Opinion
DOCKET NO. A-3730-11T2
05-06-2013
ANNA CRANMER, Plaintiff-Appellant, v. ESTATE OF PASQUALE ROMEO and ALFONSO ROMEO, Defendants-Respondents.
Anna Cranmer, appellant, argued the cause pro se. Kristofer B. Chiesa argued the cause for respondents (Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys; Sheri L. Pecarsky and Leily Schoenhaus, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 190153.
Anna Cranmer, appellant, argued the cause pro se.
Kristofer B. Chiesa argued the cause for respondents (Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys; Sheri L. Pecarsky and Leily Schoenhaus, on the brief). PER CURIAM
Plaintiff Anna Cranmer, pro se, appeals from a February 16, 2012 order granting summary judgment and dismissing her complaint challenging the May 19, 2004 will of her father, Pasquale Romeo. We affirm.
I.
Pasquale was almost eighty-four years old when he died. A widower since 1994, he left his entire estate to his son Alfonso Romeo. The principal asset of the estate was Pasquale's home in Little Egg Harbor Township. Alfonso also received roughly $38,000 as proceeds of an annuity that Pasquale applied for in March 2004, having designated Alfonso the beneficiary from inception. He was also the beneficiary of a pay-on-death checking account.
For convenience, and meaning no disrespect, we use the testator's and son's first names.
Pasquale did not bequeath anything to his two daughters, plaintiff and Carmela Marcellino. Nor did he leave anything to the woman with whom he lived for several years after his wife died.
Cranmer alleged that her father's will was the product of Alfonso's undue influence, and Pasquale's mistake and lack of mental capacity. She asserted her father and brother had a confidential relationship, as her father depended on her brother for financial support. She also alleged the attorney who prepared the will had a conflict of interest, as he also represented Alfonso, or received referrals of work from him.
The parties disputed the significance of various real estate transactions involving Pasquale. Alfonso operated a local real estate office. Pasquale had bought, renovated, and sold over fifty properties in the course of his lifetime. Alfonso explained in his deposition that in 2000, well before Pasquale executed the 2004 will, Pasquale conveyed a property to Alfonso for a nominal sum as reported on the deed. However, in return for the property, Alfonso paid his father $10,000 cash, bought him a Toyota Camry, and also paid his father $300 cash a month thereafter, until he died. Alfonso explained that his father, whose health was deteriorating while on a fixed income, divested himself of his investment properties in order to qualify for pharmaceutical and medical assistance. The record reflects that Pasquale over the years also conveyed properties to Cranmer and Marcellino on favorable terms. Indeed, the same time Pasquale deeded the property to Alfonso in 2000, Alfonso asserted, Pasquale deeded two other properties to his three children jointly.
The record includes little evidence of Pasquale's other financial transactions around the time of the execution of the will to indicate Pasquale's sources of income, or whether the $300 monthly payment from Alfonso was a significant part of Pasquale's income. However, Alfonso testified that his father frequently visited casinos to gamble. As late as 2009, Pasquale was still signing checks from his account, although the record also demonstrated that Alfonso had signing authority for the account at that time.
Pasquale suffered from diabetes and congestive heart failure. He had a triple bypass operation. Alfonso lived around the corner from his father in Little Egg Harbor Township and sometimes assisted in his care. However, the record does not include medical records, nor an expert report. No evidence in the record describes in detail Pasquale's physical or mental health when he executed the will. Nor is there any evidence to corroborate Cranmer's opinion that her father was susceptible to becoming confused.
Cranmer also asserted her father had difficulty understanding, speaking and reading English. Born in Italy, he had an Italian accent and spoke "broken English." However, other witnesses testified that Pasquale had no difficulty reading and conducting business in English.
Cranmer also alleged that the attorney, Alan Gerber, who drafted the will, had a conflict of interest. Gerber had done legal work for Pasquale in the 1970s and 1980s. Gerber's father had begun performing work for Pasquale in the late 1960s.
But, Cranmer presented evidence that another attorney, Brian Rumpf, had represented Pasquale in his real estate transactions after the Gerbers. She produced a will that Rumpf allegedly prepared for Pasquale in 2000, which left his residual estate to his three children. However, the will was unsigned, and Rumpf was not deposed nor did he provide a certification.
By 2004, Gerber had acted as Alfonso's attorney in some of his personal real estate transactions. Gerber also represented the buyer or the seller in real estate transactions in which Alfonso served as the broker or agent. The day after Pasquale executed the will, Gerber prepared a deed in connection with a conveyance of property by Alfonso.
