Robert M. Estrella, as the of the Estate of Armando Damiani and the of the Estate of Lillian Estrella v. Janney Montgomery Scott LLC

Supreme Court

No. 2021-56-Appeal.
(PC 17-5227)

(Dissent begins on Page 21)

Robert M. Estrella, as the Executor of :
the Estate of Armando Damiani and the
Executor of the Estate of Lillian Estrella

v. :

Janney Montgomery Scott LLC et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2021-56-Appeal.
(PC 17-5227)

(Dissent begins on Page 21)

Robert M. Estrella, as the Executor of :
the Estate of Armando Damiani and the
Executor of the Estate of Lillian Estrella

v. :

Janney Montgomery Scott LLC et al. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. The defendant, Steven Damiani,1

appeals from a Superior Court judgment in favor of the plaintiff, Robert Estrella, as

Executor of the Estate of Armando Damiani and the Executor of the Estate of Lillian

Estrella.2 The defendant raises two issues on appeal. First, the defendant submits

that the trial justice erred by permitting a witness to testify despite knowing in

1
Many individuals involved in this dispute share the last names Estrella and
Damiani: Robert Estrella, Robert M. Estrella, Lillian Estrella, Armando “Mandy”
Damiani, Michael Damiani, and Steven Damiani. We refer to these individuals,
other than plaintiff and defendant, by first names for the purpose of clarity. No
disrespect is intended.
2
Robert Estrella litigated the case until his death in April 2022. This Court granted
a motion to substitute filed by his son and successor executor, Robert M. Estrella,
on June 22, 2022. Throughout this opinion, we refer to the two executors
collectively as plaintiff. No disrespect is intended.

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advance that she would invoke her Fifth Amendment privilege against

self-incrimination. This taint, the defendant asserts, infected not only the jury

verdict but also the trial justice’s grant of declaratory relief. Second, the defendant

contends that a party who is found to be a coconspirator in a civil action is an agent

of his coconspirator and, thus, a single tort-feasor under G.L. 1956 § 10-6-2. For the

reasons set forth herein, we affirm in part and vacate in part the amended judgment

of the Superior Court.

I

Facts and Travel

Before 92-year-old Armando Damiani (Mandy)3 passed away on March 4,

2016, he held an investment account worth over $1.5 million. Prior to January 2016,

Mandy’s investment account was held at Wells Fargo Advisors (Wells Fargo), with

Mandy’s sister, Lillian Estrella, listed as the transfer-on-death (TOD) beneficiary.

Upon Mandy’s death, his nephew, Steven (defendant), came into possession of the

investment account. The plaintiff, Mandy’s brother-in-law and Lillian’s husband,

in his capacity as the executor of both of their estates, filed a complaint in Providence

County Superior Court alleging, inter alia, that defendant Janney Montgomery Scott

LLC (Janney), and Richard Ranone—Mandy’s longtime financial advisor—had

3
Throughout the proceedings and his life, Armando Damiani was commonly
referred to as “Mandy.”

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conspired to commit an unlawful conversion of the funds in the investment account.4

The plaintiff also made a claim for declaratory judgment. A five-day jury trial

ultimately ensued.5 Except where noted otherwise, the facts below are derived from

undisputed trial testimony.

In 2016, Ranone, who had recently left his position at Wells Fargo to work

for Janney, was in the process of transferring Wells Fargo accounts of certain clients

to Janney. Ranone’s bonus from Janney depended upon the amount of assets under

his management. In addition to Mandy’s $1.5 million portfolio, Ranone—also

defendant’s longtime financial advisor—eventually transferred defendant’s Wells

Fargo account to Janney.

In January 2016, Ranone went to Mandy’s home to help him fill out the

necessary paperwork to transfer his investment account to Ranone’s new firm.

Among the forms Mandy completed was a client agreement and account transfer

form authorizing Wells Fargo to transfer Mandy’s account to Janney. Notably,

however, Mandy did not designate a TOD beneficiary for the new Janney account.

Ranone testified that Mandy was unsure whether he still wanted to list Lillian as the

TOD beneficiary because she had been ill. According to Ranone, Mandy asked if

4
The plaintiff also brought claims against Michael Damiani and Navigant Credit
Union. Before trial, these claims were voluntarily dismissed with prejudice.
5
The claims on behalf of Lillian’s estate were not successful and are not before us
on appeal.

-3-
he could just sign the TOD form and later call Ranone with further instructions as to

his designation of a beneficiary.

Ranone further testified that he directed Mandy to sign the form, leaving the

TOD portion blank, notwithstanding the following language on the form: “I[] verify

that the statements and information contained in this TOD form are true and

complete to the best of my[] knowledge and belief.” Additionally, the TOD form

required a notary to designate whether the signor was personally known to the notary

or if identification had been produced. A notary was not present when Mandy signed

the form.

At trial, Ranone testified that he spoke with Mandy on February 1, 2016, and

that Mandy told Ranone he wanted to have defendant listed as the TOD beneficiary;

Ranone further testified that he added defendant’s name onto the blank TOD form.

