Ciccone v. Pitassi, C.A. No.: PB 97-4180 (RI 8/13/2004)
| Decision Date | 13 August 2004 |
| Docket Number | C.A. No.: PB 97-4180 |
| Parties | RICHARD CICCONE, in his capacity as Trustee of the Trust under the Will of Alfred T. Ciccone, and ELSIE M. CICCONE v. ROBERT A. PITASSI, FLEET NATIONAL BANK, RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, ET AL. |
| Court | Rhode Island Supreme Court |
Before this Court is the Motion for Summary Judgment of Defendant Fleet National Bank (Fleet) as to Counts X, XI, and XII of the Amended Verified Complaint.1
In his Last Will and Testament, Alfred T. Ciccone (A. Ciccone) created a trust (Trust) naming Elsie M. Ciccone (E. Ciccone), his wife, lifetime beneficiary and Richard Ciccone (R. Ciccone), his son, an attorney, trustee and residuary beneficiary. As a lifetime beneficiary, E. Ciccone received the interest income of the Trust. (R. Ciccone Aff. ¶ 15.) Deposits of this interest, made bi-annually, were, as a matter of course, less than $10,000 in amount. (Id.)
Shortly after A. Ciccone's death on December 18, 1980, R. Ciccone hired Defendant Robert A. Pitassi (Pitassi), an attorney and relative, to handle the financial and legal affairs of the Trust. In his capacity as lawyer for the Trust, Pitassi helped to prepare tax returns, monitored Trust funds, and made recommendations as to the investment of Trust funds. (R. Ciccone Aff. ¶ 3.)
On March 2, 1993, R. Ciccone opened a certificate of deposit (CD) account (Account), bearing account number 8032942031, with Fleet. The "Certificate of Deposit Receipt" (CD Receipt) lists the "depositor" as "Trust Under the Will of Alfred T. Ciccone" and the depositor's address as: c/o Robert A. Pitassi, Esq., 850 Fleet Center, Providence, RI 02903. The CD Receipt indicates that $95,000, the sum deposited, "will be paid to the listed depositor[s]" and, that in the absence of contrary instructions, the "deposit will be automatically renewed for the same term at the rate in effect on the maturity date." The CD Receipt further states: "[t]his is a Time Deposit Receipt which is non-negotiable and non-transferable."
In addition, Fleet's "Deposit Account Agreement for Personal Accounts" (Deposit Account Agreement) references CDs held by trusts. It states:
"[i]ndividuals and unincorporated non-business associations may open and maintain personal Checking and Savings Accounts, and CDs and Jumbo CDs. Personal trusts ... may also maintain these Accounts. ...
Deposits may be made by one or two persons in trust for another (the "beneficiary"). Any action in connection with the Account, including withdrawals, may be made only by the trustee or, if there are two trustees, by both or either trustee or the survivor." Deposit Account Agreement at 10.
On January 30, 1997, Fleet addressed a "Certificate of Deposit Pre-Renewal Notice" (Pre-Renewal Notice) to Richard A. Ciccone, Trustee for c/o Robert A. Pitassi, Esq., 850 Fleet Center, Providence, RI 02903. The Pre-Renewal Notice provides:
Thereafter, Pitassi called Diane Becton (Becton), a "Senior Relationship Administrator" at Fleet, provided her with the CD Account number, informed her that the CD would mature in March, and said that he needed a cashier's check made out to the Trust. (Becton Tr. at 8.) Pitassi also completed and returned to Fleet the Pre-Renewal Notice. On the Pre-Renewal Notice, Pitassi wrote, Furthermore, in the first signature blank below the statement "[w]e authorize Fleet Bank to carry out the options selected on this form," Pitassi signed "Robert A. Pitassi, Attorney for Richard A. Ciccone, Trustee."
The CD matured on March 2, 1997. On March 3, 1997, Becton requested the cashier's check. That same day, Fleet issued a cashier's check (Fleet Cashier's Check), check number 96655119, for $99,533.69 and made payable to "Richard A. Ciccone Trustee for TRT U/W/O Alfred T. Ciccone." Becton then called Pitassi and informed him that the Fleet Cashier's Check was ready for pick-up at the front desk with the receptionist. (Becton Tr. at 18.)2
Once in possession of the Fleet Cashier's Check, Pitassi wrote on the back of it: "for deposit only to the account of Richard A. Ciccone, Trustee for TRT U/W/O Alfred T. Ciccone[,] #003-396777.11." (R. Ciccone Aff. ¶ 17.) Pitassi then deposited the Fleet Cashier's Check at Hospital Trust in NOW account number 003-396777 (Hospital Trust Checking Account). The Hospital Trust Checking Account was in the name of Richard A. Ciccone, Trustee under the will of Alfred T. Ciccone, and under the address 45 Enfield Avenue, Providence, RI 02904.3 Hospital Trust Statement at 1. Hospital Trust provided R. Ciccone with monthly statements concerning the Hospital Trust Checking Account. (Ferro Aff. ¶ 10.)
