                                                              Supreme Court

                                                              No. 2013-216-Appeal.
                                                              (PC 08-1467)
                                                              No. 2013-217-Appeal.
                                                              (PC 08-6628)
                                                              No. 2013-220-Appeal.
                                                              (PC 08-1467)


Barbara A. Voccola and Edward R.         :
 Voccola, in their capacities as Co-
Executors of the Estate of Edward E.
              Voccola

                 v.                      :

       Patricia A. Forte et al.          :




           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 222-
           3258 of any typographical or other formal errors in order that
           corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2013-216-Appeal.
                                                                    (PC 08-1467)
                                                                    No. 2013-217-Appeal.
                                                                    (PC 08-6628)
                                                                    No. 2013-220-Appeal.
                                                                    (PC 08-1467)

    Barbara A. Voccola and Edward R.          :
     Voccola, in their capacities as Co-
    Executors of the Estate of Edward E.
                  Voccola

                     v.                       :

           Patricia A. Forte et al.           :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                           OPINION

       Justice Robinson, for the Court. Patricia Forte and Red Fox Realty, LLC (Red Fox)

(the defendants) appeal from a March 12, 2013 final judgment entered in two consolidated

Providence County Superior Court actions in favor of Barbara Voccola and Edward R. Voccola,

in their capacities as co-executors of the Estate of Edward E. Voccola (the plaintiffs).1 In these

actions, filed on March 12, 2008 and October 17, 2008, Edward E. Voccola2 sought to recover



1
        These actions were commenced by Edward E. Voccola, who passed away on June 25,
2010, during the pendency of the actions. Marvin Homonoff, as the temporary custodian of
Edward E. Voccola’s estate, was the named plaintiff at the time of trial. According to the docket
sheet, on March 12, 2013, after the trial, Barbara Voccola and Edward R. Voccola were
substituted as plaintiffs in their representative capacities. See Rule 25(a) of the Superior Court
Rules of Civil Procedure. We shall refer to Barbara Voccola and Edward R. Voccola as if they
have been plaintiffs to these actions since their inception.
2
        For the sake of clarity, Edward E. Voccola will henceforth be referred to in this opinion
as Mr. Voccola. His children—Barbara Voccola, Edward R. Voccola, Patricia Forte, Stephen
Voccola, and Paul Voccola—will henceforth be referred to by their first names. In so doing, we
intend no disrespect.


                                               -1-
his property which he alleged Patricia had wrongfully transferred. On appeal, the defendants

contend as follows: (1) that the trial justice erred when she held that Mr. Voccola’s signatures

authorizing the transfer of the properties at issue to Patricia’s company, Red Fox, were not

genuine because, according to the defendants, the plaintiffs failed to present sufficient evidence

to rebut the presumption that Mr. Voccola’s signatures were genuine; (2) that the trial justice

erred as a matter of law in using “her independent analysis and opinion” of Mr. Voccola’s

signatures as a basis for concluding that his signatures on the documents at issue were not

authentic; (3) that the trial justice erred in refusing to admit into evidence testimony concerning

two of the documents at issue; (4) that the trial justice erred in finding the defendants’

handwriting expert not to be credible; (5) that this Court should review the testimony of the

plaintiffs’ handwriting expert de novo and then reject her credibility; (6) that the trial justice

erred as a matter of law when she held that the omission of a referenced exhibit to the documents

which Mr. Voccola allegedly signed allowing the transfer of the properties at issue rendered

those documents legally ineffective; and (7) that the trial justice erred in holding in the plaintiffs’

favor on the defendants’ claim that Mr. Voccola gifted the properties at issue to Patricia.

       The plaintiffs filed a cross-appeal from the decision of the trial justice awarding Patricia

$82,000 pursuant to her counterclaim. They contend on appeal that the trial justice erred in

making that award because: (1) in her counterclaim, Patricia did not seek reimbursement for

paying Mr. Voccola’s criminal fines, which payment was the act that formed the basis of the trial

justice’s $82,000 award; and (2) any “claim of damages as to the criminal fines” was settled in a

2007 Settlement Agreement between various parties, including Mr. Voccola and Patricia.

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.




                                                 -2-
                                                 I

                                         Facts and Travel

       This case is, at its core, a family dispute involving Mr. Voccola and his five adult

children—Edward, Stephen, Paul, Barbara, and Patricia. On July 11, 2012, prior to trial, the

parties entered into an Agreed Statement of Facts. That document establishes the following

facts. Mr. Voccola was the sole shareholder of three Rhode Island corporations—Capital City

Investments, Inc. (CCI), City View Realty, Inc. (CVR), and West Side Investments, Inc. (WSI).

Patricia was the President of all three corporations at the times at issue in this case. Patricia was

also the sole member and manager of Red Fox. In 2005, Mr. Voccola filed suit in Providence

County Superior Court against Stephen and Barbara seeking to revoke a purported gift of stock

in a corporation called Redbrook Investments, Inc. (Redbrook). In March of 2007, a Settlement

Agreement, occasioned by Mr. Voccola’s suit against Stephen and Barbara, was executed by Mr.

Voccola, Barbara, Stephen, Paul, and Patricia. The action commenced by Mr. Voccola against

Barbara and Stephen was subsequently dismissed by stipulation. The Settlement Agreement,

which was entered as an exhibit at trial, stated in relevant part as follows: “[Patricia, Stephen,

Paul, and Barbara] agree forthwith upon the signing of this agreement to discharge and/or release

all mortgages and promissory notes which reference [Mr. Voccola], Jere Realty, Inc., Lakeview

Realty, Inc., [CCI, WSI, and/or CVR].”

