Estate of Michael F. Cassiere v. Joseph Cassiere ( 2021 )

March 16, 2021
Supreme Court
No. 2019-236-Appeal.
(PC 17-4702)
Estate of :
Michael F. Cassiere
v. :
Joseph Cassiere. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
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Supreme Court
No. 2019-236-Appeal.
(PC 17-4702)
Estate of :
Michael F. Cassiere
v. :
Joseph Cassiere. :
Present: Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.
OPINION
Justice Goldberg, for the Court. This appeal came before the Supreme
Court on January 28, 2021, pursuant to an order directing the parties to appear and
show cause why the issues before us should not be summarily decided. The
defendant, Joseph Cassiere, appeals pro se from the grant of summary judgment in
favor of the plaintiff, the Estate of Michael F. Cassiere,1 on the plaintiff’s claim for
distribution of the trust assets held in the Carmen D. Neumann Revocable Trust
and on the defendant’s counterclaim for breach of fiduciary duty. For the reasons
set forth in this opinion, we affirm the judgment of the Superior Court.
1
The complaint was filed by Michael Cassiere, who passed away on June 30,
2018. The plaintiff’s estate was substituted as plaintiff by order of the court
entered on January 22, 2019. In this opinion, references to the plaintiff are at times
to Michael Cassiere and at other times to the estate.
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Facts and Travel
Michael Cassiere and Joseph Cassiere were brothers. In 2006 their mother,
Carmen Neumann, executed the Carmen Neumann Revocable Trust Agreement
(the trust), naming herself as trustee and plaintiff and defendant as successor
cotrustees. The trust provided that the assets were to be distributed to the parties
equally upon her death. Ms. Neumann thereafter transferred her condominium in
Florida (the property) to the trust. In 2010, Ms. Neumann passed away.
The trust directed that after the settlor’s death, all debts, expenses of her last
illness and funeral, taxes, and costs of administration be paid. The trust also
provided that “[t]his direction shall not postpone the distribution of the Trust Estate
remaining at Settlor’s death as provided herein[.]” This provision was not honored.
The trust remained undistributed for many years. The plaintiff attributes this
delay to defendant’s alleged unwillingness to agree to the sale of the property.
Consequently, plaintiff filed a complaint in Superior Court alleging that defendant
administered the trust but failed to provide plaintiff with information regarding the
property for three years; that he failed to maintain the property, pay taxes, or make
mortgage payments; and that the property was in danger of foreclosure. The
plaintiff asserted that he and his wife used their personal funds to pay the
outstanding taxes and condominium association fees, bring the mortgage current,
and reinstate the homeowner’s insurance and utilities.
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The complaint also alleged that, because defendant failed to file tax returns
for the trust, plaintiff hired a certified public accountant to make the tax filings and
hired a real estate agent to obtain a tenant for the property. The rental income was
used to reimburse them for the aforementioned expenses. According to plaintiff,
when he approached defendant about selling the property, defendant initially
agreed to do so but then refused to sign the purchase and sale agreement. The
plaintiff turned to Superior Court, seeking the appointment of a commissioner to
sell the property, distribution of the trust’s assets, and termination of the trust. He
requested that defendant be removed as trustee based on his refusal to sell the
property, which, plaintiff asserted, was a breach of fiduciary duty.
The defendant filed a counterclaim, alleging that it was plaintiff who
breached his fiduciary duty by failing to inform defendant about plaintiff’s
management of the property. The defendant requested that plaintiff be removed as
cotrustee and that plaintiff be ordered to provide defendant with all records of the
trust and the management of the property, as well as any income the property
produced.2
2
The defendant separately claimed that plaintiff had also breached his fiduciary
duties as executor of the estate of Ms. Neumann and sought his removal as
coexecutor and that he provide an accounting of the stock held in the estate. This
claim was dismissed by order of the Superior Court for lack of subject-matter
jurisdiction.
