Opinion
No. 2020-54/H
10-10-2024
In The Matter Of The Estate Of Julianne C. Baker, A/K/A JULIANNE CLAS BAKER A/K/A JULIE BAKER, Deceased
Thomas M. Prato, Esq., Brown Gruttadaro & Prato, PLLC, Attorneys for David Clas, Petitioner-Executor. Carl A. Steinbrenner, Esq., Steinbrenner Law Offices, LLC, Attorneys for William Patrick Fricke, Respondent. Ericka B. Elliott, Esq., Underberg & Kessler LLP, Attorneys for Oscar Fricke, Respondent.
Unpublished Opinion
Thomas M. Prato, Esq., Brown Gruttadaro & Prato, PLLC, Attorneys for David Clas, Petitioner-Executor.
Carl A. Steinbrenner, Esq., Steinbrenner Law Offices, LLC, Attorneys for William Patrick Fricke, Respondent.
Ericka B. Elliott, Esq., Underberg & Kessler LLP, Attorneys for Oscar Fricke, Respondent.
Hon. Christopher S. Ciaccio, Surrogate's Court Judge
INTRODUCTION
The decedent Julieanne Clas-Baker ("Julie") was murdered by her ex-boyfriend, William Patrick Fricke ("Fricke"). Fricke kidnapped Julie from the home of a friend with whom she was visiting, restrained her, and then stabbed her to death (see Democrat & Chronicle, Jan. 23, 2020). He also repeatedly stabbed and attempted to kill her friend.
Fricke was indicted on, among other things, charges of murder, kidnapping and attempted murder. He was tried and convicted in Ontario County Court and sentenced to life imprisonment.
Julie's estate sued Fricke in New York State Supreme Court for damages and was awarded following a non-jury inquest a judgment of over nine million dollars.
The only property available to satisfy the judgment consists of two motor vehicles, titled in the name of Fricke and subject to liens filed with the New York Department of Motor Vehicles, and various items of personal property, all in the possession of the Estate, and against which a brother has asserted a security interest.
The Estate now seeks by Order To Show Cause and pursuant to SCPA 2103 and 2104, an Order directing Fricke to remove the liens and sign the title to the vehicles over to the Estate, vacating the security interests, and authorizing a sale of the personal property.
A "hearing"- a trial, really - pursuant to SCPA 2104 - (that section is entitled "Inquiry; trial and decree") was held on June 20, 2024.
What follows are the court's Findings of Fact, which include a necessary recitation of the proceedings leading up to the SCPA 2104 trial, the pleadings, and the court's Conclusions of Law.
FINDINGS OF FACT
According to testimony at the murder trial, Julie had recently ended her relationship with Fricke. On January 5, 2020, Fricke drove to a house on Canandaigua Lake where he apparently knew she was spending time with a male friend with whom Fricke suspected she was having an affair. Fricke entered the house, assaulted the friend and Julie, dragged Julie out of the house and stabbed her repeatedly until she was dead. The friend ran to get a shovel to use to get Fricke away from Julie, and in the struggle was stabbed several times himself but lived.
Fricke ran to his car and drove away. A short time later he ended up in a ditch, was picked up on the side of the road, and driven to his father's house in Irondequoit.
Fricke was indicted on 11 felony counts including Murder in the First Degree, Kidnapping, and Attempted Murder in the First Degree. He was convicted by a jury of all 11 counts and sentenced to a term of life imprisonment. Asked whether he wished to make a statement before the court pronounced its sentence, Fricke denied any culpability and said that the prosecutor's version of what happened was an "alternative reality" and "revisionist history" (see Canandaigua Daily Messenger, June 16, 2021). He also claimed in an Affidavit filed in response to a civil action against him that he acted in "self-defense."
On January 10, 2020, Monroe County Surrogate's Court issued letters testamentary to David Clas as the nominated executor in Julie's Will.
