Estate of Michael F. Cassiere v. Joseph Cassiere

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
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
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corrections may be made before the opinion is published.
 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.
-8-
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

- 10 -
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)