Grasso v. Grasso et al
Filing
185
ORDER denying 163 Motion for Judgment as a Matter of Law; denying 176 Motion for Judgment as a Matter of Law. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/31/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
OLGA T. GRASSO,
Plaintiff,
v.
Case No. 8:13-cv-3186-T-33AEP
MICHELLE GRASSO, and
TERESA GRASSO,
Defendants.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Defendants Michelle Grasso and Teresa Grasso’s Motion for
Judgment as a Matter of Law (Doc. ## 163, 176). Plaintiff
Olga T. Grasso filed a response. (Doc. # 179). With leave of
Court, Michelle and Teresa filed a reply. (Doc. ## 180, 181,
182). For the reasons set forth herein, the Court denies the
Motion.
I.
Background
This case arises from a dispute between a grandmother
and two granddaughters. (Doc. # 62 at 1–5). Olga was born in
November of 1923, which means she was 86-years old in 2009,
and 92-years old at the time of trial. Tr. Transcript, vol.
2, at 73:21-24. Olga and her husband, Joseph Frank Grasso
1
(Joe Sr.), had two sons, Robert Grasso and Joseph Jr. Grasso
(Joe Jr.).
1
Id. at 76:5-12. Joe Jr. was married to Margaret
Grasso, with whom he had three children: Michelle, Teresa,
and Michael Grasso. Tr. Transcript, vol. 4, at 7:18-8:2.
Michelle and Teresa are the Defendants in this case.
A.
Pertinent Family History
Olga and Joe Sr. owned a motel on Clearwater Beach,
Florida. Tr. Transcript, vol. 2, at 76:16-20. The motel was
eventually
sold
for
$1.5
million.
Id.
at
202:1-2,
8-9.
According to Robert, the proceeds of the sale were originally
to be split evenly between himself and Joe Sr., but the
distribution plan changed so that Robert, Joe Sr., and Joe
Jr. would each receive a third of the proceeds. Id. at 202:1617, 203:3-204:9. A dispute then arose between Robert, Joe
Sr., and Joe Jr., which resulted in Robert no longer speaking
with his father. Id. at 204:10-205:20. Joe Sr. passed away
thereafter, in December of 2008. Id. at 78:4-12.
Shortly before Joe Sr. died, Joe Jr. took over a pending
lawsuit in New York state court between Joe Sr. and Nick
Grasso, Joe Sr.’s brother. Tr. Transcript, vol. 3, at 35:336:18. Then, in December of 2009, Nick filed suit against
1
The Court will refer to people having the same last name by
first name in order to avoid confusion.
2
Olga, Joe Sr.’s estate, Joe Jr., Michelle, and Teresa. Id. at
87:2-9;
Tr.
Transcript,
vol.
4,
at
115:19-116:3.
These
lawsuits related to property disputes between Joe Sr. and
Nick. Tr. Transcript, vol. 4, at 114:11-115:18. During the
state court litigation in New York, Joe Jr. asked Robert to
sign an affidavit; however, Robert refused and, in the end,
signed an affidavit stating as much. Tr. Transcript, vol. 2,
at 212:25-217:22. According to Teresa, it was because of the
effects of Robert’s affidavit in the New York state litigation
that Olga sought to disinherit Robert from her will. Tr.
Transcript, vol. 3, at 90:2-94:25. Olga, however, testified
that she never wrote a letter explaining that she wanted to
disinherit Robert. Tr. Transcript, vol. 2, at 79:6-80:1.
Teresa drafted a will for Olga. Tr. Transcript, vol. 3,
at
104:5-105:12.
The
will
drafted
by
Teresa
explicitly
disinherited Robert. (Pl.’s Ex. 20). Olga executed the will
on March 10, 2010, (Id. at 2), in her condominium in Florida
and, according to her brother, Frank Ciolli, she did so
without reading it. Tr. Transcript, vol. 3, at 10:7-8, 15:35, 17:15-20.
In the spring of 2009, after her husband’s death, Olga
went
with
Transcript,
Joe
Jr.
vol.
4,
to
at
live
with
108:22-25.
3
him
in
Oklahoma.
Testimony
at
Tr.
trial
established that Olga used a cane or walker. Tr. Transcript,
vol. 2, at 38:5-15. However, Michelle testified that Olga
only used a cane. Tr. Transcript, vol. 4, at 109:19-25. In
any event, Olga was confined to the down-stairs portion of
the house while in Oklahoma. Tr. Transcript, vol. 2, at
127:15-16. Michelle even testified that in preparing for
Olga’s arrival, she and Teresa chose the bedroom on the first
floor for safety reasons. Tr. Transcript, vol. 4, at 109:813. Furthermore, Michelle and Teresa told Olga not to walk to
the mailbox because she was likely to fall. Tr. Transcript,
vol. 2, at 97:8-11, 127:6-7.
