#88, Drano Series
Where Did Justice Go?
(Case #2, An Estate Owed the Elderly Caregiver)The decision in this old case is so badly reasoned that I cannot help think it was just an example of how far the court will go to retaliate because I'm fighting JUDICIAL IMMUNITY.
This page consists of four pleadings filed in the two appellate courts -- the intermediate appellate court and the highest one in Massachusetts -- and, of course, the Appeals court decision. We shall have to wait for the decisions on the Rule 27 and 27.1 pleadings.
1. The plaintiff's appellate brief . . . which tells her story.
2. The plaintiff's appellate reply brief . . . which responds to the defendant's appellate brief (which I have not scanned in because of its length). From plaintiff's reply, you'll be able to understand what the defendant's lawyer wrote.
3. The Appeals Court decision ("unpublished," a type of decision that is not supposed to be cited as legal authority in other cases), which denied both the plaintinff's and my claims.
4. Plaintiff's letter to the Massachusetts Appeals Court pursuant to Rule 27 of the Massachusetts Rules of Appellate Procedure. (Highly unusual. Do not use this unless you are willing to be a sacrificial lamb.) If you want to a rehearing, follow the instructions in Rule 27.
5. Plaintiff's pleading filed with the Massachusetts Supreme Judicial Court pursuant to Rule 27.1 of the Massachusetts Rules of Appellate Procedure. (Highly unusual. Not at all in the form to be used for this rule. Do not use this one unless you are willing to be a sacrificial lamb.) If you want further appellate review, follow the instructions in Rule 27.1.
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT______________________________________________
MIDDLESEX, SS.
CASE NO. 2001-P-0136 ______________________________________________
ANNEMARIE ABEND
Plaintiff/Appellantv.
ESTATE OF FREDERICK J. MYERSON, et al
Defendants/Appellees__________________________________________________
On Appeal from Judgments and Orders of
Middlesex Superior Court
Docket No. 90-3137__________________________________________________
BRIEF OF ANNEMARIE ABEND
PLAINTIFF/APPELLANT______________________________________________
STATEMENT OF THE ISSUES 1. Where the jury found that Myerson promised or contracted with Abend to compensate her for services she provided to him during his lifetime [Answer 2], and that Myerson breached the promise/contract by not providing compensation for Abend before or after his death [Answer 3], and then awarded only $210,000 in quantum meruit,FN1 the damages were inadequate or unduly slim.
1All but $25,000 of the $210,000 was setoff, in accordance with an answer by the court to a question from the jury and over objection by Abend, by a $100,000 bequest and a condominium which was never held by the estate. [A107, II:66-69, A107, II:68, text of unsigned receipt and release prepared by Co-executor Garb, Exh. 21, A107, II:66. The trial court's answer to the jury's questions about the condo and the bequest A381, VII:20] The $100,000 arose out of a compromise of the heirs and filed in a Florida court [A116, II:102, summary by trial judge of evidence regarding the compromise].a. Whether the appropriate measure of the amount Abend needed to support herself for the rest of her life was by computing her annual need until her death by using a life-expectancy table or by a percentage of the net estate, a value set by the promisor (Hastoupis, infra): 2. Whether the damages were merely inadequate, making additur appropriate, or unduly slim, making a new trial appropriate.
i. a life-expectancy table to determine payment (a) as of the date of the promise, (b) as of the date of Myerson's death, February 1988, (c) as of the date judgment entered, 22 July 1999,ii. percentage of (a) the gross estate or (b) the net estate,
b. Inexplicability of jury's determination of damages.3. Where the judge had allowed Abend's Motion for Directed Verdict on the counterclaim seeking the return of the bequest and the condominium and then allowed the jury to set off the award with the $100,000 and the alleged value of the condominium, the setoff was reversible error.
4. Where the jury found that Abend had been compensated for services rendered to John after his father's death, but that there no evidence whatever that payment had been made by the estate for those services, the jury's verdict on the second count of quantum meruit was reversible error. Similarly, using the condominium which was never in the estate as payment for Abend's services to John as well as those to Fred Myerson was also reversible error.
STATEMENT OF THE CASE
The action arises out of Frederick Myerson's promise to or oral contract with Annemarie Abend that in exchange for taking care of him for the rest of his life, he would give Abend enough money to allow her to continue living comfortably in the United States until the end of her life and to have health insurance on a par with the health insurance he had for himself [A70, I:134-135, 137; A109, II:76, A111-113, II:81-90; A118, II:110].FN2 The promise was not to put her in his will but to pay her while he was still alive [A100, II:40, A102, II:45-48].
2 Pages in the two-volume Appendix appear as A000. The trial transcript is comprised of volumes I through VII and with their pages, they will appear as Vol:page.When Myerson's health worsened, he sought a promise from her that after he died, she would take care of his son John. Fred himself set an approximate dollar value on the services Abend rendered and to be rendered to him during his lifetime to be 15 percent of the value of his estate [A100, II:39-40, A153, III:33-34].Although not paid by Myerson during his life-time as promised for the services she rendered him, Abend performed fully on both promises until she sued the estate for failure to pay her for those services. She did, however, receive two items after his death: (1) a $100,000 bequest as a result of a compromise of the will by Myerson's heirs and approved by the Florida court which was probating the estate [A107, II:66-70] and (2) a condominium which, having been held jointly by Myerson and his son John, had passed to John by operation of law at his father's death and which John subsequently deeded to Abend [A107, II:63]. [See A105, II:57].
At the end of trial, the defendants did not oppose Abend's Motion for a Directed Verdict on their counterclaim for unjust enrichment, in which they sought the return of the bequest and the condominium, and the judge allowed the motion [A310, Vol. V:168; compare with A108, II:72, where the trial judge would not let Abend testify to the monies she had to put into the condominium to make it livable].FN3
3 The condominium was purchased for $50,000 [A150, III:23].The jury found:(a) that Abend did not agree to and accept from the Estate of Frederick J. Myerson $100,000 and a condominium-townhouse as full compensation for all claims she may have had against the estate [Answer 1], and then awarded only $210,000, of which all but $25,000 was setoff by the $100,000 bequest and the condominium, which was never held by the estate. [A105, II:57]. It also appears that the condominium was used twice as a setoff: not only to reduce payment by the estate for services rendered to Frederick Myerson during his lifetime (Answer 4), but also to reduce payment by the estate for services rendered to Myerson's son after Myerson's death (Answers 6 and 7).(b) that Myerson promised or contracted with Abend to compensate her for services she provided to him during his lifetime [Answer 2],
(c) that Myerson breached the promise/contract by not providing compensation for Abend before or after his death [Answer 3],
(d) that Myerson promised or contracted with Abend to compensate her for services to be rendered for the benefit of his son, John Myerson, after Frederick Myerson's death [Answer 5],
PRIOR PROCEEDINGS
This action was entered into the docket as MICV-90-3137. It was delayed quite a few years while Abend was adjudicated a known or reasonably ascertainable creditor of the Estate of Frederick Myerson, which was being probated in Florida.FN4 When she prevailed in Florida, the action was able to continue in Middlesex County. The pretrial proceedings were otherwise unremarkable. The trial occurred in Spring 1998, Justice Allan vanGestel presiding.