After Ranone listed defendant as the TOD beneficiary, Ranone had the form

backdated and notarized by Kristen Verdeaux, a private-client assistant at Janney.

When asked whether the notarization was improper, Ranone admitted at trial that he

was “not comfortable with the way th[at the TOD] form was done” and that

“[h]aving [Mandy] sign a blank form was a mistake.”

On February 3, 2016, Mandy entered the hospital for an elective surgery.

During his hospitalization, Mandy developed an infection and sepsis and required

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an additional surgery. After the second surgery, Mandy was placed in the

intensive-care unit.

Ranone testified that he had become uncomfortable about Mandy signing a

blank TOD form and, therefore, he had a new version of the form prepared. On

February 13, 2016, Ranone took the second TOD form to Rhode Island Hospital,

where Mandy was in the intensive-care unit. Ranone claimed that he wanted Steven

Pitassi, his supervisor, and the office notary, Verdeaux, to accompany him to the

hospital to have Mandy fill out the form, but, no notary or anyone else was present

for the signing of the second TOD form. As she had before, Verdeaux notarized the

second TOD form back at the office.

Ranone again admitted at trial that it was a mistake to have Verdeaux backdate

and notarize the second TOD form without being present at the signing. Still,

Ranone claimed that Mandy understood what he was doing when he signed the

second form.

At trial, expert witnesses provided differing testimony regarding Mandy’s

treatment and cognitive ability. Doctor Srdjan M. Nedeljkovic was qualified as an

expert in pain management and anesthesiology. He opined to a reasonable degree

of medical certainty that, on February 13, 2016, Mandy’s “cognitive status was at a

very low level [and] that he would not be able to execute any kind of complicated

decision[]making during this time.” Doctor Edward Feldmann was qualified as an

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expert in neurology. Doctor Feldmann testified that, in his opinion, to a reasonable

degree of medical certainty, “except for being slightly drowsy, [Mandy] had no

neurological impairment whatsoever, and he could have easily conducted his own

affairs.” Still, Dr. Feldmann admitted that Mandy could have been disoriented from

pain, medications, infection, and being in the ICU. The jury was also able to

compare Mandy’s signature on the two TOD forms.

At trial, Verdeaux agreed that it was her notary stamp and signature on the

first and second TOD forms, but she invoked the Fifth Amendment when she was

questioned by counsel as to whether she was in the presence of Mandy when he

signed the TOD forms. When defense counsel asked her if she knew defendant,

Verdeaux also invoked the privilege.

At trial, defendant and Ranone both testified that their relationship was strictly

business. During defendant and Ranone’s fifteen-year relationship, they allegedly

only met in person once every three years and spoke on the phone once or twice each

year. The plaintiff, however, presented evidence that, from February 1, 2016, until

Mandy’s passing, Ranone and defendant spoke on the phone at least eight times. For

example, they spoke on the day Mandy allegedly instructed Ranone to write

defendant’s name on the first TOD form; there were four calls shortly before and

after Mandy’s second surgery, before Ranone visited the ICU; a seventeen-minute

call a week later when Mandy’s health started to seriously decline; and finally,

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shortly after Mandy died on March 4, 2016, defendant called Ranone to let him know

that Mandy had passed away.

Despite the increased call volume, Ranone asserted, “I never told [defendant]

that he was the beneficiary prior to Armando dying.” Additionally, when counsel

asked defendant when he learned that he was the TOD beneficiary of over $1.5

million, he gave conflicting deposition and trial testimony. At trial he claimed he

did not know he was the TOD beneficiary until March 9, 2016, but his deposition

testimony stated that Mandy had told defendant he was the beneficiary in the hospital

before he died.

Based on the foregoing evidence, the jury found that Mandy intended to open

his account with Janney, but that he did not intend to designate defendant as the TOD

beneficiary. The jury also found that plaintiff had “proven by a fair preponderance

of the evidence [his] claim of conversion as to the Estate of Armando Damiani and

regarding” defendant. The jury set damages at $1,566,909.46. The jury also found

that plaintiff had proven the conversion claims against Ranone. Finally, the jury

found that plaintiff had proven that there was a conspiracy between defendant and

Ranone.

After the trial, plaintiff made a post-trial motion for declaratory judgment,

which the trial justice granted. The court declared as follows: “(1) Mandy properly

opened a Janney account; (2) both TODs are invalid and unenforceable; and (3)

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because the Disputed Funds became a part of Mandy’s Janney account—and in the

absence of a named beneficiary—the Disputed Funds are an asset of Mandy’s

estate.”

The plaintiff and defendants Janney and Ranone then settled. According to

defendant, the release states, in relevant part, “This Agreement is not intended to

release * * * [defendant], who was found jointly and severally liable to Claimant in

the Action.”

The defendant filed a motion to dismiss on June 23, 2020, asserting that, if

he is a civil coconspirator, he is the agent of Ranone and, therefore, under § 10-6-2

the two are considered a single tortfeasor. Thus, defendant argued, he should also

be released.