Olga also had sensory impairments. As to hearing, Daniel
C.
Fuller,
Olga’s
former
grandson-in-law
with
whom
she
remains in contact, Tr. Transcript, vol. 1, at 67:4-22,
testified
that
Olga’s
hearing
was
“terrible”
when
she
returned from Oklahoma, Tr. Transcript, vol. 2, at 37:21-24.
Likewise, Robert testified that Olga’s hearing was “no good”
when she returned to Florida. Id. at 221:8-16. Olga also
provided testimonial evidence implying that Michelle and
Teresa were aware of her impaired ability to hear. See Id. at
97:7-11.
With respect to Olga’s vision, the reports of Olga’s eye
doctor, Dr. Steven M. Cohen, established that Olga’s vision
4
worsened over time. Olga’s visual acuity in February of 2010,
was 6/200 (left eye) and 20/70 (right eye), and in January of
2011, and her visual acuity was 3/200 (left eye) and 20/80
(right
eye).
demonstrate
(Pl.’s
that
Ex.
Olga
90).
Dr.
suffered
Cohen’s
from
reports
age-related
also
macular
degeneration and a vitreous hemorrhage in her left eye. (Id.).
Olga testified that her vision was the same at trial as
it was while she was in Oklahoma. Tr. Transcript, vol. 2, at
108:8-109:4. Olga also explicitly stated that “she could not
see” and “couldn’t go around reading anything.” Id. at 107:2023, 127:3-7. Fuller, Robert, Ciolli, and Joseph W. Fleece
III, Olga’s former attorney, Tr. Transcript, vol. 3, at
249:20-253:17,
all
testified
that
Olga
had
difficultly
seeing. Tr. Transcript, vol. 2, at 37:3-10, 276:11-12; Tr.
Transcript,
vol.
3,
at
22:16-17,
273:21-25;
cf.
Tr.
Transcript, vol. 2, at 100:12-24.
While living in Oklahoma, Olga executed several estate
planning documents. On August 18, 2010, Olga executed a
durable power of attorney that named Michelle as her attorney
in fact. (Pl.’s Ex. 22). Then on September 20, 2010, Olga
executed a revocable trust, which named Olga as both grantor
and trustee. (Pl.’s Ex. 26). There is a second revocable trust
also dated September 20, 2010, except the second revocable
5
trust named Olga and Margaret as trustees. (Pl.’s Ex. 35).
Olga also signed a durable power of attorney on October 12,
2010, naming Margaret as her attorney in fact, along with
Michelle and Teresa as successor attorneys in fact. (Pl.’s
Ex. 36). The October 12, 2010, durable power of attorney was
only to become effective upon the date of Olga’s incapacity.
(Id.).
Joe Jr. passed away while Olga was living in Oklahoma.
Tr. Transcript, vol. 3, at 112:23-25 (showing that Joe Jr.
died on October 3, 2010). Olga testified that the deaths of
her
husband
Transcript,
and
vol.
son
2,
had
at
a
profound
78:21-23,
impact
on
her.
92:12-93:13.
Tr.
Teresa
testified that Olga was grieving, Tr. Transcript, vol. 3, at
113:22-25, and Fuller testified that Olga was in a state of
deep grief after the passing of her husband, Tr. Transcript,
vol. 1, at 77:4-8. Olga lost 50 pounds while in Oklahoma and
looked “unhealthy” and “like a skeleton” when she returned to
Florida. Tr. Transcript, vol. 2, at 36:1-8, 221:8-12.
After Joe Jr. passed, Michelle requested that any CDs
Olga held with Wachovia be made transferable on death into
Olga’s trust. (Pl.’s Ex. 39). Olga’s trust was also amended
so that it became irrevocable and named Michelle as trustee.
(Pl.’s Exs. 46, 47). In addition, Michelle authored a letter
6
and an email stating that Olga’s trust was made irrevocable,
both of which use the pronoun “we” in describing who effected
the change. (Pl.’s Exs. 53, 89 at 93). Furthermore, the
billing records of Erin Donovan, the attorney who drafted
Olga’s trust documents, show that Donovan spoke with Michelle
and Teresa regarding Olga’s trusts. (Pl.’s Ex. 55); Tr.
Transcript, vol. 3, at 118:24-119:9; Tr. Transcript, vol. 4,
at 17:16-19:5.
Michelle also requested that Olga’s bank issue a debit
card in Michelle’s name that was linked to Olga’s checking
account.
(Pl.’s
Ex.
54).