       According to the Agreed Statement of Facts, on or about June 4, 2007, “three documents

were signed purporting to be Waivers of Notice of Minutes of a Special Joint Meetings [sic] of

the Stockholders and Board of Directors of [CCI, CVR, and WSI] respectively” (hereinafter the

CCI waiver, the CVR waiver, and the WSI waiver, or the waivers collectively). Those waivers

purported to memorialize a meeting and vote that allegedly took place on May 29, 2007 and are




                                                -3-
all supposedly signed by Mr. Voccola. On May 31, 2007, pursuant to the waivers to be signed a

few days later, Patricia, as President of CCI, CVR, and WSI, signed three warranty deeds

conveying the real estate of all three of those corporations to Red Fox.3 The waivers, which

were entered as exhibits at trial, all state that the transfer of property was “in exchange for the

assumption of the two mortgages on the property.” At the time of the supposed May 29 meeting,

at the time of the purported signing of the waivers, and at the time of the transfer of the

properties, Patricia still held undischarged mortgages on properties owned by Mr. Voccola or by

one of his corporations.

       In his verified complaint, Mr. Voccola alleged that his signature on the WSI waiver had

been forged and that the warranty deeds were therefore void. He further stated that the warranty

deeds were also void because they were not supported by adequate consideration. The validity

of Mr. Voccola’s signatures on the waivers and the corresponding conveyance of the properties

at issue was the major factual issue to be resolved at trial,4 and it forms the basis of this appeal.

The defendants also filed a counterclaim seeking “reimbursement for all sums expended [by the

defendants] for taxes, maintenance, insurance and other charges on the properties which are the

subject of [the] action,” which is also an issue on appeal.



3
        It should be noted that, according to the Agreed Statement of Facts, Red Fox was not
officially organized as a corporation until June 1, 2007.
4
        As the final judgment in these actions reflects, one of the actions in Superior Court, PC
08-6628, was brought to enforce the terms of the 2007 Settlement Agreement requiring Patricia
to discharge mortgages she held on certain properties owned by Mr. Voccola or one of his
corporations. The other action, PC 08-1467, was brought to recover the property which Patricia
transferred to Red Fox pursuant to the purported signatures of Mr. Voccola on the waivers
approving the transfer. The parties limit themselves on appeal to an argument with respect to the
transfer of the properties at issue, which was the subject of PC 08-1467, and we shall likewise do
the same. As such, we shall discuss the Settlement Agreement only as it is relevant to this
appeal.



                                                -4-
        A bench trial was conducted over seven days in July of 2012. We relate below the salient

aspects of what transpired at trial.

                                                A

                                       The Trial Testimony5

                                1. The Testimony of Paul Voccola

        Paul Voccola testified that Mr. Voccola and Patricia had “the best relationship between

father and daughter that you can imagine for * * * a good 25, 30 years.” He further testified that

Mr. Voccola said that “Patricia was the only one in his life that has ever done anything for him

and that he was leaving all his property to her.” By contrast, when asked about his father’s

relationship with Edward, Paul stated: “Well, for the past 35 years or so, there was actually no

relationship at all.” He added that “they were not on speaking terms.” Moving on to the

relationship between Barbara and Mr. Voccola, Paul testified that they had a contentious

relationship due to what Paul claimed was the fact that Mr. Voccola gave “all the attention to his

mistress’s daughter,” who was the same age as Barbara. He added that Barbara “really hated

[Mr. Voccola] * * * through her whole life because of it.”

        Paul indicated in his testimony that the signature on all three waivers was his father’s

signature, but he also stated that he was not present when those waivers were signed. He further

stated that it was his understanding that under the 2007 Settlement Agreement “various

mortgages” “were supposed to be released.” He also acknowledged that, in his role as a licensed

5
        It is important to note that the Agreed Statement of Facts provided as follows with
respect to the testimony at trial:

                       “The parties agree that all discussions by and between [Mr.
                Voccola] and any of his children relating in any way to the above
                matters shall not be deemed to be hearsay but shall be accepted
                into evidence by this Court and given the weight that this Court
                deems appropriate.”


                                               -5-
real estate broker, he had received the “listing” for two properties from Patricia during the

pendency of the instant case.

                                2. The Testimony of Patricia Forte

       Patricia testified that she opened a business named West Fountain Auto Body and Sales,

Inc. (West Fountain) in June of 1997.         It was her testimony that her boyfriend, Kenneth

Salvatore, was the general manager of West Fountain.

       Patricia acknowledged during her testimony that she signed the Settlement Agreement

because her brother, Stephen, told her to sign it. However, she testified that she did not read the

document before she signed it. She further stated that, at the time of trial, she understood that

she was required, under the Settlement Agreement, to release mortgages “held by [her] or

Redbrook given by [her] father.” She stated that, when she realized that she was supposed to

release the mortgages, she did not do so because her “father told [her] not to release them” due to

the fact that he intended to “give [her] the property anyway.” She did acknowledge in her

testimony that she held mortgages from her father, CVR, CCI, and WSI which had not been

discharged at the time of the transfer of the properties at issue in this appeal.

       With respect to a mortgage which her father gave to one Joe Tosoni, Patricia testified that

her father was motivated to give the mortgage to Mr. Tosoni so as to obtain the money that he

needed to pay some criminal fines. It was her further testimony that she “believe[d]” that she

paid Mr. Tosoni $82,000 on her father’s behalf and that Mr. Tosoni was, thus, “paid in full.” She

added that the mortgage was assigned to her and had not been released. When Patricia was

asked at trial where she obtained the money to pay Mr. Tosoni she stated: “I think that was when

I took the mortgage out on my house * * *.” The mortgage deed given by Mr. Voccola to Mr.




