Opinion
No. 15–P–1106.
10-07-2016
Richard A. SACCA, Second v. BANK OF AMERICA& others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a dispute between three siblings, Richard, Michelle, and Kristin Sacca, concerning ownership of the family home arising after the death of their mother. The mother, three years before her death, conveyed the property to Kristin, reserving a life estate. After the mother's death and just before her funeral, Kristin signed a deed transferring the property to the three siblings as tenants in common. The question is whether Kristin signed that deed under duress. After Richard filed a petition to partition in the Land Court, the matter was bifurcated and trial proceeded on the validity of the disputed deed. Ultimately, the trial judge found that Kristin signed the deed under duress and that, therefore, it was void. The judgment had the effect of restoring Kristin as the sole owner of the property. On appeal, Richard and Michelle argue that the judge erroneously (1) voided the deed on the basis of duress; (2) concluded that Kristin had not waived the affirmative defense of duress; and (3) rejected the alternative theory of breach of contract. On cross appeal, Kristin argues that the judge erroneously ordered her to reimburse Michelle for the full costs of their mother's funeral service and burial. We reverse and remand.
Because Richard, Kristin, and Michelle Sacca share a surname, we refer to them by their first names.
Although Michelle was a defendant in the partition proceeding, she appeals from the judgment in favor of Kristin and filed a joint brief with Richard. She also asserts arguments as the appellee in Kristin's cross appeal.
Background. On September 22, 2005, following a cancer diagnosis, Concetta F. Oteri (Oteri or mother), deeded the property at 86 Hull Street in Belmont (the property) to her youngest child, Kristin, reserving a life estate for herself. The deed was recorded that day. Oteri died on May 14, 2008.
It is undisputed that Oteri neglected and physically, verbally, and emotionally abused all three siblings during their childhoods. As adults, Richard limited his contact with Oteri and Michelle had no contact with Oteri in the fifteen years preceding Oteri's death. Richard, who lived in Japan, visited Oteri and his siblings about every two years and called Oteri occasionally. During Oteri's three-year illness, Kristin, who was “very close” to her mother, brought her to medical appointments, provided food, and offered financial and emotional support.
Although Kristin and Oteri had a good relationship at the time of Oteri's death, during Kristin's final year of high school, Oteri's and Kristin's relationship deteriorated to the point that Kristin moved to Hawaii to live with Richard and his then-fiancée under his legal guardianship.
When Kristin informed her siblings of Oteri's imminent demise in May, 2008, they offered emotional support to her. Michelle offered to investigate the costs of funeral and burial arrangements. Kristin also expressed her concern that the property may be in foreclosure. Michelle, a real estate paralegal, offered to research the status of the property.
Although Michelle went to the hospital, she only visited with Kristin and not Oteri.
Kristin had previously spoken with Marcia Lewin–Berlin, a social worker, who was assigned to assist Oteri, about MassHealth's funeral and burial options. After receiving information from Lewin–Berlin, Kristin was under the misapprehension that Brasco & Sons Funeral Home offered a funeral service for $1,500, and a cemetery in Jamaica Plain offered plots for indigent persons.
On May 13, 2008, Michelle learned that Oteri had transferred the property to Kristin three years earlier. Thereafter, she and Kristin discussed ownership of the property and had some conversation about “fixing” the situation. More specifically, Michelle wanted Kristin to convey the property to the three siblings. However, Michelle and Kristin did not enter into an explicit agreement regarding ownership of the property that evening.
Richard was similarly unaware, and assumed that either the property would be shared by the siblings equally or more likely that he would receive sole ownership “as the oldest child and only son.”
Based on Michelle's previous conversations with Richard, it was Michelle's understanding that she and Richard would advance the money for the mother's funeral service and burial, as well as funds to restore the property to a condition in which it could be sold. Kristin testified that she understood that Michelle would cover funeral expenses and Kristin would repay her using proceeds from the sale of the property. Oteri died the next morning, May 14, 2008, and Kristin, who was very upset, accepted Michelle's offer to contact Brasco & Sons Funeral Home. See note 7, supra. Michelle expressed skepticism that the funeral home offered a discounted service through MassHealth, and Kristin panicked, as she could not afford more than $1,500 for the funeral and burial. Michelle assured Kristin that she “was there to help,” and that she “would figure it out.” Kristin sent Richard an electronic mail (e-mail) message to inform him that Oteri had died earlier that morning, but he did not learn of her death until he arrived from Japan later that day.