Additionally,
Teresa
admits
to
removing Olga’s will from Olga’s condominium in Florida. Tr.
Transcript, vol. 3, at 105:13-19. Moreover, Teresa attempted
to aid Michelle in her capacity as trustee during the Trust
Litigation. Tr. Transcript, vol. 4, at 28:8-16.
When Olga returned to Florida, she retained Fleece as
counsel. Tr. Transcript, vol. 3, at 239:2-253:17. Before
filing suit, Fleece sent a letter to Margaret and Michelle
asking them to voluntarily return Olga’s money. Id. at 251:118. Michelle sent a reply letter in which she refused to
return Olga’s money and maintained her position as sole
trustee. Id. at 252:4-11.
7
Olga
filed
suit
against
Margaret
and
Michelle
on
February 23, 2011. That prior litigation against Margaret and
Michelle was filed in the Sixth Judicial Circuit, in and for
Pinellas County, Florida, and was styled Olga Grasso v.
Margaret Grasso, individually and as a purported Co-Trustee
of the Olga Grasso Revocable Trust and Michelle Grasso,
individually and as purported Co-Trustee of the Olga Grasso
Revocable Trust, No. 11-001184-ES-3 (the Trust Litigation).
(Doc. # 23 at 2). The Trust Litigation resulted in the
termination of the trust created while Olga lived in Oklahoma.
(Pl.’s Ex. 86 at 5). The trial court in the Trust Litigation
also entered an award of attorney’s fees against Margaret and
Michelle, in their individual capacities, which Margaret and
Michelle appealed.
B.
Procedural History of the Instant Lawsuit
In between the filing of Margaret and Michelle’s appeal
to the Second District Court of Appeal and the Second District
Court of Appeal’s decision, Olga filed a second action in
state court, this time against Michelle and Teresa, on July
16, 2013. (Doc. # 1-1). Michelle and Teresa timely removed to
this Court on the basis of diversity jurisdiction. (Doc. #
1). It is the second state court action from which this
removed action arises.
8
Upon the motion of the parties, this case was stayed and
administratively closed pending resolution of the state court
proceedings. (Doc. ## 23, 26). On August 5, 2014, the parties
filed a Joint Status Report indicating the proceedings in the
Second District Court of Appeal had concluded. (Doc. # 29).
The
Second
District
Court
of
Appeal
reversed
the
Trust
Litigation court’s award of attorney’s fees against Margaret
and Michelle, reasoning that they had not been parties to the
Trust Litigation in their individual capacities. (Pl.’s Ex.
88).
This
Court
reopened
the
instant
case
and
directed
Michelle and Teresa to file a response to Olga’s Amended
Complaint. (Doc. # 35). Michelle and Teresa filed a motion to
dismiss on September 5, 2014, asserting, among other things,
a res judicata argument. (Doc. # 41). The Court denied in
part Michelle and Teresa’s motion to dismiss and reserved
ruling as to the res judicata argument pending a hearing.
(Doc. # 56). After holding a hearing on the res judicata
issue, the Court denied the motion to dismiss in its entirety
(Doc. ## 60, 61).
Olga filed an Amended Complaint on December 3, 2014.
(Doc. # 62). The Amended Complaint asserts five counts:
Exploitation of the Elderly (Count I); Civil Remedy for
9
Exploitation of an Elderly Person (Count II); Breach of
Fiduciary Duty (Count III); Constructive Fraud (Count IV);
and Replevin (Count V). (Id.). Michelle and Teresa filed their
Answer on December 31, 2014. (Doc. # 63).
Thereafter,
Michelle
and
Teresa
moved
for
partial
summary judgment. (Doc. # 92). The Court granted in part and
denied in part the motion for partial summary judgment. (Doc.
# 119). Specifically, the Court denied the motion for partial
summary judgment as to Olga’s claim to attorney’s fees arising
from the Trust Litigation and as to Count I, but granted the
motion for partial summary judgment as to Count III. (Id.).
And, on the morning of trial, Olga orally moved to
dismiss Count V, which the Court granted. (Doc. ## 157, 158,
159). Trial proceeded as to the remaining Counts. (Doc. ##
153, 160, 161, 162, 164, 165). On December 17, 2015, at the
close of Olga’s case-in-chief, Michelle and Teresa moved for
judgment
as
a
matter
of
law
pursuant
to
Rule
50.
Tr.
Transcript, vol. 4, at 44:15-55:11; (Pl.’s Ex. 163). The Court
deferred
ruling.
Tr.
Transcript,
vol.
4,
at
56:5-8.
On
December 18, 2015, Michelle and Teresa renewed their motion
for judgment as a matter of law. Tr. Transcript, vol. 5, at
20:16-21:3. The Court deferred ruling, Id. at 21:1-2, and
submitted the case to the jury, Id. at 136:17-20.