4The defendant co-executors here appealed the probate court decision there.The court allowed Abend's Motion for Directed Verdict on defendants' counterclaim for unjust enrichment, in which defendants sought both the return of the $100,000 bequest or gift by compromise of the heirsFN5 and the return of the condominium deeded to Abend by Frederick Myerson's son John [A310, V:168].5 Details described in detail below.The jury was given special questions [A4]. The trial judge wrote a Memorandum and Order [A8]. Final judgment entered [A11a].In answering a question received from the jury during deliberation, Judge vanGestel, over Abend's objection, allowed the jury to subtract the $100,000 bequest/gift and $85,000, the alleged valueFN6 of the condominium [A246, IV:169], from the award of $210,000 to Abend [A381, VII:13-15; A381, VII:18].
6 "We ended up valuing [the condo] at eighty-five thousand dollars," Garb testified [A246, IV:169]. The condominium was purchased for $50,000 [A150, III:23].Abend filed PLAINTIFF'S RULE 59(a) MOTION FOR ADDITUR OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL ON THE ISSUE OF DAMAGES, which she incorporates herein by reference [A12]. Defendants opposed [A20]. Abend replied [A28]; she incorporates herein that reply by reference. The trial judge denied Abend's motion [A3].STATEMENT OF THE FACTS
Plaintiff Annemarie Abend ["Abend"], age 66 at time of trial, was engaged by, and rendered extensive home care, nursing, and domestic services to the late Frederick J. Myerson ["Myerson"], a long-time resident of Greenfield, Massachusetts.FN7
7 Abend gave Myerson round the clock service for seven days a week for almost five years: changing bloody bandages [A179, V:41; A281, V:51]; giving him insulin shots; helping him to walk again [A100, II:40]; helping him with toilet functions when he was incontinent whether day or night, in bed and out [A92-93, II:8-9]; giving him intravenous [A92, II:8]; tailoring all his suits [A68-69, I:128-129]; catering to his special diet [A69, I:130]; performing all household chores, all shopping [A93, II:10]; renovating his three homes, which included tiling floors in the kitchen, foyer, leading into the living room [A293, V:98], painting.She gave up a business opportunity in Texas to take care of Myerson [A62, I:101-108; A123-124, II:132-136; A154, III:40], who was under guarded medical care due to diabetes,FN8 ulcers, urinary tract problems, bleeding open footsores [A98, II:30], melanoma [A97, II:28], cancer, several operations, heart and urinary problems and failing health from 16 January 1983 [A62, I:104; Exh.4], to 28 February 1988, when he died [A131, II: 162; III:95 (date of death)].None of the afore-mentioned facts are in dispute and all were put into evidence by Abend and Jennie Strauss as well as by Myerson himself through his letter to the United States Immigration and Naturalization Service [A96-97, II:22-27].
Jennie Strauss's testimony is in Volume V, pp. 24-99. The court reporter failed to put her name in the witness list on the index page of the volume. Simon Volinsky's name was also left of the index page witness list of Volume III of the trial transcript. His testimony is on pages 104-153 of that volume.
8 The references to Myerson's illnesses are many and are throughout the transcripts, for they were the reason for Abend's care of Myerson. Exhibits 8-12 are medical documents, Exhibit 11 being a discharge summary describing Myerson's medical condition A64-66, I:109-118].Abend testified that the promise to take care of her for the rest of her life was made originally in 1983 and repeated thereafter [A1, Answer 1]. Abend also testified to a conversation on the beach in 1984 regarding the trust [A100, II:37].Plaintiff has included, at the end of each day's transcript, the alphabetical INDEX of the day's testimony. The literally many, many dozens of references to illnesses throughout the volumes may be found there.
None of the facts relating to Abend's care of Myerson for these illnesses is in dispute.
During January 1986, Myerson told his brother-in-law Simon Volinsky that he'd "probably be dead if not for Annemarie" [A173, III:114].
In Florida in early February 1987, Abend happened to drive over to Sylvia Schultz's house to visit. Once there, she got into conversation with Louis Schultz, Sylvia's husband. Abend recounted what a difficult patient Fred was sometimes. She left, believing that Frederick Myerson would never do anything for her, particularly give her the money he owed for her services [A99-100, II:35-37].
Upset, she drove back to Myerson's condo and confronted him about his "not keeping his promises" and "taking advantage" of her [A100, II:37].
"You promised me all those years to taking care of me. You never did anything. And I don't believe you. You are the one who takes the most advantage of me, working for you day and night, and you promised me years ago and you never did anything" [A100, II:37].
Myerson then promised, "You'll get Bradley's money." [A100, II:38].
She said, "You can't disinherit your own flesh and blood." [A100, II:38].
"Don't worry," he said. "He doesn't care. You will see when I come to Greenfield, that I do what I promised you." [A100, II:38].
Frustrated and upset, Abend drove to the home of Jennie Strauss ["Jennie"], who was a friend of some 40 years of Myerson and his deceased wife and who had befriended Abend after Abend came to the States to attend to Myerson's needs in 1983 [A100, II:38].
Myerson called Jennie's home to learn Annemarie Abend's whereabouts, whereupon Jennie and Myerson had a protracted telephone call, which Jennie iterated in some detail [A100, II:38]. In that phone conversation with Myerson, she asked him, "Do you know what a treasure you have here?"
Myerson said "Yes" [Appendix Volume II, A280, V:46].
Jennie then asked, "What did you do for her?" [A280, V:46.]
Myerson replied, "She [Annemarie] doesn't have to worry for the rest of her life" [A280, V:47; A283-284, V:60-61].
"He said it to me again in Florida one time webn she had just gotten through taking care of his foot" [A280, V:47].
Another time, when Annemarie went to Jennie's home "hysterical [A282, V:56], Myerson told Jennie, "`I told you I was going to take care of her.' . . . He promised her. I know he promised her" [A283, V:57; also V:61].
"There isn't enough money in the world to compensate this girl for what she did for this man," Jennie added [A285, V:67 (twice)]. She also testified that she thought the $100,000 [the bequest] which Annemarie received was "paltry" [A289, V:81] and "was not in accordance with what he promised her." Id.
"[W]hen she told me about the one hundred thousand dollars, I thought it was on the thrifty side. The man was a multi-millionaire" [A289, V:83]. "After all, you tell someone that you're going to take care of somebody for the rest of their life. So, she is working now" [A289, V:82-83]. "[I]f it were enough, she wouldn't be working at a job" [A289, V:83].
When Jennie was asked, "[D]id Abend ever give Fred Myerson her own money for him to invest on her behalf?" she answered, "Yes, but I don't know how much" [A292, V:95-96].
After about an hour or two at Jennie's residence, Abend returned to Myerson's condo at Boca Raton, Florida, where he was bedridden, confronted him, and told him that she was quitting and returning to Germany as he had not made any of the arrangements he promised to make for her [A100, II:39, A153, III:33-34].