After Richard arrived, the siblings discussed Oteri's funeral arrangements and ownership of the property. Richard wanted to establish a budget for funeral expenses. The siblings did not agree on disposition of Oteri's remains but, ultimately, Richard and Michelle acquiesced to Kristin's wishes.
Kristin insisted that Oteri be buried, in accordance with Oteri's wishes; Michelle agreed even though she preferred to cremate Oteri. Kristin also expressed her desire to hold a public, rather than a private burial. Michelle and Richard strongly desired a private, burial.
During this conversation, Michelle asked Kristin about the deed, and referenced their prior conversation about ownership of the property. Richard also believed that Michelle and Kristin had agreed on a transfer of the property to the three siblings. Kristin showed Michelle a copy of the deed, and Michelle explained how to redraft it to convey the property to the siblings equally. Kristin appeared to agree to type the new deed based on Michelle's notations.
Kristin testified that the mother transferred the property to her in 2005 for the purpose of protecting the property from lienholders in connection with the mother's future medical care. Richard also believed this.
The next day, as the siblings traveled to the cemetery to select Oteri's burial plot, Michelle asked Kristin whether she had been able to redraft the deed. Kristin replied that she typed the new deed but could not print it due to a problem with her printer. She told Michelle that she would e-mail the redrafted deed later in the day, but Kristin failed to do so. Richard asked Kristin for a copy of Oteri's will and she replied that she had not been able to make a copy.
Oteri's will was admitted in evidence. Oteri “intentionally failed to provide for” Michelle and Richard in her will and left the bulk of her estate to Kristin. The will further designated Kristin as executrix and specifically authorized her to use estate funds, if any, to pay for Oteri's burial costs. There was no finding on whether the estate had funds.
On the morning of Oteri's funeral, May 16, 2008, at 2:13 A.M., Michelle left Kristin a voicemail message informing her that Michelle needed to speak with her siblings before the funeral and requested that Kristin arrive at 8:00 A.M. instead of 8:30 A.M. as originally planned. After leaving the voicemail message, Michelle drafted a cotenancy deed and another document that contained her notes about her feelings with regard to the situation, which the parties refer to as the “No Funeral Letter.”
Michelle believed that Kristin was taking advantage of her as a revised deed had not been e-mailed as promised by Kristin.
Richard and Michelle were waiting for Kristin when she arrived at the funeral home. The siblings sat down at a table in a room adjacent to the room where the funeral was set to take place, with the door open. As guests were gathering for the funeral, Michelle confronted Kristin and asked her whether she had redrafted the deed; Kristin replied that she had forgotten to bring it. Michelle explained that she thought Kristin was using Michelle for her money and not being sincere about sharing ownership of the property. Michelle further asserted her belief that both Richard and Kristin were feigning interest in rebuilding a relationship with Michelle in order to take advantage of her money. She felt that Kristin was lying to her and perpetrating a scam in which she used Michelle for her money to pay for the funeral and burial service that Michelle would not have otherwise paid for due to her estrangement from their abusive mother.
Michelle initially read from her notes, and at some point began reading from the “No Funeral Letter,” or its substantive equivalent. Michelle stated, “I will stop today's proceedings, there will be no service, there will be no viewing, there will be no burial ... I will take care of things my way. [Oteri] will be cremated and I will give [Kristin] the ashes in an urn.”
The judge found that although Michelle read from the “No Funeral Letter” or its substantive equivalent at some point during the conversation, initially Michelle read from her notes and “[they] likely [were] not the ‘No Funeral Letter.’ “
During this meeting, though no one spoke with a raised voice, Kristin felt that Michelle was “very angry.” Kristin felt “horrified” and thought that Michelle could stop the funeral and have Oteri cremated.