10
The jury returned a verdict on December 21, 2015. (Doc.
# 167). Specifically, the jury found in favor of Olga, and
against
Michelle
exploitation
of
and
the
Teresa,
elderly
as
to
under
Olga’s
the
claim
Florida
for
Adult
Protective Services Act (Count I). (Id. at 1-3). The jury
awarded $127,669.64 to Olga against Michelle and $31,917.41
to Olga against Teresa. (Id. at 2-3). As to the remaining
claims, the jury found in favor of Michelle and Teresa, and
against Olga. (Id. at 4-9).
Michelle and Teresa were permitted to file additional
briefing in support of their Rule 50 motion. Tr. Transcript,
vol. 6, at 27:10-28:3; (Doc. # 173). Michelle and Teresa filed
their supplemental memorandum, which was docketed as another
motion for judgment as a matter of law, on January 20, 2016.
(Doc. # 176). Olga was granted an extension of time to file
her response, which was filed on February 17, 2016. (Doc. ##
178, 179). With leave of Court, Michelle and Teresa filed a
reply on February 29, 2016. (Doc. ## 180, 181, 182). Michelle
and Teresa’s Rule 50 motion is ripe for review. For the
reasons stated herein, the Court denies Michelle and Teresa’s
oral Rule 50 motion made on December 17, 2015, which was
renewed on December 18, 2015, and their Rule 50 motion filed
on January 20, 2016.
11
II.
Legal Standard
“Under Rule 50, a court should render judgment as a
matter of law when there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that
issue.” Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1192 (11th Cir. 2004). A court “consider[s] whether
such
sufficient
conflicts
exists
in
the
evidence
to
necessitate submitting the matter to the jury or whether the
evidence is so weighted in favor of one side that that party
is entitled to succeed in his or her position as a matter of
law.” Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000)
(citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th
Cir.
1999
(en
banc)).
“Judgment
as
a
matter
of
law
is
appropriate only if the evidence is so overwhelmingly in favor
of the moving party that a reasonable jury could not arrive
at a contrary verdict.” King v. Volunteers of Am., N. Ala.,
Inc., 614 Fed. Appx. 449, 452 (11th Cir. 2015) (quoting
Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246
(11th Cir. 2001)).
“[T]he standard for granting summary judgment ‘mirrors’
the standard for judgment as a matter of law, such that the
inquiry under each is the same.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). Thus, “in entertaining
12
a motion for judgment as a matter of law, the court should
review all of the evidence in the record.” Id. A court draws
all reasonable inferences in the light most favorable to the
non-moving party. Thews v. Wal-Mart Stores, Inc., 560 Fed.
Appx. 828, 831 (11th Cir. 2014) (citing Cleveland, 369 F.3d
at 1192-93).
Furthermore,
a
court
“may
not
make
credibility
determinations or weigh the evidence.” Reeves, 530 at 150.
“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Amegy Bank Nat’l Ass’n
v. Deutsche Bank Alex.Brown, 619 Fed. Appx. 923, 927 (11th
Cir. 2015) (quoting Gowski v. Peake, 682 F.3d 1299, 1310 (11th
Cir. 2012) (per curiam)) (internal quotation marks omitted).
A court “‘disregard[s] all evidence favorable to [the movant]
that the jury [was] not required to believe.’” Vista Mktg.,
LLC v. Burkett, 812 F.3d 954, 962 (11th Cir. 2016) (quoting
Reeves, 530 U.S. at 151) (third alteration in original). “That
is, the court should give credence to the evidence favoring
the nonmovant as well as that evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the
extent
that
that
evidence
13
comes
from
disinterested
witnesses.” Reeves, 530 U.S. at 151 (citation and internal
quotation marks omitted).
“[A] jury may properly reconstruct a series of events by
drawing inference upon an inference,” so long as the inference
relied on is reasonable. Fenner v. Gen. Motor Corp., 657 F.2d
647, 650-51 (5th Cir. 1981).2 Although “the non-movant must
put forth more than a mere scintilla of evidence suggesting
that reasonable minds could reach differing verdicts,” Abel,
210 F.3d at 1337, “[t]he result reached must be left intact
if there is evidence from which the decision maker, the jury
in this instance, reasonably could have resolved the matter
the way it did,” Rodriguez v. Farm Stores Grocery, Inc., 518
F.3d 1259, 1264 (11th Cir. 2008).
III. Analysis
Michelle and Teresa raise a two-pronged argument in
support
of
their
Rule
50
motion:
namely,
there
was
insufficient evidence from which the jury could determine (A)
Olga was a vulnerable adult (Doc. # 176 at 5-12) and (B)
Michelle
and
Teresa
exploited
Olga
(Id.
at
12-25).