It was then that he told her that he would give her 15 percent of his estate if she would stay on and care for him until he died [A100, II:39-40; [A102, II:48].
Abend was pleased because Myerson was at last telling her how much she could expect to receive. He had always said he would give her enough money to live off of for the remainder of her life, but he had never committed to an exact dollar figure. At this time, she expected that his estate would be valued at somewhere around $6 million dollars.FN9
9 On Form 706, the gross value of Myerson's estate was purported to be $4,524,001 [Appendix vol. 2[ A231, IV:112].Abend remained with him and in reliance on his promise, continued to render extensive home care, nursing, and domestic services [Appendix Volume II: A207, IV:14-15].In July or August 1987, Abend went to Germany because she had health insurance coverage there: she needed both an operation on a polyp and jaw and dental care A101, II:41]. She also picked up her Green Card in Germany [A146, III:8]. Upon returning to the States on 4 September 1987, she entered as an official immigrant [A100-101, II:40-41; A146, III:8].
At that juncture, she wanted proof that he was going to start putting some of the money from her share of the estate into either a trust or money for her [A100, II:37]. However, before she even made her way to Massachusetts, her social security card, the receipt for the money she had given Myerson around 1983, when she first came to take care of him [A127, II:147-148; Exh. 21, release and receipt; A63, I:106; A68, I:126; A101, II:43; A119-120, II:116, 119], so that he could invest it for her in stocks, her driver's license, and about $60 were stolen on the bus. Fortunately she was wearing a money belt, otherwise she wouldn't have been able to pay the busfare. [A101, II:41-43].
Later that evening at the kitchen table, they were talking about how she was robbed and he said, "I have to give you the $50,000 I owe you from your investment" [A101, II:44].
In September 1987, because Myerson was enjoying himself in Bourne on the Cape, he postponed his appointment with Attorney Richard Corbert, whom he had contacted to make provisions for Abend's compensation [A102, II:45].
On 30 September 1987, Corbert wrote Myerson and attached drafts of a codicil and Third Amendment to the Frederick J. Myerson Revocable Trust [A164, III:78-79; A165, III:82A]; A168, III:93]]; [A228-229, IV:99-101]. In the Third Amendment was the statement that John Myerson was to get 65 percent of the estate and Bradley Myerson, 35 percent A239-240, IV:144-146]. In retrospect, it appeared that Myerson had hatched a plan to pay Abend.
Although Myerson was feeling well enough physically at that time to sign the documents sent to him by Attorney Corbert, Myerson failed to do so. It is unknown why he did not do so.
Notwithstanding that mystery, October was the month Abend drove him to his accountant's office [A102, II:45]. After helping Myerson into the office, she was told to wait in a sitting room. Id. In a while, a secretary came out and asked her to come in. Fred asked her which house did she want. She told him the condo on the Cape. [A102, II:46].
After Myerson and Abend got back to the car, she began crying. Fred asked, "Why are you crying? I just started giving you your money." She looked at him and he added, "I just gave you a quarter-million dollars" [A102, II:48].
Then one evening after Abend and Myerson had been to the accountant's office, Fred and John Myerson and she were sitting around the dining table [A104, II:55]. Fred said to his son, "I make you a rich man, but you have to take care for Anne-marie." Id. "Your word is your honor. . . ." Id.
John said, "I will." Id.
During dinner, Fred said he'd also be giving John R&M, which was the auto parts business (a chain of at least five or maybe six stores) owned by Fred and his partner Raymond Roberts [A69, I:129, A122, II:126, A162, III:71].
Although at trial, Brad Myerson, the other son, did not admit discussing with his father the 65-35% split [A162, III:70-71], he did admit discussing "that certain interests that [he] would have received under the will in [his] father's business would be given to John" [A162, III:71]. "And he asked me to promise that I would do that, and I promised him that I would. And I did do that and gave up my interest in those businesses" [A162, III:71]. "John was supposed to get a hundred percent of the auto dealership." Id.
Frederick Myerson later repeatedly informed those who were close to him in her presence that Abend didn't have to worry as he would gift her enough money to live comfortably, without working, in the States for the rest of her life [A120, II:120].
As Myerson's health declined, extensive round-the-clock homecare and assistance was provided for him by Abend. [Abend incorporates herein by reference Myerson's medical records.] During November 1987, Frederick Myerson was rushed to the hospital in Greenfield, Massachusetts [A103, II:49-50]. Myerson went again into the hospital in December 1987 [A103, II:52] and January 1988 [A103, II:51].
On or around 8 February 1988, he entered University Hospital. The Sunday before he died, Myerson asked to see both Garb and a lawyer [A103-104, II:52-53]. Garb arrived, but a lawyer never came. Id. On 28 February 1988, Frederick J. Myerson died without having either given or gifted life-time support provisions which he had promised Annemarie Abend and upon which she relied to her detriment [A103, II:51].
On 5 March 1988, but a week after Myerson died, believing that a lawyer had managed to visit Myerson and that Myerson had signed his new codicil and trust amendment, Garb called Simon Volinsky [A236, IV:129; A242-43, IV:156-57]. Thinking that Volinsky was the new co-executor, Defendant Garb, who became executor upon Myerson's death in 1988, told Volinsky that Myerson told him he wanted to take care of Abend for life and to have sufficient money to continue living here in this country for the rest of her life [A177, III:131-132].FN10 "[A] hundred thousand dollars was not enough what Fred Myersoon promised me for the rest of my life to live" [A152, III:32].
10 Abend contends that when Garb learned that Myerson had not signed, Garb realized that he had made a big mistake by calling Volinsky and telling him what Myerson's wishes were regarding Abend. Garb also realized he had to give something to Abend. The question became, How to do it?At trial, Garb evaded either admitting or denying the conversation [A235, IV:126-127, A243, IV:157], but Volinsky, who was Myerson's brother-in-law, i.e., brother of Myerson's deceased wife, had no motive to lie.The unsigned codicil gifting $100,000 to Abend gave him the idea. At trial, Garb and Bradley Myerson testified that the heirs compromised the will and that Abend was at the meeting when they did that [A159, III:59. Abend denied being at the meeting. [A110, II:80; A151, III:26-27]. She learned about the meeting from John Myerson [A110, II:80-81]. And it appears the jury did not believe Garb and Bradley.
Ultimately, Garb did not honor Myerson's wishes in the unsigned codicil and the Third Amendment to the Frederick J. Myerson Revocable Trust. One of those unhonored wishes being the appointment of Volinsky as co-executor with Sylvia Schultz [A237, IV:136].
And after Myerson was gone, Abend did stay and take care of John and the house . . . until she found him a bride [A106, II:62-65; A113, II:91-92]. Before Abend moved out of the Greenfield house in May 1990, the bride-to-be moved into the house [A106, II:64] and Abend served them both and the wedding was planned for, and did take place, in August 1990 [A113, II:91]. Abend was the maid of honor [A113, II:91]. No one was invited from the Myerson side of the family except Simon Volinsky, who attended and later gave a deposition on Abend's behalf in this case [A170-183, III:104-153; Volinsky's contemporaneously handwritten notes, Exhs. 30-35, III:123].
