Opinion
No. 11–P–1246.
2012-06-15
Barry L. NICKERSON v. Kimberly Anne Lantz PAULIN & another.
By the Court (GRASSO, MILLS & TRAINOR JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On September 4, 2006, after a jury-waived trial, a Superior Court judge ordered the defendants, Kimberly Anne Lantz Paulin and Kellie Anne Lantz, to pay $19,000 to the plaintiff, Barry L. Nickerson, for services provided by the plaintiff to the defendants' father, George C. Lantz (George). George was also the plaintiff's uncle.
Between November, 2003, and March, 2004, the plaintiff provided services to George relating to George's Alzheimer's-type dementia. These services included, inter alia, visiting George on at least a weekly basis, taking him to all medical appointments, and coordinating hospitalization when needed. On March 9, 2004, the Probate and Family Court judge appointed the plaintiff as George's guardian, with the defendants' approval. The plaintiff continued to provide services to George, and remained his guardian until George's death on February 8, 2006.
Both the plaintiff and the defendants appeal from the judgments. The plaintiff seeks additional damages, arguing that (1) the judge erroneously found that his claims against the defendants in their capacity as executors of George's estate were barred by the statute of limitations,
(2) the judge based his damage award in part on an erroneous conclusion that the plaintiff's hospital visits were largely gratuitous, and (3) the judge erred in applying an hourly rate of $50 in calculating the $19,000 damage award for the services rendered by the plaintiff between November 3, 2003, and March 9, 2004, the date he was appointed guardian.
The statute requires, in pertinent part, that “an executor or administrator shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased.” G.L. c. 197, § 9( a ), as amended by St.1989, c. 329, § 5.
The defendants argue that the judge erred in finding them personally liable to the plaintiff. Substantially for the reasons stated by the judge in his decision, we affirm.
In our review of the judge's decision, “ ‘[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ We do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error or a ‘firm conviction that a mistake has been committed.’ “ Mason v. Coleman, 447 Mass. 177, 186 (2006) (citations omitted).
With regard to compensation for services provided by the plaintiff between November, 2003, and March, 2004, before he was appointed as George's guardian, we find that the judge did not abuse his discretion in awarding the plaintiff $19,000 on a breach of contract theory. The judge reached this figure by awarding $50 per hour
for twenty hours per week, after deciding that the services claimed by the plaintiff could not have reasonably exceeded twenty hours per week over the nineteen week period. “[A]n examination of the evidence does not convince us that the judge was plainly wrong” in his determination. McMahon v. Krapf, 323 Mass. 118, 124 (1948).
Comparable to the rate paid to court-appointed guardians.
With regard to the services performed by the plaintiff after he was appointed as George's guardian, we conclude that because the claim was filed in excess of twelve months after George's death, the judge properly determined that the claim was barred by the statute of limitations set out in G.L. c. 197, § 9( a ), as amended by St.1989, c. 329, § 5. Further, the judge found that the plaintiff had filed an accounting in the Probate and Family Court on February 22, 2007, and noted that it reflects eight distributions to the plaintiff from George's accounts for services as guardian, totaling $17,500. Even if the plaintiff's claim against the estate was not barred, we would agree with the judge that the $17,500 the plaintiff paid to himself during the guardianship was a reasonable fee for his services.
Further, we conclude that the judge did not clearly err in finding that visits by the plaintiff to see his uncle in the hospital and in a skilled care facility between November, 2004, and February 8, 2006, which the plaintiff claims entitle him to compensation as a caregiver, were “gratuitous” and were made in his capacity as a family member. See Andrews v. Division of Med. Assistance, 68 Mass.App.Ct. 228, 229 (2007) (examining whether services rendered “would have been rendered gratuitously as a family accommodation, based on love and affection, or whether a genuine transaction occurred with expectation of payment for value given and received”). Moreover, although the trial judge made no such finding, we note that it is likely that the $17,500 the plaintiff dispersed to himself in part covered these visits.
Turning to the defendants' appeal, we conclude that the judge was within his discretion to find that the defendants should be held personally liable to the plaintiff. On conflicting evidence, the judge found that the defendants had promised the plaintiff that he would be compensated for his services. “We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference.” Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 3 (2006) (internal citation omitted). On this record, we cannot say the judge erred in concluding that the defendants promised to compensate the plaintiff.
Judgment affirmed.