Gerber asserted that Alfonso did not arrange his father's meetings with Gerber, nor did he participate in the drafting of the will. He testified that Pasquale appeared lucid; and was clear and definitive in his direction to Gerber that he wished to leave his estate to his son. After an initial meeting at which Pasquale expressed his intentions, Pasquale returned on May 19, 2004 to execute the will. The will was witnessed by Gerber's secretary, Sara Tallman.
In his 2011 deposition, Gerber referred to his notes of his initial meeting with Pasquale about the will. He wrote, "Pasquale said that he wants to leave entire estate to Al. He said that he had given monies to his other children, Anna [and] Carmela during his lifetime." According to Gerber's notes, Pasquale explained, "They got already." Gerber's notes also reflected that Pasquale decided not to leave anything to his female companion of eight years because he had borne the bulk of their living expenses during those years.
The record also included some evidence of tension between Cranmer and her father. Cranmer lived in Florida, although the record does not indicate precisely when she relocated there. In a letter to the editor of the local newspaper close to Father's Day in 1998, Cranmer paid tribute to her father, but acknowledged some estrangement. She wrote, "Even though the loss of my mother has drawn us apart, I know you are always there whenever I need you." In a letter over ten years later, she wrote to her father, apparently in response to his request for information about her payment of an indebtedness to him. She asserted she paid it by checks payable to cash that she gave to Alfonso. She asserted her father insisted upon cash payments to hide income. She stated, "Sorry it had to come this far yet you never enjoyed me or respected me as your daughter or have you treated me as one. I am sorry that your ways are not understanding to me and my family and I've always felt unwanted."
Cranmer filed her complaint on May 16, 2011. In addition to her claim of undue influence in the execution of her father's will, she also asserted claims of trespass to chattel, conversion, and negligence. She also sought an accounting of Pasquale's estate.
Alfonso and the estate moved for summary judgment after an extended, six-month period of discovery that included depositions of the parties, the attorney who drafted the will, and Alfonso's wife. No expert reports were served, and no medical records were disclosed, other than Pasquale's list of prescriptions in 2011. No further extension of discovery was sought.
Plaintiff did not present certifications of supporting witnesses. However, the record included numerous documents pertaining to real estate transactions between Pasquale and Cranmer, and Pasquale and Alfonso.
In an extensive oral decision rendered on February 16, 2012, Judge John A. Peterson, Jr. found that plaintiff had failed to present genuine issues of material fact to support her claim of undue influence. He highlighted the absence of any lay or expert witnesses to corroborate her claim that her father's will was susceptible to being overborne.
This appeal followed. Cranmer argues that, granting her all favorable inferences as the non-moving party, there exist genuine issues of material fact regarding her claim that her father's will was the product of her brother's undue influence.
II.
A.
We review the trial court's grant of summary judgment de novo, Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div.), certif. denied, 208 N.J. 600 (2011), and apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 3 07 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Pursuant to Rule 4:46, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Our Court has cautioned that summary judgment ordinarily should not be granted where an action depends on a determination of a person's state of mind, including claims of fraud or duress. Lombardi v. Masso, 207 N.J. 517, 544 (2011) (citation and quotation omitted); see also Ruvolo v. Am. Casualty Co., 39 N.J. 490, 500 (1963) (stating a court should hesitate to grant summary judgment when it must "resolve questions of intent and mental capacity"); Marte v. Oliveras, 378 N.J. Super. 261, 276 (App. Div.) (stating that factual issues related to alleged undue influence not susceptible to resolution on motion for summary judgment), certif. denied, 185 N.J. 295 (2005); Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 214 (App. Div. 1987) (reversing trial court's grant of summary judgment where non-movant claimed duress).
On the other hand, if the court determines there is no genuine issue of material fact, the court is not precluded from granting summary judgment, notwithstanding issues involving state of mind. Fielder v. Stonack, 141 N.J. 101, 129 (1995); Bower v. The Estaugh, 146 N.J. Super. 116, 121 (App. Div.) (affirming grant of summary judgment where court discerns "no evidence of undue influence"), certif. denied, 74 N.J. 252 (1977). Also, "when the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation and quotation omitted).
In evaluating a motion for summary judgment to determine the presence of a genuine issue of material fact, the court must consider both the allocation of the burden of persuasion, and the standard of proof. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). A court must be "guided by the same evidentiary standard of proof — by a preponderance of the evidence or clear and convincing evidence — that would apply at the trial on the merits[.]" Brill, supra, 142 N.J. at 533. These principles are particularly important if the law establishes presumptions, and shifting burdens of persuasion, as it does in cases involving alleged undue influence.