                                                 -6-
Tosoni and the Assignment of Mortgage from Mr. Tosoni to Patricia were both entered as

exhibits at the trial.

        Patricia’s testimony then turned to the day on which her father purportedly signed the

waivers. She stated that, on June 4, 2007, Mr. Voccola came to West Fountain, as he did every

day, and that on that day he told her he was “going to sign the property over to [her].” She

testified that on that day she saw her father read (or have read to him) all three of the waivers and

she saw him sign all three waivers.       She further stated that she, Raphael Fernandez, Mr.

Salvatore, and an individual by the name of James Levitt, who prepared the waivers, were

present when the waivers were signed. She specifically identified her father’s signature on each

of the waivers at trial. Patricia added that the Exhibit A referenced in the waivers was not

attached to them and she had not, at the time of trial, located Exhibit A.

        It was Patricia’s further testimony that she executed the warranty deeds transferring the

properties at issue from CVR, CCI, and WSI to Red Fox in her capacity as President of CVR,

CCI, and WSI. According to her testimony, her father told her “on a million occasions” that she

was getting all of his property, and she said that she remained close to him until his death,

despite the instant actions. She indicated that he had conflicts with his other children. However,

she did read a portion of her father’s 2008 will at trial, which provided that she would not inherit

since she would be deemed to have predeceased her father unless she transferred back to him the

properties conveyed to Red Fox.

        A videotape of a will signing from January of 2004 was played before the jury at trial. In

the video, Mr. Voccola was seen signing his January 2, 2004 will; and, in the course of the

videotape, he disparaged each of his children, with the exception of Patricia. The videotape

revealed him stating that “Patricia [was] going to be the sole owner of everything.”




                                                -7-
                             3. The Testimony of Barbara Voccola

       Barbara Voccola testified that in December of 2007 her father tried to obtain from

Patricia “all his corporate records” regarding his properties, but that Patricia resisted providing

them for several weeks. She stated that it was only by being told by Paul that Mr. Voccola found

out that Patricia had transferred his properties to Red Fox. It was Barbara’s further testimony

that Mr. Voccola asked Patricia to “give him back all his property” and that, when she did not do

so, Mr. Voccola retained an attorney to commence litigation against Patricia. Barbara stated in

her testimony that her father knew that “his property had been illegally transferred.” It was her

testimony on cross-examination that she had an “on and off relationship” with her father “over

the years.” It was additionally her testimony that Patricia was not involved in her father’s care in

late 2009 and 2010, nor did she visit him on a regular basis.

                       4. The Videotaped Deposition of Pauline Patchis

       Pauline Patchis was plaintiffs’ handwriting expert. Her videotaped deposition in relation

to Mr. Voccola’s purported signature on the WSI waiver was played for the jury at trial due to

her unavailability. According to the trial justice’s written decision, Ms. Patchis testified at

deposition that, in her expert opinion, the waivers were signed by someone other than Mr.

Voccola.

                              5. The Testimony of Dr. Marc Seifer

       Marc Seifer, Ph.D. was defendants’ handwriting expert. He testified at trial concerning

the WSI waiver.6 After discussing in detail his process of analyzing a signature, Dr. Seifer



6
       Doctor Seifer was restricted by the trial justice to testifying with respect to only Mr.
Voccola’s signature on the WSI waiver; thus, he did not testify about the signatures on the CVR
and CCI waivers. His testimony was so restricted because defendants had failed to update their
answers to interrogatories to indicate that Dr. Seifer would be testifying about the CVR and CCI
waivers and not simply about the WSI waiver. We are aware that it was conceded that plaintiffs


                                               -8-
concluded that in his expert opinion Mr. Voccola signed the WSI waiver. During the course of

his testimony, he was critical of Ms. Patchis’s report.

       Additionally, on cross-examination, Dr. Seifer responded in the affirmative when he was

asked: “[A]t the time you were studying [Ms. Patchis’s] conclusion, you had already formed the

opinion that she was wrong and the signature was actually Mr. Voccola’s?”

                             6. The Testimony of Stephen Voccola

       Stephen Voccola testified that his relationship with his father became “adversarial” after

his father commenced the 2005 litigation in which he was named as a defendant. However, he

testified that their relationship was mended in 2007. He stated that he was an attorney and that,

before the instant suit commenced, his father asked him “if [he] would represent him to sue

Patricia to get the property he had given her back;” it was Stephen’s testimony that he declined

his father’s request. It was further his testimony that in 2010 his father complained to him that

Barbara and Edward were “constantly badgering him to transfer property into their name” and

were threatening to put him in a nursing home. However, Stephen acknowledged on cross-

examination that he had recently filed his own lawsuit against Barbara and Edward concerning

the pour-over trust set up in Mr. Voccola’s will.

       Stephen testified that his father’s signatures on all three waivers were genuine. He

specifically stated with respect to all of the waivers that his belief that the signatures were

genuine was “without equivocation.”

                            7. The Testimony of Raphael Fernandez

       Raphael Fernandez testified that he owned an auto repair business which had operated

out of the same location as West Fountain and that he was permitted to use one of the automobile


were given copies and made aware of the CVR and CCI waivers themselves at least nine months
prior to trial.


                                                -9-
bays in the West Fountain building. He testified that on a day in June of 2007 he had spoken

with Mr. Voccola, who indicated that he was signing all of his property over to Patricia that day.