The trial justice issued a six-page decision denying defendant’s motion to

dismiss. The trial justice found that defendant’s motion to dismiss was “more akin

to a motion to vacate judgment based on newly discovered evidence”; thus, the trial

justice applied “the standard of a motion for relief from judgment based on newly

discovered evidence under Rule 60(b)(2) [of the Superior Court Rules of Civil

Procedure].”

An order and separate amended judgment entered on September 30, 2020,

denying defendant’s motion and disposing of other motions that are not on appeal.

The defendant filed a timely notice of appeal on October 19, 2020.

-8-
II

Analysis

On appeal, defendant asks this Court to reverse the Superior Court judgment

and remand the case with instructions to enter judgment for defendant on the

declaratory-judgment count and to order a new trial on the remaining counts. The

defendant argues that, by allowing Verdeaux to testify despite knowing she would

claim her Fifth Amendment privilege, he was unduly prejudiced by Verdeaux

painting him with an air of criminality, and thus her testimony should have been

precluded under Rule 403 of the Rhode Island Rules of Evidence. Further, he

submits that this error undermined the trial justice’s declaratory-judgment decision

as well as the jury verdict. The defendant also contends that he and Ranone are a

single tortfeasor within the meaning of § 10-6-2 and that, therefore, the release

entered into between plaintiff and Janney and Ranone should also operate to dismiss

defendant.

Evidentiary Claims

We begin by addressing defendant’s claims of evidentiary error. “[T]he

admissibility of evidence is within the sound discretion of the trial

justice.” Cappuccilli v. Carcieri, 174 A.3d 722, 729 (R.I. 2017) (deletion

omitted) (quoting Martin v. Lawrence, 79 A.3d 1275, 1281 (R.I. 2013)). “This

Court will not interfere with the trial justice’s decision unless a clear abuse of that

-9-
discretion is apparent.” Id. (brackets omitted) (quoting Berman v. Sitrin, 101 A.3d

1251, 1259 (R.I. 2014)). Before reaching the merits of defendant’s argument,

however, we must first determine if the argument was properly preserved for review.

At trial, Verdeaux’s whole testimony was admitted over a single objection by

defense counsel:

“[Defendant’s counsel]: Your Honor, I’d like to state my
objection on the record under Rule 403.

“* * *

“[Defendant’s counsel]: * * * On behalf of [defendant] and
pursuant to Rule 403, I’d ask this witness be excluded, her
testimony be excluded as being unduly prejudicial to
[defendant]. All of her testimony, what she is going to
testify, relates to actions and interim procedures associated
with Janney Montgomery Scott and is not something
[defendant] was remotely involved in. Based on the
foregoing, and based on what her testimony is expected to
be, I think it would be unduly prejudicial, and that the jury
could receive an improper inference regarding his
conduct.

“THE COURT: Thank you. Does plaintiff wish to be
heard?

“[Plaintiff’s counsel]: Well, we think the witness should
be heard. It’s relevant. And that’s it.

“THE COURT: Thank you very much.

“The [c]ourt finds based on the discretion it has at this
point of the testimony that it is relevant under Rule 401,
so the objection is overruled. Rule 403, which is whether
or not the prejudice outweighs the probative value, the
[c]ourt, based on the testimony it has heard thus far and

- 10 -
the proposed testimony, finds that the prejudicial value
does not outweigh the probative effect, and that the
[c]ourt, if necessary, either within the instructions or later
in the trial can give a cautionary instruction to the jury, if
it’s appropriate and proposed by defense counsel.”

The plaintiff contends that defendant’s brief objection was insufficient to

preserve the issue for appellate review. He argues that defendant’s objection was

not specific in that he did not mention Verdeaux’s assertion of her Fifth Amendment

privilege as the basis of his objection, nor had he moved in limine to exclude her

testimony, nor did he raise the issue at any time in the “approximately [eighteen]

months of extensive post-trial motion practice.” Finally, plaintiff argues that

permitting Verdeaux to testify did not amount to reversible error because counsel

never requested a cautionary instruction as the trial justice had offered. In the

context of this case, we disagree.

At the time Verdeaux was called to testify at trial, it was well known to the

parties and the trial justice that she had invoked her Fifth Amendment privilege at

her deposition. Indeed, the trial justice in his pretrial decision on defendant’s petition

to dissolve a temporary restraining order commented on the backdating of the TOD

form, stating, “[t]he notary, when questioned about this refused to answer any

questions and invoked her Fifth Amendment privilege.”

Also, it was clear from the evidence educed by this point in the trial that

Ranone was the primary actor in the alleged conspiracy to convert Mandy’s account.

