Ricci v. Terry, Civil Action CV-04-056
| Decision Date | 08 November 2004 |
| Docket Number | Civil Action CV-04-056 |
| Parties | NOAH M. RICCI, Plaintiff v. SHARON TERRY, Individually and as Trustee of the Joseph Ricci Trust of 2000, Defendant. |
| Court | Maine Superior Court |
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT MOTION TO STRIKE THE AFFIDAVIT OF NOAH RICCI, AND MOTION FOR LEAVE TO FILE CORRECTED REPLY
This case represents a multi-count challenge to Joseph Ricci's (hereinafter "Decedent") modification of a Declaration of Trust two days before his death.
On March 28, 2000, Decedent executed a will with a pour-over provision into the Joseph Ricci Trust of 2000 ("the Trust"). The Trust was established under a Declaration of Trust and designated Plaintiff, Noah Ricci, and his brother, Jason Ricci, equal beneficiaries of nearly all the corpus of the Trust (with each receiving a 44% beneficial interest) which included bank accounts, real estate, life insurance and stock in closely held businesses. Decedent's wife of ten months, Defendant Sharon Terry was to receive the remaining 12% interest by way of a separate marital trust.
In early January of 2001, Decedent attended a meeting with Attorney Edward MacColl, Attorney John Campbell, Plaintiff Noah Ricci, Defendant Sharon Terry, two accountants and others. During that meeting, the participants discussed the Trust and its possible tax consequences. Possible changes to the Trust were discussed and the parties disagree whether Decedent made any definitive decision on that day to change the Trust or to leave it unchanged.
On January 24, 2001, the Decedent was admitted to Maine Medical Center, having had a history of lung cancer and complaining of fatigue, extreme breathlessness and flank pain. While in the hospital, regular doses of morphine were administered to the Decedent through an intravenous pump. He was also given the drug Ativan which reduces fearfulness and causes sleepiness. On January 27, 2001 the Decedent was very short of breath and was suffering from air hunger. One of the doctors attending the Decedent interrogated him about his Do Not Resuscitate (DNR) status and the Decedent was unable to answer questions regarding his code or (DNR) status.[1] During that time, the Decedent's neurological status was noted as confused and agitated. The parties dispute whether the decedent was having occasional hallucinations of a black cat running across the hospital room.
On January 27, 2001, in the presence of the plaintiff, the defendant and Attorney John Campbell, the decedent was presented with and signed a document. That document appears to have been the "Amended Declaration of Trust, " though there is a dispute as to whether the plaintiff knew the precise nature of the document when it was signed. That document, the validity of which is in issue, purports to establish a marital trust in favor of the defendant comprised of nearly all of Decedent's assets at the time of his death, except only so much of his property (exclusive of stock in corporations) as may pass to his children without generating any estate taxes. There is a dispute as to whether the Decedent later stated that he did now know what he had signed. Decedent died on January 29, 2001.
Plaintiff has filed the instant action seeking both legal and equitable relief. Count I seeks a declaration that the Decedent lacked sufficient mental capacity to amend the Trust; Count II alleges that defendant exerted undue influence over the decedent and seeks a declaration that, as a result, the amendment is a nullity; Count III alleges that the undue influence exerted by the defendant constitutes tortious interference with plaintiff's 44% expectancy contained in the original Trust; and Count IV alleges breach of fiduciary duty by defendant in her alleged refusal to distribute any proceeds to plaintiff for a period of three and one-half years following the death of decedent. Plaintiff is seeking equitable relief in the form of voiding the amended declaration and reinstating the original Trust or alternatively, damages for the value of the plaintiffs expectancy.
The defendant has filed a motion for summary judgment as to all counts. Additionally, the defendant filed a motion to strike the affidavit of the plaintiff, Noah Ricci, claiming that it is self-serving and contains statements that conflict with his prior deposition testimony and responses to interrogatories. Finally, the defendant has filed a motion "for leave to file a corrected reply to plaintiff's so-called 'additional facts' in opposition" to the motion for summary judgment.