It was his further testimony that on that day he saw Mr. Voccola read several papers, have them

read to him, and ultimately sign them. However, Mr. Fernandez stated that he did not recall

whether Mr. Voccola signed one or several documents.                He acknowledged on recross-

examination that Patricia had given Mr. Salvatore and him a ride to the courthouse on the

morning of that trial day.

                             8. The Testimony of Kenneth Salvatore

       Kenneth Salvatore testified that he was the general manager at West Fountain. It was his

further testimony that he was present at the June 4, 2007 meeting at West Fountain, at which

meeting Patricia and Mr. Voccola were in attendance. He testified that Mr. Voccola stated that

he was signing his property over to Patricia. Mr. Salvatore further stated that he saw Mr.

Voccola sign the documents, although he said that he was not sure exactly how many documents

there were. Mr. Salvatore acknowledged on cross-examination that he had been living with

Patricia since 1996 or 1997.

                             9. The Testimony of Edward R. Voccola

       Edward R. Voccola testified that his relationship with his father become close in 2004; he

stated that it was a “turning point” in his relationship with his father. He further testified that his

father’s motivation to sign the Settlement Agreement in 2007 was to “get [the] liens off” his

property. According to Edward’s testimony, in January of 2008, Mr. Voccola told him that

Patricia had told Mr. Voccola that he no longer owned most of his properties. Edward also

testified that he reviewed the WSI waiver with his father and that his father stated that he “never




                                                - 10 -
signed any document, nor had any discussion concerning anything like [the] transaction

[represented in the waiver].”

                                                 B

                                  The Superior Court Decision

       In January of 2013, the trial justice issued a thorough and well-articulated written

decision. Initially, the trial justice found that the Settlement Agreement was the product of

mutuality of assent and was supported by adequate consideration. She gave no weight to

Patricia’s statement that she did not read the Settlement Agreement but rather determined that

Patricia “intended to be bound by the Settlement Agreement.” The trial justice went on to state,

with respect to Patricia, as follows: “[She] was a party to the Settlement Agreement and was

therefore legally obligated to perform under its terms, which required her to release the

mortgages [on Mr. Voccola’s properties].” Thus, it was the trial justice’s holding that “[t]he

mortgages should have been discharged effective as of the date of the Settlement Agreement”

and that “any subsequent conveyance of property to [Patricia], which was performed in exchange

for [Patricia’s] release of mortgages on those properties, was done without consideration.”

       With respect to the validity of Mr. Voccola’s signatures on the waivers, the trial justice

found that Mr. Fernandez and Mr. Salvatore were “biased” due to their close relationship with

Patricia, and she gave their testimony “little weight.” She did, however, find credible Stephen’s

testimony about his father’s intent to recover the properties. Moreover, the trial justice accepted

the testimony of Ms. Patchis, and she found that Mr. Voccola did not sign the WSI waiver. She

gave little weight to Paul and Stephen’s testimony that the signatures on the waivers were their

father’s due to the “divisive nature of the relationship of the siblings,” Paul’s economic interest,

as a real estate broker, in Patricia’s success in the case, and Stephen’s lawsuit against Barbara




                                               - 11 -
and Edward. Additionally, the trial justice did not find Dr. Seifer’s testimony to be credible,

stating that he reached a conclusion on the validity of the signature before he prepared his report.

The trial justice then proceeded to conduct her own analysis of the signatures at issue to

determine their authenticity, and she concluded that they were not Mr. Voccola’s signatures.

Accordingly, she declared the deeds transferring Mr. Voccola’s properties from CCI, CVR, and

WSI to Red Fox to be null and void.

       The trial justice also found that Patricia, as President of CCI, CVR, and WSI, breached

her fiduciary duties by engaging in self-dealing when she transferred the properties at issue to

her own company for no consideration. It was then her further ruling that the omission of

exhibits (i.e., Exhibit A) to the waivers, which exhibits purported to describe the properties in

question, rendered her unable to determine what transactions, if any, were allegedly approved at

the purported May 29, 2007 meeting.

       In the next section of her analysis, the trial justice rejected Patricia’s argument that the

conveyance of the properties was a gift, finding no credible evidence that Mr. Voccola possessed

a donative intent or that a delivery of the properties took place. In concluding that there was no

donative intent the trial justice pointed to: (1) the fact that Mr. Voccola did not sign the waivers;

(2) his attempts to sue Patricia to force her to return the properties; and (3) the intent manifest in

his later estate plan (i.e., the 2008 will that Patricia read into the record at trial), which excluded

Patricia from any inheritance. Lastly, with respect to Patricia’s counterclaim, the trial justice

found Patricia’s testimony credible and stated that she had established “damages in the amount

of $82,000, plus statutory interest, for a debt owed her from [Mr. Voccola].”

       The plaintiffs filed a motion for reconsideration with respect to the decision on the

counterclaim, which the trial justice denied following a February 22, 2013 hearing.              Final




                                                - 12 -
judgment entered on March 12, 2013. The defendants then filed a timely notice of appeal on

March 29, 2013. Subsequently, defendants’ motion for a new trial was denied following an

April 12, 2013 hearing. The plaintiffs then filed their cross-appeal three days after the hearing.