- 11 -
It was Ranone who had met with Mandy at this home and at the hospital, who had

instructed Mandy to sign the TOD form with a blank designation of beneficiary, and

who had enlisted Verdeaux to backdate and sign the notary clause. The evidence of

defendant’s involvement in the scheme was far more tenuous, consisting almost

exclusively of eight telephone calls between defendant and Ranone in the month

preceding Mandy’s death and the jury’s assessment of the credibility of the various

witnesses, particularly defendant himself. Under the circumstances, we are satisfied

that defendant’s objection, specifically referencing Rule 403 and requesting that

Verdeaux’s “testimony be excluded as being unduly prejudicial to Steven Damiani”

preserved this issue for appellate review.

We now turn to the substance of defendant’s appeal. The defendant frames

his assignment of error as follows:

“When it was known that a witness would plead the Fifth
Amendment before the jury and the facts about which the
witness could testify were already established and
uncontested, [defendant] suffered prejudice when the trial
justice erred in allowing the witness to testify and invoke
the privilege in the presence of the jury.”

Based upon our review of the record, we are satisfied that the admission of

Verdeaux’s testimony created a danger of unfair prejudice to defendant that

significantly outweighed its probative value. See R.I. R. Evid. 403. By the time

Verdeaux testified, the jury had already heard that the notarization of the TOD form

had been improper from both Ranone and Pitassi, a vice president of Janney. Ranone

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had acknowledged that the notarization was improper because it had not been

notarized in Mandy’s presence. Pitassi then affirmed that the document had been

falsely notarized by a Janney employee who had notarized the form indicating that

she knew Mandy and that he had signed the TOD form in her presence.

The potentially explosive nature of Verdeaux’s assertion of her Fifth

Amendment privilege upon the jury was certainly not missed by plaintiff’s counsel.

In his closing argument he argued with respect to the first notarization, “[y]ou’ve

heard the notary come and testify. She pled the Fifth. You’ll hear from the Judge,

you can draw an adverse inference from that that a crime was committed. As the

Judge will instruct you, you can draw an adverse inference.”

Shortly thereafter, counsel addressed the second notarization, stating “[t]he

notary pled the Fifth, again, about her role in notarizing this second TOD. And as

you’ll hear, you can draw an adverse inference that, again, criminal conduct

occurred, and that’s why Kristen Verdeaux took the Fifth.” Indeed, the trial justice

did instruct the jurors:

“In this case one of the witnesses invoked her Fifth
Amendment privilege against self-incrimination. When
testifying in a civil case, regardless of whether there is a
pending criminal matter arising out of the same set of
circumstances, a witness may invoke this constitutional
protection. The jury in this case is entitled to draw adverse
inferences when a witness refuses to testify in a civil case
on this basis, and the witness’s silence should be
considered in light of all other evidence.”

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We are ever “mindful of Justice Brandeis’ classic admonition: ‘Silence is

often evidence of the most persuasive character.’” LiButti v. United States, 107 F.3d

110, 124 (2d Cir. 1997) (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S.

149, 153-54 (1923)).

The possible impact that Verdeaux’s invocation of her Fifth Amendment

privilege had upon the jury is discernible from its assessment of punitive damages

against defendant in favor of the Estate of Lillian Estrella in the amount of

$1,560,909.46 on plaintiff’s count for conversion.6 Significantly, the trial justice

had instructed the jury that it “may award punitive damages against those defendants

if the defendant acted with malice, wantonness, or willfulness of such an extreme

nature as to amount to criminality * * *.”

This Court has said that “the discretion to exclude evidence under Rule 403

must be exercised sparingly.” State v. Patel, 949 A.2d 401, 412 (R.I. 2008). “It is

only evidence that is marginally relevant and enormously prejudicial that must be

excluded.” Id. at 412-13.

6
The trial justice found that “the jury’s finding for Lillian’s Estate on the conversion
claim is clearly erroneous from the face of the [j]udgment because Lillian’s Estate
was never in possession of, or entitled to possession of, the Disputed Funds.” Based
upon this, the trial justice struck “from the [j]udgment the punitive damages award
for Lillian’s Estate against [defendant] because punitive damages are appropriate
only when a party has been awarded compensatory damages.”

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Here, we are satisfied that Verdeaux’s testimony was indeed marginally

relevant. Her role in this unseemly saga of elder exploitation had already been

clearly established. On two occasions she had improperly, and perhaps illegally,

notarized and backdated the TOD forms outside of Mandy’s presence. This fact was

not in dispute. Both Ranone and Pitassi had testified that Verdeaux had improperly

notarized the forms. Her testimony, in which it was likely she would assert her

privilege against self-incrimination, would merely be cumulative.

The potential prejudice to defendant, however, was great. Rule 403 permits

the exclusion of relevant evidence “if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” R.I. R. Evid. 403; see also State v. Gaspar, 982 A.2d 140,

148-49 n.12 (R.I. 2009) (“Only unfairly prejudicial evidence is barred under Rule

403—meaning evidence that has ‘an undue tendency to suggest a decision on an

improper basis.’”) (quoting 29 Am. Jur. 2d Evidence § 338 at 360 (2008)).

