowed Olson to look through the Property for anything Olson wanted to retrieve. Von Hirsch's Additional Facts ¶ 3; Olson Dep. Tr. Vol. II, at 319:1-319:5. Olson removed various personal effects at this time. Jt. Stip. ¶ 71. Whether some of Olson's personal effects remain at the Property is disputed. Jt. Stip. ¶ 71.

Olson has not received payment for any services she rendered to von Hirsch between July 2020 and December 2020. Jt. Stip. ¶ 66. Von Hirsch does not intend to give Olson the Property or money for upkeep of the Property when he dies. Olson's SMF ¶ 35.

VIII. The Lawsuit & Motions for Summary Judgment

In April of 2021, von Hirsch filed a lawsuit against Olson in this Court alleging breach of fiduciary duty under the Maine Uniform Power of Attorney Act (the “MUPA”) (Count I), excessive compensation under the MUPA (Count II), breach of common law fiduciary duty to render an account (Count III), breach of duty of loyalty through expenditures to benefit Olson (Count IV), breach of duty of loyalty through excessive compensation (Count V), and conversion (Count VI). Compl. (ECF No. 1). A little over a month later, in May of 2021, Olson filed six counterclaims against von Hirsch, alleging: fraud (Counterclaim Count I), breach of contract (Counterclaim Count II),
anticipatory breach of contract (Counterclaim Count III), promissory estoppel (Counterclaim Count IV), unjust enrichment (Counterclaim Count V), and conversion (Counterclaim Count VI). Def.'s Original Answer to Pl.'s Original Compl., Countercl. Against Pl., and Jury Demand (“Olson's Countercls.”) (ECF No. 5). As part of her counterclaims, Olson also sought exemplary damages.[5] Olson's Countercls. ¶¶ 399-411.
Hirsch v. Olson (D. Me. 2023)

Outcome: 06/21/2023 305 JUDGMENT By DEPUTY CLERK: Stacey L. Graf. (slg) (Entered: 06/21/2023)
07/07/2023 306 MOTION Enforcement of Court's Order Related to Costs Associated with Delay of Trial Setting by ANGELYN A OLSON Responses due by 7/28/2023. (Attachments: # 1 Exhibit)(MILLER, J.) (Entered: 07/07/2023)
07/11/2023 307 RESPONSE to Motion re 303 MOTION for Judgment as a Matter of Law filed by ANGELYN A OLSON. Reply due by 7/25/2023. (MILLER, J.) (Entered: 07/11/2023)
07/14/2023 308 MOTION to Amend 305 Judgment by ANGELYN A OLSON Responses due by 8/4/2023. (MILLER, J.) (Entered: 07/14/2023)
07/14/2023 309 MOTION for Judgment as a Matter of Law or in the Alternative, MOTION for New Trial by ANGELYN A OLSON Responses due by 8/4/2023. (MILLER, J.). Added MOTION for New Trial on 7/17/2023 (jwr). (Entered: 07/14/2023)
07/18/2023 310 REPLY to Response to Motion re 303 MOTION for Judgment as a Matter of Law filed by DIANA WILKE. (SCHUTZ, SIGMUND) Modified on 7/18/2023 to remove Andreas Von Hirsch as a filer because he is a terminated party (lrt). (Entered: 07/18/2023)
07/21/2023 311 RESPONSE in Opposition re 308 MOTION to Amend 305 Judgment filed by DIANA WILKE. Reply due by 8/4/2023. (SCHUTZ, SIGMUND) Modified on 7/21/2023 to remove Von Hirsch as a filer because he is a terminated party (lrt). (Entered: 07/21/2023)
07/25/2023 312 RESPONSE in Opposition re 309 MOTION for Judgment as a Matter of Law or in the Alternative, Motion for New Trial MOTION for New Trial filed by ANDREAS VON HIRSCH, DIANA WILKE. Reply due by 8/8/2023. (SCHUTZ, SIGMUND) (Entered: 07/25/2023)
07/28/2023 313 BILL OF COSTS by ANDREAS VON HIRSCH, DIANA WILKE Responses due by 8/18/2023. (Attachments: # 1 Exhibit A - Declaration of Sigmund D. Schutz, # 2 Exhibit B - Bill of Costs)(SCHUTZ, SIGMUND) (Entered: 07/28/2023)
07/28/2023 314 RESPONSE in Opposition re 306 MOTION Enforcement of Court's Order Related to Costs Associated with Delay of Trial Setting filed by ANDREAS VON HIRSCH, DIANA WILKE. Reply due by 8/11/2023. (Attachments: # 1 Exhibit A - Declaration of Harold C. Pachios, # 2 Exhibit B - Letter to R. Miller re reimbursement)(SCHUTZ, SIGMUND) (Entered: 07/28/2023)
08/08/2023 315 REPLY to Response to Motion re 309 MOTION for Judgment as a Matter of Law or in the Alternative, Motion for New Trial MOTION for New Trial filed by ANGELYN A OLSON. (MILLER, J.) (Entered: 08/08/2023)

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