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On February 1, 2018, an order entered directing that plaintiff may enter into
a purchase and sale agreement without defendant’s signature, and that the proceeds
from the sale would “be held in an escrow account at the closing attorney’s office
until such time as other claims pending in the case are adjudicated or settled.”3
The property was sold, and the proceeds were placed in escrow, in
accordance with the February 1, 2018 order. Thereafter, plaintiff moved for
summary judgment on all claims and requested an order of final distribution. The
defendant objected. Although he agreed that the funds should be distributed, he
wanted the funds transferred to him for distribution, and he argued that plaintiff’s
request for reimbursement of expenses was unsupported and that summary
judgment on defendant’s counterclaim for breach of fiduciary duty should be
denied because, he alleged, plaintiff had sold assets of the estate that belonged to
the trust and had never accounted for the funds.
At a hearing on February 6, 2019, plaintiff argued that defendant had failed
to set forth any specific facts relating to plaintiff’s purported breach of fiduciary
duty and presented no evidence as to damages. Specifically, plaintiff argued that,
although defendant claimed he was not provided closing sheets or information on
the sale of the property, as a cotrustee, a beneficiary, and a coexecutor of the estate,
defendant could have obtained those documents but failed to do so. As to the
3
The proceeds from the sale of the property that were ordered to be held in escrow
is not an issue before the Court for review.
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requested reimbursement expenses, which totaled $9,023.45, plaintiff suggested
that those funds be set aside and that the remainder be distributed, or that a
supplemental hearing be held.
The trial justice asked defendant to point to any material facts at issue that
would preclude summary judgment on his counterclaim, and defendant responded
that, “to the best of [his] knowledge[,]” money was transferred from the estate to
the trust, but he had no “physical” evidence to support that claim. When the trial
justice acknowledged that defendant did not appear to have any basis to support the
breach or damages elements of his counterclaim, defendant pointed to plaintiff’s
failure to provide him with the relevant documents. The defendant insisted that it
was his belief that plaintiff had breached his fiduciary duties, but he “c[ould]n’t
say more than that.”
The plaintiff assured the trial justice of his willingness to provide defendant
with the closing documents for the property, the escrow statement, and the tax
returns, and the trial justice treated the production of those outstanding documents
as defendant’s request for a Rule 56(f) continuance.4 The trial justice warned
4
Rule 56(f) of the Superior Court Rules of Civil Procedure provides:
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defendant that, “as of right now, nothing has been presented to indicate that there is
a dispute about your counterclaim[,]” but she was “going to give [defendant] one
more chance.” She continued the matter to March 6, 2019, permitted plaintiff’s
counsel two weeks to provide the materials, and stated that “at that time it will
either be clear there are facts in dispute from an affidavit or from a deposition or
not.” The defendant failed to take advantage of the Rule 56(f) continuance.
At the March 6, 2019 hearing, defendant conceded that he had not provided
a new affidavit or deposition as the trial justice had instructed, despite having been
provided with the documents he had requested. Significantly, plaintiff produced a
writing from the trust’s accountant declaring that the trust’s tax returns from 2016
had previously been supplied to defendant in September 2018. The trial justice
repeatedly asked defendant what issues of fact were in dispute regarding his
counterclaim, and defendant pointed to various tax-related documents, calling the
trial justice’s attention to several payments and entries. The defendant admitted
that he did not know what those payments were for, but he thought money
belonging to the trust had been “diverted” and “the material issue of fact is what
“Should it appear from the affidavits of a party opposing
the motion that the party cannot for reasons stated present
by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.”
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were these payments truly for.” The trial justice reserved decision, taking the
matter under advisement to review defendant’s newly submitted documents.
On March 18, 2019, defendant submitted an affidavit disputing the validity
of the 2015 and 2016 tax returns filed on behalf of the trust and disputing the
$9,023.45 reimbursement expense for carrying the costs of the property expended
by plaintiff.
On March 22, 2019, the trial justice issued a bench decision, granting
plaintiff’s motion for summary judgment on defendant’s counterclaim for breach
of fiduciary duty. She found that defendant had “failed to respond to the [m]otion
for [s]ummary [j]udgment according to court rules or protocols.” She noted that
defendant had failed to obtain any affidavits or deposition testimony, despite
having been granted a continuance to do so in accordance with Rule 56(f). She
found that “the 2015 and 2016 tax returns do not create any material issues of fact
for the [c]ounterclaim,” and she granted summary judgment on that claim. She
declared that the trust was “ripe for distribution[,]” and that the only remaining
issue was the amount of unreimbursed expenses due to plaintiff. When asked for
his position on this issue, defendant responded, “Your pleasure, Your Honor.” The
trial justice directed plaintiff to submit an order consistent with her ruling and “file
an updated affidavit that provides a record of what the expenses are in the case.”
