Barash v. Kates

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: James M. Hopkins
• Citation: Barash v. Kates, 585 F.Supp.2d 1347 (S.D. Fla. 2006)
• Decision Date: 12 October 2006
• Docket Number: Case No. 04-80159-Civ.
• Parties: Philip BARASH, as preliminary executor of the Estate of Celia Kates, Plaintiff, v. Gloria KATES, a/k/a Gloria Haberman, Defendant.

585 F.Supp.2d 1347

Philip BARASH, as preliminary executor of the Estate of Celia Kates, Plaintiff, v. Gloria KATES, a/k/a Gloria Haberman, Defendant.

Case No. 04-80159-Civ.

United States District Court, S.D. Florida.

October 12, 2006.

COPYRIGHT MATERIAL OMITTED

James M. McCann, Esq., West Palm Beach, FL, for Plaintiff.

Philip Barash, Plaintiff pro se.

Roy Edmund Fitzgerald III, Esq., Page Mrachek Fitzgerald & Rose, West Palm Beach, FL, Julie S. Ferguson, Esq., for Defendant.

ORDER IMPOSING SANCTIONS UPON PHILIP BARASH SUA SPONTE, IN AN AMOUNT TO BE DETERMINED AT A LATER DATE, GRANTING DEFENDANT'S MOTION FOR SANCTIONS IN PART, AND ORDERING PARTIES TO SUBMIT MEMORANDA OF LAW AND SUPPORTING MATERIALS AS TO THE AMOUNT OF SANCTIONS TO BE IMPOSED (DEs 60, 68)

JAMES M. HOPKINS, United States Magistrate Judge.

THIS CAUSE comes before the Court sua sponte and upon Defendant's Motion for Sanctions. (DEs 60, 68).

On October 4, 2005, this Court Issued an Order to Show cause requiring Philip Barash ("Barash") and counsel for Plaintiff, James M. McCann, Esq., ("McCann"), to show cause why sanctions should not be imposed in light of the proceedings which had occurred at the bench trial conducted by this Court from March 14 to March 15, 2005. (DEs 48-50, 52-54, 56, 60). Defendant also filed her own motion for sanctions. (DEs 68, 69). After reviewing the submissions of the parties, this Court set the matter for hearing on September 26, 2006. (DEs 64, 65, 68, 69-73, 78-81, 83, 87). For the reasons that follow, IT IS HEREBY ORDERED THAT Barash be sanctioned, pursuant to the Court's inherent authority, in an amount to be determined at a later date. Moreover, for the reasons that follow, IT IS ORDERED THAT McCann not be sanctioned in this matter. As such, IT IS FURTHER ORDERED THAT Defendant's Motion for Sanctions be GRANTED IN PART AND DENIED IN PART. (DE 68).

PROCEDURAL BACKGROUND

On February 20, 2004, the instant case commenced with the filing of a Complaint for Damages and Injunctive Relief. (DE 1). Listed as Plaintiffs were Sandra Barash ("Sandra"), acting under a durable power of attorney for Celia Kates ("Celia"), and Celia. (DE 1, pg. 1). Celia is the mother of both Sandra and Defendant, Gloria Kates ("Gloria"). (DE 1, pg. 1).. Attorney James P. McCann ("McCann") signed the complaint on behalf of Plaintiff. (DE 1, pg. 9).

In the complaint, Plaintiff alleged that in 1992, Celia opened a joint stock brokerage account, naming Gloria as the other account holder, for the purpose of avoiding probate by placing Gloria's potential future inheritance into the account. (DE 1, pg. 2). Celia and Gloria were listed as joint tenants with rights of survivorship. (DE 1, pg. 2). The complaint alleges that Gloria was not advised of the existence of the account. (DE 1, pg. 2).

According to the complaint, in November of 2000, Celia became ill and was hospitalized.¹ Following her release, on November 17, 2000, while allegedly under fear of impending death, Celia signed a letter wherein she resigned her positions of Trustee and Successor Trustee from the Irving Kates Trust and the Celia Kates Trust. (DE 1, pg. 3; DE 50, Plaintiffs Trial Exhibit 41). In the letter, Celia directed, inter alia, that the funds from Trust account number 307-26620 should be transferred to Gloria individually. (DE 50, Plaintiffs Trial Exhibit 41).

Celia eventually recovered from her illness, and on February 18, 2004, McCann, on behalf of Celia, sent a letter to Gloria claiming that the transfer to account number 307-26620 was a gift made in contemplation of death, that Celia was revoking such gift, and that Celia demanded that the assets of the account be returned. (DE 1, pg. 4, Exh. A). After Gloria failed to return the assets, at the age of ninety-seven (97), Celia filed the instant complaint asserting five (5) causes of action: (I) Money Had and Received; (II) Restitution; (III) Unjust Enrichment; (IV) Imposition of a Constructive Trust; and, (V) Imposition of a Resulting Trust. (DE 1, pgs. 1-7; DE 50, Plaintiffs exh. 36).

