 May 30, 2017




                                                   Supreme Court

  Mark Quillen                   :                 No. 2016-76-Appeal.
                                                   (PC 13-5808)
        v.                       :

  Mary Macera.                   :




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

                 Mark Quillen                    :                  No. 2016-76-Appeal.
                                                                    (PC 13-5808)
                       v.                        :

                 Mary Macera.                    :


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

                                         OPINION

       Chief Justice Suttell, for the Court. Mark Quillen (plaintiff) appeals from a Superior

Court judgment in favor of Mary Macera (defendant), the beneficiary of an Amica Insurance

Company (Amica) annuity policy created by Domenic Zubiago (Mr. Zubiago), the plaintiff’s

great-uncle and the defendant’s brother. This case came before the Supreme Court pursuant to

an order directing the parties to appear and show cause why the issues raised in this appeal

should not be summarily decided. After considering the parties’ written and oral submissions

and reviewing the record, we conclude that cause has not been shown and that this case may be

decided without further briefing or argument. For the reasons set forth in this opinion, we affirm

the judgment of the Superior Court.

                                                I

                                 Facts and Procedural History

       Among other assets accumulated during his twenty-five-year career with the Providence

Police Department and subsequent twenty-five years as a security officer for Blue Cross/Blue

Shield of Rhode Island, Mr. Zubiago owned two Amica annuity policies. At the time of his

death, one account was valued at approximately $360,000 and the other at $20,000; only the

larger account is the subject of this appeal. The two annuities were opened approximately a


                                               -1-
decade apart and each named Mr. Zubiago’s sister, Emelia, as the primary beneficiary. After

Emelia’s death in 2002, Mr. Zubiago executed two change-of-beneficiary forms naming

defendant, his younger sister, as the beneficiary of both policies.

       The plaintiff is Mr. Zubiago’s grandnephew. He testified at the nonjury trial that, in May

2004, he received a telephone call from Mr. Zubiago requesting plaintiff’s personal information

because Mr. Zubiago “was going to put [plaintiff’s] name on an account * * *.” Approximately

five or six months later, according to plaintiff, he learned that he had been named beneficiary of

the two annuities.

       Donald Zubiago, Mr. Zubiago’s nephew, also testified. 1 He stated that, in early 2008, his

uncle called him and said, “I screwed up.          I left [plaintiff] too much money.”    Donald

recommended that his uncle see a lawyer. He also testified that Mr. Zubiago later told him that

he had taken care of it.

       Two Amica employees testified about Mr. Zubiago’s request for beneficiary-change

forms in September 2009. Maria Shurick said that she received a telephone call from defendant,

whom she mistakenly identified on a call sheet as “Mary Zubiago,” requesting beneficiary forms

for both policies. The request was for forms in which the name of the intended beneficiary is left

blank, as opposed to forms in which the name of the new beneficiary is preprinted by Amica.

Sarah Driscoll testified that several days later she received a telephone call from Mr. Zubiago in

which he authorized her to speak with his sister, Mary, because he had a speech impediment.

       The defendant testified that she did not remember any telephone conversations with

Amica representatives in which she requested beneficiary-change forms for her brother’s annuity

policies. She did state that she would sometimes initiate telephone calls for Mr. Zubiago because

1
  We shall refer to Donald Zubiago by his first name to avoid confusion; no disrespect is
intended.
                                                -2-
of his speech impediment, but that she would give the telephone to him and then leave the room,

never listening to his conversations. The defendant further testified that, after he received the

appropriate forms, Mr. Zubiago asked her to fill in her name, address, and social security number

on them. She was adamant, however, that she did not read the forms other than, perhaps, the top

line, which said “Amica.” Both forms were subsequently signed by Mr. Zubiago, witnessed, and

recorded with Amica.

       On April 29, 2013, Mr. Zubiago died testate, leaving defendant as the sole beneficiary of

the two Amica annuity policies. Shortly thereafter, plaintiff contacted Amica to notify it of Mr.

Zubiago’s passing and was informed that he was not listed as a beneficiary of the annuities. On

the day after Mr. Zubiago’s funeral, plaintiff confronted defendant; and, on November 14, 2013,

he filed a complaint against her alleging forgery, fraud, manipulation, false pretenses, and

misrepresentation. The plaintiff also alleged a lack of intent on the part of Mr. Zubiago.

       A trial was held before a Superior Court justice sitting without a jury in January 2015.

On the third day of trial, plaintiff filed, without objection by defendant, an amended complaint

alleging that the beneficiary-change forms were executed by Mr. Zubiago through mistake or

inadvertence. The trial justice filed a written decision on February 2, 2015; and, on February 4,

2015, final judgment entered in favor of defendant. Subsequently, the trial justice heard and

denied plaintiff’s motion for a new trial, and plaintiff timely appealed.

