Opinion
18-P-1641
08-13-2020
JAMES A. McLAUGHLIN, personal representative, v. GAIL O'BRIEN & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A trial judge ordered that the decedent's joint bank accounts and various other assets be included in the decedent's estate. On appeal, the executors of the estate, Gail O'Brien and Darlene Lynch, first assert that the trial judge erred in including these assets. They next take issue with the judge's denial of their motion to continue the trial, and finally, they challenge the admission of testimony they assert was improper settlement negotiations evidence and testimony from the estate attorney, which they contend touched on the ultimate issue regarding the nature of the joint accounts. We affirm.
Discussion. "Whether the joint accounts were properly retained by [the survivor] as her property, or should have been included in the estate is a 'pure question of fact' that turns on the donor's intent." Gershaw v. Gershfield, 52 Mass. App. Ct. 81, 93 (2001), quoting Desrosiers v. Germain, 12 Mass. App. Ct. 852, 856 (1981). We will overturn a judge's determination that joint accounts belonged to the estate only when it is established that such finding is clearly erroneous. See U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014) ("we accept the judge's findings of fact unless they are clearly erroneous"). "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).
Generally, the naming of a second account holder to a joint account "would operate as a present and complete gift in joint ownership if [the owner] clearly intended such a result" (emphasis added). Coolidge v. Brown, 286 Mass. 504, 507 (1934). Where a joint account is created merely as a matter of convenience, however, the naming of such additional account holder does not manifest an intent to make a present gift. See Miles v. Caples, 362 Mass. 107, 114 (1972) (absence of intent to make completed gift can be demonstrated by evidence that joint account was created only as matter of convenience). In such a situation, the contents of the convenience account remain in the decedent's estate. See id. at 114-115.
The trial court found that the joint accounts at issue here were created solely as a matter of convenience. This finding is amply supported. The evidence at trial established that "Ms. O'Brien paid the Decedent's bills from the joint account that she held with the decedent prior to the Decedent's death" and that "[t]he Decedent solely contributed all of the funds in the accounts." The judge also heard testimony establishing that (1) "the Decedent's accounts that [were] held jointly with the Decedent were utilized for payment of the Decedent's expenses," (2) "the Decedent did not tell Ms. Lynch that she was giving her money in the accounts that she put into joint names," (3) "[t]he Decedent was clear regarding her donative intent to her children and grandchildren when transferring . . . gifts in the past," (4) "[a]ll of the Decedent's accounts were in joint names with one or more of the siblings," (5) "prior to the Decedent's death, she held various convenience accounts in some of her children's names," and (6) "the siblings agreed that all assets, including the accounts that were in joint accounts with the Decedent would be divided equally among the beneficiaries of the estate." On this record, we see no error in the judge's finding that the joint accounts were created solely as a matter of convenience. See Miles, 362 Mass. at 114-115 (accounts were mere convenience accounts where accounts were used to pay decedent's expenses and contrary conclusion would be inconsistent with wishes expressed in decedent's will). See also Desrosiers, 12 Mass. App. Ct. at 856-858 (statements made contemporaneously and after creation of joint account which evidenced intent to divide estate among children equally rebutted presumption of donative intent).
We do not address the executors' challenge to the inclusion of certain other personal property because they "failed to support [their] claims of error with sufficient legal argument or factual detail, and fail[ed] to cite to sufficient supporting authority." Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). The brief contains only three citations for this argument -- none of which are tied to any particular argument or advance the argument made by the executors. Moreover, the executors fail to provide any explanation or argument as to why the challenged assets -- which include proceeds from the sale of property which belonged to the decedent at her death -- would not be considered probate assets. See 31 Am. Jur. 2d Executors and Administrators § 437 (2020) ("The estate of a decedent is an entity which comprises all property in the broad sense of the word which a decedent has at death"). In the absence of proper argument, we cannot consider this issue.
The executors next assert that the judge abused his discretion in denying a request to continue the trial when a proposed witness, Mary Jane Soroka, who had previously suffered a heart attack, failed to appear at trial. We disagree. The trial had been initially scheduled for August 25, 2017; however, on the basis of the witness's medical condition, the judge continued the trial to October 23, 2017. The witness then failed to appear on the October trial date, and the executors moved for another continuance. They offered no explanation for the witness's absence and provided no updated information regarding the witness's health. On this record, we see no abuse of discretion in the judge's denial of a continuance request that was based on stale information of a medical condition that had occurred two months prior. See Botsaris v. Botsaris, 26 Mass. App. Ct. 254, 256 (1988) ("On ruling on a motion for continuance based on illness, the judge is, of course, entitled to look at what has gone before and to consider the quality of supporting documentation").
We similarly reject the executors' arguments that the trial judge improperly admitted testimony from the estate attorney that the manner in which the estate tax return was prepared implied that the joint accounts were accounts of convenience. "An expert witness may give testimony on matters within the witness's field of expertise [and this testimony] is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide" (quotation and citation omitted). Puopolo v. Honda Motor Co., 41 Mass. App. Ct. 96, 98 (1996). The executors nevertheless contend the attorney's opinion was inadmissible because he had not been qualified as an expert. We disagree.
An expert witness need not be explicitly qualified. "In some instances, it can be implied that a witness is testifying as an expert." Commonwealth v. Rivera, 425 Mass. 633, 644 (1997). Here, the attorney's testimony was allowed after specific questioning regarding his education, background, and experience in estate return drafting. On this record, the judge could properly infer that he offered expert testimony. See Leibovich v. Antonellis, 410 Mass. 568, 571-572 (1991) ("the fact that the [witness's] qualifications had previously been laid out, and the judge's allowance of his testimony, clearly imply a prior determination by the judge that the witness was qualified, through his experience and training, to offer an opinion"). There was no error.
We also see no merit to the executor's claims that testimony regarding settlement negotiations was improperly admitted. We fully recognize that statements made as part of a settlement offer are generally inadmissible to show liability at trial. See, e.g., Garber v. Levine, 250 Mass. 485, 490 (1925). Still, "whether a particular discussion is in fact a settlement offer . . . is a preliminary question for the trial judge." Marchand v. Murray, 27 Mass. App. Ct. 611, 615 (1989). The statements at issue here were made during an informational meeting about the estate. There were no pending legal matters at that time nor an indication of any intent to initiate legal proceedings. In the absence of any suggestion of litigation, the trial judge properly concluded the statements were not part of any settlement negotiations. See Hurwitz v. Bocian, 41 Mass. App. Ct. 365, 373 (1996) (affirming admission of statements where "[t]here was nothing to show that prior to [defendant's] message, [plaintiff] had made any suggestion to [defendant] that she intended to sue him or that [defendant] offered [plaintiff] $ 300,000 to settle any claim").
The attorney facilitating the meeting testified that "at the time the meeting was called I was not aware of any conflict or issues . . . we were simply looking to see what needed to be done in order to close out the administration."
Judgment affirmed.
By the Court (Wolohojian, Maldonado & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 13, 2020.