SHIRLEY M. GARGANO v. DARLENE M. GARGANO, DIANE M. STEWART, JOHN J. GARGANO, and DEBRA E. COLLEY

This action began in this court on January 30, 2008, when plaintiff Shirley M. Gargano filed a complaint seeking to quiet title pursuant to G. L. c. 240, §§ 6-10, and to set aside a deed dated September 3, 2007, by which she conveyed her home located at 16 Arnold Street, Quincy, Massachusetts to the defendants, her children, Darlene M. Gargano, Diane M. Stewart, John J. Gargano, and Debra E. Colley; in the deed plaintiff reserved to herself, as grantor, a life estate. On February 25, 2008, defendant John J. Gargano filed an answer and a counterclaim. On March 25, 2008, defendants Diane M. Stewart, Darlene M. Gargano, and Debra E. Colley, having failed to answer or defend within the allotted time, were defaulted by the court pursuant to Mass. R. Civ. P. 55(a).

On May 12, 2008, plaintiff moved for summary judgment against defendant John J. Gargano (“defendant” or “John”) and filed a memorandum of law in support of her motion. The defendant filed his response to the plaintiff’s motion for summary judgment on June 9, 2008, and filed a supplement to his response to the plaintiff’s motion for summary judgment on June 26, 2008. After hearing on the motion, it was taken under advisement.

1. The following facts, relevant to the resolution of the pending summary judgment motion, are properly before this court for its consideration based on materials submitted pursuant to Mass. R. Civ. P. 56(c), and appear to be without substantial dispute: Plaintiff acquired fee simple title to the land and building located at 16 Arnold Street, Quincy, Massachusetts, (“Premises”), together with her now deceased husband as tenants by the entirety, by deed dated July 12, 1961, recorded with the Norfolk County Registry Deeds (“Registry”) in Book 3910, Page 720.

2. The plaintiff became the sole owner of the Premises as a result of her husband’s death on March 29, 2007.

3. The plaintiff conveyed title to the Premises to her four children, Darlene M. Gargano, Diane M. Stewart, John J. Gargano, and Debra E. Colley, reserving to herself a life estate by deed (“Deed”) dated September 3, 2007, recorded with the Registry in Book 25249, Page 392.

4. The plaintiff’s daughter, Darlene M. Gargano (“Darlene”), resided with the plaintiff in the home on the Premises at the time of the conveyance.

After review of the summary judgment record, including all of the facts properly before this court pursuant to Mass. R. Civ. P. 56(c), I find that there are no genuine issues of material fact which require trial. For the reasons given below, I decide summary judgment for the plaintiff must be granted as a matter of law. Accordingly, judgment is to enter that the Deed be set aside.

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“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng. Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat the motion for summary judgment.” Pederson v. Time Inc., 404 Mass. 14 , 17 (1989). While a judge should view the evidence “with an indulgence in the [opposing party’s] favor,” Anthony’s Pier Four, Inc. v. Crandall Dry Dock Eng’rs, Inc., 396 Mass. 818 , 822 (1986), quoting National Ass’n of Gov’t Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220 , 221 (1979), cert. denied, 446 U.S. 935 (1980), the opposing party cannot rest on his or her pleadings and mere unsupported assertions of disputed facts to defeat the motion for summary judgment. Lalond v. Eissner, 405 Mass. 207 , 209 (1989).

A conveyance obtained by threats or fraud is voidable. See Wojtkonski v. Wojtkonski, 331 Mass. 760 (1954). To rescind a conveyance due to fraud, a plaintiff must prove that the defendant “made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage.” Kilroy v. Barron, 326 Mass. 464 , 465 (1950), see also Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411 , 423 (2005) (fraudulent misrepresentation is when “one party misleads another”). A defendant can not retain property obtained by undue influence, and a deed is properly set aside on the ground of undue influence. Brodie v. Evirs, 313 Mass. 741 , 744(1943). As a general rule, reformation of a deed may be warranted not only by fraud or by mutual mistake, but also by a mistake of one party which is known to the other party. Ward v. Ward, 70 Mass. App. Ct. 366 , 370, n. 5 (2007).

This case is ripe for summary judgment because there is no issue of genuine material fact. The plaintiff argues that she signed the deed conveying title to her home as a result of undue influence exerted upon the plaintiff by Darlene, and that plaintiff signed the deed conveying title to her home as a result of a mistake by her known to Darlene. In the plaintiff’s statement of material facts, she shows that:

1. After the plaintiff’s husband died, the plaintiff became distraught, depressed, and suffered from severe headaches requiring the plaintiff to be placed on prescription medication for depression.

2. After considerable coaxing and threats that she would move out of the Premises and cease caring for the plaintiff, Darlene prevailed on the plaintiff, and convinced her to accompany Darlene to see Attorney Edward J. Fleming and then to sign the Deed.

3. The plaintiff would not have accompanied Darlene to see Attorney Fleming and sign the Deed but for Darlene’s undue influence.