The jury in this case found against defendant on the counts of conversion,

tortious interference with inheritance, and obtaining money by false pretenses. In

order to make such findings, the jury, necessarily, also found that plaintiff had

proven there was a conspiracy between defendant and Ranone.

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The defendant’s only connection to Ranone’s activities was eight telephone

calls over a period of approximately one month. Given the timing and the

circumstances of the calls, the jury was entitled to draw inferences and find that

defendant did conspire with Ranone and was thus responsible for the tortious acts

alleged by plaintiff. See Stubbs v. Taft, 88 R.I. 462, 468, 149 A.2d 706, 708 (1959)

(“In order to establish a [civil] conspiracy evidence must be produced from which a

party may reasonably infer the joint assent of the minds of two or more parties to the

prosecution of the unlawful enterprise.”) (quoting 12 C.J.S. Conspiracy § 234, at

639).

We are of the opinion, however, that allowing Verdeaux to assert her privilege

against self-incrimination in front of the jury impermissibly tipped the scales in favor

of plaintiff. It allowed the jury to draw adverse inferences against defendant for the

possible criminal liability of Verdeaux, and thus “to base its decision on something

other than the established propositions in the case.” Gaspar, 982 A.2d at 149 n.12.

The evidence of any relationship between defendant and Verdeaux was simply too

tenuous to quell the danger of unfair prejudice to defendant.

Accordingly, we vacate the jury’s verdict and findings as they relate to the

defendant and remand the case to the Superior Court for further proceedings

consistent with this opinion.

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Declaratory Judgment

The defendant’s second assignment of error concerns the trial justice’s

decision on plaintiff’s post-trial motion for declaratory judgment. The trial justice

granted plaintiff’s “alternative request for relief” and declared that “(1) Armando

Damiani * * * properly opened a Janney Montgomery Scott * * * account; (2) both

Transfer on Death forms are invalid and unenforceable; and (3) because the Disputed

Funds became a part of Mandy’s Janney account, and in the absence of a named

beneficiary, the Disputed Funds are an asset of Mandy’s estate.” On appeal,

defendant argues that the trial justice’s decision is likewise tainted by the admission

of Verdeaux’s Fifth Amendment privilege claim. We disagree.

As an initial observation, we are of the firm conviction that the likelihood that

a seasoned trial justice would be improperly swayed or confused by hearing a

witness claim a privilege against self-incrimination is minimal. See United States v.

Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the gatekeeper

to keep the gate when the gatekeeper is keeping the gate only for himself.”).

Although it is true that the trial justice adopted the jury’s findings, it is clear to us,

based upon our careful review of the record, that he also articulated independent

grounds to support his declarations.

“A Superior Court decision granting or denying declaratory relief is reviewed

with great deference by this Court.” Town Houses at Bonnet Shores Condominium

- 17 -
Association v. Langlois, 45 A.3d 577, 581 (R.I. 2012) (quoting Downey v. Carcieri,

996 A.2d 1144, 1149 (R.I. 2010)). “When deciding an action for declaratory

judgment, a Superior Court justice makes all findings of fact without a jury.” Id.

(quoting Downey, 996 A.2d at 1149). “Such factual findings are afforded great

weight by this Court, and will not be disturbed absent a showing that the trial justice

overlooked or misconceived material evidence or was otherwise clearly wrong.” Id.

(quoting Downey, 996 A.2d at 1149). “A trial justice’s findings on questions of law,

however, are reviewed de novo.” Id. (quoting Downey, 996 A.2d at 1149).

In reaching the first declaration that Mandy properly opened a Janney account,

the trial justice relied upon facts that provided far more detail than the conclusory

answer that the jury gave to question one on the amended verdict form: “Did

Armando Damiani intend to open the account with Janney Montgomery?” Rather,

the trial justice found that Mandy and Ranone had mutually assented to enter into an

agreement on January 30, 2016, when Ranone presented, and Mandy executed, a

client agreement under the express terms of which Janney was instructed “to

establish an account on Mandy’s behalf to enable Janney to receive Mandy’s funds

per his instructions.” This account was to be opened on Mandy’s behalf

“irrespective of whether he contemporaneously, or ever, designated a TOD

beneficiary.”

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The trial justice went on to note that, although “subjective intent is largely

irrelevant to an inquiry into mutual assent, * * * any doubt about Mandy’s subjective

understanding was resolved by the jury’s response to question [one] on the Verdict

Form.” Clearly, he gave little weight to a finding that he thought had little bearing

on the issue before him.

The trial justice then considered whether the two TODs were valid and

enforceable. With respect to the first TOD, he found it to be void “because the

absence of a named beneficiary renders the TOD-1 indefinite and unenforceable.”

He indicated that the enforceability of the TOD turns upon a question of fact

“respecting whether Mandy decided to name [defendant] as a beneficiary, thereby

curing the indefiniteness.” He then concluded that, “[b]ased upon the [c]ourt’s

credibility determinations and observing testimony, the [c]ourt finds the evidence at

trial fails to establish this necessary fact.” The trial justice reviewed the evidence,

noting the unreliability of Ranone’s testimony as well as several other factors that

gave him “pause.”