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An order and final judgment entered, granting plaintiff’s motion for
summary judgment on defendant’s counterclaim and ordering that, after plaintiff’s
counsel was reimbursed for costs, the remaining corpus of $135,565.73 was to be
distributed equally between plaintiff and defendant. The defendant filed a timely
notice of appeal.5
On appeal, defendant asserts that the trial justice erred (1) in granting
summary judgment in favor of plaintiff on both plaintiff’s claim and defendant’s
counterclaim because, he contends, disputed issues of material fact existed that
precluded summary judgment; (2) because she did not allow the plain language of
the trust to control the distribution of assets; and (3) in basing her decision in part
on plaintiff’s affidavit for reimbursement expenses because it was submitted after
the motion was granted, notwithstanding that the trial justice ordered that an
updated affidavit be filed.
Standard of Review
“This Court reviews de novo a trial justice’s decision granting summary
judgment.” Glassie v. Doucette, 157 A.3d 1092, 1096 (R.I. 2017) (quoting Sola v.
Leighton, 45 A.3d 502, 506 (R.I. 2012)). “In so doing, we apply the same standard
as the trial justice and ‘view the evidence in the light most favorable to the
nonmoving party.’” Ingram v. Mortgage Electronic Registration Systems, Inc., 94
5
The defendant also moved to stay the judgment, and the motion was denied.
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A.3d 523, 527 (R.I. 2014) (brackets omitted) (quoting Mruk v. Mortgage
Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013)). “Summary
judgment is appropriate when no genuine issue of material fact is evident from the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits if any, and the motion justice finds that the moving party is
entitled to prevail as a matter of law.” Id. (quoting Mruk, 82 A.3d at 532).
“Although summary judgment is recognized as an extreme remedy, * * * to
avoid summary judgment the burden is on the nonmoving party to produce
competent evidence that ‘proves the existence of a disputed issue of material
fact.’” Sullo v. Greenberg, 68 A.3d 404, 407 (R.I. 2013) (brackets omitted)
(quoting Mutual Development Corp. v. Ward Fisher & Co., 47 A.3d 319, 323 (R.I.
2012)).
Counterclaim for Breach of Fiduciary Duty
First, defendant submits that the trial justice erred in granting summary
judgment in favor of plaintiff on defendant’s counterclaim because, he contends,
she failed to consider his claims of disputed facts relative to tax documents and the
list of expenses prepared by plaintiff. This argument fails due to lack of proof.
This Court has consistently declared that “a party opposing summary
judgment ‘bears the burden of proving the existence of a disputed material issue of
fact and, in so doing, has an affirmative duty to produce specific evidence
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demonstrating that summary judgment should be denied.’” Brochu v. Santis, 939
A.2d 449, 452 (R.I. 2008) (quoting Hudson v. City of Providence, 830 A.2d 1105,
1106 (R.I. 2003)). It is a firm principle that “a party facing summary judgment
may not ‘rest upon mere allegations or denials in the pleadings, mere conclusions,
or mere legal opinions.’” Id. (brackets omitted) (quoting Rhode Island Depositors
Economic Protection Corp. v. Tasca, 729 A.2d 707, 709 (R.I. 1999)). Suspicions
do not carry the day.
In the face of plaintiff’s motion for summary judgment, defendant had an
affirmative duty to produce competent admissible evidence that demonstrated a
genuine issue of material fact regarding his counterclaim. He failed to do so.
Instead, he offered opinions and bare statements amounting to speculation and
conjecture. For example, in his objection to plaintiff’s motion for summary
judgment, defendant alleged that “to the best of [defendant’s] knowledge the
[p]laintiff has violated his fiduciary duties to the trust and its beneficiaries.” This
is not evidence. At the hearing before the Superior Court, defendant again alleged
that plaintiff had breached his fiduciary duties but admitted he had no evidence to
support that claim. The defendant also conceded that he did not know whether the
assets that he alleged were unaccounted for were assets of the estate or the trust.