4. At the time the plaintiff executed the Deed conveying the Premises, she was under the mistaken impression that she retained the right to sell or mortgage the Premises without her children’s consent during her lifetime. 5. Darlene was aware at the time the plaintiff executed the Deed that she would not have the right to sell or mortgage the Premises during the plaintiff’s lifetime without her children’s consent, and withheld this information from plaintiff, knowing plaintiff would not sign the Deed if told the truth. 6. The defendant was not present at any of the meetings between the plaintiff and Attorney Fleming relative to the Deed, and participated in none of the discussions involving plaintiff concerning the legal significance of the Deed to her.

7. The defendant had no discussions with Darlene or the plaintiff prior to the recording of the Deed concerning the plaintiff’s reasons for, nor the legal significance of, executing and recording the deed.

These facts are supported by affidavits from the plaintiff and Darlene.

The defendant both disputes the facts put in by plaintiff as moving party, and argues that the case law cited by the plaintiff is not availing to her; defendant contends that his interest in the Premises, acquired under the challenged Deed, is beyond attack by plaintiff because it was not the defendant who unduly influenced or misled the plaintiff.

The defendant’s attack on the facts put in by plaintiff fails, because he does not support with any affidavits or other proper evidentiary material his contention that there exist genuine issues of disputed material facts. Instead, the defendant makes unverified assertions that the plaintiff’s actions in giving the Deed were not unduly influenced. This is insufficient to defeat a motion for summary judgment; the plaintiff, with affidavits supporting her contention, and unmet by any countervailing evidence from defendant, has satisfied her burden, and has established the absence of a triable factual issue. See Pederson v. Time Inc., 404 Mass. at 17; see also Wentworth Home for Aged v. Walters, 1992 Mass. App. Div. 171 (allegations of defendant opposing a motion for summary judgment found in unverified pleadings have no evidentiary weight in determining whether there is a genuine issue of material fact). After the plaintiff satisfied her burden of establishing the absence of a triable issue, the burden shifted to the defendant to set forth specific facts showing that there is a genuine issue of material fact to be decided at trial. See Renaud v. Keith, 1994 Mass. App. Div. 181 (1994). The defendant failed properly to show any such specific facts.

The defendant also argues that rescission of a deed is not proper where it cannot be shown that the defendant himself unduly influenced the grantor, or that the defendant knew of a mistake by the grantor. The defendant cites the Ward case, supra. In Ward, where a father was mistaken in the rights he gave up after conveying a parcel of land to his son, the court held that the father could not prevail in an action for rescission of the deed he had granted to his son, because the son did not unduly influence the father in the granting of the deed, nor did the son know of any material mistake made by the grantor. 70 Mass. App. Ct. at 372. Ward is inapposite to the case at bar, because in Ward, the father was not unduly influenced by anyone. Here, the plaintiff established that she was unduly influenced into conveying the Premises, albeit not by the defendant.

Neither party cites to a case where a grantee enjoys the benefit of a conveyance secured by undue influence or by mistake on the part of the grantor, but in which that grantee neither knows of, nor is the cause of the undue influence, and does not know of the mistake which influenced the grantor to make the conveyance. However, there is case law on point. In Marshall v. Marshall, 10 Mass. App. Ct. 893 (1980), an eighty-four-year-old woman brought an action for rescission of deeds in which she had conveyed her two parcels of real estate to her three sons, reserving a life estate in herself. The appeals court upheld a decision of the probate court, which ordered rescission of the deeds after finding that one of the woman’s sons exerted undue influence on her. Id. Although the findings in that case indicate that only one son exerted undue influence on the grantor, all three sons were forced to see the court rescind their deeds. See id. This ruling is consistent with Lord Chief Justice Wilmot’s maxim in Bridgeman v. Green, (1757) Wilm. 58, where he said: There is no pretense that Green's brother or his wife, was party to any imposition, or had any due or undue influence over the plaintiffs, but does it follow from thence that they must keep the money? No. Whoever receives it must take it tainted and infected with the undue influence and imposition of the person procuring the gift: his partitioning and cantoning it out amongst his relations and friends, will not purify the gift, and protect it against the equity of the person imposed on. Let the hand receiving it, be ever so chaste, yet if it comes through a corrupt channel, the obligation of restitution will follow it.

I find and rule that plaintiff is entitled to have the Deed set aside as to all of the defendants, including John, who is the only child of the plaintiff now opposing that result. Even though the defendant was not a party to the undue influence placed on the plaintiff and the defendant did not know of the plaintiff’s mistake, it would be unjust for the defendant to benefit from this conveyance. The Deed was not a spontaneous act. It arose from the strong exercise of will by another, was pressed upon the plaintiff as an obligation, with harsh consequences threatened for disobedience, and was brought about by the overwhelming and unfair influence Darlene exerted upon the plaintiff. This severe pressure was pushed upon the plaintiff by one of her daughters, who had an authoritative control over her. On the uncontested evidence in the summary judgment record, plaintiff acted greatly against her own interest, and in a manner which she would not have, had she not been importuned by Darlene. The conveyance was the result of the plaintiff’s capitulation to the stern demands and undue influence of Darlene, and the defendant occupies no better a position than his sister, through whose influence the Deed was procured. I am, therefore, of the opinion that the Deed should be set aside.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: January 12, 2009.