At some point during this conversation, Michelle handed Kristin the cotenancy deed that she had drafted. She told Kristin that if she were sincere, she would sign the deed. Kristin denied attempting to take advantage of Michelle for her money, and signed the cotenancy deed. Kristin was exhausted and overwhelmed by stress, and “not thinking clearly enough to come up with another way to insure the funeral and burial would go forward other than to sign the deed.” Ultimately, Michelle paid for Oteri's funeral and burial, at a total cost of $10,922.
After the burial and reception, Kristin went to the property. She noticed the door was open and called the police to report a burglary. Kristin informed the officers that she believed that Richard and Michelle had broken into the home immediately following their mother's service and that she had been “virtually coerced by Richard and Michelle to sign a shared deed to the property, which ... she signed under duress.” Two days after Oteri's funeral, Kristin was diagnosed as suffering a “grief reaction” or “panic attack” after she sought treatment in the emergency room at Faulkner Hospital.
On the morning of May 20, 2008, Michelle's husband, James, and Richard went to the property to begin cleaning out the house. Although Richard brought a copy of the cotenancy deed, they were arrested. Kristin spoke with the police and gave them copies of the “No Funeral Letter,” her mother's will, and the deed naming Kristin as the sole owner of the property.
Michelle recorded the cotenancy deed on May 21, 2008, with the registry of deeds. On June 9, 2008, Kristin and her attorney met with a sergeant of the Belmont police department to report alleged “criminal activity” by Michelle. Kristin asserted that she did not sign the two-page document that was recorded with the registry of deeds and that her signature on the deed was a forgery.
Kristin disclaimed this argument before the trial began.
Based on these facts, the judge found that the circumstances “constitute[d] duress and overcame Kristin's independent judgment and reasoning.” However, the judge also found that Kristin succeeded in asserting herself vis-a-vis her siblings as to the burial and having a public funeral. She further found that Kristin was not incompetent. Though grieving, “she was not so overcome that she was unable to function normally under the circumstances.” The judge also found that Kristin failed to prove economic duress, concluding that “any economic coercion under which Kristin labored was not caused by Michelle or Richard.” The judge also ordered Kristin to reimburse Michelle for the costs of Oteri's funeral service and burial on a theory of quantum meruit. The judge further concluded that a conveyance by Kristin to the siblings as cotenants “is not so unnatural or illogical so as to constitute an unnatural disposition.” These cross appeals followed.
Discussion. 1. Duress. A party seeking to “avoid [an] agreement [ ] because of duress [must] show ‘that conduct by the other party caused h[er] to enter into the contract under the influence of such fear as precludes h[er] from exercising free will and judgment.’ “ Delaney v. Chief of Police of Wareham, 27 Mass.App.Ct. 398, 406 (1989), quoting from Coveney v. President & Trustees of the College of Holy Cross, 388 Mass. 16, 22 (1983). “We have said that duress constitutes a ‘wrongful or unlawful act or threat ... which deprives the victim of h[er] unfettered will,’ resulting in the threatened party being ‘compelled to make a disproportionate exchange of values.’ “ Delaney, supra, quoting from International Underwater Contractors, Inc. v. New England Tel. & Tel. Co., 8 Mass.App.Ct. 340, 342 (1979). “Coercion sufficient to avoid a contract need not ... consist of physical force or threats of it. Social or economic pressure illegally or immorally applied may be sufficient.” Ibid. (quotation omitted). Threats rise to the level of duress if “what is threatened is a crime or a tort, ... a criminal prosecution, ... [or] the use of civil process” in bad faith. Restatement (Second) of Contracts § 176(1)(a)-(c) (1981). “Moreover, absent compelling circumstances, the availability of a reasonable alternative, such as a legal or administrative remedy, will defeat a claim of duress.” Delaney, supra at 407.
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” White v. Hartigan, 464 Mass. 400, 414 (2013), quoting from Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). “A finding of fact by the trial judge will not be deemed clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” White, supra (quotation omitted). However, “to ensure that the ultimate findings and conclusions are consistent with the law, we scrutinize without deference the legal standard which the judge applied to the facts.” Barboza v. McLeod, 447 Mass. 468, 469 (2006) (quotation omitted).
Kristin asserted duress as an affirmative defense and therefore had the burden to prove duress. See Delaney, supra at 406. More specifically, Kristin had to prove that an illegal or wrongful threat was made, that the threat caused her to sign the deed against her will, and that she did not have a reasonable alternative.
