Opinion
14-P-1775
01-12-2016
ETHEL M. VITALE v. DONNA A. KOEN & another (and a consolidated case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Ethel M. Vitale, individually and as trustee of the Ethel M. Vitale Trust, appeals from a judgment of a Superior Court judge finding that Vitale had capacity to execute a deed on January 21, 2010, the deed was not the product of undue influence, and the deed vests title to a certain golf course in Newburyport to Vitale's daughter, Donna A. Koen, subject to Vitale's life estate. For the reasons that follow, we affirm.
Vitale filed a complaint in Land Court seeking to nullify the deed on grounds of lack of capacity and undue influence. In addition to a counterclaim for a declaratory judgment to quiet title to the property in the Land Court case, Donna filed a complaint in the Superior Court seeking damages under a theory of quantum meruit should the deed be nullified. The Chief Justice for Administration and Management transferred the Land Court case to the Superior Court for trial and the two cases were consolidated. The issues were bifurcated and trial proceeded on the title issues to be followed by the claims and counterclaims set out in the Superior Court case. Following the jury-waived trial, the judge entered judgments for Koen in both cases. The parties then stipulated that "[i]f Vitale prevails on appeal and successfully reverses the judgment entered in the Land Court action," Koen may seek quantum meruit damages in the Superior Court case. "If, [however,] Vitale loses on appeal," Koen's quantum meruit claim would be dismissed.
For the factual background, we refer the parties to the judge's findings, which, except for the ultimate findings, are largely undisputed. Vitale first argues that the judge should have placed the burden on Koen, as Vitale's fiduciary, to prove that Koen did not unduly influence her to execute the deed at issue. Ordinarily, the burden is on the party seeking to nullify a deed to prove that it was achieved through undue influence. Howe v. Palmer, 80 Mass. App. Ct. 736, 740 (2011). While there exists an exception for fiduciaries who benefit from a transaction, "[w]here the fiduciary relationship is not one created by law, the existence of the relationship ordinarily is a mixed question of law and fact for which the party asserting the relationship bears the burden." Germain v. Girard, 72 Mass. App. Ct. 409, 413 (2008), quoting from Doe v. Harbor Schs., Inc., 446 Mass. 245, 252 (2006). Vitale's complaint does not allege that she had a fiduciary relationship with Koen and Vitale neither requested a finding of fact nor a ruling of law related to Koen's status as a fiduciary. Nor did she raise the issue in her posttrial motions. We decline to reach the issue, raised for the first time on appeal. See Capitol Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 520 n.5 (1985).
Vitale next argues that in addressing her undue influence claim, the judge made and relied on findings that were relevant only to Koen's quantum meruit claim, which was bifurcated from the undue influence claim. She contends it was unnecessary for the judge to make findings as to whether the parties had an agreement that Vitale would leave the golf course to Koen. In considering whether the deed was the product of undue influence, the judge was required to consider, among other things, whether the deed to Koen constituted an "unnatural disposition." Hernon v. Hernon, 74 Mass. App. Ct. 492, 497 (2009). The issue of whether Vitale promised Koen that in exchange for certain conduct by Koen, Vitale would leave the golf course to her when she died was relevant to that determination. Moreover, Vitale can hardly claim surprise. She requested a finding of fact that "[a]t no time . . . was there any discussion of [Koen] inheriting the golf course." Koen, of course, requested contrary findings. In addition, in the joint pretrial motion, Koen asserted that she expected the evidence would show that Vitale promised Koen she would inherit the golf course on Vitale's death. In these circumstances, we cannot countenance Vitale's argument that the judge reached an issue not before him. Moreover, having failed to show that the deed to Koen constitutes an unnatural disposition, Vitale's undue influence claim fails. O'Rourke v. Hunter, 446 Mass. 814, 828 (2006).
Finally, there was ample evidence that Vitale had capacity to execute the deed. That she had earlier in the month been hospitalized with symptoms, including hallucinations, consistent with an overdose of pain medication does not compel a finding that she lacked capacity to execute the deed on January 21, 2010. This is particularly true where her attorney spoke with her at least three times and met with her at least twice after her hospitalization and before she signed the deed, but did not observe any mental weakness that caused him to question her capacity. The judge was not required to credit Vitale's testimony over that of her attorney, her daughter, and her grandson, each of whom observed her on the date she executed the deed. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Allen v. Allen, 86 Mass. App. Ct. 295, 307 (2014), quoting from Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986).
Judgments affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 12, 2016.