                                                    II

                                         Standard of Review

        The following quotation aptly describes the nature of our deferential review of the factual

findings of a trial justice sitting without a jury in a civil case:

                        “It is well established that the factual findings of a trial
                justice sitting without a jury are accorded great weight and will not
                be disturbed unless the record shows that the findings clearly are
                wrong or the trial justice overlooked or misconceived material
                evidence. * * * If, as we review the record, it becomes clear to us
                that the record indicates that competent evidence supports the trial
                justice’s findings, we shall not substitute our view of the evidence
                for [that of the trial justice] even though a contrary conclusion
                could have been reached.” Wellington Condominium Association
                v. Wellington Cove Condominium Association, 68 A.3d 594, 599
                (R.I. 2013) (emphasis added) (internal quotation marks omitted);
                see Banville v. Brennan, 84 A.3d 424, 429-30 (R.I. 2014);
                D’Ellena v. Town of East Greenwich, 21 A.3d 389, 391 (R.I.
                2011); B.S. International Ltd. v. JMAM, LLC, 13 A.3d 1057, 1062
                (R.I. 2011).

Moreover, “[i]t is self-evident that a trial justice sitting without a jury must often make

credibility determinations in order to arrive at the necessary findings of fact.” B.S. International

Ltd., 13 A.3d at 1062; see also D’Ellena, 21 A.3d at 391-92. We “accord a substantial amount of

deference to [the trial justice’s credibility] determinations, due to the fact that [he or she] has

actually observed the human drama that is part and parcel of every trial and * * * has had an

opportunity to appraise witness demeanor and to take into account other realities that cannot be

grasped from a reading of a cold record.” Banville, 84 A.3d at 430 (internal quotation marks

omitted); see D’Ellena, 21 A.3d at 392; B.S. International Ltd., 13 A.3d at 1062.




                                                  - 13 -
        We also apply a deferential standard of review to mixed questions of law and fact, “as

well as the inferences and conclusions drawn from the testimony and evidence.” Banville, 84

A.3d at 430. However, we review questions of law de novo. Progressive Northern Insurance

Co. v. Lyden, 986 A.2d 231, 233 (R.I. 2010); see Castelli v. Carcieri, 961 A.2d 277, 280 (R.I.

2008). In addition, this Court “is free to affirm on grounds other than those relied on by the trial

justice.”   Progressive Northern Insurance Co., 986 A.2d at 233 (internal quotation marks

omitted).

                                                 III

                                              Analysis

                                                  A

                The Validity of the Waivers and the Transfer of the Properties

        The first issue which this Court is tasked with determining in this appeal is the validity of

the waivers and, based on that determination, the validity of the transfer of the properties owned

by CCI, CVR, and WSI to Red Fox. The defendants devote much of their appellate argument to

the issue of the genuineness or lack of genuineness of the signatures of Mr. Voccola on the

waivers. However, after a thorough review of the parties’ arguments, the record in this case, and

the exemplary decision of the trial justice, it is our conclusion that we need not even address the

genuineness vel non of the signatures in order to review the trial justice’s decision concerning

the waivers and the transfer of the properties.7 The trial justice clearly stated in her decision that

the transfer of properties at issue, which transfer was executed in exchange for Patricia’s

7
         Although we need not delve into the specific arguments raised on appeal with respect to
the trial justice’s determination that Mr. Voccola’s signatures on the waivers were not genuine in
order to determine the validity of the waivers and the transfer of the properties, the genuineness
of the signatures does become relevant to our analysis of whether or not Mr. Voccola gifted the
properties to Patricia. As such, some of the arguments raised by defendants on appeal with
respect to the signatures will be briefly discussed in Part III.B, infra.


                                                - 14 -
agreement to release the mortgages on the properties, was done without consideration due to the

fact that Patricia had already agreed to release the same mortgages in the Settlement Agreement.

We are in agreement with that determination; and, in our judgment, the lack of consideration

renders the warranty deeds authorizing the transfer of the properties at issue null and void.

       It is a well-established principle that a valid contract requires “competent parties, subject

matter, a legal consideration, mutuality of agreement, and mutuality of obligation.” DeLuca v.

City of Cranston, 22 A.3d 382, 384 (R.I. 2011) (mem.) (emphasis in original) (internal quotation

marks omitted); see DeAngelis v. DeAngelis, 923 A.2d 1274, 1279 (R.I. 2007). With respect to

the requirement of consideration specifically, we have stated that consideration “consists of some

legal right acquired by the promisor in consideration of his promise, or forborne by the promisee

in consideration of such promise.” DeLuca, 22 A.3d at 384 (quoting DeAngelis, 923 A.2d at

1279); see Darcey v. Darcey, 29 R.I. 384, 388, 71 A. 595, 597 (1909); see also Hayes v.

Plantations Steel Co., 438 A.2d 1091, 1094 (R.I. 1982) (“In this jurisdiction, consideration

consists either in some right, interest, or benefit accruing to one party or some forbearance,

detriment, or responsibility given, suffered, or undertaken by the other.”).        In determining

whether there is sufficient consideration to support a finding that a contract has been formed,

“we employ the bargained-for exchange test; that test provides that something is bargained for,

and therefore constitutes consideration, ‘if it is sought by the promisor in exchange for his

promise and is given by the promisee in exchange for that promise.’” DeAngelis, 923 A.2d at

1279 (quoting Filippi v. Filippi, 818 A.2d 608, 624 (R.I. 2003)); see also DeLuca, 22 A.3d at

384.

       In this case, assuming without deciding that the waivers were signed by Mr. Voccola,

Patricia bargained for the transfer of the properties to Red Fox and Mr. Voccola bargained for




                                               - 15 -
the release of the mortgages on the properties held by Patricia. Each promise induced the other

promise. However, the Settlement Agreement provides as follows: “[Patricia, Stephen, Paul, and

Barbara] agree forthwith upon the signing of this agreement to discharge and/or release all

mortgages and promissory notes which reference [Mr. Voccola], Jere Realty, Inc., Lakeview

Realty, Inc., [CCI, WSI, and/or CVR].” Based upon the clear and unambiguous language of the

Settlement Agreement, Patricia was obligated to release the mortgages she held on the property.

