Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 1 of 58 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

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1 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 1 of 58 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ESTATE OF RITA GENECIN, by : VICTOR GENECIN, Personal : Representative, : Plaintiff, : : CIVIL NO. 3:01CV00211(MRK) : VS. : : PAUL GENECIN and VICTOR GENECIN, : MAY 14, 2004 in his individual capacity, : Defendants. : JOINT TRIAL MEMORANDUM This Joint Trial Memorandum is submitted by the parties for the Court s approval in compliance with Local Civil Rule 6 and the District s Standing Order Regarding Trial Memoranda in Civil Cases as modified by Joint -Trial Memorandum - instructions for the Honorable Mark R. Kravitz (revised 11/03). 1. TRIAL COUNSEL: a. Trial Counsel for Plaintiff, Estate of Rita Genecin and for Defendant Victor Genecin, in his individual capacity: David L. Belt JACOBS, GRUDBERG, BELT & DOW, P.C. 350 Orange Street New Haven, Connecticut Tel.: (203) Fax:(203) dbelt@jacobslaw.com

2 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 2 of 58 b. Trial Counsel for Defendant Paul Genecin 2. JURISDICTION: Patrick M. Noonan, Esq. Delaney, Zemetis, Donahue, Durham & Noonan, P.C. 741 Boston Post Road Guilford, Connecticut Tel.: (203) Fax: (203) patnoonan@snet.net This court has jurisdiction to hear this action pursuant to 28 U.S.C. 1332(a)(1) and (c)(2), based on diversity of citizenship among the parties. The amount in controversy exceeds $75, JURY/NONJURY: This case is to be tried to the court. 4. LENGTH OF TRIAL: Counsel estimate that 2 to 3 trial days will be required. 5. FURTHER PROCEEDINGS: It is not anticipated that further proceedings prior to trial will be required. 6. NATURE OF CASE: a. Statement of Plaintiff Estate of Rita Genecin. In the First Count, Plaintiff Estate of Rita Genecin seeks an order pursuant to Section of the Maryland Code Annotated for Estates and Trusts settling title to a lithograph by French artist Henri de Toulouse-Lautrec entitled Partie de campagne (le chariot anglais) which was in the decedent s house in Baltimore Maryland at the time of her death, but which the Defendant Paul Genecin claims was given to him by the decedent prior to her death. 2

3 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 3 of 58 In the Second Count, Plaintiff seeks a declaratory judgment, pursuant to 28 U.S.C. 2201, fixing the percentages to which Defendant Victor Genecin and Defendant Paul Genecin are entitled in the distribution of an Individual Retirement Account with Charles Schwab & Company, Inc. in the name of Rita Genecin ( Schwab IRA ) and adjudicating the rights of Victor Genecin and Paul Genecin in that account. The individual defendants differ over the interpretation and legal effect of the beneficiary designation documents. Victor Genecin maintains that the Schwab IRA should be divided 60% Victor Genecin and 40% for Paul Genecin; while Paul Genecin maintains that the account should be divided 50% for Victor Genecin and 50% for Paul Genecin. The Estate takes no position regarding the percentage allocations of the Schwab IRA, but seeks a declaratory judgment in order to discharge its responsibility to instruct Charles Schwab & Company, Inc. as to the proper division. b. Statement of Defendant Victor Genecin, in his individual capacity. Defendant Victor Genecin in his individual capacity adopts the statement of Plaintiff Estate of Rita Genecin concerning the nature of the Second Count. c. Statement of Defendant Paul Genecin. Defendant Paul Genecin agrees with the statement of the case presented by the plaintiff, except to note that the house in Baltimore, Maryland in which the Lautrec was located at the time of Rita Genecin s death was owned jointly by Rita Genecin, Paul Genecin and Victor Genecin. 7. TRIAL BY MAGISTRATE JUDGE: The parties have not agreed to a trial by a Magistrate Judge. 3