B.
In any attack upon the validity of a will, it is generally presumed that "the testator was of sound mind and competent when he executed the will." Gellert v. Livingston, 5 N.J. 65, 71 (1950) (citations omitted). However, "[i]f a will is tainted by 'undue influence,' it may be overturned." Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 176 (1981). "Undue influence has been defined as mental, moral or physical exertion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another." Ibid. (citation and quotation omitted).
Ordinarily, the opponent of a will bears the burden to prove undue influence. In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). However, certain circumstances may create a presumption of undue influence, shifting the burden of proof to the will's proponent. Id. at 379. This occurs when two conditions are met: first, "the will benefits one who stood in a confidential relationship to the testatrix"; and, second, "there are additional circumstances of a suspicious character present which require explanation." Ibid. The opponent of the will must prove a confidential relationship by a preponderance of the evidence. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007).
The first element, a confidential relationship, is difficult to define. Pascale v. Pascale, 113 N.J. 20, 34 (1988). It includes a relationship "'in which confidence is naturally inspired, or, in fact, reasonably exists.'" Ibid. (quoting In re Estate of Fulper, 99 N.J. Eg. 293, 314 (Prerog. Ct. 1926)). It requires an element of inequality between the parties to the relationship. Ibid. One party must deal with the other from a position of "superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence" or the other party must deal from a position of "weakness, dependence or trust justifiably reposed," such that "unfair advantage is rendered probable." Ibid. (internal citation and quotation omitted).
Our courts have recognized, "[a]mong the most natural of confidential relationships is that of parent and child." Ibid. However, "the mere existence of family ties does not create . . . a confidential relationship." Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div. 1952). The court must still examine the relationship to ascertain whether there is dominance of one party over the other, or inequality of dealing. The court must consider such factors as:
whether trust and confidence between the parties actually exist, whether they are dealing on terms of equality, whether one side has superior knowledge of the details and effect of a proposed transaction based on a fiduciary relationship, whether one side has exerted over-mastering influence over the other or whether one side is weak or dependent.In Haynes, supra, the Court found there was a confidential relationship between a mother and child, where the mother was "afflicted by the debilitations of advanced years, was dependent upon her sole surviving child with whom she lived and upon whom she relied for companionship, care and support." 87 N.J. at 176.
[Estate of Ostlund, supra, 391 N.J. Super. at 402.]
The second element necessary to create a presumption of "undue influence is the presence of suspicious circumstances[.]" Ibid. "Such circumstances need be no more than 'slight.'" Ibid. (citation omitted). Suspicious circumstances may arise from an attorney's conflict of interest. The Court found suspicious circumstances where the attorney for the testatrix was also the attorney for the daughter-beneficiary. Id. at 177. Also a contributing factor was the "drastic change in the testamentary dispositions of the testatrix, which favored the daughter." Ibid. "[A] conflict on the part of an attorney in a testimonial situation is fraught with a high potential of undue influence[.]" Id. at 178. The conflict creates "a strong presumption" of undue influence. Ibid. Consequently, in such circumstances, the will's proponent must rebut the presumption of undue influence by clear and convincing evidence. Id. at 183.
C.
Applying these principles, and granting Cranmer all favorable inferences, we conclude that there are genuine issues of material fact regarding the presence of a confidential relationship, and the existence of suspicious circumstances. In other words, a fact-finder could reasonably determine, based on the motion record, that Cranmer has established the basis for imposing a presumption of undue influence, shifting the burden to Alfonso to rebut it.
As for the confidential relationship, Cranmer has presented facts tending to show that Alfonso held a position of trust and confidence with respect to his father. Pasquale was also economically and otherwise dependent on his son. Pasquale divested himself of his investment properties. Alfonso explained Pasquale did so when his health was deteriorating; he lived on a fixed income; and he wanted to qualify for means-tested medical and pharmaceutical assistance programs. Although the record does not reflect Pasquale's finances at the time he made his will, a factfinder may conclude that his means were modest, if he did indeed qualify for assistance. Consequently, Pasquale may have relied on Alfonso's $300 a month cash supplement.
Alfonso also lived near his father, provided both companionship and aid in times of need. There was evidence that Alfonso took his father to the hospital, and sometimes administered injections for his father. The fact that Pasquale may have lived with a companion who also provided emotional and other support does not diminish the role Alfonso played.