The
relevant statutory framework is laid out below.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted all
decisions of the former Fifth Circuit handed down before
October 1, 1981, as binding precedent.
14
Olga’s claim under Florida’s Adult Protective Services
Act, Sections 415.101-415.113, Florida Statutes, is addressed
in Jury Instruction Number 6 (Doc. # 166 at 7-10).3 Section
415.1111 states, in part: “[a] vulnerable adult who has been
abused, neglected, or exploited as specified in this chapter
has a cause of action against any perpetrator and may recover
actual and punitive damages for such abuse, neglect, or
exploitation.” Fla. Stat. § 415.1111. The term “vulnerable
adult” is defined to mean:
a person 18 years of age or older whose ability to
perform the normal activities of daily living or to
provide for his or her own care or protection is
impaired due to a mental, emotional, sensory, longterm physical, or developmental disability or
dysfunction, or brain damage, or the infirmities of
aging.
Fla. Stat. § 415.102(28).4 In turn, the phrase “activities of
daily
living”
means
“functions
and
tasks
for
self-care,
including ambulation, bathing, dressing, eating, grooming,
toileting, and other similar tasks.” Id. at § 415.102(2).
In addition, the term “exploitation” means a person who:
3
Michelle and Teresa do not argue the jury was improperly
instructed. See, e.g., (Doc. # 182 at 4 n.2).
4 Section 415.102 was renumbered in 2015, so that “vulnerable
adult,” which was defined at Section 415.102(27), is now
defined at Section 415.102(28). State Ombudsman ProgramCitizens and Citizenship-Councils, 2015 Fla. Sess. Law Serv.
Ch. 2015-31 (West). The definition did not change.
15
1. Stands in a position of trust and confidence
with a vulnerable adult and knowingly, by deception
or intimidation, obtains or uses, or endeavors to
obtain or use, a vulnerable adult's funds, assets,
or property with the intent to temporarily or
permanently deprive a vulnerable adult of the use,
benefit, or possession of the funds, assets, or
property for the benefit of someone other than the
vulnerable adult; or
2. Knows or should know that the vulnerable adult
lacks the capacity to consent, and obtains or uses,
or endeavors to obtain or use, the vulnerable
adult's funds, assets, or property with the intent
to
temporarily
or
permanently
deprive
the
vulnerable adult of the use, benefit, or possession
of the funds, assets, or property for the benefit
of someone other than the vulnerable adult.
Id. at § 415.102(8)(a). Furthermore, “exploitation”
may include, but is not limited to:
1. Breaches of fiduciary relationships, such as the
misuse of a power of attorney or the abuse of
guardianship duties, resulting in the unauthorized
appropriation, sale, or transfer of property;
2. Unauthorized taking of personal assets;
3. Misappropriation, misuse, or transfer of moneys
belonging to a vulnerable adult from a personal or
joint account; or
4. Intentional or negligent failure to effectively
use a vulnerable adult's income and assets for the
necessities required for that person's support and
maintenance.
Id. at § 415.102(8)(b).
“Fiduciary relationship,” in turn, means “a relationship
based upon the trust and confidence of the vulnerable adult
in the caregiver, relative, household member, or other person
entrusted with the use or management of the property or assets
of the vulnerable adult.” Id.
16
at § 415.102(11). Such a
“relationship exists where there is a special confidence
reposed in one who in equity and good conscience is bound to
act in good faith and with due regard to the interests of the
vulnerable adult.” Id. Further, “a fiduciary relationship may
be formed by an informal agreement . . . . A fiduciary
relationship includes, but is not limited to, court-appointed
or voluntary guardians, trustees, attorneys, or conservators
of a vulnerable adult's assets or property.” Id.
A.
There was Sufficient Evidence from which the Jury
Could Find that Olga was a “Vulnerable Adult”
Michelle and Teresa challenge the sufficiency of the
evidence as to whether Olga was a “vulnerable adult.” Upon
review
of
the
record,
the
Court
determines
there
was
sufficient evidence from which the jury could find that Olga
was a “vulnerable adult.”
A person who is 18 years of age or older is considered
a “vulnerable adult” under one of two circumstances. First,
such a person is a “vulnerable adult” if his or her ability
to perform the normal “activities of daily living” is impaired
due to a mental, emotional, sensory, long-term physical, or
developmental disability or dysfunction, or brain damage, or
the infirmities of aging. Fla. Stat. 415.102(28). Second,
such a person is a “vulnerable adult” if his or her ability
17
to provide for his or her own care or protection is impaired
due to a mental, emotional, sensory, long-term physical, or
developmental disability or dysfunction, or brain damage, or
the infirmities of aging. Id. Notably, Olga was not required
to prove inability to either perform the normal “activities
of daily living” or provide for her own care or protection;
rather, Olga was merely required to prove impairment of her
ability to do so. See Fla. Stat. § 415.102(28).