After the trial justice graciously provided defendant a continuance under
Rule 56(f) to produce competent evidence of a disputed issue of material fact—by
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affidavit, deposition testimony, or otherwise—defendant’s efforts, if any, wholly
missed the mark. Rather than taking advantage of this opportunity, he presented an
array of nebulous claims about purported errors in prior tax returns. He did not
point to any facts, or provide any documents, to support a claim for breach of
fiduciary duty, and he failed to present any evidence of damages whatsoever. The
defendant’s arguments consisted of allegations of belief, not facts, and are not
sufficient to withstand summary judgment.
To the extent that defendant suggests that his inability to acquire any
supporting documents led to these failings, we are not convinced. The record
amply demonstrates that defendant chose not to avail himself of numerous
opportunities to obtain the documents. The defendant failed to conduct discovery.
There were no depositions and, although defendant filed a motion to compel the
production of documents, he voluntarily withdrew that motion.
There is not a scintilla of evidence in the record before us to support the
elements of a claim of breach of fiduciary duty. Accordingly, summary judgment
was proper, and we affirm.
Distribution of the Trust
Next, defendant asserts that the trial justice failed to effectuate the plain
language of the trust and that, as cotrustee, the trust assets should be turned over to
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him for distribution. We disagree; defendant has forfeited the high ground on this
claim.
“This Court’s primary objective when construing language in a will or trust
is to ascertain and effectuate the intent of the testator or settlor as long as that
intent is not contrary to law.” Jaffe v. Pournaras, 178 A.3d 978, 981 (R.I. 2018)
(quoting Steinhof v. Murphy, 991 A.2d 1028, 1033 (R.I. 2010)). The Court first
considers “the plain language of the will or trust.” Id.In this case, the trust directs that “[u]pon the death of the Settlor, * * * the
Successor Trustee shall distribute the entire Trust Estate, equally to Settlors’ [sic]
two sons, Joseph Cass[i]ere and Michael Cass[i]ere, share and share alike.” The
trust also provides that payment of debts, taxes, and costs of administration “shall
not postpone the distribution of the Trust Estate remaining at Settlor’s death as
provided herein[.]” (Emphasis added.) Consequently, the plain language of the
trust indicates that Ms. Neumann intended immediate distribution of the trust’s
assets upon her death. Ms. Neumann passed away in 2010; the distribution of the
trust had been delayed for several years, and the property had been neglected and
was facing forfeiture.
Pursuant to the February 1, 2018 order, the trust corpus was to be held in
escrow and not distributed “until such time as other claims pending in the case are
adjudicated or settled.” Once the trial justice entered judgment on plaintiff’s
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motion for summary judgment on defendant’s counterclaim, there remained no
outstanding claims alleged by either party. Accordingly, distribution of the trust
was proper.
Payment of Expenses
Finally, the defendant argues that the trial justice erroneously relied on the
plaintiff’s updated affidavit of reimbursement expenses because it was submitted
after her decision on the motion for summary judgment had issued. This argument
is without merit: the defendant not only failed to object when this procedure was
proposed at the hearing but, in fact, acquiesced when the trial justice asked for his
preference. As we have held on countless occasions, this Court “staunchly
adhere[s] to the ‘raise-or-waive’ rule.” Rohena v. City of Providence, 154 A.3d
935, 938 (R.I. 2017). Thus, “[i]t is well settled that a litigant cannot raise an
objection or advance a new theory on appeal if it was not raised before the trial
court.” Id. (quoting State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008)). When the
trial justice asked the defendant to address the issue, the defendant neglected to
make any argument and stated, “Your pleasure, Your Honor.” This issue is
waived.
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Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The papers in this case may be returned to the Superior Court.
Justice Long did not participate.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Estate of Michael F. Cassiere v. Joseph Cassiere.
No. 2019-236-Appeal.
Case Number
(PC 17-4702)
Date Opinion Filed March 16, 2021
Justices Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Melissa A. Long
For Plaintiff:
Patrick J. McBurney, Esq.
Gene M. Carlino, Esq.
Attorney(s) on Appeal
Rebecca M. Murphy, Esq.
For Defendant:
Joseph Cassiere, Pro Se
SU-CMS-02A (revised June 2020)