The Supreme Court action for damages
On January 13, 2020, the Estate commenced a civil action in in state supreme court against Fricke for damages. It also moved by Order To Show Cause for an Order seeking attachment of property that was still at the house where Julie and Fricke had resided and which the Estate believed could be used to satisfy any future judgment. It also moved for a Temporary Restraining Order ("TRO") preventing the sale or transfer of any property by Fricke or the transfer of any interest in property to some other party.
Fricke cross-moved for replevin, claiming that the property at the joint residence belonged to him. In his Affidavit dated February 14, 2020, he stated that he and Julie "had a committed personal relationship" and that he "loved her dearly." As an Affirmative Defense to the Complaint he interposed "Self-defense."
He also asserted, in no uncertain terms, that he "had had no personal ability to take any affirmative actions on my behalf, including the transfer or sale of any of my personal assets" and that all of his personal and business affairs were being handled by his brother Kim, who was his "power of attorney." No mention is made of any security interest having been granted to his brother Oscar.
His attorney, Carl Steinbrenner, also asserted in an Affirmation in opposition to the motion for attachment that "the Defendant has not attempted or taken any action to conceal or transfer his personal assets for the purpose of defrauding creditors or frustrating the enforcement of future money judgments."
By Decision filed February 4, 2020, Acting Supreme Court Justice Brian Dennis denied the attachment relief but granted the TRO. A short time later he stayed the proceedings pending the outcome of the criminal matter.
Jumping ahead, the stay was eventually lifted after Fricke was convicted and sentenced to life imprisonment.
On December 24, 2021, the Estate moved for summary judgment in its civil action for damages against Fricke. Summary judgment was granted in April 2023.
On September 11, 2023, following a non-jury trial at which Fricke was represented by Carl Steinbrenner, Esq., Justice Dennis awarded the Estate damages and judgment was entered against William Patrick Fricke in the amount of $9,827,403.00 on November 2, 2023.
Monroe County Surrogate's Court proceedings
On or about October 28, 2020, the executor commenced a proceeding in Monroe County Surrogate's Court pursuant to SCPA 2103 to "determine property of decedent's estate, and if necessary, for an inquiry or examination" and alternatively, for "equitable injunctive relief" through the imposition of a "constructive trust" over items of personal property possessed by the estate but which Fricke claimed belonged to him, meaning, that the property shall not be transferred or encumbered. The executor sought injunctive relief preventing any transfer of title or encumbrance.
Respondent Fricke filed an Answer in December 2020.
No disposition of the request for relief is recorded. There was a conference in February 2021 attended by counsel for both parties at which time the Court indicated - orally - that it would issue an Order directing Fricke not to transfer any property or his interest in any property. There is no writing memorializing the directive, let alone any entry of an Order. Nonetheless, the February 14, 2020, Order - the TRO - of Acting Supreme Court Justice Dennis was still in full force and effect.
On March 31, 2021, Petitioner moved by Order To Show Cause for an Order "in the nature of a Preliminary Injunction... extending the Temporary Restraining Order made on February 3, 2021."
By Order filed on May 10, 2021, this court granted the application and "restrained, prevented and prohibited"... "William Patrick Fricke and all other persons and entities with any alleged claims of right" from "transferring, selling and/or assigning the property or claimed property of William Patrick Fricke pending a hearing..."
The Estate, seeking to partially satisfy its judgment against Fricke, petitioned by Order To Show Cause and Verified Petition dated April 25, 2024, and pursuant to SCPA 2103 ("Proceeding by fiduciary to discover property withheld or obtain information"; SCPA 2104 ("Inquiry; trial and decree"); and SCPA 2107 ("Court may direct as to value, manner and time of sale of property and give advice and direction in extraordinary circumstances") for a Decree 1) removing liens placed on two vehicles owned by Fricke, the liens having been placed while they were allegedly subject to the restraining order; 2) "requiring William Patrick Fricke to sign title" to the two vehicles over to the Estate, or "alternatively" directing that the vehicles be titled in the name of the Estate; and 3) authorizing the executor to sell and dispose of the personal property of Fricke.
