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Kumble v. Voccola

Superior Court of Rhode Island

May 11, 2017

MICHAEL VOCCOLA and DANIEL SHEDD, Defendants. MICHAEL A. VOCCOLA and DANIEL S. SHEDD, in their capacity as Trustees of the Trust Under Will of Frederick Carrozza Jr., and MICHAEL A. VOCCOLA, in his capacity as Executor of the Estate of Frederick Carrozza Jr., Plaintiffs,

         Providence County Superior Court

          For Plaintiff: Mark W. Freel, Esq.; Alan I. Baron, Esq.

          For Defendant: Robert M. Duffy, Esq.


          Silverstein, J.

         Currently before the Court is a dispute involving the Beneficiaries of a testamentary instrument and the fiduciaries appointed to oversee its execution. The parties to these consolidated matters participated in a bench trial, during which they offered evidence concerning the amount of compensation owed to the fiduciaries, as well as the reasonableness of the fiduciaries' requests for reimbursement for legal fees incurred in their capacity as fiduciaries. This Court has jurisdiction over the subject matter of the dispute under G.L. 1956 § 8-2-13. Pursuant to Super. R. Civ. P. 52(a), the Court now states its findings of fact and conclusions of law regarding the above-mentioned issues.

         I Findings of Fact

         1. Frederick Carrozza Jr. (Carrozza Jr.) established the Frederick Carrozza Jr. Testamentary Trust Under Will for the benefit of his widow, Angela Kumble (A. Kumble), and his daughter, Christine Tellefsen (Tellefsen) (collectively, the Beneficiaries).

         2. The trust was established in part to prevent Carrozza Jr.'s father, Frederick Carrozza Sr., from obtaining control of the assets of Carrozza Jr.

         3. Carrozza Jr. chose two of his longtime friends, Michael Voccola (Voccola) and Daniel Shedd (Shedd) (collectively, the Trustees), to serve as co-trustees with respect to the trust.

         4. Prior to being chosen, Voccola had no experience acting as a trustee. 5. Voccola was also appointed by Carrozza Jr. as Executor of the latter's estate.

         6. Voccola graduated from law school in 1997, but is not licensed to practice law in the State of Rhode Island.

         7. While serving as a fiduciary, Voccola held a position as a Vice President at a real estate investment and management company known as The Procaccianti Group.

         8. Under the terms of the trust, the Trustees were required to pay to A. Kumble and Tellefsen "so much of the net income arising from the trust estate as [the Trustees] shall deem advisable in all the circumstances for the health, maintenance, and support of [A. Kumble and Tellefsen], or for the welfare in other respects of my said wife, [A. Kumble]."

         9. Upon A. Kumble's passing, the trust estate was to be distributed to Tellefsen, if Tellefsen had then reached the age of thirty-two.

         10. For their services to the Beneficiaries, the Trustees were to receive "reasonable compensation."

         11. On August 19, 2002, Carrozza Jr. died. At the time of his death, Carrozza Jr. was the owner of the following properties, all of which became part of the trust estate: a mixed-use building and an adjacent parking lot located on Bellevue Avenue in Newport (the Bellevue Avenue Property); a condominium unit on Canary Court in West Warwick (Canary Court); and a commercial property housing a rental car facility on Post Road in Warwick (the Post Road Property) (collectively, the Trust Properties).

         12. Prior to Carrozza Jr.'s death, A. Kumble and Tellefsen, who are both licensed real estate brokers, had been involved in management of what became the Trust Properties.

         13. Voccola deemed it prudent to allow A. Kumble and Tellefsen to continue to act as managers of the Trust Properties "given the historical nature of [A. Kumble and Tellefsen]'s management of the properties, and knowledge of the real estate, and knowledge of the vendors, and knowledge of the tenants and the rents, etc." Trial Tr. 118:20-24.

         14. Neither Voccola nor Shedd possessed keys to the Trust Properties.

         15. Voccola interacted with certain tenants of the Trust Properties. For example, he served as the "primary liaison" with respect to the Post Road Property tenant.

