Opinion
18-P-23
05-10-2019
PAUL COCCHI v. SUSAN COCCHI.
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
This case involves a claim of undue influence. The plaintiff, Paul Cocchi, is the son of the decedent, David Cocchi. The defendant, Susan Cocchi, is Paul's sister and David's daughter. Paul challenges certain transactions that occurred shortly before David's death. The transactions at issue are the transfer on death agreements for a TD Ameritrade stock account and a Merrill Edge stock account and the transfer of two deeds to parcels of real estate located in Monson. Paul alleges that Susan exercised undue influence over their father and, as a result, the transactions are invalid. Following a trial, a judge of the Probate and Family Court determined that the challenged transactions were not the product of undue influence and rejected Paul's claims. We affirm.
Because the parties share the same surname, we use first names to avoid confusion.
The complaint also alleged that Susan committed forgery with respect to these transactions but the judge found otherwise, and the validity of that finding has not been pressed on appeal. In addition, prior to trial, Paul waived any claim that Susan had a fiduciary duty to David in connection with the transfer of stocks and deeds at issue. Thus, to the extent Paul raises the question of fiduciary duty on appeal, we do not address it. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338-339 (1997).
Background. We summarize the facts found by the judge. David died on June 1, 2014, after a lengthy admission in the hospital. David was in poor health. He had advanced cardiac disease and lung cancer. He was also suffering from grief over the death of his son, William, who had died just three weeks before he was admitted to the hospital on April 24, 2014. David had been living alone and was not able to take care of himself. He had not been eating and he was covered in urine and feces when he was admitted to the hospital. As we discuss in more detail below, during his hospitalization, David had periods of confusion, but he also had periods in which he showed improvement and at times his condition was stable.
David had been in the hospital for about five days when, on April 29, 2014, he executed the transfer on death agreements on the stock accounts. The arrangements for the transfers were made by Susan. She hired a public notary, Valerie Laplante, with whom neither Susan nor the decedent had any prior relationship, to notarize the transfers. The entries in David's medical record for April 29 state that David was "slightly confused" in the morning when he was examined by the nurse, "but oriented x 3" after a subsequent examination by a doctor. Another entry notes that David "reported that it was year '2088,'" but "later became more oriented, becoming able to state the correct year and month."
A few weeks later, on May 16, 2014, Susan arranged for David to execute three deeds, including those at issue here. The deeds were drafted by Attorney Thomas Bessette who was hired by Susan. Neither Susan nor David had any prior relationship with Bessette. Attorney Bessette notarized David's signature on the deeds, but did not ask him any detailed questions. On the same day, David executed a power of attorney in Susan's favor, also notarized by Attorney Bessette. The medical record entries pertaining to May 16 reflect that David was "oriented x 3" and "[s]leepy at start of shift but arousable" and had a "flat affect."
David executed a third deed, transferring his interest in property located on Beechwood Avenue in Springfield to both Paul and Susan. This transfer is not at issue in this case.
After learning about the transactions described above, Paul arranged for his attorney, Timothy Mannion, to draft a will for David. The will included the disposition of the above named assets. At Paul's request, Attorney Mannion went to the hospital on May 29, 2014, and David executed the will. On that same day, David signed a declaration prepared by Attorney Mannion, in which he stated that he did not recall signing the deeds over to Susan and that it was his intention to leave his real property to Susan and Paul equally. David also executed another power of attorney, this time appointing Paul. Like Attorney Bessette, Attorney Mannion did not stay at the hospital with David for any length of time nor did he ask David any detailed questions.
Discussion. "The question [of undue influence] is one of fact, depending upon the credibility of witnesses and the weighing of evidence." Copperman v. Turner, 303 Mass. 448, 449 (1939). Here, after considering the credible testimony and conducting a review of the relevant medical records and other evidence, the judge determined that Paul had not met his burden of demonstrating that Susan obtained her interest in the assets at issue through the exercise of undue influence. We have examined the record carefully and conclude that the facts found by the judge are supported by the evidence and that her ruling is consistent with those facts. We therefore reject Paul's assertion that the judge was "plainly wrong."
The judge correctly assigned the burden of proof to Paul. See Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 604 (2009).
We likewise reject Paul's claim that Susan was not credible. The credibility of the witnesses is not for us to determine.
As the judge correctly observed, "[f]our considerations are usually present in a case of undue influence: 'that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.'" O'Rourke v. Hunter, 446 Mass. 814, 828 (2006), quoting Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464 (1997). The judge analyzed each of these factors and determined that Paul failed to meet his burden on all of them. We agree with the judge's conclusions.
As to the first factor, the judge properly determined that the transfers at issue were not unnatural. Even if we were to assume the truth of Paul's allegation that the challenged transfers resulted in an uneven distribution between him and Susan, "[a] testamentary disposition is not 'unnatural' simply because it favors certain members of the testator's immediate family over others." Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588, 605 (2009). Here, the testimony credited by the judge demonstrated that David's relationship with Paul was "turbulent" at times and included periods of estrangement whereas David's relationship with Susan was "close and uninterrupted." In addition, David transferred other assets to Paul during his lifetime and shortly before his death. These assets included, among other things, a third stock account, bank accounts, and his tools and equipment. Given these circumstances, the judge properly concluded that David's distribution of assets between Paul and Susan was not unnatural.
We note that neither side presented evidence regarding the value of these assets. Thus, the difference in value between the assets Susan received and those Paul received, if any, is unknown.
Next, the judge found that, given his poor health, David may have been susceptible to undue influence, however, there was no evidence that Susan isolated David from Paul or other individuals. Compare Matter of Moretti, 69 Mass. App. Ct. 642, 655 (2007) (ample evidence of undue influence, including isolating decedent from "long-time friends and advisers"). While Susan and Paul visited David separately, they did so to avoid their own interpersonal conflicts. In addition, Susan was not alone with David when he signed the stock and deed transfers.
The judge also reviewed David's medical records that showed that, despite the fact that David often appeared disoriented, he appeared to have the ability to make his own decisions on April 29 and May 16, the dates on which he transferred the stock accounts and deeds. Furthermore, as the judge noted, Paul did not introduce testimony from an attending physician or expert witness to show that David was unable to make his own decisions. Finally, the judge found that the disposition was not procured through improper means because David originally requested the transfer on death forms before his hospitalization and, for the reasons explained above, the deeds were properly transferred to Susan.
3. Appellate attorney's fees. Susan claims she is entitled to appellate attorney's fees and costs. While we find Paul's arguments unpersuasive, we cannot say that the appeal was frivolous or initiated in bad faith. See Avery v. Steele, 414 Mass. 450, 455 (1993). Accordingly, we decline to exercise our discretion to award appellate attorney's fees. See Yorke Mgmt. v. Castro, 406 Mass. 17, 19-20 (1989); Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233, 239 (2018).
Judgment affirmed.
By the Court (Vuono, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Date: May 10, 2019.