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Cogliano v. Cogliano

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Mar 30, 2012
11-P-788 (Mass. Mar. 30, 2012)

Opinion

11-P-788

03-30-2012

ELEANOR E. COGLIANO v. ROSE M. COGLIANO.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case presents us with the allegedly wrongful procurement of real estate by Rose M. Cogliano (Rose) from her mother, Eleanor E. Cogliano (Eleanor). The issues on appeal are whether the trial judge erred in instructing the jury regarding undue influence and whether communications divulged at trial were subject to the attorney-client privilege. Rose also filed a cross appeal from a judgment of contempt against her. We find no error and accordingly affirm the judgments.

We refer to the parties by their first names not out of any sense of familiarity or lack of respect, but simply for clarity given their same surname.

We discuss the facts, as the jury could have found them, in conjunction with our legal analysis. The dispute at the heart of this case arises out of Eleanor's conveyance of a house (locus) on Martha's Vineyard to Rose. Eleanor contends that she was sick and vulnerable at the time of transfer and that Rose took undue advantage in procuring her signature to convey the locus.

Undue Influence. Eleanor finds fault in the judge's failure to adopt her proposed jury instruction, characterizing the given instructions as 'pretty scant.' The judge's instructions were taken nearly verbatim from Tetrault v. Mahoney, Hawkes & Goldings , 425 Mass. 456, 464 (1997), quoting from Heinrich v. Silvemail, 23 Mass. App. Ct. 218, 223 (1986): 'Undue influence involves some form of compulsion which coerces a person into doing something the person does not want to do. Four considerations are usually present in such a case. These involve showings '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." There was no error.

As for Eleanor's contention that the judge, in his instructions to the jury, impermissibly narrowed the time frame in which undue influence could be found, we are unpersuaded. After the jury sought clarification on the definition of undue influence, the judge changed his instructions to state that:

'I want to instruct you just a bit further. In deciding this question, you may consider all of the facts and circumstances as you find they existed at the time of the matter at issue, which is the deeding of the house in November of 2007. These include the condition of Mrs. Cogliano at the time this occurred. It also
includes the nature of the relationship between Mrs. Cogliano and Rose at that time. I want to make sure that you focus on Mrs. Cogliano's state of mind at the time of the deed's execution. In other words, the issue of undue influence relates to that time frame. That is the focus, not her state of mind today.'

Eleanor conclusively asserts that 'nothing in the law of undue influence' allows for a focus on such a narrow point in time, by which she means the time of the signing of the deed. Eleanor is certainly correct that the time frame for undue influence may not be limited to only the 'moment' of conveyance, but can encompass the time period prior to the signing of the deed. See, e.g., Conn v. Starr, 335 Mass. 726, 728-729 (1957); Erb v. Lee, 13 Mass. App. Ct. 120, 125 (1982). Undue influence need only be operative at the time of the contested transaction. Erb, supra. As the judge's instructions indicate, he did not restrict the time frame in which the jury could find undue influence had been exerted to the exact moment the deed was executed. Rather, he instructed the jury that the effect of any undue influence must have been operative when the deed was executed. This is no more than requiring a causal connection between the complained-of conveyance and the undue influence, whenever exerted. There was no error.

Attorney-client privilege. Eleanor asserts that evidence of a conversation that occurred between her, Rose, Eleanor's late husband, and attorney Thomas Stack, Jr., was admitted in error because it was privileged. As a threshold matter, for the privilege to apply, all of the parties involved in the conversation would have to be attorney Stack's clients, or the privilege would be waived. See Reorganization of Elec. Mut. Liab. Ins. Co., 425 Mass. 419, 421 (1997). The burden of proof is on the party asserting the existence of the privilege -- Eleanor. Ibid. During trial, attorney Stack testified that he was 'meeting with [Eleanor's husband] about some legal matter in the dining room . . . but he asked Rose and Eleanor to come in to discuss the Martha's Vineyard property.' While Eleanor asserts that attorney Stack previously represented Rose in custody matters, Eleanor has not carried her burden of proving that Rose was a client of attorney Stack at the time of the conversation in question. Therefore, because the conversation occurred in the presence of a nonclient, any privilege was waived.

Attorney Stack testified that Eleanor's late husband told attorney Stack that he wanted to purchase the home on Martha's Vineyard for Rose but wanted it titled in Eleanor's name.

Contempt. During the pendency of this litigation, the judge issued an order that prevented Rose from encumbering the locus for any amount in excess of $35,000 and required her to notify Eleanor in advance if she encumbered the property in any way. At the contempt trial, Rose admitted that while this order was in effect she took out a mortgage on the locus without notifying Eleanor. Rose was held in contempt. In order to justify a contempt order, there must be a 'clear and unequivocal command and an equally clear and undoubted disobedience.' Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565 (1997), citing Nickerson v. Dowd, 342 Mass. 462, 464 (1961). The judge's order was clear and the evidence is indisputable that Rose violated the order.

At trial Rose maintained, notwithstanding the clear language of the judge's order, that she was not aware that she was required to notify Eleanor in advance of a mortgage less than $35,000. This is unavailing.
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Judgments affirmed.

By the Court (Graham, Grainger & Hanlon, JJ.),


Summaries of

Cogliano v. Cogliano

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Mar 30, 2012
11-P-788 (Mass. Mar. 30, 2012)
Case details for

Cogliano v. Cogliano

Case Details

Full title:ELEANOR E. COGLIANO v. ROSE M. COGLIANO.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Mar 30, 2012

Citations

11-P-788 (Mass. Mar. 30, 2012)