So too, the trial justice found the second TOD to be unenforceable based upon

Ranone’s undue influence on Mandy. The trial justice began his analysis by noting

that the issue of undue influence is a fact-intensive inquiry requiring consideration

of the totality of circumstances. He reviewed the evidence, demonstrating that

Mandy trusted and confided in Ranone and that Ranone stood to benefit “from a

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disposition to [defendant].” He also highlighted evidence that showed that “Mandy

was physically vulnerable and highly unstable at the time he executed the TOD-2.”

The trial justice also commented in detail on the evidence of Mandy’s weakened

state of mind, concluding that “the circumstantial evidence more than satisfies [to]

the [c]ourt [that] Ranone pressured Mandy to sign the TOD-2.”

The trial justice did emphasize that “[c]rucially, the jury found Ranone

breached a fiduciary duty owed to Mandy.” It cannot be gainsaid, however, that the

trial justice reached a similar conclusion based upon his own thoughtful

consideration of the evidence and his own credibility determinations. Thus, we are

confident that the factual findings underlying the trial justice’s declarations are

unsullied by any possible taint that Verdeaux’s testimony may have brought to the

jury’s deliberations. We have no cause to disturb the trial justice’s decision on the

plaintiff’s claim for declaratory judgment.7

III

Conclusion

For the reasons set forth in this opinion, we affirm paragraph one of the

amended judgment declaring, inter alia, that “the disputed funds” are an asset of

7
Because we are remanding this case to the Superior Court for further proceedings,
a jury or trial justice may make findings that would place this matter in a different
factual context. We do not address, therefore, defendant’s additional argument with
respect to the effect, if any, of the release executed by plaintiff, Ranone, and Janney.

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Mandy’s estate; we vacate paragraph two awarding the plaintiff compensatory

damages and prejudgment interest; and we affirm the amended judgment in all other

respects. The record may be returned to the Superior Court for further proceedings

consistent with this opinion.

Justice Robinson, dissenting. I respectfully bow to the reality that the

majority has applied the pertinent legal principles to the facts of this case in a manner

that differs radically from my own assessment. Nonetheless, I wish to express my

vigorous dissent from the majority’s analysis of the Rule 403 issue and from the

result that it has reached.1 In my judgment, the trial justice did not abuse his

discretion when he allowed Kristen Verdeaux to invoke her Fifth Amendment

privilege in the presence of the jury, and I believe that the jury’s verdict should be

allowed to stand.

We have stated that “[t]he application of Rule 403 is committed to the sound

discretion of the trial justice.” State v. Rios, 996 A.2d 635, 640 (R.I. 2010); see also

State v. Patel, 949 A.2d 401, 413 (R.I. 2008); State v. Silvia, 898 A.2d 707, 716 (R.I.

2006); State v. Kaner, 876 A.2d 1133, 1134 (R.I. 2005) (mem.) (“[T]he issue of

whether otherwise relevant evidence should be excluded pursuant to the provisions

1
I am in agreement with the majority that, taking into account the
circumstances summarized in the majority opinion, the Rule 403 objection relative
to the testimony of Kristen Verdeaux was adequately preserved for appellate review.

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of Rule 403 is * * * left to the sound discretion of the trial justice. * * * And such

decisions are reversed by this Court only when there has been an abuse of

discretion.”); Soares v. Nationwide Mutual Fire Insurance Company, 692 A.2d 701,

701-02 (R.I. 1997) (mem.) (“This Court has stated that the admissibility of evidence

is within the sound discretion of the trial justice, and this Court will not interfere

with the trial justice’s decision unless a clear abuse of that discretion is apparent.”);

State v. Aponte, 649 A.2d 219, 223 (R.I. 1994) (“The determination of whether

evidence is relevant is within the sound discretion of the trial justice, whose

relevancy finding will not be overturned except for an abuse of discretion. * * *

Although relevant, evidence prejudicial to a defendant to the extent that its negative

effect outweighs its probative value may be excluded under Rule 403. * * * The

ultimate determination of the effect of evidence lies in the discretion of the trial

justice.”).

In addition, this Court has been clear that the discretion to exclude evidence

pursuant to “Rule 403 must be exercised sparingly”—and then only in situations

where the evidence is “marginally relevant and enormously prejudicial * * *.” Patel,

949 A.2d at 412-13; see also Silvia, 898 A.2d at 717 (“We have stated (and have

often repeated) that unless evidence is of limited or marginal relevance and

enormously prejudicial, the trial justice should not act to exclude it.”) (internal

quotation marks and brackets omitted); State v. Moreno, 996 A.2d 673, 683 (R.I.

- 22 -
2010); State v. O’Brien, 774 A.2d 89, 107 (R.I. 2001). See generally Freeman v.

Package Machinery Company, 865 F.2d 1331, 1340 (1st Cir. 1988) (Selya, J.)