There was evidence at trial that Olga had difficulty
walking. In fact, Olga used a cane or walker. Tr. Transcript,
vol. 2, at 38:5-15. Furthermore, Olga’s impaired ability to
ambulate was to such an extent that she was confined to the
down-stairs portion of the house while in Oklahoma. Id. at
127:15-16. Moreover, Michelle and Teresa told Olga not to
walk to the mailbox because she was likely to fall. See Id.
at 97:8-11, 127:6-7. And, in preparing for Olga’s arrival,
Michelle and Teresa chose the down-stairs bedroom for safety
reasons.
Tr.
Transcript,
vol.
4,
at
109:8-13.
It
was
reasonable for the jury to find Olga’s ability to ambulate
was impaired.
Evidence at trial showed that Olga’s ability to perform
the normal “activities of daily living” or to provide for her
own care or protection was impaired due to an emotional
18
dysfunction. For instance, Olga testified as to the profound
effect the deaths of her husband and son, which occurred
relatively close to each other temporally, had on her. Tr.
Transcript, vol. 2, at 78:21-23, 92:12-93:13. Teresa also
testified that Olga was grieving. Tr. Transcript, vol. 3, at
113:22-25. And, Fuller testified that Olga was, and continues
to be, in a state of deep grief after her husband died. Tr.
Transcript, vol. 1, at 77:4-8. Further, there was testimony
that Olga looked “unhealthy” and “like a skeleton” on her
return from Oklahoma because she had lost 50 pounds while in
Oklahoma. Tr. Transcript, vol. 2, at 36:1-8, 221:8-12. It was
reasonable for the jury to find that Olga’s ability to either
perform the normal “activities of daily living” or provide
for
her
own
care
or
protection
was
impaired
due
to
an
emotional dysfunction.
In challenging the sufficiency of the evidence as to
whether
Olga’s
protection
was
ability
to
impaired,
provide
for
her
own
Michelle
and
Teresa
care
or
raise
an
argument under ejusdem generis. (Doc. # 176 at 8 n.1). Ejusdem
generis is a canon of statutory construction “holding that
when a general word or phrase follows a list of specifics,
the general word or phrase will be interpreted to include
only items of the same class as those listed.”
19
Ejusdem
generis, BLACK’S LAW DICTIONARY (10th ed. 2014). Florida courts
apply this canon of construction. State v. Hearns, 961 So. 2d
211, 219 (Fla. 2007).
Section 415.102(28) states,
a person 18 years of age or older whose ability to
perform the normal activities of daily living or to
provide for his or her own care or protection is
impaired due to a mental, emotional, sensory, longterm physical, or developmental disability or
dysfunction, or brain damage, or the infirmities of
aging.
Fla. Stat. § 415.102(28). As can be seen, Section 415.102(28)
begins with two disjunctive clauses. It is in addressing the
second of these disjunctive clauses that Michelle and Teresa
assert their ejusdem generis argument. (Doc. # 176 at 8 n.1).
They argue that reading is not a function or task of selfcare. (Id.). However, the phrase “functions and tasks for
self-care” does not appear in Section 415.102(28). Rather,
the phrase “functions and tasks for self-care” appears in
Section 415.102(2), which defines the phrase “activities of
daily living.” The phrase “activities of daily living,” in
turn, is contained in the first disjunctive clause of Section
415.102(28), not the second.
The second disjunctive clause of Section 415.102(28)
uses the phrase “own care or protection,” not “functions and
20
tasks for self-care.” The phrase “own care or protection” is
not defined by the statute.
To read “functions and tasks for self-care” and “own
care or protection” as having the same meaning would be to
render the second disjunctive clause redundant. But, “[n]o
words should be treated as redundant or useless.” Crews v.
State, 183 So. 3d 329, 336 (Fla. 2015). “Every word in a
statute should be given effect, and constructions should be
avoided that would render any words superfluous.” Id. at 335.
“[I]t is axiomatic that all parts of a statute must be read
together in order to achieve a consistent whole.” Fla. Dep’t
of Children & Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla.
2009) (citation and internal quotation marks omitted).
To accept Michelle and Teresa’s ejusdem generis argument
would
be
to
render
the
second
disjunctive
clause
the
equivalent of the definition of the first; that is, it would
be
to
Instead,
render
the
the
Court
second
disjunctive
construes
the
clause
phrase
“own
redundant.
care
or
protection” according to its ordinary meaning. See Nehme v.