Although this motion was filed only one day prior to the scheduled hearing on the motion for summary judgment and the plaintiff has therefore not had an opportunity to respond, the proposed corrections relate to remedying typographical errors in the original reply and do not make any substantial substantive changes. After reviewing the original, timely filed, reply as well as the proposed corrected reply, the court GRANTS the defendant's motion.
In the context of summary judgment motion practice in Maine, the Law Court has made clear that a party cannot create a genuine issue of material fact in order to resist summary judgment by submitting an affidavit that clearly contradicts prior sworn testimony without also providing an adequate explanation for the discrepancy. See Zip Lube v. Coastal Sav. Bank, 1998 ME 81, ¶10, 709 A.2d 733, 735; and Diveto v Kjellgren, 2004 ME 133, n.11, ____ A.2d ____. The defendant argues that because the Affidavit of Noah Ricci was submitted in response to the defendant's motion for summary judgment and after the close of discovery and because the affidavit contains statements that conflict with Noah Ricci's prior sworn testimony, the plaintiff cannot rely on it to resist summary judgment and the court should strike the affidavit in whole.
Although the court recognizes this general principle, the circumstances surrounding the submission of the affidavit as well as the alleged contradictions contained in it do not warrant striking the affidavit. First, based on the sequence of events, it is evident that contrary to the defendant's contention, the plaintiff did not wait to submit the affidavit until the close of discovery in an effort to foreclose the defendant's opportunity to respond. The record reveals that, while it is true that the affidavit was submitted after the close of discovery, it also is true that the affidavit was timely provided in response to the defendant's motion for summary judgment. That motion itself was not filed until discovery had closed.
If the defendant expects to be given an opportunity to conduct further discovery based on an affidavit submitted in response to a motion for summary judgment, she should have moved for summary judgment prior to the close of discovery. The plaintiff cannot reasonably be penalized for submitting materials in opposition to summary judgment solely because those materials were filed after the close of discovery when the defendant dictated the timing and sequence of events through her own conduct.
Further although the defendant argues that the affidavit directly conflicts with Noah Ricci's prior sworn testimony, an examination of the record citations provided in support of her arguments do not reveal the sort of direct and material contradiction at issue in the Law Court decisions dealing with this issue. See e.g. Diveto, 2004 ME 133, n.11 ____ A.2d ____. The majority of the statements contained in Mr. Ricci's affidavit and deposition to which the defendant refers represent, at most, some equivocation by Mr. Ricci regarding the precise sequence of events. These equivocations over, for example, who was in the decedent's hospital room at a given time, or what the primary focus of the January 5, 2001 meeting was, do not represent directly contradictory statements about issues material to the resolution of the claims in this case. In addition, although the defendant is correct that there is some discrepancy in Mr. Ricci's affidavit and deposition as to whether he knew precisely what it was the decedent was signing in his hospital bed, this discrepancy is not so material to warrant striking the affidavit.
The parties do not dispute that the decedent signed the Amended Declaration of Trust while in the hospital, two days prior to his death. Whether the plaintiff was able to identify the document at the time it was signed or only learned of its precise nature later is of little consequence given that the defendant's own Statement of Material Facts state that the decedent "signed the amended declaration at the Maine Medical Center on Saturday, January 27, 2001, " two days before his death.
The Defendant's Motion to Strike the Affidavit of Noah Ricci is therefore DENIED.
Summary judgment is proper where there is no genuine issue of material fact. Rogers v. Jackson, 2002 ME 140 ¶ 5, 804 A.2d 379, 380. In considering a motion for summary judgment, the court must "consider the evidence and reasonable inferences that may be drawn from the evidence in the light most favorable to the party against whom the summary judgment [is sought] in order to determine if the parties' statements of material facts and referenced record evidence reveal a genuine issue of material fact." Lever v. Acadia Hosp. Corp., 2004 ME 35 ¶ 2, 845 A.2d 1178, 1179. A genuine issue of material fact exists when there is sufficient evidence to require a factfinder to choose between competing versions of the truth at trial. Id. (citing Burdzel v Sobus, 2000 ME 84, ¶ 6, 750 A.2d...
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