The record also permits a finding that there existed suspicious circumstances. There was evidence from which a factfinder could conclude that Gerber had a conflict of interest in preparing a will for Pasquale, while representing Alfonso in various real estate transactions. The day after Pasquale executed the will Gerber drafted, leaving his entire residuary estate to Alfonso, Gerber drafted a deed for a real estate conveyance by Alfonso. Gerber testified that Alfonso referred both buyers and sellers to him in connection with real estate sales Alfonso handled as a broker or sales agent. He also represented Alfonso in his own transactions.
The suspicion is heightened by evidence Cranmer presented that Gerber had not regularly represented Pasquale in the years immediately preceding the execution of the will. Gerber had begun representing Pasquale in the early 1970s but there was no evidence that the representation continued past the early 1980s. Instead, Pasquale relied on other attorneys, including Rumpf, for representation involving various real estate transactions.
Also contributing to suspicious circumstances was the alleged change in Pasquale's testamentary disposition. Concededly, the 2000 will was unsigned. Also, Cranmer did not depose Rumpf, obtain a certification from him, or seek an extension of discovery to do so. Even if Pasquale never signed the 2000 will, perhaps because he had a change of heart, its initial preparation may reflect Pasquale's previous, albeit unexecuted, testamentary intentions.
In sum, we conclude, for the purposes of summary judgment, that defendants bear the burden of rebutting, by clear and convincing evidence, the presumption of undue influence.
D.
Nonetheless, having carefully reviewed the record in light of the governing legal principles, we conclude that no rational factfinder could find that Alfonso exercised undue influence over his father.
We assume, for purposes of our decision, the presumption of undue influence requires the will's proponent not only to rebut the presumption, but to carry the ultimate burden of proof on the factual question of undue influence. The Haynes Court speaks not only of the burden to rebut the presumption by clear and convincing evidence, but also the burden of proof of lack of undue influence. Supra, 87 N.J. at 178, 185-86; see also In re Estate of Stockdale, 196 N.J. 275, 304 (2008) (referring to both "shifting of the burden of proof and in the imposition of the heavier burden of clear and convincing evidence to rebut the presumption").
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In considering whether defendants have convincingly rebutted the presumption, we look to the direct and circumstantial evidence in the record pertaining to Pasquale's state of mind. Significant among Alfonso's proofs is Gerber's testimony and his corroborating notes. As Gerber was familiar with Pasquale, he was more likely than a stranger to detect whether Pasquale was operating under duress or outside influence. Gerber questioned Pasquale about his desire to exclude his daughters, and his female companion, and received coherent and firm responses. Gerber concluded, based on the two meetings, that Pasquale was of sound mind; he was alert and lucid and competent; and he understood his decision. Gerber also testified that Alfonso was not involved in scheduling the consultations, he did not attend them, and Gerber had no communications with Alfonso regarding his father's 2004 will.
Although Alfonso was aware his father had made a new will, he asserted that he was unaware of his father's dispositions. Cranmer alleged that Alfonso had blurted out at a Christmas party that he knew the substance of the will, but this was disputed by both Alfonso and his wife. Cranmer had no other witnesses.
It was also undisputed that Pasquale provided gifts to Cranmer and her sister during their lifetime. She admitted that he transferred property to her for no reported consideration, and the evidence demonstrated he provided loans at virtually zero interest. Although Cranmer professed her love for her father, the record nonetheless reflected that there was tension between them. That is evident in her letter-to-the-editor in 1998, and her letter to her father in 2009.
Although Pasquale may have relied upon his son for a $300 monthly cash payment, the $300 was not a gift, but an agreed upon payment for the transfer of property to Alfonso. Pasquale lived independently in his own home, along with a female companion. He had his own fixed income. He also had an annuity.
Pasquale also exercised independence of thought. That was demonstrated by his casino-gambling, in defiance of his son's apparent disapproval. Although Pasquale's physical health was failing as early as 2000, there is no evidence — other than Cranmer's uncorroborated allegations — that Pasquale lacked mental capacity or firmness of will. Cranmer has presented no medical records or expert testimony to support her claim that Pasquale was susceptible to "mental, moral or physical exertion . . . preventing [him] from following the dictates of his own mind and will and accepting instead the domination and influence of another." Haynes, supra, 87 N.J. at 176 (citation and quotation omitted). It is certainly conceivable that Alfonso's proximity to his father may have influenced his testamentary disposition. But "[n]ot all influence is 'undue' influence. Persuasion or suggestions . . . will not suffice." Gellert, supra, 5 N.J. at 73.
In sum, based on the one-sided evidence, no rational factfinder could conclude that Pasquale was the subject of undue influence.
Cranmer's remaining points lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION