Opinion
No. C99-01167
December 14, 2000
MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
A. Introduction
Robert J. Lech and Joseph W. Lech, Jr. (Joseph, Jr.) are brothers. Robert's complaint concerns the disposition of $76,112.60 that was in the bank account of their father, Joseph W. Lech (Joseph, Sr.), until shortly before his death. Robert's complaint alleges that Joseph, Jr. converted this money and that he obtained it from the father it by fraud or undue influence. Joseph, Jr. is entitled to summary judgment because there is an absence of evidence to support Robert's claims of conversion and fraud or undue influence. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-16 (1991). On the claims against Fleet National Bank, the bank is also entitled to summary judgment.
B. The Absence of Evidence Support the Claims of Conversion and Fraud or Undue Influence
On the summary judgment motions, the parties have submitted the depositions of Joseph, Jr. and Robert, Robert's answers to Joseph, Jr.'s second set of interrogatories and to the bank's interrogatories, and copies of certain records and documents including the wills of Joseph, Sr. and Helen R. Lech. The summary judgment evidence must be considered in the light most favorable to the plaintiff Robert. O'Sullivan v. Shaw, 431 Mass. 201, 203 (2000).
Joseph, Sr. worked in Lech Garage in New Bedford for all of his adult life. In 1985, Joseph, Sr. and his wife, Helen R. Lech, owned sixty percent of the stock of the business. Robert and Joseph, Jr. each owned twenty percent of the stock. Robert left the business as a result of a dispute in 1985 between Robert and Joseph, Jr. Joseph, Jr. paid Robert $40,000, and Robert returned his stock to Joseph, Sr. Robert testified that his mother had said, "You sell him your shares and we'll leave you the house and property and all the contents." Robert Dep. 58. As part of this agreement, the parents in 1988 deeded their house to Robert but retained a life estate for themselves. Joseph, Sr. and Helen informed Robert that if Joseph, Jr. survived them Joseph, Jr. would receive the parents' majority interest in the business when they died. Robert Ans. to Int. Joseph, Sr. and Joseph, Jr. continued to work at the garage.
On September 2, 1995, Joseph, Sr.'s wife Helen died. Joseph, Sr. was eighty-nine years old. His health was failing; in particular he had emphysema and very weak eyesight. He was distraught and confused over his wife's sudden death.
On September 11, 1995, Joseph, Sr. and Joseph, Jr. went together to a branch of the Shawmut Bank, N.A., a predecessor of Fleet National Bank. On the instructions of Joseph, Sr., the bank gave Joseph, Sr. a cashier's check for $76,112.60 closing out all of Joseph, Sr.'s accounts.
Joseph, Sr. died on December 27, 1995. As the executor of Joseph, Sr.'s estate, Robert claims that Joseph, Jr. converted the cashier's check and the $76,112.60 for his own use and obtained them by fraud and undue influence.
In support of his summary judgment motion, Joseph, Jr. relies on his own deposition. Joseph, Jr. in essence testified that Joseph, Sr. gave him the check for $76,112.60 as a gift to the Lech Garage business. Joseph, Jr. testified that the garage was his father's whole life. Joseph, Sr. was involved in the garage and he continued to work there, putter and do little things until his death. Joseph, Jr. testified that his father told him that the money in his savings account was earmarked as backup money for the business and that he wanted to close it out and have the business get the money. Joseph, Jr. Dep. 36, 41, 43. Joseph, Jr. testified that his father always had backup money for the business and that his account had been used before 1995 to buy, replace or renew equipment for the business such as a tire balancer. Joseph, Jr. Dep. 37.
Joseph, Jr. testified that before the day his father closed his accounts, his father said that he "wanted the business to have the money, to use in the business, and he was going to close it out and then we would be all set as far as, you know, not having to go through a whole bunch of rigmarole after for that money." Joseph, Jr. Dep. 40-41, 42-43. Joseph, Jr. testified that at the bank in September, 1995, the check was made out to Joseph W. Lech, the name his father used. Joseph, Jr. Dep. 43-44. He testified that, "[m]y father wanted it so that either one of us could sign it if need be. And he had it made out Joseph B. [sic] Lech, so that either one of us could sign it." Joseph, Jr. Dep. 113. His father instructed the bank employee to make it out that way. Id.
Joseph, Jr. testified that the check was given to his father, "and he gave everything to me right there. . . . [i]n the envelope with everything in it." Joseph, Jr. Dep. 43-44. Joseph, Jr. testified that his father handed him the check and had told him, "[t]his is my back up money for the garage; its for the garage." Joseph, Jr. Dep. 109. Joseph, Jr. testified that prior to going to the bank his father indicated that he wanted Joseph, Jr. to keep the check "because he wanted to close the accounts out so that I could have the money." Joseph, Jr. Dep. 48.
Joseph, Jr.'s wife signed the back of the check for him and deposited it into the personal account of Joseph, Jr. and his wife. Joseph, Jr. Dep. 47, 49. Joseph, Jr. testified that he had given his wife authority to sign the check for him as he had with his paychecks. Joseph, Jr. Dep. 109. Joseph, Jr.'s wife worked at the garage as the bookkeeper clerk and she signed the checks. Joseph, Jr. Dep. 48-49. Joseph, Jr. testified that he and his wife used some of this money to make payments on a wrecker truck and for some land used for the business. Joseph, Jr. Dep. 51. Joseph, Jr. testified that after they bought the wrecker his father wanted him to have money to help pay for it. Joseph, Jr. Dep. 101. Joseph, Jr. testified that he never used the money for his personal use. Joseph, Jr. Dep. 57.
Taking the summary judgment evidence in the light most favorable to the plaintiff, it is insufficient to support a jury finding of conversion, fraud or undue influence by Joseph, Jr. Miles v. Caples, 362 Mass. 107, 111-14 (1972); Neill v. Brackett, 234 Mass. 367, 367-74 (1920); see Kourouvacilis, supra; Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). Joseph, Jr. has presented Joseph, Jr.'s testimony that his father gave him the check at the bank as a gift for him to use in the business. Robert has presented no countervailing evidence to show that this was not so. Kourouvacilis, supra, 410 Mass. at 716; see Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 204 (1986) (elements of a gift). There is nothing in the summary judgment evidence that contradicts Joseph, Jr.'s version of the events at the bank and his father's statements that he was giving him the money to use in the business.
It is possible that Joseph, Jr. was not telling the truth at his deposition. At trial a jury could disbelieve his testimony. But disbelief of Joseph, Jr.'s testimony is no substitute for evidence that Joseph, Jr. obtained the money from his father by compulsion, deception or other improper influence or that his conduct overcame his father's free will and caused him to submit to "the overmastering effect of such unlawful conduct." Neill v. Brackett, 234 Mass. at 370; Miles v. Caples, 362 Mass. at 112; see Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984); Kunkel v. Alger, 10 Mass. App. Ct. 76, 86 (1980). In the absence of any evidence that could support a jury finding of conversion, fraud or undue influence, Joseph, Jr. is entitled to summary judgment.
Robert relies on evidence that his father was in poor health, had extremely weak vision, and was distraught and confused after his wife's sudden death. He also points to evidence of missing property from the basement and a dispute about the mother's car. This evidence combined with disbelief of Joseph, Jr.'s testimony would still not be enough to overcome a directed verdict or to warrant a jury finding of conversion, fraud or undue influence in the absence of some evidence that Joseph, Jr. obtained the check or money by improper conduct that overcame his father's free will. Miles v. Caples, 362 Mass. at 111-14; Neill v. Brackett, 234 Mass. at 367-74. Even Robert testified that his father "knew more or less what was what." Robert Dep. 24. Similarly, the evidence of the father's intent to hide his money so that the would be eligible for home health care services is not inconsistent with an intent to give his money to the garage business, and it does not amount to evidence of improper influence by Joseph, Jr. or an overmastering of the father's will.
C. The Claims Against the Bank
For essentially the same reason, the bank is entitled to summary judgment on the conversion and Chapter 93A claims. The plaintiff is correct that the authority of an agent is generally a question of fact. Baldwin's Steel Erection Co. Inc. v. Champy Construction Co. Inc., 353 Mass. 711, 714 (1968). In this case, however, the plaintiff has presented no evidence to contradict Joseph, Jr.'s testimony that his father instructed the bank to make the check out "to Joseph B. [sic] Lech, so that either one of us could sign it" and that his father gave the check to him to use for the business. Joseph, Jr. Dep. 113, 40-44. The plaintiff has presented no countervailing evidence to contradict Joseph Jr.'s testimony that his father gave him actual authority to endorse the check for use in the business and that Joseph, Jr. gave such authority to his wife. See G.L.c. 106, § 3-308 (a) (a signature on an instrument is "presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent . . ."); Watertown Federal Savings Loan Association v. Spanks, 346 Mass. 398, 399-400 (1963). Disbelief of Joseph, Jr.'s testimony is not sufficient to raise a jury question of conversion by the bank or an unfair or deceptive practice. Bose Corp. v. Consumers Union of United States, Inc., supra; Kunkel v. Alger, supra.
Due to the absence of evidence to support the plaintiff's claims, the court need not address the bank's Uniform Commercial Code statute of limitations argument.
D. Order
The motion for summary judgment of Joseph W. Lech, Jr. is allowed.
The motion for summary judgment of Fleet National Bank is allowed.
_________________ Charles J. Hely Justice