The respondent, the now-convicted murderer William Patrick Fricke, timely filed through his attorney a response entitled "Answer/Objections," signed by his attorney, Carl Steinbrenner, Esq. It was however defective (and thus a nullity) as it was not verified as required by SCPA 303.
On the return date of June 4, 2024, Steinbrenner explained the lack of verification by stating that because Fricke is in a maximum-security correctional facility, it is difficult to speak with him, and that he was only able to schedule a telephonic conference with him on June 4, 2024. However, Steinbrenner did not explain why he didn't verify the Answer himself, given that Fricke was residing in a county different from where his office was located (see CPLR 3020[d] [3]), and given that he had been representing Fricke for over four years, had responded to a petition requesting similar relief in 2021, and was indisputably familiar with the facts and circumstances of Fricke's defense. No request was made for an extension of time within which to submit an appropriately verified pleading.
In his Answer Fricke's counsel argued that this most recent Petition is in essence a collection proceeding - an attempt to collect on the multi-million dollar judgment against Fricke by seizing and selling two vehicle and other personal property he owns - and that collection proceedings are governed by Article 51 and 52 of the CPLR.
Decision was reserved and the matter was held over for a report to June 13, 2024. Carl Steinbrenner again appeared on behalf of William Patrick Fricke, and Thomas Prato appeared on behalf of the Estate. Also, Oscar Fricke appeared, through his attorney Erika Elliot of the firm Underberg and Kessler. Oscar Fricke had been named in the Estate's petition for turnover of the property, because, as alleged, Oscar Fricke had been the party which filed liens against the motor vehicles in May 2021. The Order To Show Cause directed service against him, and proof of service was filed on May 20, 2024.
On June 18, 2024, counsel for Oscar filed a "Verified Answer," in form similar to an Answer served in a civil action, denying the allegations set forth in the paragraphs of the Petition and then listing "Affirmative Defenses" (nine in all).
On the same date counsel for Oscar also submitted, in opposition to the relief requested and in support of a motion to dismiss the petition, an Affirmation of counsel; a Memorandum of Law; and Exhibits, as follows:
Exhibit A: "LOAN AGREEMENT" purportedly entered into between Oscar Fricke and William Patrick Fricke; dated January 26, 2020 (shockingly, only several days after the brutal killing of Julie and the attempted murder of her friend) whereby Oscar Fricke, as a "Lender," agrees to provide W. Patrick Fricke, as "Borrower," loans up to the amount of $250000.00. The text of the "Loan Agreement" states it "is made as of January 26, 2020," however, although it is signed at the bottom of the document by Oscar Fricke and W. Patrick Fricke, the signatures are not dated (or notarized for that matter).
Exbibit B: a "PROMISSORY NOTE," whereby W. Patrick Fricke promises to pay to the order of Oscar Fricke the amount of $250,000.00. The note bears a date in the upper right-hand corner of the first page of January 26, 2020, and it is signed by W. Patrick Fricke as "Maker," and Oscar Fricke as "Payee," but again, the signatures are not dated.
Exhibit C: A "SECURITY AGREEMENT," purportedly "made as of January 26, 2020" whereby W. Patrick Fricke as "Debtor" "assigns and grants" to Oscar Fricke, as the "Secured Party," a "continuing lien on and security interest in the Collateral," which consists of all personal property owned by W. Patrick Fricke. Again, it is signed by W. Patrick Fricke and Oscar Fricke, without a date other than the date that appears in the heading of the document.
Exhibit D: a "UCC Financing Statement," filed on March 20, 2021, listing William Patrick Fricke as "Debtor" and Oscar Fricke as "Secured Party."
