ANN C. MCNEFF, as PERSONAL REPRESENTATIVE of the ESTATE of RALPH THOMAS CERRETANI v. THOMAS R. CERRETANI.

Plaintiff Ann C. McNeff, as Personal Representative of the Estate of Ralph Thomas Cerretani (Plaintiff), initiated this action on June 15, 2016, seeking to set aside a deed (Deed) purportedly signed by the father of both parties, Ralph Thomas Cerretani (Ralph). The Deed, dated November 14, 2014, described registered property located at 65 Forest Park Avenue in Billerica (Property), purporting to convey it from Ralph to his son (and Plaintiff's brother), Defendant Thomas R. Cerretani (Defendant). Plaintiff claims Defendant forged Ralph's signature on the Deed.

Two days of trial were held in February, 2018. Plaintiff Ann McNeff; Jules McNeff, her spouse; Eileen Page, a handwriting expert; and Claude Turcotte, a New Hampshire notary public, were called by Plaintiff to testify. Defendant Thomas Cerretani; Peter Cerretani, the parties' brother; and Charles P. Antonelli, Jr., a Massachusetts notary public, were called to testify for Defendant. Twenty-three exhibits were entered in evidence, some with multiple parts, including telephone records detailing the parties' cell phone usage on relevant days. The defense orally moved for an involuntary dismissal at the close of Plaintiff's case, which this court denied.

The facts set forth below include the joint material facts from this court's July 13, 2017 order denying summary judgment, the parties' stipulated facts from their joint pre-trial memorandum, facts established at trial through testimony and documentary evidence, and the reasonable inferences drawn therefrom.

1. The Property is registered land known as and numbered 65 Forest Park in Billerica, which is the current residence of Defendant, and Defendant is the owner under Certificate of Title 42396 that issued by the Middlesex North Registry District of the Land Court as a result of the filing of the disputed Deed. [Note 1]

2. The parties' father, Ralph Thomas Cerretani, died on December 9, 2014. He resided at the Property during his lifetime.

3. The parties are brother and sister, and are two of three living children of Ralph. The third sibling is Peter Cerretani. Prior to their father's death, Plaintiff and Defendant had a close relationship with one another.

4. On October 31, 1997, Ralph executed a Last Will and Testament (Will), appointing Plaintiff as Executrix of his estate, leaving "[a]ll of [his] real estate, real, personal or mixed" to "[his] daughter, Ann McNeff, [his] son, Peter Cerretani, [his] son Thomas Cerretani, and [his] son-in-law Jules McNeff."

5. Ralph executed three separate codicils to his Will on February 17, 2009, January 28, 2010, and February 9, 2010, (together, Codicils). The Codicils did not in any way alter or amend the devisees of the Will, or the disposition of the Property. One of the Codicils provided that if Peter Cerretani had not yet repaid his sister, Plaintiff, the sum of forty-thousand dollars lent to Peter by Plaintiff, such sum would be deducted from Peter's share of the estate and given instead to Plaintiff. [Note 2]

6. Plaintiff acted as attorney-in-fact for Ralph during his lifetime under two separate durable powers of attorney, one of which is dated October 31, 1997 (Exhibit 8). The second of which is dated September 3, 2013 (Exhibit 9).

7. At some point during the final seven or eight years of Ralph's life, Defendant moved into the Property to live with Ralph, who was then approximately eighty-seven years old. Defendant intended to help care for him, pay his bills, and attend Ralph's medical appointments.

January 1, 2014 Authorization (Limited POA in favor of Thomas R. Cerretani)

8. In January 2014, Defendant drove Ralph to meet Mr. Claude Turcotte and have him notarize a document for Ralph. The document is dated January 1, 2014, and grants Thomas limited power to act on in Ralph's stead (Authorization) (Exhibit 7), as follows:

"I[,] Ralph Cerretani[,] give authorization to my son Thomas Cerretani to sign any loan applications for business and personal. Also he can use any of my business and personal credit cards and have access to all of my loans, banking transactions, for all personal and business bank accounts."

9. Defendant knew Mr. Turcotte personally, due to Defendant's previous rental of commercial office space in a building in New Hampshire owned by Turcotte's brother. The rental lasted approximately five to six years. Defendant and Turcotte were friendly and interacted at various social events.

10. At the January 1, 2014 meeting, Defendant went into Turcotte's office while Ralph remained in the car. Defendant told Turcotte Ralph needed a document notarized. The document had already been signed. Mr. Turcotte said he had to speak with Ralph.