Smithkline Beecham Clinical Labs., Inc., 863 So. 2d 201, 20405 (Fla. 2003) (stating, “‘we give statutory language its
plain and ordinary meaning, unless words are defined in the
21
statute or by the clear intent of the legislature’” (quoting
Green v. State, 604 So. 2d 471, 473 (Fla. 1992))).
The jury was presented with sufficient evidence to find
that Olga’s limited ambulatory capabilities, her emotional
dysfunction stemming from a state of deep grief, and auditory
and visual (that is, sensory) dysfunctions, whether viewed
independently
or
cumulatively,
impaired
her
ability
to
provide for her own care or protection. As noted, Olga’s
ambulatory capabilities were limited to the point that she
used a cane or walker at least part of the time and was
confined to the down-stairs portion of the house in Oklahoma.
In addition, Olga was still reeling from the deaths of her
husband
and
son.
There
was
also
testimony
and
evidence
relating to Olga’s poor hearing and vision.
As to hearing, Fuller testified that Olga’s hearing was
“terrible” when she returned from Oklahoma. Tr. Transcript,
vol. 2, at 37:21-24. Likewise, Robert testified that Olga’s
hearing was “no good” when she returned to Florida. Id. at
221:8-16. Olga even provided testimonial evidence from which
the jury could infer that Michelle and Teresa were aware of
Olga’s impaired ability to hear. See Id. at 97:7-11. A jury
could reasonably infer from this evidence that Olga’s hearing
was impaired while she lived in Oklahoma.
22
With
respect
to
Olga’s
vision,
Dr.
Cohen’s
reports
established that Olga’s vision worsened over time. As shown
by those reports, Olga’s visual acuity in February of 2010,
was 6/200 (left eye) and 20/70 (right eye), and in January of
2011, her visual acuity had decreased to 3/200 (left eye) and
20/80 (right eye). (Pl.’s Ex. 90). Dr. Cohen’s reports also
demonstrate
that
Olga
suffered
from
age-related
macular
degeneration and a vitreous hemorrhage in her left eye. (Id.).
Olga herself testified that her vision was the same at
trial as it was while she was in Oklahoma. Tr. Transcript,
vol. 2, at 108:8-109:4. Olga also explicitly stated that “she
could not see” and “couldn’t go around reading anything.” Id.
at 107:20-23, 127:3-7. Fuller, Robert, Ciolli, and Fleece all
testified that Olga had difficultly seeing. Id. at 37:3-10,
276:11-12; Tr. Transcript, vol. 3, at 22:16-17, 273:21-25.
Although some conflict in testimony existed as to whether
Olga could read, see, e.g., Tr. Transcript, vol. 2, at 100:1224, that conflict merely created an issue for the jury to
decide.
In sum, there was sufficient evidence from which the
jury could find that Olga’s ability to either perform the
normal “activities of daily living” or provide for her own
care or protection was impaired due to one of the enumerated
23
conditions within Section 415.102(28). Simply put, there was
sufficient evidence from which the jury could find that Olga
was a “vulnerable adult.”
B.
There was Sufficient Evidence from which the Jury
Could Find that Michelle and Teresa Exploited Olga
Michelle and Teresa also challenge the sufficiency of
the evidence as to the issue of exploitation. After a review
of the record, the Court determines there was sufficient
evidence for the jury to reach the conclusion that it did.
“Exploitation” means
a person who . . . [s]tands in a position of trust
and confidence with a vulnerable adult and
knowingly, by deception or intimidation, obtains or
uses, or endeavors to obtain or use, a vulnerable
adult’s funds, assets, or property with the intent
to temporarily or permanently deprive a vulnerable
adult of the use, benefit, or possession of the
funds, assets, or property for the benefit of
someone other than the vulnerable adult.
Fla. Stat. § 415.102(8)(a)(1). “Exploitation” includes, but
is not limited to, breaches of fiduciary relationships. Id.
at
415.102(8)(b).
A
fiduciary
relationship
is
“[a]
relationship based upon the trust and confidence of the
vulnerable
adult
in
the
caregiver,
relative,
household
member, or other person entrusted with the use or management
of the property or assets of the vulnerable adult.” Id. at §
415.102(11).
24
Michelle and Teresa focus on Olga’s testimony, which
they characterize as showing only that she did not know or
could not remember facts related to Michelle and Teresa’s
involvement in the execution of the trusts. But, there was
other evidence from which the jury could find that Michelle
and Teresa exploited Olga.
To begin with, there was evidence that Michelle and
Teresa stood in a position of trust and confidence with Olga.
