Opinion
18-P-1703
01-07-2020
Ann C. MCNEFF, personal representative, v. Thomas R. CERRETANI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, a Land Court judge declared that a deed purporting to grant to the defendant -- the plaintiff's brother -- the title to their father's home was a forgery and, thus, a nullity. The defendant appeals from the judgment entered against him, arguing: (1) testimony from a handwriting expert should have been excluded from the trial evidence, and (2) the totality of the evidence presented at trial did not support the judge's conclusions. We affirm.
Background. The following facts are taken from the judge's detailed findings. On October 31, 1997, Ralph Thomas Cerretani executed a will appointing the plaintiff, Ann C. McNeff, his daughter, as executrix. The will left the father's real estate to his three children; Ann, Thomas (the defendant), and Peter Cerretani, and Ann's husband Jules McNeff. Ralph died on December 9, 2014.
For clarity, we refer by first name to those individuals who share a surname.
At the time of trial, Thomas resided at 65 Forest Park Avenue in Billerica (property), a home that had formerly belonged to Ralph. Thomas had moved into the property with Ralph at some point during the last seven to eight years of Ralph's life.
In or around May 2015, after Ralph's death, Thomas learned for the first time that Ralph's will included a devise to Jules of a one-fourth interest in Ralph's real estate. Thomas became angry upon learning that his brother-in-law had been named in the will.
In July 2015, Thomas sought to have notarized a deed allegedly signed by Ralph on November 14, 2014, which purported to convey the property to Thomas. The notary refused to notarize the instrument, which contained the father's signature on the wrong line. The next day, Thomas returned with a new deed that contained a signature on the correct line, and the notary said that he could not notarize a deed after the grantor's death.
At some point, a deed purportedly bearing Ralph's signature was notarized by another notary, Charles Antonelli, Jr., whom Thomas had known for over thirty years. The deed purported to convey the property to Thomas for consideration in the amount of ten dollars. The notarized deed was not registered with the Middlesex North Land Court Registry District until July 20, 2015. Ann first learned about the deed when she received the original in the mail from the registry district in the summer of 2015.
The property is registered land.
At trial, the judge heard testimony from, and assessed the credibility of, Thomas and his siblings, Jules, both notaries, and a handwriting expert. The judge found that "the signature on the Deed does not belong to Ralph." She further concluded that the deed was a nullity.
Discussion. 1. The handwriting expert. Thomas argues that the judge erred by admitting the testimony of Ann's handwriting expert. A judge's decision to admit expert testimony is reviewed only for an abuse of discretion. Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011). "The purpose of expert testimony is to assist the trier of fact in understanding evidence or determining facts in areas where scientific, technical, or other specialized knowledge would be helpful." Id. "A judge has wide discretion in qualifying a witness to offer an expert opinion on a particular question, ... and [the judge's] determination will not be upset on appeal if any reasonable basis appears for it" (quotation omitted). Id. at 845, quoting Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990). "An evidentiary Daubert-Lanigan hearing is generally not required where we have previously admitted expert testimony of the same type, where the testimony is offered for the same purpose, and where there is no factual issue as to whether the expert is qualified, whether the appropriate methodology has been followed, or whether the quality of the evidence is sufficient to permit an opinion." Id.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ; Commonwealth v. Lanigan, 419 Mass. 15 (1994).
Massachusetts courts have long considered handwriting comparisons by qualified experts to be admissible. See Commonwealth v. Murphy, 59 Mass. App. Ct. 571, 576 (2003) ("the opinion of a handwriting expert as to the probability of authorship has a long history of acceptance in our jurisprudence"). See also Commonwealth v. Buckley, 410 Mass. 209, 213-214 (1991) ; Preston v. Peck, 271 Mass. 159, 163 (1930) ; Richardson v. Newcomb, 21 Pick. 315, 317 (1838). In Murphy, we held that handwriting analysis is a " ‘soft science’ that is highly dependent on information derived from such sources as personal observations, clinical assessments, and statistical data, and as such we defer especially to the judge's exercise of discretion" (citation omitted). Murphy, 59 Mass. App. Ct. at 576. Moreover, we concluded there that, "as the courts in Massachusetts have long accepted as reliable expert testimony about the authorship of handwriting, a Lanigan hearing was not necessary even had one properly been requested." Id.
Here, the expert's testimony described her extensive training and explained her methodology. She was subject to cross-examination. It was well within the judge's discretion to admit the expert testimony at trial to assist her in understanding the evidence, and then to make whatever weight and credibility determinations she deemed appropriate based on her own assessment of the evidence.
2. Sufficiency of the evidence. Thomas argues that, because Ralph's signature on the subject deed was notarized, Ann's evidence was, on the whole, insufficient to prove a forgery. We show great deference to a trial judge's evaluation of the evidence, particularly where, as here, testimony conflicts and the judge must assess witnesses' credibility. See Allen v. Allen, 86 Mass. App. Ct. 295, 306-307 (2014).
A notary's signature creates either a "true presumption" of validity, or, at a minimum, "an inference of regularity and compliance with the law." Keville v. McKeever, 42 Mass. App. Ct. 140, 157 (1997), quoting Hale v. Hale, 332 Mass. 329, 333 (1955). Our opinion in Keville suggests that where the signature on a deed is notarized, a forgery must be proved by "clear and convincing evidence." Keville, 42 Mass. App. Ct. at 157.
Here, the judge found that Thomas's key witnesses -- himself and Antonelli -- "displayed inconsistencies in their testimony, which, on many points, was simply not credible." She relied on "[t]hese credibility issues and inconsistencies, combined with the expert testimony," to conclude, under the clear and convincing evidence standard, "that the signature on the Deed d[id] not belong to Ralph."
In her findings and rulings, the judge described with more specificity the ways in which the evidence supported Ann's contention that Ralph's signature on the deed to Thomas was a forgery. First, she found that Thomas did not behave like a true owner, nor did he assert his ownership at various times when a true owner typically would have done so. Second, she chronicled the inconsistencies in Antonelli's testimony that rendered it noncredible. Third, she described the expert testimony that she found corroborative of the forgery. Finally, the judge cited credible evidence establishing that Thomas had unsuccessfully attempted to notarize Ralph's signature from the first notary he approached after Ralph's death.
Specifically, on the day Ralph purportedly signed the deed, Thomas spoke with his sister on the telephone and yet, he did not mention that Ralph had deeded him the property. After Ralph's death, while Thomas, Ann, and Jules were working to organize and pack up Ralph's belongings (including times when the family members were discussing the terms of Thomas's continued occupation of the property), Thomas did not mention that he owned the house. Thomas also did not mention his ownership when he became angry upon learning that Jules had acquired a one-fourth interest under Ralph's will.
On appeal, Thomas draws attention to testimony from Peter and Antonelli regarding the signing and notarizing of the deed, and argues that the judge improperly disregarded this testimony. However, the judge was well within her discretion to find this testimony not credible and to disregard it accordingly.
Judgment affirmed.