See Rivera v. Gagnon, 847 A.2d 280, 284 (R.I. 2004) (“If the contract terms are clear and

unambiguous, judicial construction is at an end for the terms will be applied as written.”). Due

to the fact that the Settlement Agreement predated the signing of the waivers, it necessarily

follows that, at the time of the signing of the waivers, Patricia was already obligated to release

the mortgages. Therefore, the consideration she promised to Mr. Voccola, which induced his

promise to transfer the properties, was nonexistent because it was something which she was

already under a contractual obligation to carry out.

       It is a basic principle of contract law that “[a] promise to carry out a preexisting

contractual obligation owed to the promisee, or the performance of such a contractual duty,

generally is not sufficient consideration; in such a case, the obligor is doing no more than he or

she was already obliged to do and, thus, has sustained no detriment, nor has the other party to the

contract obtained any benefit.” 17 C.J.S. Contracts § 153 at 535 (2011). Thus, “when a party

performs an obligation owed under a preexisting contract, the law ordinarily will regard a

demand by that party for additional benefits as void for lack of consideration.” Id. That is

precisely the situation with which we are presented—Patricia was essentially seeking additional

benefits in the form of the transfer of the properties in exchange for the same promise that she

had made in the Settlement Agreement. As such, the signing of the waivers in the instant case




                                               - 16 -
was not accompanied by the legal consideration necessary to make those waivers binding

contracts. See DeLuca, 22 A.3d at 384. Accordingly, the trial justice did not err in holding that

the three warranty deeds transferring the properties at issue were null and void.

        The defendants contend that the waivers were supported by adequate consideration

because Patricia was “not bound” by the Settlement Agreement. They aver that Patricia was not

a party to the 2005 lawsuit and that, therefore, there was no consideration for her signing of the

Settlement Agreement. However, defendants fail to recognize that, although the Settlement

Agreement resolved the issues involved in the 2005 litigation and resulted in its dismissal, the

fact that Patricia was not a party to that action does not mean she did not have an interest in the

resolution of that action as a shareholder in Redbrook. The Settlement Agreement resolved

conflicts among Stephen, Barbara, and Mr. Voccola that were directly related to and directly

affected Redbrook. Patricia was a shareholder of Redbrook. As such, she had an interest in the

resolution of the 2005 suit. Thus, it is clear to us that the Settlement Agreement was a valid and

enforceable contract made with adequate consideration. See id.

        In conclusion, it is our judgment that the three warranty deeds at issue were null and void

due to the lack of consideration for the signing of the waivers. Accordingly, we perceive no

error in the trial justice’s decision in that regard.8




8
         The defendants additionally contend on appeal that the trial justice committed error in
declaring that the waivers were legally ineffective because the exhibits describing the properties
(i.e., Exhibit A) were missing. The defendants aver that the omission of the exhibits was a “mere
‘scrivener’s error.’” Due to the fact that we find the waivers and, thus, the conveyance of the
properties to be void as lacking in consideration we need not address the effect of the missing
exhibits. See Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009) (referencing
this Court’s “usual policy of not opining with respect to issues about which we need not opine”).


                                                  - 17 -
                                                 B

                                                Gift

       The defendants also contend that the trial justice erred when she determined that the

transfer of Mr. Voccola’s properties was not a gift to Patricia. They fault the trial justice for

looking to Mr. Voccola’s actions after the supposed signing of the waivers because they contend

that what was at issue was his present intent at the time of the alleged gift. They further aver that

the trial justice did not give adequate consideration to the evidence which reflected that Mr.

Voccola had stated several times before the signing of the waivers that he was going to give

Patricia all of his properties. Lastly, they claim that, due to the fact that this was a transfer of

property from a father to a child for no consideration, it was presumptively a gift.

       We begin our analysis by reviewing our well-settled jurisprudence with respect to what

constitutes a gift. There are two elements which are required for a valid inter vivos gift. See

Notarantonio v. Notarantonio, 941 A.2d 138, 150 (R.I. 2008). Those elements are: “‘a present

true donative intent’” and “‘some manifestation such as an actual or symbolic delivery of the

subject of the gift so as to completely divest the donor of dominion and control of it.’”

Dellagrotta v. Dellagrotta, 873 A.2d 101, 110 (R.I. 2005) (quoting Black v. Wiesner, 112 R.I.

261, 267, 308 A.2d 511, 515 (1973)); see also Silva v. Fitzpatrick, 913 A.2d 1060, 1063 (R.I.

2007); Ruffel v. Ruffel, 900 A.2d 1178, 1189 (R.I. 2006). It has been our consistent holding as

follows:

                “[A] claimant has the burden of establishing a gift inter vivos by
               clear and satisfactory evidence. * * * He must establish by such
               degree of proof that the donor intended * * * to divest himself of
               the exclusive ownership and control over the subject matter of the
               alleged gift and to vest such ownership and control jointly in the
               claimant. In other words, such gift must be fully executed and go
               into immediate and present effect.” Wyatt v. Moran, 81 R.I. 399,
               403, 103 A.2d 801, 803 (1954); see Slepkow v. Robinson, 113 R.I.