Exhibit E: consists of two "NOTICE[S] OF RECORDED LIEN," each filed on May 6, 2021 against two motor vehicles owned by W. Patrick Fricke and listing Oscar Fricke as the lien holder.
The SCPA 2104 trial was held on June 20, 2024.
Counsel for Respondent Fricke asked the court to consider (receive?) documents purporting to be evidence of the liens and Oscar Fricke's secured interest in the vehicles and in all of William Patrick Fricke's personal property. No witnesses were called. The documents were offered although the record is unclear as to whether they were received, and the court asked, before closing the proof, whether counsel intended to offer any other evidence or call any witnesses. Counsel replied that she did not. The court then closed the proof. The transcript does not show any discussion as to whether opposing counsel consented to the court's receipt into evidence of the documents, all of which appeared to be unauthenticated copies.
Those documents offered were the same as those attached as Exhibits to the Affirmation in Opposition submitted by counsel for Oscar Fricke.
After the hearing and after proof had been closed, Oscar Fricke submitted a document entitled "Affidavit" in which he states that the loan documents (Exhibits A-C) were made and signed on the date indicated on each document, i.e., January 26, 2020. There was a discussion at the June 20 hearing regarding whether the court would receive and consider anything further, but no explicit permission was granted. In any event affidavits are generally inadmissible at a trial.
CONCLUSIONS OF LAW
All of the "Exhibits," including the "loan agreement" and "promissory note" and "security agreement" documents submitted by counsel for Oscar Fricke were never formally moved by counsel to be received into evidence, and the court considers them not in evidence.
But even if they were in evidence, the court finds in its discretion and in an exercise of its role as factfinder that they are not credible. They are inauthentic proof of the security interest claimed against the vehicles and other property of William Patrick Fricke. To be clear, they are, in the court's view and in its role as determiner of facts, nullities.
That Oscar Fricke did not testify as to the authenticity of the documents, or the interest claimed, would be enough to discount the weight to be given to the documents down to zero. However, the fact that the signatures are undated and un-notarized, that the documents are dated six days after W. Patrick Fricke murdered the decedent and only three days after the indictment was issued, and that the documents were produced two days before the trial but several years after the Estate had asserted an interest in the vehicles and other personal property of William Patrick Fricke (raising the question of why they were not produced by attorney Steinbrenner earlier going back to his original response to the Order To Show Cause and Petition filed by the Estate in 2021 let alone in response to the motion for attachment in the supreme court action), not only demolishes the credibility of the rights asserted, but also raises in the court's mind the suspicion that they were produced and made well after the dates indicated and represent an attempt to deceive the court as to the validity of the documents. Let there be no mistake about the court's finding here - the documents are fraudulent and represent an attempt to deceive. They may have been signed authentically by Oscar Fricke and W. Patrick Fricke but made and dated and signed well after January 26, 2020, and likely only shortly before this trial, in an effort to prevent the seizure of the motor vehicles and personal property. This is the factual finding of the court.
It would be interesting to see if there were visits to the Ontario County jail on the day the documents are dated
Recall that in the supreme court civil action, Fricke, his attorney Carl Steinbrenner, and another sibling, Kim Fricke, all swore under oath in submissions that Fricke had taken no action to encumber any of his assets.
It would be all too easy to conclude - the conclusion is nearly inescapable - that the signatures cleverly were not dated let alone notarized because then the signatories could not be accused of an open deception (let alone a crime), i.e., that the date at the top of the document is not the actual date the documents were signed, because that would be perjury (although that clearly is the impression the documents were intended to convey to the court).
In any event, no consideration is given as well to the post-trial Affidavit, as proof had been closed and no explicit permission had been granted to re-open the proof. Even if permission had been granted to allow counsel to submit an Affidavit for consideration by the court, it would have been and is inadmissible. The conditions for receipt of an Affidavit in lieu of testimony were not met, and in any case, opposing counsel never consented. Counsel for Oscar Fricke could have asked for her client to appear and testify virtually. She did not.