Although Myerson petitioned the United States Immigration & Naturalization Service, Boston, Massachusetts, to allow Abend lawful entry to this country with authority to work for him A96, II:22], he never paid her any salary [A98, II:29]. Additionally, he never paid any employment taxes or social security for the Plaintiff [A98, II:29; A111, II:84]]FN11 and repeatedly promised and reminded her that if she would stay in the United States and care for him until his death, she would never have to work again in her life as he would see to it that she was fully provided for [A62-63, I:104-105. He also told her that he had already arranged health-care insurance and thus she need not worry [A111, II:84].
11 Abend's intend expert would have testified to the amount of social security Myerson should have contributed to Abend's account.At no time did Abend release Myerson or his estate for the promised benefits to take care of her for life so that she need not seek employment elsewhere for her support [A107, II:107].Four months later and two months after the claim period in probate court had elapsed [A 233-34, IV:120-21], Joseph Garb ["Garb"] sent Abend a blank release, which she never signed because she still had not received the full promised benefits and did not want to sign the release until the promised benefits were fully established, provided, and paid [A107, II:68].
Another vital promise of Myerson's had been to provide Abend with health insurance [A111, II:84]. During his life, in 1986, after Abend had returned to Europe to tend to her own medical problems and in order to keep her from returning so that she could get insured medical treatment. He enrolled Abend in the health plan at his car dealership, Raymond S. Roberts, Inc. [A242, IV:153], and he himself personally handled the insurance matters for Abend. After his death, Joseph Garb sold the dealership, so Abend was no longer covered [A242, IV:153]. Garb switched Abend's health insurance coverage to R&M, Myerson's chain of auto-parts stores Id. Another problem arose when Garb learned he he could not get Abend coverage in a company where she didn't work. So Garb adopted Myerson's idea and held Annemarie out as Myerson's wife [A112, II:86-91 (sidebar)].FN12
12 The court reporter omitted Exhibits 20-25 from the exhibit list of Volume II. They included a letter dated 12/22/88 from Garb to Abend [Exh. 20, A107, II:66]; unsigned release and receipt [Exh. 21, A107, II:66]; am estimate of insurance from Myerson's sister Claire [Exh. 22, A111, II:81-82]; a letter from Abend to Garb regarding health insurance [Exh. 23, A111, II:83]. Other documents questioned on were a letter from car dealership re Abend's insurance, an enrolment card showing Abend deemed "clerical worker" [A241, IV:153]; Garb's 1/8/90 letter to John Myerson re Abend's insurance problem, a letter dated a day later "giving" Abend Cobra coverage, a claim form with certification.Abend had learned that she was being held out as Myerson's spouse after she received papers from R&M which showed she was eligible for Cobra: she called the person in charge of insurance at R&M and the woman explained to her that she was entitled to the Cobra insurance because she was Myerson's spouse. Abend, then, did not return the papers to R&M because she feared having to sign papers based on her being Myerson's spouse: Each time Abend would have made a claim she would have been perpetrating a fraud on the insurance company [A112, II:87-90. A conspiracy to commit insurance fraud was Garb's solution. While the insurance company would have been the victim of Garb's fraudulent scheme, so also would Abend have been. Garb was putting her at risk for civil and criminal liability. Hence, the claim for common law fraud, on which the trial judge allowed Defendants' Motion for Directed Verdict [A309, V:164; Abend's offer of proof is at A115-116, II:100-105.FN1313 The argument Abend gave on A116, II:102 relies on Massachusetts law for common law fraud, not Florida law as the trial judge ruled. Abend set out in her proposed jury instructions, the law and supporting authorities on common law fraud.The trial judge sustained the objection to allowing Abend to say that Myerson get her covered through one of his companies' health insurance plans by falsifying that she was his wife [A112, II:87-88; A121, II:124].When that did not work, Garb told her to pay for health insurance with the interest from the $100,000.00 [A118, II:110-111]. Then she said: "Joe Garb, do you really think that a hundred thousand dollars is enough; that's not what Fred Myerson promised me. And after that, I wrote a letter, and I never hearing anything from Joe Garb" [A118, II:111].
Despite Fred's wishes that she need not ever work again, Abend had to continue working at physically difficult work (taking care of the elderly sick and inform) although she herself had not been well and physically capable of continuing the strenuous physical work [A115, II:98-99].
She also had not been able to afford to live in the condominium she was given by John and had to rent it out [A157, III:51-52]. She had to renovate the condominium in order to rent it out [A156, III:46] but because the trial judge improperly excluded the evidence [A156, III:46-49, with the judge's rationale at 49], the jury did not hear that she had to spend $34,000 to put it into compliance with Housing Authority requirementsFN14
14 If the Abend's upgrading of the Bourne condominium was inadmissible testimony, the conveying of the property from John Myerson to Abend should have been inadmissible and certainly the setting off of the jury's verdict by the alleged value of that conveyance should not hb been allowed.
ARGUMENTS1. Where the jury found that Myerson promised or contracted with Abend to compensate her for services she provided to him during his life-time [Answer 2], and that Myerson breached the promise/contract by not providing compensation for Abend before or after his death [Answer 3], and then awarded only $210,000 in quantum meruit, the damages were inadequate or unduly slim.
The promise. In exchange for taking care of him for the rest of his life, Myerson promise Abend enough money to allow her to continue living comfortably in the Uni-ted States until the end of her life and to have health insurance on a par with his. The promise was not to put her in his will but to pay her while he was still alive.
When Fred's health worsened, he asked her also to take care of his son John after his, Fred's, death. It was around that time that Fred put an approximate dollar value on Abend's services: approximately 15 percent of his estate.
While the questions on liability were clear,FN15 the questions on damages were not . . . and they did not request the jurors to identify the "formula" or method used to calculate the damages awarded.
15 The jury found (a) that Myerson promised or contracted with Abend to compensate her for services she provided to him during his lifetime [Answer 2] and (b) that he had breached the promise/contract by not providing compensation for her work before or after his death [Answer 3]..Abend contends that whatever they did is inexplicable [see discussion below on inexplicability], for their award to her would not meet her lifetime needs, even if computed only from her age of 66 at trial, 10 years after Fred's death.From all the evidence, the jurors could have chosen any one of a number of formulae or methods under a theory of quantum meruit using either the (a) life-expectancy table to determine payment (i) as of the date of the promise, (ii) as of the date of Myerson's death, February 1988, (iii) as of the date judgment entered, 22 July 1999, or (b) as a percentage of (i) the gross estate or (ii) the net estate.
If the calculations are not appropriate given the evidence, then the court must have to assume that "the damages, for the most part, [were] incapable of computation, but depend[ed] upon the judgment of the fact-finding tribunal in appraising suffering and deprivation and translating them into a compensatory sum." Bartley v. Phillips, 317 Mass. 35, 40 (1944), citing Worster v. Proprietors of the Canal Bridge, 16 Pick. 541, 547 and Treanor v. Donahoe, 9 Cush. 228, 229, 230.