11. After speaking with Ralph at the car, Mr. Turcotte signed as notary, though Ralph did not sign the document in front of Mr. Turcotte. Mr. Turcotte did not ask Ralph if he had signed the document, nor did he discuss with Ralph the nature of the document.

Ralph's Will and Subsequent Actions Taken by Defendant

12. Defendant had first learned that his brother-in-law, Jules McNeff, was named as a one-fourth devisee in Ralph's Will in or around May 2015, when Plaintiff, as Executrix, gave Defendant and Peter copies of the Will and Codicils in connection with presenting them for probate. In December 2015, Plaintiff was appointed Personal Representative of Ralph's estate, and letters of authority issued. See In the Matter of Ralph Thomas Cerretani, Middlesex Family & Probate Court, Docket No. MI15P2494EA.

13. In July of 2015, Defendant again asked Turcotte to notarize a document. This time it was a deed purportedly signed by Ralph before his death (on November 14, 2014.) Turcotte was unwilling to notarize that document, which looked similar to the deed entered in evidence as Exhibit 2, but had the signature on the wrong line. The next day, Defendant returned with a new original deed that allegedly had his father's signature on the correct line.

14. Mr. Turcotte refused to notarize that deed, and told Defendant he could not because he could not notarize a deed after someone's death.

15. Eventually, the Deed which is the subject of this lawsuit was notarized by a different notary, as set forth below.

November 14, 2014 – Date Deed was Purportedly Signed

16. Plaintiff spoke with Ralph on the telephone three times on November 14th, 2014. Ralph called her in the morning and the two spoke for approximately ten to twelve minutes according to telephone records. Plaintiff later called Ralph sometime after three o'clock in the afternoon and they spoke briefly. Plaintiff spoke with Ralph on the telephone a third time in the evening for approximately twenty minutes. Ralph did not mention the transfer of the Property to Defendant or signing of documents during any of these conversations.

17. Plaintiff called Defendant on the telephone once on November 14, 2014, at approximately one o'clock in the afternoon. Defendant did not mention the transfer of the Property or signing of documents during this conversation either. [Note 3]

18. At no point prior to Ralph's death did Defendant tell Plaintiff the house had been transferred into his name despite numerous opportunities to do so. After Ralph's death, he did express concern to Plaintiff that he would not recoup money he had paid for improvements to the Property and that he would have to pay rent and utilities if he continued to live there.

Events Following Ralph's Death

19. At an undetermined point following Ralph's funeral, Plaintiff, Defendant, and Jules McNeff were at the Property packing up Ralph's papers and possessions. At this time, Plaintiff told Defendant he could live at the Property "as long as he wanted," provided he paid the utilities, insurance and taxes. Defendant was not happy with the prospect of paying those costs. He had put considerable work into improving the house and did not want to lose the value of his investment.

20. Plaintiff deposited $12,000 into an account at Workers Credit Union, in Defendant and her names, so Defendant could use the money to pay for utilities, insurance and taxes on the Property while he continued iving there.

May 2015

21. As noted above in paragraph 12, Defendant first learned that Jules McNeff was named as a one-fourth devisee in Ralph's Will in or around May 2015, during a meeting at the Property among Plaintiff, Defendant, Peter Cerretani and Jules McNeff.

22. Defendant was angry that McNeff had been included in the Will. He told Jules that he "should be ashamed" and that he "shouldn't be [in] the Will." Defendant further told Jules that he should take his name out of the Will because Ralph had told Defendant he wanted everything split among the three siblings (Thomas, Peter, and Ann).

23. Defendant did not tell anyone at this meeting that Ralph had already transferred the Property to him.

Registration of the Deed

24. On July 17th, 2015, at Defendant's request, Attorney Mike Newhouse prepared and executed an "affidavit of no divorce" under G. L. c. 183, § 5B, stating that, at the time of the death of Bertha F. Cerretani (Ralph's wife and the parties' mother) on August 18, 1997, she had not divorced or dissolved her marriage to Ralph T. Cerretani, her surviving spouse. [Note 4] Defendant paid Attorney Newhouse to prepare this document for him.

25. The affidavit was filed with the Registry together with the Deed, which was dated November 14, 2014, a date before Ralph died.

26. The Deed purporting to convey the Property from Ralph to Defendant for consideration in the amount of ten dollars, was likely not signed by anyone on November 14, 2014. It was not registered with the Middlesex North Land Court Registry District until July 20, 2015, in Book 215, at Page 11, and Certificate No. 42396 issued in Defendant's name.

27. Plaintiff first learned of the existence of the Deed when she received the original in the mail from the Registry District sometime in the summer of 2015.