                                                 II

                                       Standard of Review

       “[I]t is well settled that [t]his Court will not disturb the findings of a trial justice sitting

without a jury unless such findings are clearly erroneous or unless the trial justice misconceived

or overlooked material evidence * * *.” Gregoire v. Baird Properties, LLC., 138 A.3d 182, 191


                                                -3-
(R.I. 2016) (quoting South County Post & Beam, Inc. v. McMahon, 116 A.3d 204, 210 (R.I.

2015)). “On review, [w]e accord great weight to a trial justice’s determinations of credibility,

which, inherently, are the functions of the trial court and not the functions of the appellate court.”

Id. (quoting South County Post & Beam, Inc., 116 A.3d at 210). “When ‘the record indicates

that competent evidence supports the trial justice’s findings, we shall not substitute our view of

the evidence for his [or hers] even though a contrary conclusion could have been reached.’” Id.

(quoting South County Post & Beam, Inc., 116 A.3d at 210). “We will, however, review

questions of law de novo.” Id. at 192 (quoting South County Post & Beam, Inc., 116 A.3d at

210).

        “[W]e accord great weight to a trial justice’s decision on a motion for a new trial.”

Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island, 996 A.2d

684, 695 (R.I. 2010) (quoting Oliveira v. Jacobson, 846 A.2d 822, 826 (R.I. 2004)). “A trial

justice acts as a ‘superjuror’ when ruling on such a motion.” Id. (quoting Franco v. Latina, 840

A.2d 1110, 1111 (R.I. 2004)). “In this role, ‘the trial justice should review the evidence and

exercise his or her independent judgment in passing upon the weight of the evidence and the

credibility of the witnesses.’” Id. (quoting Franco, 840 A.2d at 1111). “We will not overturn a

trial justice’s decision in this regard ‘unless the trial justice overlooked or misconceived the

evidence or otherwise was clearly wrong.’” Id. (quoting Franco, 840 A.2d at 1112).




                                                -4-
                                                 III

                                             Discussion

                                                  A

                                        Application of Law

       The plaintiff first argues that the trial justice misconstrued his theory of the case and

thereby erred by applying the wrong law to the evidence. The plaintiff contends that the trial

justice erroneously focused on the issue of undue influence and failed to consider that Mr.

Zubiago made a mistake due to a lack of testamentary intent. The plaintiff, as did the trial

justice, cites to Illinois State Trust Co. v. Conaty, 104 F. Supp. 729, 733 (D. R.I. 1952), for the

proposition that the validity of a testamentary gift “is not affected by a mistake unless fraud or

undue influence was perpetrated upon the testator or the mistake involves a want of testamentary

intent.” The plaintiff asserts that he presented no evidence pertaining to undue influence, but

that he “proffered material evidence proving [Mr. Zubiago] lacked the testamentary intent to

eliminate [p]laintiff from receiving at least a portion of the [a]nnuity.” On appeal, he suggests

that Mr. Zubiago “may have thought he was adding [defendant] as a second name on the

[a]nnuity, not eliminating [p]laintiff as beneficiary.”

       We first note that changing a beneficiary designation in an annuity policy is a matter of

contract and does not ordinarily implicate issues relating to the construction of wills. Secondly,

we observe that plaintiff’s original complaint alleged fraud “by trick or device by * * *

defendant,” manipulation, forgery, misrepresentation, and false pretenses.        Although he did

allege “mistake and or inadvertence” in an amended complaint, filed on the third day of trial, he

never abandoned his original claims; rather, he incorporated them by reference.




                                                 -5-
        More significantly, we are satisfied that the trial justice considered, yet rejected, the

possibility that Mr. Zubiago had changed the beneficiary of his annuities by mistake or

inadvertence. The trial justice concluded that “[t]here was simply no evidence put forth at trial

that would explain [Mr. Zubiago’s] change of heart. What is clear, however, is that Mr. Zubiago

was very deliberate in planning his estate and in changing the beneficiary designations on the

two annuity contracts at issue.” The trial justice referenced the evidence that Mr. Zubiago had

sought out by himself the two individuals who would witness the change-of-beneficiary forms,

that he personally spoke to Amica before executing the forms, that he did not involve defendant

in his estate planning, and that he told his nephew, Donald, that he had “screwed up” by giving

plaintiff too much money. We afford deference to the factual findings of a trial justice sitting

without a jury. Pelletier v. Laureanno, 46 A.3d 28, 35 (R.I. 2012). Here, we perceive no cause to

disturb the trial justice’s finding that “the evidence overwhelmingly demonstrates that Mr.