The award of $210,000, of which all but $25,000 was setoff, in accordance with answer by the court to a jury question and to which Abend objected, by a $100,000 bequest (arising out of a compromise of the heirs and filed in a Florida court) and a condominium which was never held by the estate, is reversible error.FN16
16 Abend's testimony about renovating the condominium in order to rent it out was improperly excluded [A156, III:46-49, with the judge's rationale at 49], so the jury did not hear that she had to spend $34,000 to put it into compliance with Housing Authority requirements [A381, VII:17-18, Abend's objection to answer to jury question re bequest and condominium].In fact, it appears that the condominium was used twice as a setoff: not only when answering Question 4 [A9], but also when answering Question 6. [A5].FN17 The NO answer to Question 6 implies that the jury allowed John Myerson to pay the estate's debt -- as if Gimbels would pay Macy's debts -- to Abend for the services under the agreement acknowledged in Question 5. Abend wanted to poll the jury about this issue, but was precluded from doing so by the judge. She objected [A385, VII:36].If the Abend's upgrading of the Bourne condominium was inadmissible testimony, the conveying of the property from John Myerson to Abend should have been inadmissible and certainly the setting off of the jury's verdict by the alleged value of that conveyance should not have been allowed.
17Question 1: Did Annemarie Abend agree to accept from the Estate of Frederick J. Myerson $100,000 and a condominium-townhouse in Bourne, Massachusetts, as full cmpsaj for all claims she may have had against the estate? ANSWER: NO.Question 2: Did Frederick J. Myerson promise or contract with Annemarie Abend to compensate her for services she provided to him during his lifetime? ANSWER: YES.
Question 3: Did Frederick J. Myerson breach the promise/contract by not providing compensation for Annemarie Abend before his death? ANSWER: YES.
Question 4: What amount of money will fairly compensate Annemarie Abend for the fair value of the services she rendered to Frederick Myerson? ANSWER: $210,000 - 100,000 - 85,000 + 25,000 = 25,000.
Question 5: Did Frederick J. Myerson promise or contract with Annemarie Abend to compensate her for services to be rendered for the benefit of his son, John Myerson, after Frederick Myerson's death? ANSWER: YES.
Question 6: Did Frederick J. Myerson breach the promise/contract by not providing compensation for Annemarie Abend after his death? ANSWER: NO.
Question 7: What amount of money will fairly compensate Annemarie Abend for the fair value of the services she rendered to John Myerson? NO ANSWER.
Further, the trial judge continually overlooked that Myerson was to pay Abend during his lifetime for her services being offered at that time [A379, VII: 11-12, one example of many]. The promise was to pay her while he was still alive, and when he failed to begin doing so is what caused her hysteria in 1987, at both Schultz's and Jennie's residences. The broken promise was not a broken promise to put Abend in his will. The Statute of Frauds was INapplicable.Moreover, where the judge allowed Abend's Motion for Directed Verdict on the unjust enrichment claim based on the bequest and the conveyance of the condominium and did not vacate his own ruling, the bequest and the condo should not have been allowed to set off the award.
AND where the bequest and the compromise of the will were allowed in the Florida probate court where the will was being probated, the Massachusetts trial judge acted outside his jurisdiction to alter or vacate the bequest and the compromise of the heirs [A380, VII:13-15, Abend's objection].
Significantly, given that the jury's Answer to Question 1 was NO, to wit, that Abend did not agree to accept the $100,000 bequest and the condominium as full compensation for all claims she had against the estate, they had to be confused to then conclude that $25,000 would allow her to live in the States for the rest of her life.
Clearly, this result signals the existence of defects in the work of the jury, or mistakes by the judge [A12, A12-19; A29-36]. It may be that the jury misunderstood, after hearing the instruction on the Statute of Frauds and Statute of Wills, that they could not award Abend money sufficient to take care of her for life -- despite the promise/contract to take care of her for life [A13; A12-19; A29-36].
To not award Abend sufficient money to live comfortably for the rest of her life in the States was not only contrary to the evidence at trial but was also denying her that to which she was entitled under the law, for she possessed a protected restitutional interest because the decedent was unjustly enriched to that extent. Hastoupis v. Gargas, 9 Mass.App.Ct. 27, 35 (1980).
a. Whether the appropriate measure of the amount Abend needed to support herself for the rest of her life was by computing her annual need until her death by using a life-expectancy table or by a percentage of the net estate, a value set by the promisor (Hastoupis, supra). Once the jury established liability, Abend was entitled to an amount of money sufficient to support her for the rest of her life. The jury was given sufficient evidence to make that determination.Further evidence that the jury agreed that Abend was entitled to payment as promised for the services rendered before and after Myerson's death is the additional $25,000 awarded by the jury [A9-10]. That amount could only have been the $25,000 Abend had to pay Florida attorneys to fight for the right to sue or maintain this suit [A115, II:100-102 (sidebar re common-law fraud and entitlement to award of fees for Florida attorneys].
Abend had also lost, of course, the employer's contribution to her social security for 7-1/2 years, but no amount regarding the social security was put into evidence. Abend's expert economist, who was not allowed to testify, would have testified to the amount of social security which should have been paid to the government. Plaintiff did not object to the exclusion because, ultimately, the social security issue would or should have been subsumed or dwarfed by an award of sufficient money to have enabled Abend to live comfortably in this country for the rest of her life as Myerson had promised her.
The appropriate measure of the amount is calculable in several ways, using one fact from the testimony of Abend and all other facts from documentary evidence admitted as evidence at trial: i.e., Exhibit 46, Life Expectancy Table; Exhibits 47-54, federal and state tax returns and inventories filed in Florida, Vermont, and New Hampshire probate courts. The diverse calculations are set out below.
In the trial court, the defendants wrongly contended that Myerson's oral promise to take care of Abend for life was made invalid by G.L. c. 259, s. 5A. [A22, n. 2, Defs. Brf. at 3, n. 2.] That would be true if there had only been a naked promise to put Abend in his will, if no services had been promised and rendered in exchange for that promise, if there was no evidence of decedent's opinion of value of that performance, or if payment was to made only by will.FN18Hastoupis, supra; Green v. Richmond, 369 Mass. 47 (1975); Slawsby v. Slawsby, 32 Mass.App.Ct. 465, cert. denied 414 Mass. 1102 (1992); Foman v. Davis, 316 F.2d 254 (1963).
18 Abend's motion for leave to amend the Complaint prior to trial to reflect that the promise was also to begin paying her -- if not by putting full payment in a living trust or setting up other investment vehicles -- during Myerson's lifetime was denied. While this fact was only fleetingly mentioned in paragraph 48 ["transferring or bequeathing"] in the original complaint, it was revealed in Abend's answers to interrogatories and at her deposition. Causing the problem originally was Abend's lack of facility in English [A150, III:21], which is why she took English lessons after Myerson's death [A106, II:62-63.)