4 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 4 of EVIDENCE: a. Witnesses: (1) Witnesses of Plaintiff Estate of Rita Genecin and Defendant Victor Genecin 1. Victor Genecin Victor Genecin Pavia & Harcourt LLP 600 Madison Avenue New York, New York Tel.: (212) Victor Genecin is expected to testify that he is the Personal Representative of the Estate of Rita Genecin; that in her will, Rita Genecin made no specific bequests of personal property, but provided that her residuary estate was to be divided between her two sons, with 55% going to Victor Genecin and 45% going to Paul Genecin; that her probate assets consisted of personal property including a 1897 color lithograph by Henri de Toulouse- Lautrec entitled Partie de campagne (le chariot anglais) ("the Lautrec"); that the Lautrec was in Rita Genecin s home in Baltimore Maryland at the time of her death on August 8, 2000; that upon Rita Genecin s death, Victor Genecin and Paul Genecin went to her house in Baltimore and stayed for some days; that early in the week of August 6, 2000, Victor Genecin and Paul Genecin met together with Daniel Wagner, Rita Genecin s financial advisor, at which time Mr. Wagner provided to each copies of documents that Rita Genecin had executed in his office on January 12, 2000 before a notary public concerning certain works of art; that at that meeting, Mr. Wagner provided to Victor Genecin and Paul Genecin copies of four documents, in each of which Rita Genecin purported to grant a 1/15 interest in the Lautrec to each of Paul Genecin, Victoria Morrow (Paul Genecin s wife), Gregory 4

5 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 5 of 58 Genecin (Paul Genecin s son), and Samuel Genecin (Paul Genecin s son); that during the week of August 6, 2000 Paul Genecin sought and obtained Victor Genecin s agreement that Paul Genecin would remove all of the works of art, including the Lautrec, from Rita Genecin s home for safekeeping; that Paul Genecin represented that the works of art would be safer in his Connecticut home, which had an alarm system and a safe, than in the decedent s home, which was then uninhabited as a consequence of her death; that with Victor Genecin s consent, Paul Genecin took possession of the Lautrec on behalf of the Estate and transported it to his residence at 340 St. Ronan Street in New Haven, Connecticut on or about August 11, 2000; that Paul Genecin told Victor Genecin that he had purchased insurance effective August 11, 2000 for works of art, including the Lautrec, as property of the Estate and submitted the insurance bill to the Estate for payment; that the most substantial non-probate asset left by Rita Genecin is an Individual Retirement Account with Charles Schwab & Company, Inc. (the Schwab IRA ) in the name of Rita Genecin; and that Charles Schwab and Company, Inc. informed Victor Genecin in December 2000 that because of a discrepancy between the two beneficiary designation documents, Schwab was unable to allocate the balance of Rita Genecin s IRA absent either a court order or signed and notarized letters of authorization from both Victor Genecin and Paul Genecin. Plaintiff takes the position that, pursuant to the Maryland Dead Man s Statute, Md. Code Cts. & Jud. Proc. art. 1, , defendant Paul Genecin, his wife Victoria R. Morrow and his minor son Gregory Genecin may not be permitted to testify in this action concerning any transaction between Rita Genecin and her son, Paul Genecin, or to any statements made by Rita Genecin. If, however, the court, notwithstanding the objection of Plaintiff, permits Defendant Paul Genecin, Victoria R. Morrow or Gregory Genecin to testify 5