Here, the judge did not find, nor on appeal does Kristin persuasively identify, a wrongful or unlawful act. See id. at 408 (“[S]usceptibility alone, without a wrongful or improper act or threat, will not establish duress”); Restatement (Second) of Contracts § 176. The judge found that “Kristin signed what was put in front of her in order to end what she perceived as a tense and threatening situation, and she felt she had no choice but to sign it, as the funeral home was filling with people expecting the funeral to begin. Kristin felt that in order for [the funeral] to proceed and for [Oteri] to be buried, she needed to sign the document.” It was not a wrongful or improper act for Michelle to threaten to cancel the funeral service for which she had paid. And Kristin's emotional distress or embarrassment at the prospect of Michelle cancelling their mother's funeral and burial, as the funeral was set to begin, is insufficient for a finding of duress as a matter of law. See Avallone v. Elizabeth Arden Sales Corp., 344 Mass. 556, 561 (1962) (contract not signed under duress where defendant's emotional distress was caused by her own deceitful actions); Coveney, 388 Mass. at 22 (execution of release motivated by distress at prospect of not graduating, rather than duress); Biliouris v. Biliouris, 67 Mass.App.Ct. 149, 156–157 (2006) (“While the wife's pregnancy coupled with the husband's insistence that there would be no marriage unless she signed the antenuptial agreement presented the wife with a difficult choice, those factors cannot be said, in the circumstances presented here, to have divested the wife of her free will and judgment”); Restatement (Second) of Contracts §§ 175 –176.
Similarly, Michelle's threat to have Oteri cremated was not a crime or a tort. See Restatement (Second) of Contracts § 176. Kristin was in possession of Oteri's will, which named Kristin executrix and authorized Kristin to organize Oteri's burial. As such, Michelle could not unilaterally have had Oteri's body cremated. Furthermore, the judge specifically found that Kristin could successfully exert her will with regard to Oteri's burial where her preferences differed from those of her siblings.
To the extent Kristin argues that other statements in the “No Funeral Letter” constituted duress, including that Michelle might notify MassHealth that Kristin had perpetuated caregiver fraud, the judge found that Michelle likely did not read this letter to Kristin in its entirety until after Kristin signed the cotenancy deed.
Finally, Kristin had reasonable alternatives to signing the deed. See Delaney, 27 Mass.App.Ct. at 407 (reasonable alternative to threat defeats claim of duress). Richard had previously offered up to $10,000 to help finance Oteri's funeral; Kristin assumed without asking that Richard agreed with Michelle. Moreover, even if Kristin believed that Richard was no longer a source of financing, she could have attempted to negotiate other financing arrangements. As Kristin has failed to sustain her burden of proof on the affirmative defense of duress, we vacate the judgment and remand for further proceedings.
The judge did not make specific findings regarding the value of the property, beyond noting that “[i]n 2008, the assessed value of [the property] was $399,000.” There is no indication of the balance of the mortgage. The siblings discussed the deterioration of the property and actions necessary to clean and restore it to a marketable state. Regardless, Kristin knew at that time that she was the record owner of the property, and based on Michelle's research, that the property was not in foreclosure.
2. Other issues. Due to our disposition, we need not reach Richard's and Michelle's contentions that Kristin waived the affirmative defense of duress and that the judge erred in rejecting their alternative theory of breach of contract on the merits. Kristin's contention that Michelle's notary acknowledgement was invalid is a matter for the trial court on remand. We note, however, that “the parties have stipulated that the signature on the deed that purports to be Kristin's is, in fact, Kristin's signature.”
With respect to Kristin's cross appeal, the judgment ordering Kristin to reimburse Michelle for the costs of the funeral service and burial, in quantum meruit, is vacated. Kristin correctly asserts that through a joint request of the parties, the issue before the judge in the first part of the bifurcated trial was whether the cotenancy deed was valid. Therefore, the judge's equitable order of reimbursement was premature. Kristin was not on notice that she would be litigating that issue during this phase of the trial. We reverse and remand this issue for trial.
3. Conclusion. We vacate the judgment and remand for further proceedings consistent with this memorandum and order.