(“Only rarely—and in extraordinarily compelling circumstances—will we, from the

vista of a cold appellate record, reverse a district court’s on-the-spot judgment

concerning the relative weighing of probative value and unfair effect.”).2

I am completely unable to see how the trial justice in this case abused his

discretion in allowing Kristen Verdeaux to invoke her Fifth Amendment privilege

in the presence of the jury. She was a significant participant (perhaps somewhat

unwillingly) in the alleged conspiratorial scheme, and the jury was properly allowed

to hear her testify and to draw appropriate conclusions from her assertion of her Fifth

Amendment privilege.

The ultimate issue before the jury in this case was whether Richard Ranone

conspired with defendant Steven Damiani to wrongfully convert funds in Mandy’s

investment account that was originally held by Wells Fargo before being transferred

2
Rule 403 itself and our jurisprudence relative to it are largely consistent with
settled principles of the law of evidence that predate the enactment of the Rules of
Evidence. See, e.g., State v. Fenner, 503 A.2d 518, 526 (R.I. 1986) (holding, in a
case in which the defendant was charged with assault with intent to murder, that the
display to the jury of the victim’s “wound was not of such a nature as to inflame the
jury beyond the probative value that the existence of such a wound should properly
have”).

- 23 -
to Janney Montgomery Scott LLC (Janney).3 As the majority notes, Richard Ranone

was Steven Damiani’s “longtime financial advisor * * *.” Although the majority

indicates that both Steven Damiani and Richard Ranone “testified that their

relationship was strictly business,” the majority also candidly indicates that plaintiff

“presented evidence that, from February 1, 2016, until Mandy’s passing [on March

4, 2016], Ranone and defendant spoke on the phone at least eight times.” In addition,

there was evidence that one of those calls lasted for seventeen minutes at a time

“when Mandy’s health started to seriously decline * * *.” I respectfully submit that

the majority significantly minimizes the relationship between Richard Ranone and

Steven Damiani.

As for Kristen Verdeaux, it should be borne in mind that she was in actuality

the agent of Richard Ranone and, as such, was a person who played an essential role

in the alleged Ranone-Damiani conspiracy. Her invocation of her Fifth Amendment

privilege and her refusal to testify were certainly relevant to plaintiff’s theory that

Richard Ranone and Steven Damiani had conspired to cause Mandy’s TOD

designation to be favorable to Steven Damiani.

Richard Ranone himself testified that, in January of 2016, he had Mandy sign

the TOD form in blank without designating who would be the TOD beneficiary,

3
The majority opinion correctly notes that, in 2016 (the same year in which the
alleged tortious conduct took place), Richard Ranone had “recently left his position
at Wells Fargo * * *.”

- 24 -
without a notary being present, and without a notarial statement attesting to the

identity of the signor. He further testified that, on February 1, 2016, Mandy told him

that he wanted Steven Damiani to be listed as the TOD beneficiary. The majority

opinion then proceeds to describe certain very troubling actions taken by Richard

Ranone assisted by Kristen Verdeaux—notably the fact that, after Richard Ranone

“added defendant’s name onto the blank TOD form,” he “had the form backdated

and notarized by Kristen Verdeaux, a private-client assistant at Janney.”

I am frankly unable to understand why the testimony of Kristen Verdeaux

(including her decision to assert her Fifth Amendment privilege) should have been

excluded pursuant to Rule 403. The majority describes Kristen Verdeaux as being

“a private-client assistant at Janney” and also as “the office notary * * *.” And, as

just noted, the majority opinion also indicates that Richard Ranone “had enlisted

Verdeaux to backdate and sign the notary clause.” While Kristen Verdeaux was not

named as a defendant in this case, her role in the alleged conspiracy between Richard

Ranone and Steven Damiani was far from being incidental. Her action regarding the

notarizations was part and parcel of what Richard Ranone allegedly sought to

accomplish—namely, to have Mandy’s funds be transferred to Steven Damiani upon

Mandy’s death pursuant to the TOD mechanism. Kristen Verdeaux may have been

only an agent of Richard Ranone and Janney, but she was an agent who played a

critical role in the scenario that had the potential of being profitable for Steven

- 25 -
Damiani and Richard Ranone as well.4 And she was an agent who, on at least two

occasions, performed an act concerning which she felt called upon to invoke her

Fifth Amendment privilege.

With all due respect to the majority, I fail to understand the logic of its holding

that Kristen Verdeaux’s invocation of her Fifth Amendment privilege should have

been excluded pursuant to Rule 403. The invocation of that privilege indubitably

added to the portrait of grave malfeasance that plaintiff wished to present to the jury.

But why should plaintiff have been barred from painting that picture? A civil action

replete with allegations of conspiracy is, after all, no day at the beach. See Onujiogu

v. United States, 817 F.2d 3, 6 (1st Cir. 1987) (“The fact that a piece of evidence

hurts a party’s chances does not mean it should automatically be excluded. If that

were true, there would be precious little left in the way of probative evidence in any

case.”); see also United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir.