Notarization of the Deed

28. The signature purporting to be that of Ralph on the Deed is notarized by Charles Antonelli, Jr., a Massachusetts notary public. Mr. Antonelli was most recently appointed as notary public on November 12th, 2014. This appointment expires on November 12, 2021.

29. Mr. Antonelli has known Defendant for over thirty years. As a banker, Mr. Antonelli's job responsibilities included business development. He first met Defendant as part of his outreach to local businesses. Mr. Antonelli retired from banking in approximately 2011. The bank from which he retired was Workers' Credit Union. When he retired, he took his most current notary journal with him and stored it in his garage. The box in which the journal was stored was damaged by water, and he threw it out, with all its contents.

30. Mr. Antonelli procured a new notary journal, which was introduced as at trial. [Note 5] The first entry in the new journal is the notarization of the Deed, with Ralph's signature. This is the entry reviewed by Plaintiff's handwriting expert, Eileen Page.

31. Mr. Antonelli orders his notary supplies from the Corporate Connection, 128 Margin Street in Salem. He made three relevant purchases from the Corporate Connection, as shown in three invoices entered in evidence.

a. On November 17th, 2014, he purchased a Massachusetts Notary Insert and a self-inking Massachusetts Notary Stamp (indicating the expiration date of his term as a notary.)

b. On November 24th, 2014, he ordered a Massachusetts Notary Journal.

c. On July 10th, 2016, he purchased an All States Notary Journal. [Note 6]

32. On the morning of December 8, 2016, Defendant texted Claude Turcotte the following message: "I am so sorry my sister dragged you into this. I will pay you for your time and your attorney fees. My attorney has the copy of your paperwork that you notarized for me – for my dad. Tell them that is the only paperwork you saw from me and that should be the end of it. You're a good friend. Thank you."

Handwriting Analysis Corroborates Testimony and Documentary Evidence

33. Eileen Page is a handwriting consultant, trained to testify as an expert in areas of handwriting analysis, and she was qualified as an expert in this matter.

34. As part of her analysis, Ms. Page reviewed known exemplars of signatures of Plaintiff, Defendant and Ralph. [Note 7] She reviewed, among other things, the following documents:

a. Numerous personal checks signed by Ralph;

b. Numerous personal checks signed by Thomas in his father's name, and loan documents;

c. Ralph's Will and the Codicils;

d. Two powers of attorney signed by Ralph; and

e. Court documents, personal checks and certified mail receipts signed by Thomas Cerretani in his own name; and

f. Loan documents, business credit applications, and sales contracts. [Note 8]

35. Ms. Page also examined documents in which the signatories were not known or confirmed, such as the signature on the disputed Deed.

36. Ms. Page incorporated several techniques into her analysis of the above documents. She specifically focused on the formation of the capital letter "T," the middle initial in Ralph's signature; the formation and placement of the capital "C" in Ralph's last name; the formation and place of the last three letters in Ralph's first name ("lph"); letter idiosyncrasies; letter proportions; letter slant; and pressure patterns. Her testimony was aided by enlarged copies of the signatures, used as chalks.

37. Ms. Page focused particularly on letter slant. This required drawing lines over a signature on the upstroke of each letter, from the baseline to the point where the letter changes direction.

38. Ralph's known signatures have letter slants that are mostly forward lines that are parallel and do not intersect. The questioned signatures have intersecting and crossing letter slant lines throughout.

39. Ms. Page concluded the questioned characteristics of the signature on the Deed did not match the known signatures of Ralph, and stated in her expert opinion the Deed was not signed by Ralph.

* * * * *

Plaintiff alleges the Deed is a forgery, and that Defendant is the one who actually signed it following their father's death. She argues that Defendant first contacted a different notary, Claude Turcotte (Turcotte), for notarization of the Deed following Ralph's death, that Turcotte refused because Ralph was already deceased, and Defendant then approached a different notary, Charles P. Antonelli, Jr. (Antonelli). Plaintiff claims she is familiar with Ralph's signature and does not recognize the signature on the Deed as his. Plaintiff also retained a handwriting expert, Eileen Page (Page), to review and analyze the signatures of various parties involved in this action, and Page concluded that the signature on the Deed did not match that of Ralph, but was signed by Defendant. Defendant argues he is also familiar with Ralph's signature, the signature on the Deed is authentic, and the Deed was properly notarized by Antonelli.