         16. Tellefsen was paid for services she provided as a manager of the Trust Properties.

         17. As property managers, A. Kumble and Tellefsen collected rents, handled routine repairs and maintenance, interacted with tenants, and paid bills and expenses.

         18. A. Kumble communicated regularly with Voccola regarding the Trust Properties.

         19. Tellefsen testified that Voccola provided assistance to her and A. Kumble concerning the Trust Properties when asked to do so.

         20. Voccola maintained no contemporaneous time records evidencing the scope of his participation with respect to the management of the Trust Properties.

         21. Shedd, who occasionally acted as a consultant to Voccola, had minimal involvement with the trust and the Beneficiaries.

         22. Funds related to the trust and the Trust Properties were held in a Fleet Bank account that bore Carrozza Jr.'s name and which had existed prior to his death.

         23. The Trustees had no signatory authority with respect to the Fleet Bank account and could not withdraw money from it.

         24. Funds withdrawn from the Fleet Bank Account were withdrawn by the Beneficiaries.

         25. As Executor, Voccola filed Carrozza Jr.'s will in the Probate Court of Middletown, Rhode Island. 26.Voccola took part in the process of resolving claims against the Estate.

         27. Voccola marshaled the assets of the Estate and arranged for certain Estate assets to be appraised.

         28. Voccola disposed of certain assets of the Estate to create liquidity for the Beneficiaries. For example, Voccola, with assistance from A. Kumble, coordinated the purchase by a third party of property located on Atwells Avenue in Providence, Rhode Island.

         29. Voccola notified Fleet Bank of his appointment as the Executor of Carrozza Jr.'s Estate.

         30. As a fiduciary, Voccola reviewed and signed tax returns prepared by an accountant on behalf of the trust and the Estate.

         31. Voccola also engaged an attorney for the purposes of obtaining a reduced tax assessment with respect to the Bellevue Avenue Property in 2009.

         32. In 2004, Voccola acted in his fiduciary capacity as trustee to contest a finding by the Newport Fire Department of a fire code violation at the Bellevue Avenue Property.

         33. Voccola did not maintain contemporaneous records detailing the tasks he performed as Executor or the amount of time he spent completing those tasks.

         34. Voccola did preserve emails and other documents produced in the course of the performance of his duties as Executor.

         35. After reviewing the preserved emails and documents, Voccola concluded that he had worked 179 hours in his capacity as Executor.

         36. A determination was not requested of and has not been made by the probate court as to the amount of compensation to which Voccola as Executor is entitled.

         37. Shortly after Carrozza Jr.'s death, Carrozza Jr.'s father, Frederick Carrozza Sr. (Carrozza Sr.), and other members of the Carrozza family filed a lawsuit against the Executor of Carrozza Jr.'s Estate, as well as the Beneficiaries. Carrozza Sr. and his co-plaintiffs also filed notices of lis pendens with respect to the Trust Properties.

         38. The objective of the lawsuit Carrozza Sr. filed was to have a resulting trust imposed on the Trust Properties.

         39. Carrozza Sr.'s other children-Phillip Carrozza, Freida Carrozza, and Laurie Carrozza-Conn-joined him as plaintiffs in that lawsuit.

         40. Voccola and the Beneficiaries filed a counterclaim against Carrozza Sr. and his co-plaintiffs for slander of title.

         41. Attorney Evan Leviss was hired to defend both Carrozza Jr.'s Estate and the Beneficiaries against the claims brought by Carrozza Sr. and his co-plaintiffs.

         42. At A. Kumble's suggestion, Attorney Alan Baron, an out-of-state attorney, was retained to represent the interests of the Beneficiaries in the litigation.

         43. Attorneys Leviss and Baron communicated frequently with one another and with Voccola regarding the matter.

         44. Ultimately, the claims brought by Carrozza Sr. and his co-plaintiffs were dismissed.

         45. Following trial, the Newport Superior Court entered a $2.5 million judgment, including a punitive damages award of $845, ...

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