Rozzano v. Rozzano
| Decision Date | 04 April 2011 |
| Docket Number | 64371-1-I |
| Court | Washington Court of Appeals |
| Parties | FRANK A. ROZZANO, Appellant, v. THERESA A. ROZZANO PRESTON and ISAAC PRESTON and the marital community composed thereof; ROBERT E. ROZZANO and LESLIE ROZZANO and the marital community composed thereof; MARA ROZZANO and DON DERSCH and the marital community composed thereof; and DONNA M. ROZZANO WHITE, Respondents. |
UNPUBLISHED OPINION
Frank Rozzano appeals from a summary judgment dismissing his claims against his adult children as barred by the statute of limitations. We affirm.
Frank and Velda Rozzano[1] had four children. About two years before Velda's death in early 1994, they consulted attorney William Dussault about estate planning and future convalescent care. Dussault advised them they could become eligible for Medicaid by gifting their estate to their adult children. Though Dussault emphasized there could be no quid pro quo, he recommended that the children put the assets into a living trust to benefit Frank and Velda during their lives and to provide for their grandchildren's education. Velda died before this plan was implemented.
In May 1994, Dussault prepared a draft assignment of interest and quit claim deed for Frank's review. The assignment of interest provided:
For love and affection, FRANK A. ROZZANO, a widower, as his separate estate, hereby assigns, quit claims, transfers and conveys, for all purposes, all interest, whether real or personal, of whatever kind and nature, and wheresoever located, now owned or hereafter acquired, in the properties listed on Exhibit A attached hereto, from FRANK A. ROZZANO to THERESA A. ROZZANO-PRESTON, MARA J. ROZZANO, ROBERT E ROZZANO, AND DONNA MARIE WHITE, in equal undivided shares as their separate estates.[2]
Exhibit A listed three properties, including Frank and Velda's home, the "Corliss property." The draft quit claim deeds indicated the conveyance was "in consideration of love and affection."[3]
At the same time, Dussault sent Frank drafts of a living trust agreement for the children's consideration and of correspondence to the children about the trust. The draft letter advised:
We understand it is your intent to gift the assets you have received from your father to a Living Trust for his benefit. You are under no legal obligation to do so. We also wish to confirm that your father's gift to you of these assets is without legal condition or restriction. The assets gifted to you become yours to do with as you please.[4]
The draft trust document detailed how the trustee-children could distribute assets to Frank without compromising his eligibility for government benefits. The instrument also provided that the trustees could distribute assets to their own children for education or emergency purposes.
It appears Frank's children generally thought the trust was a good idea and intended to take care of Frank "no matter what."[5] But they had concerns about the terms of the trust, as well as its tax implications. The children contemplated forming a partnership to manage the assets instead, but after Theresa consulted with a financial planner, they rejected that idea.
In January 1996, Theresa wrote to Dussault at Frank's request. Theresa related that Frank was considering remarriage to a woman who was "very much against the trust."[6] The prospect had raised certain questions including whether Frank could be "one of the trustees so that he may have some say in the control of the trust."[7] At a subsequent meeting, Dussault was emphatic that Frank could have no say or control over the assets if they were to be protected for purposes of Medicaid eligibility. Dussault also told Frank "very clearly that once the money passed, [the children] could turn their backs on you and walk away, and there's nothing that can be done."[8]
The following month, Frank used the draft documents provided two years earlier to execute the assignment of interest and quit claim deeds for the three properties. At his request, Theresa went with him to a bank and filled in the date, county, and legal descriptions of the properties. Frank signed the documents before a notary and asked Theresa to have them recorded in the appropriate counties. Despite the broad language of the assignment of interest, Frank did not convey his corporate shares in a shopping center, worth an estimated $1 million at the time of this suit.
Frank has no present recollection of signing the documents. He does not know where he signed them, whether Dussault or any of the children were present, or whether any of his children influenced him to sign them.
Over the next several months, Theresa had the documents recorded and returned to Dussault, who forwarded the original deeds to Frank and advised that they "should be stored in a safe place, quite probably with one of your four children, who are now the owners of the property."[9]
By February 1998, Frank no longer lived in the Corliss property. The Rozzano children sold the home and divided the proceeds among themselves.
In October and December 1998, the children provided Frank two copies of a written statement entitled "Account Activity For Trust."[10] A note at the top of each states "Grandpa-FYI-here is a 'running update' on what is going on with your stuff."[11] The statements include payments, bank transfers, and other administrative activity related to the transferred properties. At the end of the first of these statements is the note: [12]
Between January and June 1999, Dussault and the children exchanged correspondence concerning the proposed trust. Dussault revised the draft and sent copies to the children. Receiving no response, Dussault advised that he would take no further action until they contacted him again. He sent Frank copies of all correspondence. In March 2000, Dussault wrote Frank to advise him that [13]
Although the children never executed a trust, they provided Frank with financial support. In March 1999, they purchased a condominium for Frank, where he lived until he married his current wife, Frieda, in August 2005. The children also paid for fishing trips, dental expenses, and for the wedding to Frieda. The children sometimes refused Frank's requests, however, including at least once around the time they purchased the condominium.
In 2002, Robert held funds remaining from Frank's asset transfer in his own bank account. After an inquiry from the Internal Revenue Service, Robert's tax advisor suggested he distribute the cash among the siblings so each would be responsible for his or her own funds. Robert says he discussed this with his father, and Frank agreed the account should be split up and divided among the four children. Robert obtained three cashier's checks for between $62, 000 and $72, 000, which Frank handed out at Christmas in "a ceremonial fashion."[14]
Frank has no recollection of discussing the distribution with Robert and no recollection of Christmas 2002 except that he was "probably" intoxicated.[15]
Frank experienced a mild stroke in 2004 or 2005. He remarried in 2005, after which his alcohol consumption increased. He became forgetful, repeatedly asked the same questions, and was unable to recall his grandchildren's names. He began asking questions about the transferred property. He asked Theresa, [16] Theresa says she answered Frank's questions to the best of her ability and refreshed his memory by "[17]
In October or November 2005, Frank hired attorney Bruce Bell to inquire about the property Frank had assigned to the children and to revoke the power of attorney he had at some point given to Theresa. Theresa had a brief phone conversation with Bell and never heard from him again.
Frank moved in with Frieda after they married, so the children sold the condominium in March 2006 and split the proceeds among themselves.
In 2007, Frank hired his current counsel, Daniel Laurence. Frank was concerned that the children had refused to provide several thousand dollars for a fishing trip with Frieda. Laurence advised the children of this concern and demanded the funds for the trip and an accounting. When the children failed to respond, Laurence wrote again in November 2007 demanding the children sell the two remaining properties, complete payment for the fishing trip, and provide Frank $8, 000 for a truck he had purchased. In May 2008, Laurence sent them a "termination and revocation of assignment of interest, " which Frank had executed in January 2007.[18]
On July 10, 2008, Frank filed this lawsuit alleging seven causes of action, including misrepresentation and fraud, undue influence, conversion, breach of trust and fiduciary duty, promissory estoppel, and negligent and intentional infliction of emotional distress.
The trial court granted the children's motion for summary judgment, finding all claims barred by the statute of limitations.
Frank contends the court erred in concluding that all claims are time-barred and in rejecting his argument that his children are estopped from asserting the...
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