Cavanaugh v. Kazounis
| Decision Date | 07 February 2014 |
| Docket Number | C.A. WC-13-0274 |
| Parties | ADAM CAVANAUGH v. JOANNE E. KAZOUNIS, Individually and as Executrix of the ESTATE OF JAMES EDWARD CAVANAUGH, THERESA L. CAVANAUGH, and BANK OF AMERICA NATIONAL ASSOCIATION |
| Court | Rhode Island Superior Court |
Washington County Superior Court
For Plaintiff: Tia M. Priolo, Esq.
For Defendant: Mark J. Hagopian, Esq.; John F. Kelleher, Esq.
Kristin E. Rodgers J.
This is a declaratory judgment action filed by Plaintiff, Adam Cavanaugh (Adam[1] or Plaintiff), to quiet title pursuant to G.L. 1956 § 34-16-4. Plaintiff claims title to certain real estate by virtue of a warranty deed dated December 10 2010, and recorded in the Land Evidence Records of the Town of Narragansett. Defendants Joanne E. Kazounis (Kazounis) and Theresa L. Cavanaugh (Theresa) (collectively, Defendants) are Plaintiff's aunt and mother, respectively. Kazounis and Theresa each claim title to a one-sixth interest in the same real estate by virtue of a quit-claim deed dated September 11, 2012, also recorded in the Land Evidence Records of the Town of Narragansett.
The issue before the Court is whether the quit-claim deed executed only by James Edward Cavanaugh (James) Plaintiff's grandfather and Defendants' father operated to sever the joint tenancy that was created by the earlier warranty deed as between James and Plaintiff, such that Defendants each now hold a one-third interest in James's undivided half interest in the real estate.
Jurisdiction is pursuant to G.L. 1956 §§ 9-30-1 and 8-2-13. For the reasons set forth herein, judgment shall enter for Plaintiff.
Having reviewed the evidence presented by both parties, the Court makes the following findings of fact.
On December 10, 2010, James executed a warranty deed conveying title to real property located at 130 Tupelo Trail, Narragansett, Rhode Island (the Property) to himself and his grandson, Adam, as joint tenants with rights of survivorship (the Warranty Deed). Joint Ex. 1. The Warranty Deed was recorded on December 16, 2010 in the Land Evidence Records of the Town of Narragansett. Although Plaintiff was aware from a conversation with Theresa that James intended that Plaintiff inherit the Property, Plaintiff did not see the Warranty Deed prior to September 2012.
In 2012, James sought to have the Property placed in the names of himself, Plaintiff, and his two daughters, Kazounis and Theresa. To that end, James conferred with James Auckerman (Auckerman), a local attorney with whom James had worked in the past. On or about September 11, 2012, Auckerman prepared a quit-claim deed purporting to convey the same Property to James, Plaintiff, Kazounis and Theresa as joint tenants with rights of survivorship (the Quit-Claim Deed). Joint Ex. 2. The Quit-Claim Deed provides in pertinent part:
The Quit-Claim Deed contains two signature lines, one for James and one for Plaintiff, and provides two separate notary public acknowledgements, one attesting to James's execution of the document and the other attesting to Plaintiff's execution of the document. Joint Ex. 2.
Kazounis brought James to Auckerman's office on September 11, 2012 for the purpose of signing the deed. James executed the Quit-Claim Deed on that date in the presence of Auckerman, a notary public. Joint Ex. 3. James then asked Auckerman to obtain Plaintiff's signature thereon and record the Quit-Claim Deed. In accordance with James's wishes, Auckerman called Plaintiff on September 11, 2012 requesting that he come to Auckerman's office and sign the Quit-Claim Deed. Auckerman also sent an email to Plaintiff's fiancé, Casey Dodge (Dodge), with whom Plaintiff lived at the time, which contained directions and a copy of the Quit-Claim Deed. Defs.' Ex. A.