Here, however, the promise/contract was not void because there was (a) completed performance of services, (b) uncontroverted evidence from both Abend and Jennie Strauss that Myerson had promised to pay Abend during his lifetime while she was taking care of him and for setting up a living trust for her during his lifetime, and (c) evidence that before he died, Myerson told Joseph Garb of his promise to Abend and that Garb told Simon Volensky within a week of Myerson's death of the promise. And the jury found that there was such a promise/contract and that that promise/contract was breached.If the jury had disbelieved Abend regarding the 15 percent, it could have determined the amount which would have been required to take care of Abend for life by using the life expectancy table [Exh. 46] and Abend's testimony that she had determined that $40,000 per year would have been necessary. i. a life-expectancy table to determine payment (a) as of the date of the promise, (b) as of the date of Myerson's death, February 1988, (c) as of the date judgment entered, 22 July 1999; What the jury could not do is change Myerson's promise on which Abend relied: namely, the promise to take care of her for life. And clearly, $210,000 under any standard was and is insufficient to take of her for life.
In retrospect, the jurors do appear to have determined how much money annually Abend needed to live: $40,000, but stopped short of the number of years Abend was likely to live. Abend's testimony on this issue came in undisputed, the life-expectancy table was put into evidence [A241, IV:150] and Defendants chose not to try either by cross-examination of Abend or through an expert witness to controvert its accuracy.
Assuming arguendo that to live as Myerson had promised, Abend would have needed in the past and would need in the future at least $40,000 per year, they could have used Exhibit 46, the life expectancy table.FN19
19 In their brief below, Defendants came to a specious conclusion of law [A25, remainder of note 7], to wit, that G.L. c. 259, s. 5A, also prohibits the use of life expectancy tables. Given both that section 5A merely states that an agreement to make, not make, or revoke a will or other documents related to a will must be in writing, and that section 5A has been extensively interpreted for those cases in which services have been rendered to a promisor-decedent, the assertion that a life-expectancy table is prohibited is almost ribald in that such a proposition is unsupported both by statutory and case law.
(a) Calculation based on payment as of date of promise, 1983: (1) Abend was 50 years of age in 1983, when Myerson made the promise and Abend began rendering services. (2) The life-expectancy table shows that at 50 years of age, a white female could expect to live another 31.7 years. (3) $40,000 times 31.7 years equals $1,268,000.00.(b) Calculation based on payment as of date of Myerson's death, 1988: (1) Abend was 55 years of age in 1988, when Myerson died and Abend had rendered all services she promised to perform prior to Myerson's death. (2) The life-expectancy table shows that at 55 years of age, a white female could expect to live another 27.3 years. (3) $40,000 times 27.3 years equals $1,092,000.00.
(c) Calculation based on date of trial verdict, 20 July 1999: (1) Abend was 66 years of age at time of trial. (2) The life-expectancy Table shows that at 66 years of age, a white female could expect to live another 18.3 years. (3) $40,000 times 18.3 years equals $732,000.00.
Under a quantum meruit theory of recovery, "the fair and reasonable value of [the rendered] services" may be determined by the promisor. Hastoupis, 9 Mass. App.Ct. at 35.
ii. Percentage of the gross or net estate;In this case, the fair and reasonable value of the rendered services was determined by Myerson: in 1987, he set the value of Abend's services at 15 percent of the value of his estate, believing that 15 percent of his estate would have been sufficient to take care of her for the rest of her life in the States. And this evidence was uncontroverted.
While it is true that the only evidence of the promise regarding 15 percent was Abend's testimony, it was presented only as "some evidence" of the value of the promise/contract. A349, VI:95. It was not offered by Abend as a "[p]er se measure." SeeHastoupis, 9 Mass.App.Ct. at 38.
Abend contends the estate was undervalued. [A231, IV:112]. Garb could not identify the name of the appraiser of the real properties owned by Myerson [A218, IV:57, 60, A221, IV:69, A221, IV: 71-72]; could not remember the appraised values [A218, IV: 57ff.; A220, IV: 65; did not conduct business valuation of the business in Bellows Falls [A219, IV:62-64] or of the R&M, a chain of auto-parts stores, [A222, IV:73, or of Raymond S. Roberts, a car dealership of which Myerson was a co-owner A226, IV:92-94]; did not remember which of several method were used to conduct an valuation of the business on the Williams Street property in Brattleboro, Vermont [A221, IV:72; and failed to conduct a business valuation of Central Auto Parts, another business owned by Myerson [A226, IV:90]. No supporting documents were produced to support the values put on the real estate tax forms. The property values were not those of the properties at time of Myerson's death. The total value of real property -- all commercial or commercially zoned -- was alleged to have been $1,749,720.00 [A225, IV:86].
The alleged total value of the stocks, bonds, and other items is 1,452,353.00 [A225, IV:88]. No attempt was made to evaluate the stocks Myerson owned in 1987, prior to his death. Id.
Had the estate not been undervalued for reasons including tax purposes, the 15 percent might have been sufficient.
(a) Calculation using 15 percent of gross estate, $4,884,622: (1) $4,884,622 was the value of the gross estate shown or alleged on Exhibit 50, page 4, Schedule 1, line item 4. [A271, V:12]. (2) $4,884,622 times 0.15 equals $732,693.30.(b) Calculation using 15 percent of net estate, applying deductions specified in Hastoupis, supra: (1) $4,884,622 was the value of the gross estate shown or alleged on Exhibit 50, page 4, Schedule 1, line item 4. [A271, V:12]. (2) Taxes from Schedule K were $451,366. [A231, IV:110]. (3) Mortgages and liens from Schedule K were $5,647. (4) No legacies, devises, or bequests are shown on Schedule K. (5) Administration expenses from Schedule J were shown as $538,038. (6) Amongst the expenses on Schedule J is $180,000 allegedly for Abend's claim. No backup evidence is shown as to how the $180,000 is reached. (7) Net estate, calculated as shown below, was allegedly $4,069,571. (8) Fifteen percent of the net estate as asserted to the Internal Revenue Service was $610,435.65.
$4,884,622.00 Gross estate
-451,366.00 Taxes
-5,647.00 Mortgages and liens
-538,038.00 Administration
180,000.00 Alleged payment to Abend
$4,069,571.00 Net estate as implied by Hastoupis v. Gargas
x 0.15 Multiplication
$610,435.65 Fifteen percent of net estate
Note that in Hastoupis, when determining the value of half of the estate, the remainder, or the net, of the estate was used. It appears, however, that it is not mandatory to use the value of the net/remainder of the estate when computing the value of the percentage. Hastoupis, 9 Mass.App.Ct. at 28, 31. Whether the percentage is to be of the gross or net estate appears, instead, to be an issue of first impression. The only reference to this issue appears to be that in Hastoupis:Hastoupis, 9 Mass.App.Ct. at 35-36. When the unperformed promise is to leave a percentage of the estate, reliable evidence of the estate's value becomes some proof of "the reasonable value of the performance that (the decedent) has received." 5 Corbin, Contracts s. 1113, at 601 (1964). In their brief below, Defendants argued that the life-expectancy calculations are irrelevant in a quantum meruit claim because they "relate to amounts based upon future activity." That misstatement flies in the face of Hastoupis and Green and their progenitors and progeny -- which may explain why Defendants gave no authority for that proposition.