1989) (“By design, all evidence is meant to be prejudicial; it is only unfair prejudice

which must be avoided.”).

We have repeatedly emphasized the abuse of discretion standard in the context

of Rule 403. Indeed, it is extremely rare for the Court to reverse the trial justice’s

discretionary decision in that context. Frankly, I would be inclined to say that the

4
It should be remembered that Richard Ranone’s compensation from Janney
was related to the amount of assets under his supervision, and he was the “longtime
financial advisor” of Steven Damiani.

- 26 -
trial justice had abused his discretion if he had decided to exclude the testimony of

Kristen Verdeaux pursuant to Rule 403.

I do not see this as a close case. As previously emphasized, it is important to

recall that “[w]e have said that a trial justice’s discretion to exclude evidence under

Rule 403 must be used sparingly.” State v. DeJesus, 947 A.2d 873, 883 (R.I. 2008).

We have also expressly stated that “[i]t is only evidence that is marginally relevant

and enormously prejudicial that must be excluded.” Patel, 949 A.2d at 412-13. It is

my definite view that the appearance of Kristen Verdeaux as a witness at trial and

her invocation of her Fifth Amendment privilege had great potential probative value.

In my judgment, that testimony was neither “marginally relevant” nor “enormously

prejudicial.”5

Her appearance as a witness and her invocation of the Fifth Amendment

privilege were nothing more nor less than a piece of the overall evidence marshaled

by plaintiff to convince the jury of the existence of a nefarious conspiracy. This

Court in Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188 (R.I. 1994), sagaciously

observed that “[t]he determination of the value of evidence should normally be

placed in the control of the party who offers it.” Wells, 635 A.2d at 1193; see also

Boscia v. Sharples, 860 A.2d 674, 678 (R.I. 2004). In all probability the testimony

5
See Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1193 (R.I. 1994); see
also State v. Silvia, 898 A.2d 707, 717 (R.I. 2006).

- 27 -
of Kristen Verdeaux and her assertion of her Fifth Amendment privilege had an

impact on the jury, but properly so. See Wells, 635 A.2d at 1193 (“Naturally this

evidence was prejudicial to [the adverse party], but properly so.”).

Kristen Verdeaux was a relevant participant in what plaintiff alleged was a

conspiracy to wrongfully bestow a significant sum on Steven Damiani. The plaintiff

had every right to expose to the jury the chain of events that allegedly constituted

the conspiracy; and Kristen Verdeaux was an important link in that chain. Her

testimony spoke to the intellects of the jurors, not to their emotions. See State v.

Nightingale, 8 A.3d 136, 141 (N.H. 2010) (“Evidence is unfairly prejudicial if its

primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense of

horror, provoke its instinct to punish, or trigger other mainsprings of human action

that may cause a jury to base its decision on something other than the established

propositions in the case.”); 29 Am. Jur. 2d Evidence § 326 at 382 (2d ed. 2019) (“The

critical inquiry in determining whether evidence is unfairly prejudicial is whether

the evidence improperly appeals to the preferences of the trier of fact for reasons that

are unrelated to the power of the evidence to establish a material fact.”). There was

nothing inherently emotional or improperly provocative about Kristen Verdeaux’s

invocation of her Fifth Amendment privilege. That invocation was a cold hard fact;

and the jury was entitled, as a matter of law, to draw an adverse inference from that

invocation.

- 28 -
While I have not succeeded in convincing the majority that the trial justice

acted well within his discretion with respect to the testimony of Kristen Verdeaux, I

feel obliged to state that for me it is surpassingly difficult to reconcile the Court’s

ruling in this case with traditional notions of what may properly be presented to the

jury by the opposing parties in our adversary system of justice.6 It is clear to me,

after carefully reviewing the record, that there was a completely proper evidentiary

basis upon which the jury could base its finding that there was an unsavory

conspiracy scheme between Richard Ranone and Steven Damiani.

For these reasons, I respectfully but very vigorously dissent.

6
See Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35 (1944) (“[The jury]
weighs the contradictory evidence and inferences, judges the credibility of
witnesses, receives expert instructions, and draws the ultimate conclusion as to the
facts. The very essence of its function is to select from among conflicting inferences
and conclusions that which it considers most reasonable.”) (quoted in Joplin v.
Cassin, 252 A.3d 271, 281-82 (R.I. 2021)).

- 29 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Robert M. Estrella, as the Executor of the Estate of
Armando Damiani and the Executor of the Estate of
Title of Case
Lillian Estrella v. Janney Montgomery Scott LLC et
al.
No. 2021-56-Appeal.
Case Number
(PC 17-5227)

Date Opinion Filed June 22, 2023

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Brian P. Stern

For the Plaintiff:

Thomas L. Mirza, Esq.
Attorney(s) on Appeal
For the Defendant:

Thomas M. Dickinson, Esq.

SU-CMS-02A (revised November 2022)