Zubiago was an independent, hard-working, and kind-hearted man, who acted with great

deliberation in planning his estate.” We conclude therefore that plaintiff’s claim fails from a lack

of proof, rather than from the trial justice’s misapplication of the law to the evidence.

                                                   B

                               Consideration of Material Evidence

        The plaintiff next argues that the trial justice erred in overlooking and misconceiving

material evidence pertaining to one of the beneficiary-change forms. The plaintiff asserts that

the trial justice erroneously referred, in his decision, to the beneficiary-change form as a

“preprinted” annuity form on which the name of the beneficiary had been printed by Amica,

when in fact the name of the intended beneficiary was blank on the forms sent by Amica. The

plaintiff contends that this fact is crucial as it contributes to the totality of the circumstances that

prove that Mr. Zubiago lacked the testamentary intent to disinherit plaintiff. The plaintiff
                                                 -6-
explains that, had the form been preprinted with defendant’s name and information, it would be

clear that Mr. Zubiago intended the annuity to go to defendant alone. However, because the

form was blank, plaintiff asserts, it tends to indicate mistake on the part of Mr. Zubiago to

disinherit plaintiff.

        At a hearing on plaintiff’s motion to clarify, the trial justice conceded that he had

mischaracterized the forms as preprinted but stated that it did “not materially or otherwise

change [the] court’s view of the facts[.]” Thereafter, at the hearing on plaintiff’s motion for a

new trial, the trial justice further explained that the question of whether the forms were

preprinted or blank was not dispositive. He noted that Mr. Zubiago lived for another three years

after he removed plaintiff as the beneficiary, yet he made no attempt to restore his grandnephew

as a beneficiary of the annuities or otherwise provide for him in any way. Moreover, the trial

justice indicated that Mr. Zubiago “continued to confide and trust his sister with his finances.”

Here, the trial justice acknowledged his mistake and emphatically declared that it did not alter his

ultimate conclusion. We discern no reason to vacate the judgment.

                                                 C

                                          Judicial Notice

        Also, plaintiff argues that the trial justice erred in failing to take judicial notice of the

findings made by another Superior Court justice after a hearing on plaintiff’s request for a

preliminary injunction. 2

        Significantly, plaintiff contends that the following statement by the hearing justice

remains the law of the case:




2
  We shall refer to the justice who presided over the preliminary injunction hearing as the hearing
justice.
                                                -7-
                 “clearly a prima facie case has been established, that at least there
                 has been a mistake or there is an issue as to what prompted a
                 change of beneficiary forms where both parties to this action have
                 testified that it was the intention of Mr. Zubiago to leave monies to
                 * * * [plaintiff].”

Further, plaintiff argues that, because defendant “failed to produce evidence to rebut the prima

facie evidence that indeed there was a mistake,” the “prima facie evidence should have

prevailed.”

          “The law of the case doctrine [provides] that, ‘after a judge has decided an interlocutory

matter in a pending suit, a second judge, confronted at a later stage of the suit with the same

question in the identical manner, should refrain from disturbing the first ruling.’” Chavers v.

Fleet Bank (RI), N.A., 844 A.2d 666, 677 (R.I. 2004) (quoting Paolella v. Radiologic Leasing

Associates, 769 A.2d 596, 599 (R.I. 2001)). The purpose of the doctrine is to ensure “the

stability of decisions and avoid[] unseemly contests between judges that could result in a loss of

public confidence in the judiciary.” Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676,

683 (R.I. 1999). We have noted, however, that it “is a flexible rule that may be disregarded

when a subsequent ruling can be based on an expanded record.” Berman v. Sitrin, 101 A.3d

1251, 1262 (R.I. 2014) (quoting Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I.

2009)).

          In this case, we agree with the trial justice that it would have been inappropriate for him

to apply the law-of-the-case doctrine to the factual findings made by the hearing justice at the

hearing for a preliminary injunction. Not only did the trial justice have an expanded record

before him, but the issues involved in the two proceedings were markedly different such that it

cannot be said that the trial justice was presented with the same question in an identical manner.

The trial justice was addressing the ultimate merits of plaintiff’s claims, whereas the hearing


                                                 -8-
justice was tasked with determining whether to issue a preliminary injunction preventing

defendant from distributing funds in the annuity accounts. Significantly, the hearing justice did

not purport to decide the merits, stating rather, “[w]hat transpired is an issue that needs to be left

to discovery and a decision on the merits.”