                                               - 18 -
               550, 553, 324 A.2d 321, 324 (1974); see also Tabor v. Tabor, 73
               R.I. 491, 493, 57 A.2d 735, 736 (1948); Weber v. Harkins, 65 R.I.
               53, 59, 13 A.2d 380, 382 (1940).

       We note that “[t]he requirement of donative intent is the essence of a gift.” Restatement

(Third) Property § 6.1 cmt. b. at 5 (2003). In cases where donative intent is at issue, it is a

factual question to be resolved by the trier of fact. Mitchell v. Mitchell, 756 A.2d 179, 183 (R.I.

2000); see also Gim v. Jan Chin, Inc., 117 R.I. 39, 43, 362 A.2d 143, 146 (1976) (stating that

“[w]hether [the party at issue] had the donative intent necessary to create a gift is a question of

fact”). Donative intent “may be expressed in words, actions, or a combination thereof and may

be inferred from the surrounding facts and circumstances, including the relationship of the

parties * * *.” 38 Am. Jur. 2d Gifts § 16 at 773 (2010). While a gift does require a present

donative intent, we are in agreement with other jurisdictions that “[w]here the intention to make

a gift is not clearly manifested, subsequent acts may aid in clarifying that intention.” Ferer v.

Aaron Ferer & Sons Co., 732 N.W.2d 667, 674 (Neb. 2007); see In re Chapple’s Estate, 2 A.2d

719, 721 (Pa. 1938); see also 38A C.J.S. Gifts § 16 at 203 (2008).

       The defendants posit that the trial justice’s decision that the transfer of properties was not

a gift was improperly “based exclusively on her own examination of the CCI and CVR waiver

signatures, [Ms.] Patchis’ deposition testimony on the WSI waiver signature, and the trial

justice’s findings about the Decedents’;s [sic] words and actions that took place more than a year

after he gave the properties to [Patricia].” (Emphasis in original.) Upon a thorough review of

the record and the trial justice’s comprehensive decision, we simply cannot agree that the trial

justice erred in her determination that the transfer of the properties was not a gift or that she erred

in the facts which she chose to consider in making that determination. She definitively stated




                                                - 19 -
that defendants had “failed to establish by clear and satisfactory evidence either a present

donative intent or delivery of the subject of the gift.” We are in agreement.

       The defendants correctly observe that we have endorsed the principle that the law

presumes a gift when the conveyance is from a parent to a child provided there is no “clear and

convincing evidence to the contrary.” Romano v. Romano, 99 R.I. 33, 38, 205 A.2d 583, 586

(1964). However, we note initially that the transaction at issue in this case does not bear the

hallmarks of a gift from a parent to a child. The transaction at issue was a conveyance from

three corporations to one corporation in return for what, if Mr. Voccola did in fact sign the

waivers, he must have believed was adequate consideration (although we have now determined it

was not). Indeed, the title of the waivers indicates the nature of the transaction: “Waivers of

Notice of Minutes of a Special Joint Meetings [sic] of the Stockholders and Board of Directors of

[CCI, CVR, and WSI] respectively.” We note as well that the size of the conveyance—nearly

two million dollars worth of property—and the fact that the purported transfer, surprisingly,

came very soon after Mr. Voccola had spent several years on the 2005 litigation in an attempt to

regain control of one of his properties that was then owned by Redbrook. Moreover, after a

review of the record in the instant case, it is our judgment that the evidence in this case is such

that it appears that any presumption of a gift which may have existed was effectively rebutted.

       Indeed, the testimony suggesting that Mr. Voccola did sign the waivers, which would

have supported a determination of donative intent, was found by the trial justice not to be

credible. She specifically said that she did not find credible the testimony of Paul and Stephen to

the effect that it was their father’s signature on the waivers. Additionally, the trial justice gave

“little weight” to the testimony of Mr. Salvatore and Mr. Fernandez due to their close

relationships with Patricia. We accord her credibility determinations and any inferences or




                                               - 20 -
conclusions which she drew from them substantial deference. See Banville, 84 A.3d at 430. We

acknowledge that there was testimony that Mr. Voccola had told Patricia in the past that he

would give her all of his properties. However, due to the fact that, if Mr. Voccola signed the

waivers, he clearly did so believing that there was adequate consideration (which is not

characteristic of a gift) coupled with the fact that there was disagreement as to whether or not

Mr. Voccola actually signed the waivers, we simply cannot say that Mr. Voccola’s donative

intent was clearly manifested at the time he purportedly signed the waivers in the instant case.

See Ferer, 732 N.W.2d at 674. As such, we see no error on the part of the trial justice in looking

to acts taken by Mr. Voccola after he purportedly signed the waivers in determining whether or

not defendants had met their burden of proving that the transfer was an inter vivos gift. See id.

       When the post-conveyance acts of Mr. Voccola are considered, it becomes clearer to us

that the trial justice correctly concluded that the conveyance of the properties at issue was not a

gift. Stephen testified that Mr. Voccola asked him to sue Patricia to get the properties back.

Barbara testified that Mr. Voccola only found out from Paul that Patricia had transferred his

properties and that Mr. Voccola asked Patricia to “give him back all of his property.” Edward

testified that his father told him that he never signed the WSI waiver. What is more, Mr.

Voccola’s 2008 will and later codicil excluded Patricia from any inheritance unless she returned

the properties at issue. Moreover, we find it relevant that no gift tax return was filed by Patricia

or Red Fox with respect to the conveyance of the properties at issue.9




9
        We recognize that we have stated that the existence of a gift tax return is not “conclusive
evidence that a gift has been made.” Gervais v. Gervais, 688 A.2d 1303, 1306 (R.I. 1997)
(internal quotation marks omitted). However, “[w]e read th[at] statement simply to mean that
gift-tax returns should be considered but are not to be treated as a final litmus test.” Id.