And it is inexplicable that the jury found that Abend did not agree to accept the $100,000 bequest and the condominium as full compensation for all claims she had against the estate [Answer 1] and that there was a promise/contract for services rendered to Myerson before his death [Answer 2] and to John after his father's death [Answer 5], but then failed to award an amount sufficient for Abend to live on for the rest of her life on both the first and second quantum meruit counts.
b. Inexplicability of jury's determination of damages.And it is inexplicable that on the grounds that Abend had already been compensated by the estate for services to John, the jury failed to award any amount on the secondquantum meruit count -- which, of course, led Abend to argue in her motion for a new trial and the subsequent reply that the jurors must have misunderstood the instruction on the Statute of Fraud's section 5A, popularly known and referred to by the court as the Statute of Wills: that they must have thought they could not include $40,000 for each year after Myerson's death.
The jury appears to have arrived at the $210,000 by adding (a) money for four-plus years of services at $40,000 per year before Myerson died and (b) the $25,000 Abend had to pay to Florida attorneys for the fight for the right to sue for her money.
The jury would also have had to arrive at the $210,000 figure before sending to the court Question #1 about subtracting the bequest and the condominium, or Question #2 about the adding of additional money. Only then would it have had the need to ask about subtracting the $185,000 for the bequest and the condo.
In other words, the jury did not reach, as the judge suggested at A9 the $210,000 by adding the $100,000 bequest and $85,000 for the condominium, but by computing the $210,000 first. If the paper on which the jury responded did have the same computation the judge showed on A9, Abend suggests it had to have been written after the jury sent Question #1 to be answered by the court.
That is the reason Abend strongly contends that the jurors must have thought they could not include $40,000 for each year after Myerson's death and such a thought could only have arisen because they misunderstood the Statute of Frauds and/or Statute of Wills instruction.
The condominium also appears to have been wrongly used twice as a setoff. That was as unreasonable and as improper as arguing that duplicative damages are "reasonable and proper."
2. Whether the damages were merely inadequate, making additur appropriate, or unduly slim, making a new trial appropriate.
"[A]dditur is an appropriate remedy when `the verdict is sound except for inadequacy of the amount and the inadequacy is such as to descend to the level of unreasonableness.'" Proctor v. North Shore Community Arts Foundation, 47 Mass.App.Ct. 372, 376 (1999), quoting Freeman v. Wood, 379 Mass. 777, 785 (1980). "`An unduly slim verdict, however, may signal the existence of other defects of the work of the jury,FN20 or mistakes by the judge. In such a case additur would not be appropriate, and a simple new trial would be called for.'" Proctor, supra, quoting Freeman, 379 Mass. at 785-786.
20 It may be that, after hearing the instruction on the Statute of Frauds and Statute of Wills, that the jury misunderstood they could not award Abend money sufficient to take care of her for life -- despite the promise/contract to take care of her for life.
[T]he court [] will justify the giant of a new trial on the ground of excessive or inadequate damages as when the damages are so great ... that it may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice or corruption [citations omitted]. Somewhat similar is the rule laid down for granting a new trial because contrary to the weight of the evidence in general, namely, that the verdict must be "so greatly against the weight of the evidence as to induce in his [the judge's] mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice" ...But the rule may equally well be stated more briefly. The "fundamental test" is "that such motions ought not to be granted unless on a survey of the whole case it appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result." [citations omitted] Barrett v. Bucciarelli, No. 981044, 2000 WL 781855 *1-2, (Mass.Sup.Ct. March 21, 2000) (Fecteau, J.) (granting additur), quoting Bartley v. Phillips, 317 Mass. 35, 41 (1944).Where the ground of the motion is excessive or inadequate damages, it has been said that a new trial should be granted when the amount of damages is "greatly disproportionate to the injury proved."
In cases in which it cannot be said with certainty . . . in which an unduly slim award raised the possibility of other jury misconduct [cite omitted], the proper practice is to order an unconditional new trial on all unresolved issues. See Smith & Zobel, Rules Practice, sec. 59.4, at 445 (1977 & Supp. 1985); 6A Moore's Federal Practice, par. 59.08[7], at 59-204 (1984). VanAlstyne v. Whalen, 20 Mass.App.Ct. 239, 241-242 (1985) (remanded for a new trial on damages), aff'd., 398 Mass. 1004 (1986).Clearly, the jury's award of $210,000 was not only inadequate, and with the $185,000 setoff, it was more than merely unduly slim, it was "greatly disproportionate to the injury proved." Barrett, supra *1-2, quoting Bartley v. Phillips, 317 Mass. at 41.
The award would not fairly compensate Abend for the fair value of the services she rendered to Myerson during his lifetime was also inexplicable, particularly iven (1) that Myerson's promise/contract to take care of Abend by providing her with sufficient money to continue living in the United States comfortably for the rest of her life, (2) that by February 1987, after having received almost four years of services from Abend, Frederick Myerson, the promisor, himself set the value of the services Abend rendered and to be rendered to him during his lifetime to be equal to 15 percent of the value of his estate, and (3) that $210,000 was neither 15 percent of the estate nor sufficient to take care of Abend for life either from the date of the promise, the date of his death, or the date judgment entered.
Thus, it is indisputable that the amount awarded is inadequate to support Abend for life, and the inadequacy descended to the level of unreasonableness, making additur appropriate. Proctor, supra at 376. In fact, it is also undisputable that the verdict was unduly slim, making additur inappropriate and calling for a new trial on the damages. Id.
3. Where the judge had allowed Abend's Motion for Directed Verdict on the counterclaim seeking the return of the bequest and the condominium and then allowed the jury to set off the award with the $100,000 and the alleged value of the condominium, the setoff was reversible error.
The jury found that Annemarie Abend did not agree to and accept from the Estate of Frederick J. Myerson $100,000 and a condominium-townhouse as full compensation for all claims she may have had against the estate [Answer 1].
If not a bequest by will, the $100,000 was a gift by compromise of the heirs and filed in a Florida court. The condominium was never part of the estate. It had been held jointly by Frederick and John Myerson, and therefore passed to John by operation of law at Fred's death.
Because the defendants were seeking in their counterclaim for unjust enrichment the return or the payment for the two items, Abend testified about the condominium. She tried to testify that she could not afford to live in the condominium, given the extremely high cost of electric heat, the condominium fees, and the taxes -- she hadn't after all been paid for 7-1/2 years of work -- but the judge sustained Defendants' objection [A157, III:51-52].
She also attempted to testify to the condition of the condominium when it was deeded to her and the money she had to expend to turn it into a marketable rental property [A108, II:71]. The trial judge, however, sustained an objection by defense counsel and forbade Abend from testifying on this subject [A108, II:71]. Abend made an offer of proof [A108, II:72].FN21
21 On the grounds that Abend owned the condominium, the court allowed in her income from the condo, but would not allow her expenses or her opinion on the value of the condominium [A156-157, III:47-52].The jury then found that Abend did not agree to and accept the $100,000 bequest/gift from Myerson's estate and the condominium, which was never in the estate, as full compensation for all claims she may have had against the estate [Answer 1].Consequently, after the trial judge had directed a verdict on the defendants' counterclaim for the return of those items, it was reversible error for the judge to instruct the jury it could subtract the value of those items.