       To the extent that plaintiff predicates his argument on the Rules of Evidence concerning

judicial notice, he fares no better. Rule 201(b) of the Rhode Island Rules of Evidence states:

“[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Although this Court has recognized that a court may take judicial notice of court records, “we

have said that judicial notice should ‘only apply to those aspects of a court record that cannot be

reasonably disputed.’” Curreri v. Saint, 126 A.3d 482, 486 (R.I. 2015) (quoting In re Michael A.,

552 A.2d 368, 370 (R.I. 1989)). “These would include judgments previously entered by the

court that have the effect of res adjudicata * * * pleadings or answers to interrogatories by a

party, which pleading or answer might constitute an admission (whether or not superseded by a

later pleading or answer) * * *.” Id. (quoting In re Michael A., 552 A.2d at 370).

       For the reasons stated above in our discussion of the law-of-the-case doctrine, we are of

the opinion that the trial justice did not err in refusing to take judicial notice of the factual

findings made by the hearing justice at the hearing on the preliminary injunction. As noted, the

hearing justice did not make an express determination as to who would prevail, because that was

not the issue before the court. Moreover, the trial justice made his findings after more discovery

had been conducted and a more complete record was before the court.




                                                -9-
                                                  D

                                         Burden of Proof

       Additionally, plaintiff asserts in his supplemental statement that the burden of proof

should have shifted to defendant to prove absence of mistake because defendant and Mr.

Zubiago had a “confidential relationship.” 3 Although Mr. Zubiago clearly trusted and confided

in defendant, there is no evidence that he relied on her advice in his financial affairs. Indeed,

defendant testified that he was “very quiet about his things,” never discussed his estate planning

with her, nor had he told her what accounts he had.

       Also, the cases cited by plaintiff do not support his assertion. For instance, in Huebel,

this Court determined that the grantee’s failure to testify warranted an unfavorable inference

where the gift of the entire estate went to a nonrelative at the exclusion of any benefit under the

will to the testatrix’s niece, who was also the testatrix’s sole heir and next of kin, and “who was

dependent for her support on [the] testatrix.” Huebel v. Baldwin, 45 R.I. 40, 44, 119 A. 639, 641

(1923). This Court explained that the exclusion of the testatrix’s niece was also “inconsistent

with the expressed intention of the testatrix” and determined that “the nature of the will [wa]s so

unusual and * * * indicative of such a departure from what appear[ed] to be the real, complete,

and present intention of the testatrix, that one instinctively seeks for an explanation * * *.” Id. at

45, 119 A. at 641. Here, however, there is no evidence of any unusual circumstance tending to

indicate that defendant should bear the burden of proving why decedent named her as



3
  To support his assertion, plaintiff cites: Passarelli v. Passarelli, 94 R.I. 157, 161-62, 179 A.2d
330, 332-33 (1962) (relationship between illiterate, aged mother and son was not fiduciary in
character); McDonough v. McDonough, 88 R.I. 243, 248-49, 146 A.2d 234, 238 (1958) (parent
and child relationship, alone, is insufficient to relieve complainant from burden of proving fraud,
duress, or overreaching); Earle v. Chace, 12 R.I. 374, 379 (1879) (grantee has burden when
holding confidential relationship to grantor); and Huebel v. Baldwin, 45 R.I. 40, 119 A. 639
(1923).
                                                - 10 -
beneficiary. Therefore, we find no error on the part of the Superior Court in refusing to shift the

burden of proof.

                                                   E

                                    Credibility Determination

       Finally, the plaintiff asserts in his supplemental statement that the trial justice erred in

finding that the defendant was “[f]orthright and [c]redible.” The plaintiff’s citation of a quote by

John Adams 4 and a list of facts and testimony by the defendant, which the plaintiff contends are

conflicting, do not sway this Court to ignore the clear credibility determination of the Superior

Court and replace it with our own. Our review of the record does not persuade us that the trial

justice was clearly wrong or that he misconceived or overlooked material evidence. See

Gregoire, 138 A.3d at 191. Accordingly, we cannot say that the trial justice erred in finding that

the defendant was “[f]orthright and [c]redible.”

                                                   IV

                                            Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court and remand

the papers thereto.




4
 The quotation cited by plaintiff is: “Facts are stubborn things; and whatever may be our wishes,
our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”
John Barlett, Familiar Quotations 337 (16th ed. Kaplan 1992). The quotation is attributed to
John Adams during his successful defense of British soldiers who fired upon a crowd at the
Boston Massacre.
                                                - 11 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Mark Quillen v. Mary Macera.
                                     No. 2016-76-Appeal.
Case Number
                                     (PC 13-5808)
Date Opinion Filed                   May 30, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Daniel A. Procaccini
                                     For Plaintiff:

                                     Gregory J. Acciardo, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Paul A. Anderson, Esq.




SU-CMS-02A (revised June 2016)