On August 10, 2004, Celia died, and upon motion by Sandra Barash, Sandra's husband, Philip Barash ("Barash"), was substituted as the party Plaintiff as the executor of Celia's estate. (DEs 19, 20).

THE TRIAL

The case proceeded to trial before the undersigned on March 14-15, 2005. (DEs 48, 49, 50, 52, 53). At trial, Plaintiff was represented by McCann. Barash was the only witness who testified on behalf of Plaintiff. For purposes of the sanctions issue presently before the Court, the Court focuses on three areas of testimony given by Barash at trial.

First, on direct examination, upon being shown Plaintiffs exhibit 41, the letter dated November 17, 2000, Barash was directly asked whether he played any role in the preparation of the letter. (DE 52, pg. 119). Barash stated that he did not. (DE 52, pg. 119). Barash testified that a copy of the November 17 letter came to him in the mail, and that he had no conversations with Celia regarding the letter prior to receiving the letter. (DE 52, pg. 120, 121). Barash further testified that after receiving the letter, he called Celia to ask why she was removing herself as trustee for the trusts described in the letter, to which she replied that she wanted "everything to be in order" when she died, and that she did not "want her girls to have any problems." (DE 52, pgs. 121-122). According to Barash, after he asked Celia why she thought she was going to die, Celia stated that she was "in terrible pain," that she "could not remember anything," that she was "incontinent," and that she "did not want to live this way." Barash stated that he had no other conversations with Celia regarding the letter. (DE 52, pgs. 122-123).

Next, during Barash's cross examination, Barash was asked whether he brought a lawsuit in the Eastern District of New York ("the New York litigation" or "the New York action") to seek to set aside the joint account of Gloria and Celia.² (DE 52, pg. 174). After Barash replied that his name was not on the lawsuit, counsel inquired whether Sandra prepared the papers and pleadings, or whether Barash did so. (DE 52, pg. 174). Barash answered that "... Celia sat at my computer and she dictated the entire lawsuit," including the sworn statements filed in conjunction with the lawsuit. (DE 52, pg. 175). Upon being asked whether the information contained in the sworn statements was accurate or true, Barash testified that the information was not true, as far as he and his wife Sandra were concerned, but that they did what Celia said. (DE 52, pgs. 175-176). When counsel pressed Barash as to whether he and his wife signed statements that they knew to be false, Barash stated that although he and Sandra knew nothing about any oral agreement, in Celia's mind there had been an oral agreement, and that "... when Celia told you to do something, you did it." (DE 52, pg. 176). When counsel again questioned Barash as to whether he lied in the New York action when he swore in his statement that in his presence, he was witness to an oral contract, Barash replied that "Celia dictated it, and that's how I wrote it." (DE 52, pg. 178).

Finally, the Court recalls Barash's cross examination as to the events that occurred following his receipt of the letter dated November 17, 2000. (DE 52, pgs. 119-206). After Barash was asked whether he knew in advance of his receipt of the letter that the letter would be coming, Barash stated that he "was totally surprised" by receiving the letter. (DE 52, pg. 199). Counsel then directed Barash's attention to a prior deposition which had been given on August 10, 2001, wherein Barash stated that he had prepared the November 17 letter, and that the form was dictated by the brokerage firm of Solomon Smith Barney. (DE 52, pgs. 200, 201). In reply, Barash adamantly stated that he did not prepare the November 17 letter, that the form would not have been dictated by Solomon Smith Barney, and that the deposition had never been sent to him for correction and signing. (DE 52, pgs. 200-202).

In keeping with Barash's direct examination testimony that he was surprised to receive the November 17 letter in the mail, and that he called Celia to question her regarding the letter a few days after receiving it, counsel also inquired as to whether Barash, during his phone call with Celia, questioned Celia as to the logic of Celia's signing the November 17 letter. (DE 52, pgs. 202-204). Counsel noted that the November 17 letter was not necessary to accomplish Celia's stated goal of providing for her daughters after her death because Celia had a joint account with Gloria whereby they owned the account as joint tenants with a right of survivorship, and the funds in the account would have automatically passed to Gloria upon Celia's death, and because Celia would have been automatically removed as trustee from the trusts upon her death. (DE 52, pgs. 202-204). However, Barash merely replied that he never discussed such matters with Celia "[b]ecause you don't question Celia," and "[i]t's not something you said to Celia Kates." (DE 52, pgs. 203, 204). After counsel further questioned Barash about whether he would perjure himself if Celia asked him to, Barash stated, "Yep. She's an old lady, she's entitled for you to do what she directs." (DE 52, pg. 203).

Counsel then turned to Barash's most recent deposition given on January 19, 2005, contained in Defendant's exhibit 24. (DE 42, pgs. 204-209). Counsel again began by recalling that at the bench trial, Barash testified that after he received the letter of November 17, 2000, he called Celia a few days later to discuss the matter. (DE 52, pg. 204). However, counsel next noted then when Barash was deposed in 2001, Barash testified that he knew all about the letter because he prepared it for Celia. (DE 52, pg. 205). Moreover, counsel further noted that when Barash was deposed in 2005, Barash testified as to a third version of events surrounding...