The issue of contempt of court is raised as well. As far as the court can discern upon its review of the supreme court filings on the NYSCEF system, the UCC filing was made in violation of the Judge Dennis's TRO of February 14, 2020, which appears never to have been lifted. As noted, the court also suspects that Exhibits A-C were created after the court issued its Order restricting a transfer of Fricke's property interests, and likely immediately before the trial. Why else would they not have been produced in the supreme court action when Fricke opposed the motion for attachment? And why would attorney Steinbrenner not have produced them in his opposition to the Petition?
Also too, the court is of the opinion that even if the UCC filing and motor vehicle liens were filed and imposed before the court's Order was entered in the clerk's office on May 10, 2021, at the least the attorney for Fricke, as an officer of the court, had an obligation not to facilitate an action that was a blatant violation of the court's direction, although there is no evidence he did.
Accordingly, the relief requested by the Petitioner is granted in all respects. Oscar Fricke is deemed to have no pecuniary interest in the personal property and the vehicles.
The liens against the vehicle are declared invalid as is the security interest reflected in the UCC-1filing. The court holds and finds that New York Debtor and Creditor Law § 273 is applicable. The liens were imposed, and the UCC-1 filed, with intent to "(a)(1): hinder, delay or defraud any creditor," and/or "(a)(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (ii): intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due." Thus, the liens are void as is the effect of the UCC-1 filing.
The Estate is authorized to sell the personal property in its possession to satisfy its judgment.
The Respondents William Patrick Fricke and Oscar Fricke are hereby Ordered to take all necessary action to remove the liens filed against the motor vehicles and to vacate the UCC-1 filing. Failure to comply with this Order will result in a finding of contempt of court, pursuant to Judiciary Law § 753 (3) and SCPA §606.
The New York Department of Motor Vehicles is directed and ordered to remove the liens imposed against the vehicles in question, as they are the result of a fraudulent transfer of interest.The court makes one final comment. Respondent has argued that the Surrogate's Court Procedure Act has no provision for the execution on a judgment and that the Estate's remedy is exclusively through the mechanisms of Article 51 and 52 of the Civil Practice Laws and Rules.
However, it has been written that "the constitutional expansion of the Surrogate Court's jurisdiction mandates against fragmenting jurisdiction among courts unless it is clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate," (5 Warren's Heaton on Surrogate's Court Practice § 64.02 [2024], citing Matter of Piccione, 57 N.Y.2d 278, 289 [1982]).
The proceeding at issue in Piccione was one, as here, to collect a debt - back rent - and also to evict the tenant.
It cannot be disputed that the proceedings before the court - which are essentially attempts to enforce and collect on a judgment procured by the Estate - involve the affairs of an estate.
The Estate would possibly need to resort to Articles 51 and 52 of the CPLR if the judgment debtor - the convicted murderer William Patrick Fricke - had possession of the property and refused the Court's decree to turn the property over, and if he ignored a contempt finding (given that he received a life sentence, a likely scenario), in which case the Estate as a judgment creditor could proceed with execution in supreme court (see SCPA 605). Here, however, the property in question is already in the hands of the judgment creditor, so the attachment and seizure and sale procedures of Articles 51 and 52 do not need to be utilized. If Fricke fails to comply with the mandate to remove the liens and vacate the security interest, it will be up to counsel for the Estate to determine the best procedure to accomplish its goal, as a contempt finding is unlikely to motivate Fricke to take any action.
One would think that Fricke would relent in asserting an interest in the property on moral grounds, having been convicted by a unanimous jury of having brutally kidnapped and stabbed to death the woman who he "loved dearly" and with whom he had a "committed relationship." But having apparently concocted seemingly phony documents attesting to a security interest in the property held by a brother, for the purpose of frustrating a very minimal and partial satisfaction of the judgment, moral considerations would seem unlikely motivating factors.
Counsel for the Petitioner shall submit an Order.