                                               - 21 -
        In addition to all of the just-referenced facts that we consider to be reflective of a lack of

donative intent, we note that the trial justice found that Mr. Voccola did not in fact sign the

waivers, negating any argument that the properties were transferred in accordance with Mr.

Voccola’s donative intent.      We decline any invitation by defendants to second-guess the

credibility determinations of the trial justice with respect to the two handwriting experts

presented at trial. See Banville, 84 A.3d at 430. It is clear to us that her determinations were

supported by the testimony elicited at trial. We also find no error in the trial justice’s using her

own analysis of the signatures with respect to the WSI waiver as one of several reasons why she

found the signatures not to be genuine.10

        Donative intent is an issue of fact. See Mitchell, 756 A.2d at 183. We give such

determinations by a trial justice great weight; and, as the many just-discussed facts indicate, there

was a more than ample factual basis on which the trial justice could have based her

determination that Mr. Voccola was not executing an inter vivos gift when he purportedly signed

the waivers and the properties at issue were ultimately transferred.                See Wellington

Condominium Association, 68 A.3d at 599.11 Accordingly, we perceive no error on the part of

the trial justice in her ruling rejecting defendants’ gift-related contentions.



10
        We deem it important to note that defendants’ contentions on appeal with respect to the
validity of Mr. Voccola’s signatures include a contention that the presumption of validity of the
signatures was never rebutted with respect to the CVR and CCI waivers and that it was
inappropriate for the trial justice to rely on her own analysis of the signatures on the CVR and
CCI waivers since her determination was the only evidence that those signatures were not
genuine. However, we need not address these contentions further because the validity of the
signatures is only one factor affecting the gift analysis; and, in our judgment, there are ample
factors, quite apart from the question of the genuineness of the signatures on the CVR and CCI
waivers, indicating that the conveyance of the properties at issue was not a gift.
11
       We deem it prudent to address one further issue raised by defendants on appeal. The
defendants aver that the trial justice committed error in refusing to admit into evidence testimony
by Dr. Seifer with respect to the validity of Mr. Voccola’s signatures on the CCI and CVR


                                                 - 22 -
                                                 C

                                     Patricia’s Counterclaim

       On appeal, plaintiffs contend that the trial justice erred when she awarded Patricia

$82,000 on her counterclaim. They aver that it was not clear whether the allegations in the

counterclaim encompassed monies paid by Patricia in relation to Mr. Voccola’s criminal fines.

Moreover, they posit that the Settlement Agreement resolved any claims with respect to the

$82,000 Patricia paid on Mr. Voccola’s behalf.

       The trial justice, in ruling on the counterclaim, stated that Patricia “testified credibly that

she took out a mortgage on her house to pay for some of [Mr. Voccola’s] criminal fines.” The

trial justice also noted that there was corroborating testimony from Stephen that Patricia paid Mr.

Tosoni approximately $80,000. We afford substantial deference to the trial justice’s credibility

determinations. See Banville, 84 A.3d at 430. We note as well that the mortgage deed from Mr.

Voccola to Mr. Tosoni and the Assignment of Mortgage from Mr. Tosoni to Patricia were

entered as exhibits at trial and tended to further buttress Patricia’s credibility as to this issue.

Moreover, after reviewing and pondering over the plaintiffs’ contentions on appeal, we are

unable to say that the trial justice lacked competent evidence to support her conclusion with

respect to the counterclaim. See Wellington Condominium Association, 68 A.3d at 599 (“If, as

we review the record, it becomes clear to us that the record indicates that competent evidence



waivers. In this case, defendants failed to comply with Rule 33(c) of the Superior Court Rules of
Civil Procedure when they failed to update their answers to interrogatories so as to state that Dr.
Seifer would be testifying with respect to all of the waivers, and not simply the WSI waiver. We
do not detect any abuse of discretion by the trial justice in refusing to admit the testimony as a
result. See International Depository, Inc. v. State, 603 A.2d 1119, 1124 (R.I. 1992) (“The
decision to impose a particular sanction [for a violation of Rule 33] is within the sound discretion
of the trial court.”). Moreover, even if there had been error, it would not have affected our
ultimate conclusions that the deeds were void for lack of consideration and that the conveyance
of the properties was not a gift.


                                               - 23 -
supports the trial justice’s findings, we shall not substitute our view of the evidence for [that of

the trial justice] even though a contrary conclusion could have been reached.”) (internal

quotation marks omitted). Accordingly, while readily acknowledging that reasonable minds

could differ as to this issue, we shall not substitute our judgment for that of the trial justice.

                                                  IV

                                             Conclusion

        For the reasons set forth in this opinion, we affirm the judgment of the Superior Court in

all respects. We remand the record to that tribunal.




                                                 - 24 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Barbara A. Voccola and Edward R. Voccola, in their capacities as
                      Co-Executors of the Estate of Edward E. Voccola v. Patricia A.
                      Forte et al.

CASE NO:              No. 2013-216-Appeal.
                      (PC 08-1467)
                      No. 2013-217-Appeal.
                      (PC 08-6628)
                      No. 2013-220-Appeal.
                      (PC 08-1467)

COURT:                Supreme Court

DATE OPINION FILED: June 13, 2016

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Sarah Taft-Carter

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Lauren E. Jones, Esq.
                                      Robert S. Thurston, Esq.

                      For Defendants: Barry J. Kusinitz, Esq.
                                      Michael J. Kiselica, Esq.