On or about March 4, 1997, Pitassi told E. Ciccone that he was re-investing the proceeds from the CD, Amended Verified Complaint at 4, and E. Ciccone gave Pitassi a check for $95,000 drawn on the Hospital Trust Checking Account (Check Number 356). Elsie Ciccone made Check Number 365 payable to "Robert A. Pitassi, Attorney for Richard A. Ciccone, Trustee" and signed it "Richard A. Ciccone, Trustee [by] Elsie M. Ciccone P.O.A." Pitassi endorsed and cashed Check Number 356 on March 4, 1997.
On or about March 10, 1997, a second check was drawn on the Hospital Trust Checking Account for $4,533.69 (Check Number 357). Check Number 357, representing the interest income from the CD Account, was made payable and paid to E. Ciccone.4
Also on or about March 10, Hospital Trust provided R. Ciccone with a statement noting the $99,533.69 deposit, Check Number 356 for $95,000, and Check Number 357 for $4,533.69. (Ferro Aff. ¶ 14; Hospital Trust Statement at 1.) The two checks accompanied the statement. (Ferro Aff. ¶ 14.)
With Check Number 356's proceeds, Pitassi purchased a cashier's check from Hospital Trust, designated check number 46607139 (Hospital Trust Cashier's Check). The Hospital Trust Cashier's Check, dated March 4, 1997 and in the amount of $95,000, was made payable to "Robert A. Pitassi, Attorney for Trustee Richard Ciccone." Pitassi then deposited the Hospital Trust Cashier's Check into his client account, account number 9392195169, at Fleet. After March 10, 1997, Hospital Trust no longer possessed any of the Fleet Cashier's Check proceeds. (Ferro Aff. ¶ 15.)
In or about March of 1997, Pitassi gave E. Ciccone a document entitled "Table of U.S. Treasury Bill and other investments by Richard A. Ciccone, Trustee U/W Alfred T. Ciccone as of March 5, 1997." The table states that "$95,000 [was] used to purchase [the] face amount of $95,000 of U.S. Treasury Bills maturing March 5, 1998." In reality, however, Pitassi personally utilized and dissipated the $95,000.5 On July 15, 1997, R. Ciccone sent Pitassi a letter authorizing Pitassi to release to R. Ciccone's accountant "any and all information including notes, records, tax returns, bank statements, receipts of investment and any other information identifying the assets, or the location of such assets if not in your possession."
In August of 1997, R. Ciccone and E. Ciccone (collectively, Plaintiffs) initiated this lawsuit, seeking to recover from Fleet and Hospital Trust for Pitassi's alleged wrongdoing. In the Amended Verified Complaint, R. Ciccone asserts several claims, including: Counts VIII and IX (breach of contract against Fleet); Count X (negligence of Fleet); Count XI (conversion of Hospital Trust) and Count XII (negligence of Hospital Trust).
Fleet filed a motion for summary judgment as to Counts VIII, IX, and X in November of 1999. Associate Justice Hurst of the Superior Court denied the motion on February 22, 2000. Furthermore, in February of 2001, R. Ciccone filed a motion for summary judgment as to Counts VIII, IX, and XI. Justice Hurst granted the motion as to Counts VIII and IX on July 24, 2001. In August of 2001, this case was assigned to the Business Calendar.
Fleet now moves for summary judgment as to Counts X, XI, and XII. Plaintiffs object to Fleet's motion.
In a summary judgment proceeding, the moving party must demonstrate that he or she is entitled to judgment as a matter of law and that no genuine issues of material fact exist. Palmisciano v. Burrillville Racing Ass'n, 603 A.2d 317, 320 (R.I. 1992); Super. R. Civ. P. Rule 56(c). During such a proceeding, "the court does not pass upon the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion." Palmisciano, 603 A.2d at 320. Moreover, "the trial justice must look for factual issues, not determine them" as the judge's sole function is to determine whether any issues involving material fact exist. Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981).
"When an examination of pleadings, affidavits, admissions, answers to interrogatories and other similar matters, viewed in a light most favorable to the party opposing the motion, reveals no such issue, the suit is ripe for summary judgment." Industrial Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (R.I. 1979). In opposing the summary judgment motion, the nonmoving party will not be allowed to rely upon mere allegations or denials in his or her pleadings. Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998); Super. R. Civ. P. 56(e). Instead, by affidavits or otherwise, the nonmoving party possesses an affirmative duty to set forth specific facts demonstrating the existence of a genuine issue of material fact. Id. It is not, however, an absolute requirement that the nonmoving...
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