Of course, evidence was received that showed Michelle and
Teresa were Olga’s granddaughters. Tr. Transcript, vol. 4, at
102:18-20, 159:11-13; see also Tr. Transcript, vol. 2, at
76:9-15, 23-77:1. Additionally, testimony established that
there was a close familial relationship between Olga and her
granddaughters. See, e.g., Tr. Transcript, vol. 4, at 64:18, 162:7-9. Michelle even testified that Olga was like a
second mother to her. Tr. Transcript, vol. 3, at 32:10-11,
223:16-21. The preceding evidence was sufficient to serve as
a basis for inferring a close familial relationship wherein
Olga reposed trust and confidence in Michelle and Teresa.
Furthermore,
fiduciary
152:15-18.
Michelle
relationship
Michelle
admitted
with
was
Olga.
also
the
to
Id.
having
at
a
formal
148:24-149:1,
trustee
of
Olga’s
irrevocable trust. (Pl.’s Ex. 47). As to Teresa, she drafted
25
Olga’s will and was also named as a successor executor. Tr.
Transcript, vol. 3, at 104:5-105:12; (Pl.’s Ex. 20). At a
minimum, this is evidence tending to suggest that Olga placed
trust and confidence in Teresa.
“Exploitation” occurs when a person in a position of
trust and confidence obtains or uses, or even endeavors to
obtain
or
use,
a
vulnerable
adult’s
funds,
assets,
or
property. Fla. Stat. § 415.102(8)(a)(1). There was evidence
at trial that could form the basis of the jury’s finding of
exploitation. For example, Michelle and Teresa witnessed a
form that sought to name Margaret as the income beneficiary
of Olga’s annuity. (Pl.’s Ex. 40, 48, 49, 50). Donovan’s
billing records show some level of involvement on Michelle’s
part in revising Olga’s trust. (Pl.’s Ex. 55). Donovan’s
records further show that Michelle and Teresa met with Donovan
to discuss Olga’s trust. Tr. Transcript, vol. 3, at 118:24119:9. And, Teresa admitted to taking Olga’s will from her
condominium. Id. at 105:13-19.
The
evidence
further
demonstrated
that
Michelle
attempted to obtain a debit card in her name linked to Olga’s
checking account (Pl.’s Ex. 54), attempted to have Olga’s CD
made transferable on death into the trust (Pl.’s Ex. 39), and
sent an email suggesting she was involved in making Olga’s
26
trust irrevocable (Pl.’s Ex. 89 at 93). In addition, Desmond
testified Teresa dropped off an affidavit that, if signed,
would have aided Michelle in her capacity as trustee in the
Trust
Litigation.
Tr.
Transcript,
vol.
4,
at
28:8-17.
Fleece also provided testimony that could support the
jury’s verdict; viz.,
Q. Did Olga Grasso ever indicate to you in words or
substance that she believes that she was tricked
into signing those documents and that they were
never explained to her?
A. Yes, sir.
Tr. Transcript, vol. 3, at 282:20-23. On cross-examination,
Fleece testified Olga reached her conclusion that she had
been
tricked
because
she
did
not
remember
signing
the
documents. Id. at 283:16-284:23.
In sum, there was sufficient evidence from which the
jury could find that Michelle and Teresa exploited Olga.
IV.
Conclusion
The Court determines there was a sufficient evidentiary
basis for the jury to find that Olga was a “vulnerable adult”
and that Michelle and Teresa exploited Olga. In reaching this
conclusion, the Court is mindful that it cannot weigh the
evidence, nor make credibility determinations, and must draw
all reasonable inferences in favor of Olga.
Accordingly, it is
27
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants Michelle Grasso and Teresa Grasso’s Motion
for Judgment as a Matter of Law (Doc. # 176) is DENIED.
(2)
Defendants Michelle and Teresa Grasso’s oral motion for
judgment as a matter of law (Doc. # 163), which was
renewed on December 18, 2015, Tr. Transcript, vol. 5, at
20:21-22, is DENIED.
(3)
Consistent with the verdict, the Clerk is directed to
enter judgment in favor of Olga T. Grasso and against
Michelle Grasso in the amount of $127,669.64, plus postjudgment interest at the federal statutory rate from the
date of judgment, for which sum let execution issue.
(4)
Consistent with the verdict, the Clerk is directed to
enter judgment in favor of Olga T. Grasso and against
Teresa
Grasso
in
the
amount
of
$31,917.41,
plus
post-judgment interest at the federal statutory rate
from the date of judgment, for which sum let execution
issue.
(5)
Once
judgment
has
been
CLOSE this case.
28
entered,
the
Clerk
shall
DONE and ORDERED in Chambers in Tampa, Florida, this
31st day of March, 2016.
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?