A forged conveyancing instrument is void, and has no effect even if recorded in regular fashion with the registry of deeds. Stroher v. Shain, 322 Mass. 435 , 437 (1948); Breed v. Gardner, 187 Mass. 300 , 304 (1904). A notary certificate on a deed, however, is proof presumptive of a valid acknowledgment, unless there is evidence that rebuts or impeaches the notary's testimony. Keville v. McKeever, 42 Mass. App. Ct. 140 , 157 (1997); see also McOuatt v. McOuatt, 320 Mass. 410 , 413 (1946) (stating "[t]he certificate of acknowledgement furnishes formal proof of the authenticity of the execution of the instrument when presented for recording"). As the party claiming Ralph's signature on the Deed is a forgery, Plaintiff carries the burden of rebutting the presumption of a valid acknowledgment of Ralph's signature on the Deed.

In the instant action, the key witnesses who testified at trial on Defendant's side, specifically Defendant and Mr. Antonelli, displayed inconsistencies in their testimony, which, on many points, was simply not credible. These credibility issues and inconsistencies, combined with the expert testimony offered by Plaintiff's handwriting expert, have convinced this court that the signature on the Deed does not belong to Ralph. The court finds Plaintiff has presented sufficient clear and convincing evidence rebutting the presumption arising from the signature on the Deed and the the notary certificate. Accordingly, the Deed is void.

I. Defendant Failed to Inform Plaintiff He Owned the Property Before and After Ralph's Death

Defendant admits he never told Plaintiff that Ralph deeded the Property to him, despite numerous opportunities to do so. Further, his actions, both prior to Ralph's death and after, are not consistent with those of someone who believed he owned the Property.

On November 14th, 2014, the day Defendant alleges Ralph signed the Deed, Plaintiff spoke with Defendant on the telephone. The two talked about Defendant's plans to attend his nephew's college hockey game, but Defendant never mentioned the transfer of the Property he alleges took place that day. Plaintiff also spoke with her father, Ralph, on the telephone three separate times on November 14th, and Ralph never mentioned signing any documents or transferring the Property to Thomas.

Defendant also failed to inform Plaintiff he owned the Property after Ralph's death, despite opportunities in which owners likely would have asserted ownership. Most damning in this court's view is Defendant's failure to inform Plaintiff he owned the Property while working with Plaintiff and her husband to organize and pack up Ralph's possessions following his funeral. See fact paragraphs 18-20. Both Plaintiff and Defendant agree that they discussed Defendant's continued occupancy of the Property, with Plaintiff saying he could do so, provided he paid the utility bills and rent. Defendant also acknowledged at trial that he was concerned about losing the time and money he had previously put into the Property, in the form of a new heating and air conditioning systems, painting, landscaping, and interior improvements, among other things.

If Ralph had conveyed the Property to Defendant on November 14th, there would be no need for Thomas to pay rent, and he would have no reason to believe he would lose the Property following his father's death, yet he failed to correct Plaintiff's expressed assumptions that the Property had been devised in equal shares to Thomas, Peter, Ann, and her husband, Jules, according to the Will.

Defendant also admitted he became upset when he discovered Jules McNeff had been included in Ralph's Will at the siblings' meeting in May 2015, and voiced his opinion that Jules should remove himself from the Will so the estate could be divided solely among Ralph's three children. Defendant, however, never informed anyone at that meeting that he already owned the Property, despite the emotional nature of the meeting, and the importance of that fact, if true. Based on these failures to assert ownership, combined with the other evidence proffered by Plaintiff, including the expert handwriting testimony and the testimony of Mr. Turcotte, demonstrate that Defendant did not own the Property at those times.

II. The Testimony of the Notary Public Who Acknowledged the Deed Contained Inconsistencies

Mr. Antonelli's testimony regarding the November 14th acknowledgment also contained troubling inconsistencies and was generally not credible. He produced a notary journal titled "The Complete Notary Records Book." Preprinted on the cover is the statement that the journal "meets the requirements for all states." The first entry in this notary journal is the acknowledgment of Ralph's signature on the Deed, dated November 14, 2014. Mr. Antonelli testified this acknowledgment took place on that date, and that he witnessed Ralph's signature personally. On November 12, 2014, however, Mr. Antonelli received a notification from the Commonwealth that his notary commission had been renewed, with an expiration date of November 12, 2021. Mr. Antonelli then ordered notary supplies (specifically, his stamp and seal) from his usual supplier, but the order was not placed until November 17, 2014. He also purchased two notary journals: a Massachusetts journal, ordered November 24, 2014, and the All States Journal, which was not purchased until July 10, 2016. When questioned about the All States Journal, Mr. Antonelli was unable to explain the purchase, stating essentially he would have no reason to order one.