At the most, the jury may have considered that the conveyance of the Bourne condominium to Abend was payment of services to John Myerson, but (1) John Myerson was not a defendant in this case, (2) the compensation was to be by the estate of Myerson, (3) the condominium was never part of Myerson's estate, and (4) the condominium does not appear on any of the tax forms filed by the estate with the federal or state governments, which impeaches defendants' testimony that the estate entered into a deal with John for the condominium in order to give it to Abend.
If the condominium is allowed to be considered as compensation for services rendered to John after his father's death, then it was error to let the jury's setoff of the condominium against the award to Abend on the first quantum meruit count . . . for the condominium may not and must not be used for duplicative setoffs.
Even were the court to assume arguendo that the condominium was in the estate, it was reversible error not to allow Abend to put in some evidence if not to an appraised value of the condominium, at the very least evidence of the money -- $34,000 -- which she had to put into the condominium (offer of proof at sidebar) so to bring it into a rentable condition and rent it at a profit.\FN22/
22 As in note 6 above, Abend testified that the condo was purchased for $50,000 [A150, III:23] and Garb testified that they "ended up valuing it at eighty-five thousand dollars" [A246, IV:169]In fact, the defendants never had the condominium appraised [A246, IV:169]. Throughout the pretrial pleadings, the defendants assigned fabricated and unsubstantiated alleged values to the condominium. And at trial, there was no evidence that the condominium was appraised or that an $85,000 value had been established by recognized appraisal standards.By the time Joseph Garb testified to an $85,000 value, Abend had already been denied an opportunity to testify what monies she had to expend to make the condominium rentable [A156, III:46-48] and that she could not afford to live in it [A157, III:51-52]. The basis of that denial was that she incurred those expenses after the condominium had been deeded to her.
Again, like the social-security issue, the difference between the unsupported inflated value of the condo and a lower value would have been subsumed by the award had the award been in accordance with Myerson's promise -- enough to take care of Abend comfortably for life here in the States . . . and not so inadequate that it "`descend[ed] to the level of unreasonableness.'" Proctor v. North Shore Community Arts Foundation, 47 Mass.App.Ct. 372, 376 (1999) (describing when additur or a new trial is appropriate), quoting Freeman v. Wood, 379 Mass. 777, 785-786 (1980); Woburn Country Club, Inc. v. Woburn Golf & Ski Authority, 21 Mass.App. Ct. 259, 263 n. 5 (1985) (same).
At all times, of course, Abend believed that the condominium would be a non-issue because it was never in the estate and not the estate's to give, and therefore never had it appraised. Of course, that same reason may also be the reason the defendants did not have the condominium appraised. That the value of the condominium was a non-issue seemed to be true when the court directed a verdict against the Defendants on their counterclaims: unjust enrichment and the defense of release. It only became untrue when the court later allowed the jury to subtract the condominium from the already unduly slim award, which signaled the existence of other defects of the work of the jury [Proctor, 47 Mass.App.Ct. at 376, quoting Freeman, 379 Mass. at 785-786] or of a mistake by the judge.
The condominium appears to have been wrongly used twice as a setoff. That was as unreasonable and as improper as arguing that duplicative damages are "reasonable and proper."
But the conclusion of law is in further error because there was a directed verdict against Defendants on their counterclaims at the close of their evidence [A310, V:168]. The reasons for granting that motion were that the court had no jurisdiction to order the return to the estate of the bequest, which had been approved by the probate division of Palm Beach County, Florida, and the condominium was never part of the probated estate and therefore not the estate's to give.
It also makes no sense to aver that Myerson could give a gift to his son John (by giving him joint ownership) and then say that the value of the gift can be subtracted from a debt Fred Myerson owed Abend. Although there was some evidence that the estate entered into a bargain with John Myerson for the condominium, the bargain was undisclosed and the Estate's IRS Form 706 (Estate), state and federal tax returns, and inventories [Exhibits 47-54] and the 22 December 1988 letter from Garb to Abend [Exhibit 20] support Abend's position that the condominium never came in to the estate and therefore never was the estate's to give.
Abend contends that it is inconsistent and reversible error to have allowed the directed verdict on the counterclaims and then to have allowed the jury to subtract an unsupported value of the condominium and a bequest from the award to her.
4. Where the jury found that Abend had been compensated for services rendered to John after his father's death, but that there no evidence whatever that payment had been made by the estate for those services, the jury's verdict on the second count of quantum meruit was reversible error. Similarly, using the condominium which was never in the estate as payment for Abend's services to John as well as those to Fred Myerson was also reversible error.
As stated above, the jury found both that Fred Myerson promised Abend to compensate her for services she would render for the benefit of his son John after Fred's death [Answer 5], and that Abend was compensated for those services. Given, however, that the trial was devoid of any evidence demonstrating that Abend was compensated by the estate for the services she provided, the jury's finding is reversible.
Similarly, the allowance of using the condominium to set off some of the money due on the first and second counts in quantum meruit was reversible error -- even disregarding that the court had already directed a verdict on the defendants' unjust enrichment counterclaim.
Factoring in the directed verdict on the defendants' unjust enrichment claims is but another basis for ruling that there was reversible error.
CONCLUSION
To not award Abend sufficient money to live comfortably for the rest of her life in the States would be denying her that to which she was entitled under the law and would be unjustly enriching the estate of the decedent to that extent. Hastoupis, 9 Mass.App.Ct. at 35.
For the reasons stated above and in her motion in the lower court, the court can properly conclude that it is inexplicable that the jury believed $210,000 was enough money to compensate Abend for the fair and reasonable value of the services she rendered to Myerson during his lifetime -- that value being, in the opinion of Myerson himself, an amount of money sufficient to enable Abend to live comfortably for the rest of her life in the States.
And it is clear that the jury did not understand that "fair and reasonable value" can equal -- under the law applicable to this case -- "an amount sufficient to enable someone to live comfortably for the rest of his or her life in the States."
Abend's request to poll the jury to learn whether they understood what they had actually decided was denied [A385, VII:35].
WHEREFORE, Plaintiff requests that this Court:
1. reverse the denial of Abend's motion for additur or, in the alternative, for a new trial; 2. reverse the $185,000 (bequest and condominium) set off of the $210,000;
3. award Plaintiff double costs and attorney's fees for this appeal; and
4. issue any other order which this Court deems to be just, fair, and appropriate.
PLAINTIFF ANNEMARIE ABEND,
By her attorney,Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833CERTIFICATE OF SERVICE
I, Barbara C. Johnson, hereby certify that on this day served two true and accurate copies of the above pleading and record appendix by first-class mail on opposing counsel of record.
30 July 2001 Barbara C. Johnson