Plaintiff met with Auckerman at his law office on September 12, 2012. At that meeting, Auckerman showed Plaintiff the Quit-Claim Deed signed by James.[2] Plaintiff expressed reservations about signing the Quit-Claim Deed and advised Auckerman that he needed time to think about it and may want to get a second opinion.
On September 19, 2012, James passed away. At that time, Plaintiff had still not signed the Quit-Claim Deed, and it had not been recorded. A few days after James's death, Auckerman and Plaintiff again spoke on the phone. While the content of the conversation is disputed-whether Plaintiff outrightly told Auckerman he would not sign the deed or whether he was still unsure about signing the deed-it is undisputed that Plaintiff never executed the Quit-Claim Deed.
Auckerman and Defendants met on September 24, 2012 to discuss the probate of James's estate. According to Auckerman's trial testimony, Defendants asked Auckerman to record the Quit-Claim Deed. Accordingly, on September 25, 2012, Auckerman recorded the Quit-Claim Deed, signed by James but not by Plaintiff, in the Narragansett Land Evidence Records.
Even after the Quit-Claim Deed was recorded, Auckerman again contacted Plaintiff, this time via letter. The letter dated October 24, 2013 reads in pertinent part, Joint Ex. 7. Plaintiff did not respond. Auckerman thereafter sent additional letters to Plaintiff to which Plaintiff also did not respond. See Joint Exs. 8, 9. Those letters revealed that Defendants were each claiming to have a one-sixth interest in the Property and that the expenses of the Property, including mortgage payments, need to be paid or risk foreclosure.
From the time of James's death until the present, Plaintiff has paid only one mortgage payment, in or about February 2013, to avoid foreclosure. No other mortgage payments have been made on the Property nor have any payments been made toward real estate taxes, property insurance or utilities. Thus, correspondence from Auckerman, on behalf of Kazounis, to Plaintiff's then-counsel in January, April and May 2013 addressed the continued risk of foreclosure, as well as Auckerman's position that Defendants each held a one-sixth interest in the Property, and Plaintiff held the remaining two-thirds interest. See Joint Exs. 10, 11, 12.[3] Importantly, Auckerman acknowledges that "Adam's grandfather's intent was to convey the property to all three of them, equally." Joint Ex. 11.
On May 20, 2013, Plaintiff filed a two count Complaint with this Court seeking a declaration that he is the sole owner of the Property by virtue of the December 10, 2010 Warranty Deed and an injunction to stop any foreclosure sale.[4] Defendants filed a Counterclaim on June 14, 2013 seeking a declaration that, upon James's death, Plaintiff owned an undivided one-half interest as a tenant in common and Defendants each owned a one-third interest as joint tenants with Plaintiff in the remaining one-half interest. Defendants also seek a partition by sale of the Property.
The matter came on for hearing before this Court, without the intervention of a jury, on December 2, 2013, with regard to Plaintiff's Count I and Defendants' Counts I and II only. The primary issue which this Court must now address is the effect of the September 11, 2012 Quit-Claim Deed that was executed only by James.
At trial, Plaintiff presented two witnesses, Plaintiff and Dodge. Kazounis offered minimal testimony in Defendants' case-in-chief. Most pertinent to Defendants' case-in-chief was the testimony of Auckerman.
Plaintiff presented as an independent, hard-nosed young man. He acknowledged having a strained relationship with his mother and aunt, although the genesis of that strained relationship was never revealed. Plaintiff credibly testified that he never discussed the Warranty Deed or James's intent to leave the Property to Plaintiff with James because he found it was morbid to talk about.
Plaintiff's testimony concerning his reaction to Auckerman's request to execute the Quit-Claim Deed differed in some minor respects from his earlier sworn deposition testimony. Additionally, the force with which Plaintiff asserted his reluctance to execute the Quit-Claim Deed seemed to change over time. For instance, when first presented with the Quit-Claim Deed in Auckerman's office on September 12 2012, Plaintiff testified that he was uncertain as to what to do. According to Plaintiff, he explained to Auckerman that he did not have a good relationship...
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