D'Amico v. MacMillan
| Decision Date | 07 August 2013 |
| Docket Number | PLCV201100888. |
| Parties | Giuseppe D'AMICO v. Anna MacMILLAN et al.[1] |
| Court | Massachusetts Superior Court |
This matter is a claim of undue influence by the plaintiff Giuseppe D'Amico (" D'Amico") against the defendant Anna MacMillan (" Anna"). D'Amico is the father of Anna. D'Amico alleges that Anna exercised undue influence on D'Amico when he deeded the property at 73 Swifts Beach Road, Wareham, Massachusetts (" 73 Swifts Beach Road"), to Anna on August 17, 2010.
The complaint alleges fraud, deceit, undue influence, and misrepresentation (Cause of Action I) and inadequate compensation, unjust enrichment, and lack of consideration (Cause of Action III) against the defendant.
A jury-waived trial was heard on July 18-22, 2013. At the beginning of trial, the plaintiff expressed the intent to primarily move on the claim of undue influence. At the close of the plaintiff's evidence, a directed verdict was allowed on the claims of fraud, deceit and misrepresentation with the agreement of the plaintiff. At the close of all the evidence, the claims for inadequate compensation, unjust enrichment, and lack of consideration were dismissed by agreement of plaintiff and defendant.
The following findings are made after consideration of all the evidence and from the evidence found credible by this court.
D'Amico was born in Sicily on 7/16/30. At the time of this matter he was eighty (80) years of age. D'Amico had five years of formal education.
At the age of twenty-five, D'Amico was employed as a merchant marine and worked in the kitchen and serving areas of the ship. In 1955, while in port in Philadelphia, D'Amico jumped ship and traveled to the West End of Boston. He worked for an uncle as a fruit vendor. He then became employed as a factory worker at the NECCO candy factory. Thereafter, he worked as a stitcher for Trimount Clothing.
Within approximately four years, D'Amico went to work in a pizza establishment at 329 Washington Street, Brighton and became the owner. D'Amico prepared the food and ran the operations of the business. The restaurant is known as Imperial Pizza and it remains in the family today, with D'Amico's nephew Giuseppe Greco and great nephew Salvatore Greco.
D'Amico remained in the Boston area from 1955 through 1982. Throughout that time he actively bought real estate.
His first purchase was a residence in Somerville. This purchase was made with his sister.
His second purchase was another residence in Somerville. He used this building for rental units.
He then purchased a block of commercial property in Brighton Center— the area of Imperial Pizza. These purchases were made with a partner.
In 1975 D'Amico purchased 73 Swifts Beach Road for the family summer residence. D'Amico's wife was also listed on the deed.
Shortly after D'Amico had arrived in Boston, he married his wife Josephine (" Mrs.D'Amico"). At the time of their marriage, Mrs. D'Amico was employed in a hospital as a bookkeeper. She had attended a comptometer school and was trained as an adding machine operator and bookkeeper. After the marriage, Mrs. D'Amico has done the bookkeeping for D'Amico's business ventures and personal accounts, except for a period of time in Florida when he owned multiple business establishments.
While D'Amico and Mrs. D'Amico lived in the Boston area they had three daughters, Josephine (" Josephine") Donna (" Donna") and Anna. During the years 1975-1982, Mrs. D'Amico and the children would spend the summer at 73 Swifts Beach Road in Wareham and D'Amico would travel to work in Boston.
In 1982 D'Amico relocated to Florida with his wife and daughters Josephine and Donna. For a period of time, Anna remained in Somerville and D'Amico provided her with one of his rental units. She did not pay rent. Thereafter, Anna and her husband William MacMillan (" William") relocated to Florida. Anna and William moved to Florida to help with D'Amico's new restaurant ventures. [2] William would work for D'Amico in Florida for the next fifteen years. While in Florida, Anna and William had three children Joseph, Daniella and Destina.
In Florida, D'Amico established additional commercial ventures and acquired residential property for family members.
Between 1983 and 2009, D'Amico acquired and sold four businesses.
In 1983, he opened Francesco's Restaurant. It was an Italian restaurant. D'Amico ran the operational end of the business to include cooking and managing the kitchen. D'Amico ordered all the food and wine. He was in charge of getting the food orders filled and he was the owner that would interact with the customers. There were four partners in this business: D'Amico, Mrs. D'Amico, another partner and his wife. In 2009, this restaurant was sold for approximately $1, 400, 000. All four partners each received 25% of the sale.