The acknowledgment of Ralph's signature is contained in an all states journal. [Note 9] No Massachusetts journal was ever produced, and, even if it had been, its purchase still took place after the alleged November 14th signing of the Deed. It appears, based on the all states notary journal entered into evidence and the discrepancies in Mr. Antonelli's purchases of notary supplies, demonstrated by his testimony and the purchase invoices, he did not have this journal nor his stamp and seal in his possession on November 14th. This is further evidence that the Deed was not properly acknowledged by him. This court concludes that the date of November 14, 2014 on the Deed was not the date on which the Deed actually was signed by whomever signed as Ralph Cerretani. Mr. Antonelli did not even have the supplies he used to affix his stamp and seal to the Deed and make an entry in his log book until sometime after that date.

III. Plaintiff's Expert Persuasively Testified the Signature on the Deed Did Not Match Ralph's Known Signatures, Corroborating the Other Testimony

Plaintiff called Ms. Page as an expert witness in handwriting analysis. She reviewed dozens of documents containing Ralph's confirmed signatures, as well as several documents in which Ralph's signature was questioned. Defendant objected to Ms. Page's qualification as an expert witness, arguing Plaintiff failed to demonstrate her testimony met the standard required under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (and, by extension, Commonwealth v. Lanigan, 419 Mass. 15 (1994)); see Tr. vol. 1, 129:19-25. Massachusetts, however, has long admitted in evidence handwriting comparisons by a qualified expert. See, e.g., Commonwealth v. O'Connell, 438 Mass. 658 , 662 (2003); Preston v. Peck, 271 Mass. 159 , 163 (1930); Richardson v. Newcomb, 38 Mass. 315 , 317 (1838). Additionally, handwriting comparisons are generally considered sufficiently established that any preliminary screening is unnecessary. Commonwealth v. O'Connell, 438 Mass. 658 , 662 (2003); Commonwealth v. Murphy, 59 Mass. App. Ct. 571 , 576 (2003). After argument regarding Ms. Page's qualifications, this court qualified Ms. Page to testify regarding the handwriting exemplars.

As part of her analysis, Ms. Page reviewed several signatures from Plaintiff, Defendant and Ralph, including numerous originals and copies of checks, letters, loan documents, the Will and Codicils, the Deed, and the durable powers of attorney, and the Authorization. She reviewed signatures purporting to be Ralph's on loan documents for Ally Bank, which Defendant acknowledged he had signed for his father, at his father's direction. She incorporated several different techniques in her analysis, and ultimately opined, among other things, that the letter slant of the questioned signature on the Deed did not match the known signatures of Ralph. [Note 10] Her testimony was compelling, aided by the enlargements of many signatures which she used as chalks.

The court notes that Ms. Page determined the signatures on the Ally Bank loan documents (Exhibit 15) were not signed by Ralph prior to Defendant's confirmation that he in fact had signed them for his father. As Plaintiff pointed out in post-trial briefing, the fact that Ms. Page had an exemplar of Thomas signing Ralph's name was helpful. It created a solid point of comparison from which to proceed when analyzing other like signatures, including those on the January 1, 2014 Authorization purportedly signed by Ralph in favor of Thomas (allowing him to act on Ralph's behalf regarding certain business matters and use of his credit cards) (Ex. 7), and the Deed itself, along with other documents.

IV. Conclusion

After careful examination of the evidence and assessment of the credibility of each witness, and drawing inferences from the testimony and documentary evidence, this court concludes Ralph's signature on the Deed, purportedly signed on November 14, 2014, is a forgery. This conclusion is based in large measure on this court's assessment of the credibility of the witnesses. The testimony of both Defendant and Mr. Antonelli does not hold up and strains reason and credibility in light of the documentary and credible testimonial evidence establishing, among other details: 1) Defendant's failure to advise Plaintiff that the Property had been gifted to him by Ralph in November 2014 or otherwise take any action to assert an ownership claim to the Property, particularly given the frequency of their communication; 2) Defendant's failed attempts to secure a notarization of Ralph's signature on the disputed Deed from Mr. Turcotte after Ralph had died; and 3) the Commonwealth's notary public records and the business records of the Corporate Connection, from where Mr. Antonelli obtained the tools of the notary trade which were used in connection with the notarization of the signature on the disputed Deed.

On the other side, this court credits the testimony of Plaintiff and also Mr. Turcotte, bolstered by the expert opinion testimony of Ellen Page that the signature on the Deed is not that of Ralph T. Cerretani. Accordingly, this court holds that signature of Ralph T. Cerretani on the Deed was forged and the Deed therefore is a nullity.

Judgment to issue accordingly.