In 1985 D'Amico bought another restaurant. He ran the business under the name Key Largo. He also bought another pizza store and ran the business under the name Venezia. These establishments were sold in 1989-1990 for approximately $700 000.
At some unspecified time, D'Amico bought another pizza establishment and then sold it to the abutter.
D'Amico also has a 25% ownership in a billboard investment.
Beginning in 1983, D'Amico also made a series of residential purchases and/or transactions in Kissimmee, Florida.
The first purchase was for a family home at 4901 Lake Cecile Drive, Kissimmee, Florida.
The second purchase was a residence at 4886 Lake Cecile Drive Kissimmee, Florida. This home was located diagonally across the street from D'Amico. Anna and her family used this as their home when they relocated to Florida.
D'Amico bought 4950 Lake Cecile Drive, Kissimmee, Florida for his own home in preparation for a divorce from Mrs. D'Amico.
On or about 1992, Anna moved to D'Amico's home at 4950 Lake Cecile Drive. At that time, Anna deeded 4886 Lake Cecile Drive to D'Amico (and Mrs. D'Amico) for consideration of $10.00. Anna prepared this deed, as directed by D'Amico, and Donna was a witness.
D'Amico deeded the residence at 4886 Lake Cecile Drive to another daughter after Anna moved out.
D'Amico purchased another lot and house at 4870 Lake Cecile Drive Kissimmee, Florida. D'Amico deeded this to Anna for her family home.
Additionally, in 1990 Anna and William deeded a lot referred to as " The Forest" to D'Amico for consideration of a personal loan. The deed was prepared by Anna, as directed by D'Amico, and witnessed by Donna and Josephine. D'Amico deeded the property back to Anna and William in 1992 for consideration of $1.00. The deed was prepared by Anna, as directed by D'Amico.
D'Amico also provided his daughter Donna with a condominium when she attended law school.
D'Amico provided mortgage payments and car payments to his daughter Josephine prior to her divorce.
D'Amico and his wife obtained a divorce in 1989. Further property dispositions occurred as a result of the divorce. Mrs. D'Amico kept one home at 4901 Lake Cecile Drive and deeded her portion of 73 Swifts Beach Road to D'Amico in 1988. D'Amico kept two homes, one located at 4950 Lake Cecile Drive and one located at 73 Swifts Beach Road.
After moving to Florida, the family had continued to use 73 Swifts Beach Road as a summer vacation home. However, starting in 1988 D'Amico spent May through September at 73 Swifts Beach Road. He rented the first floor of the home until 2005.
In 2005, Anna moved to 73 Swifts Beach Road with her husband and children. D'Amico had encouraged Anna to move back to Massachusetts and live at 73 Swifts Beach Road, due to her health. Anna and her family were not required to pay rent and D'Amico no longer rented the first floor.
D'Amico continued to spend four months of summer at Swifts Beach Road with Anna and her family. There was a first floor area set off for his exclusive use. He would regularly discuss building a house on land adjacent to the house at 73 Swifts Beach Road, owned by D'Amico. D'Amico regularly discussed his desire that Anna's children, particularly Daniella, have a house next to 73 Swifts Beach Road.
After Daniella married, D'Amico talked about deeding the property to Anna. His conversations increased about Anna's children living next door. Prior to the summer of 2010, D'Amico went to the Registry of Deeds to get a land description and determine whether the adjacent lot was buildable. D'Amico had Anna accompany him. D'Amico determined that the adjacent lot was grandfathered and that a house could be built as long as it was attached to the present home at 73 Swifts Beach Road.
Prior to this, D'Amico signed a will in 2009 reflecting his desire that 73 Swifts Beach Road should go to Anna or her heirs. D'Amico provided terms by which Anna inherited a percentage of the property and then outlined a payment program to acquire her sisters' proportionate shares.[3] The will also reflected D'Amico's desire that Anna's children should inherit Anna's share under the will.[4]
In 2010 D'Amico returned to spend the summer at 73 Swifts Beach Road. Daniella and her husband were returning to Massachusetts after a military assignment in El Paso, Texas. D'Amico did not want Daniella paying rent to someone else when he could build a house for her on the adjacent lot. D'Amico wanted to deed the property to Anna and he instructed Anna to purchase a quitclaim deed form during July 2010. Anna purchased the form and D'Amico wanted her to fill it out, but Anna put off the conversation.
During this same period of time, Anna observed that her father was not feeling well. She also observed that his legs were swelling. Anna wanted D'Amico to get medical help. She also wanted him to...
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