6 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 6 of 58 concerning transactions between Paul Genecin and Rita Genecin or statements of Rita Genecin concerning inter alia, the alleged gift to Paul Genecin of the lithograph by Henri de Toulouse-Lautrec entitled Partie de campagne, Plaintiff reserves the right to offer, without waiving its objection, rebuttal evidence that would support the following findings of fact: During the week of August 6, 2000, Paul Genecin made no mention of any claim that he might have ownership of the entire Lautrec by inter vivos gift; that the first occasion on which Paul Genecin claimed to be the owner of 100% of the Lautrec was a facsimile transmission dated September 5, 2000 that he sent on that date to Max E. Blumenthal, Esq., who had been retained as counsel for the estate; that Paul Genecin did not raise directly with Victor Genecin the issue of ownership of the Lautrec until some time after the September 5, 2000 fax to Blumenthal; and that Rita Genecin never told Victor Genecin that she had made a gift of all or any part of the Lautrec to Paul Genecin. in duration. Mr. Genecin s testimony is expected to be of approximately one and one-half hours 2. Daniel E. Wagner Wagner Capital Management Corp Greene Tree Road Baltimore, Maryland Tel.: (410) Daniel E. Wagner is expected to testify concerning his discussions with Rita Genecin regarding making gifts of personal property, including artwork, so as to minimize estate and gift taxes; his discussions with Rita Genecin regarding making gifts of fractional interests in a color lithograph by Henri de Toulouse-Lautrec entitled Partie de campagne; her stated desire to retain physical possession of the Lautrec; her execution of documents stating that she was giving fractional shares in that lithograph to her son Paul Genecin and members of 6

7 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 7 of 58 his family; his discussions with Rita Genecin concerning establishing an IRA account in her name at Charles Schwab & Company, Inc.; the execution by Rita Genecin of documents concerning her application to establish an IRA account in her name at Charles Schwab & Company, Inc. ( Schwab ) in October 1998 and the contents of those documents; including, inter alia, that he is President of Wagner Capital Management Corp. ( WCM ); that he was Rita Genecin s financial adviser for many years, until her death on August 4, 2000; that he was personally involved in the management of her accounts, and those of her late husband, Abraham Genecin, M.D., starting in the 1970s; that on October 8, 1998, Rita Genecin visited the offices of WCM for the purpose of filing out the application form necessary for her to be the owner of her late husband s IRA account with Charles Schwab & Co., Inc. ( Schwab ); that on October 8, 1998 Rita Genecin signed a Schwab IRA Application; that the handwriting on the first page of the Schwab IRA Application is that of Carol N. Sullivan, an employee of WCM; that the Schwab IRA Application signed by Rita Genecin on October 8, 1998 was completely filled out, including the allocation of percentage of benefits of 40% to Paul Genecin and 60% to Victor Genecin, and reviewed by Rita Genecin on October 8, 1998 and not altered before it was sent to Schwab; that Rita Genecin made the determination to allocate 60 percent of the Schwab IRA account to her son Victor Genecin, who had three children and 40 percent to her son Paul Genecin, who had two children; that also on October 8, 1998 Rita Genecin signed a document headed RITA GENECIN IRA BENEFICIARY DESIGNATION; that in the fall of 1999 he had a number of discussions with Rita Genecin concerning making gifts of works of art owned by her in a way to avoid or minimize estate and gift taxes and other transactions concerning her assets; that on January 6, 2000, Rita Genecin came to the offices of WCM and met with Mr. Wagner and with David Citron (then a vice president of the company) and Marc J. 7

8 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 8 of 58 Hertzberg, also a vice president; that at our January 6, 2000 meeting, Rita Genecin provided a copy of an appraisal by Conrad R. Graeber dated June 8, 1998 of works of art that she owned, and told Mr. Wagner that, starting with 2000, she desired to make annual fractional gifts, so as to remain within the Federal gift tax limitations, of shares in a lithograph that she owned entitled Partie de campagne by Henri de Toulouse-Lautrec ( the Lautrec") to her son Paul Genecin, his wife, and his two sons; that the appraisal presented by her to Mr. Wagner valued the Lautrec at $150,000; that she asked Mr. Hertzberg to prepare the necessary documents; that at no time in that January 6, 2000 meeting did Rita Genecin ever state that she had made a gift of 100% of the Lautrec to her son, Paul Genecin; that Rita Genecin came again to the offices of WCM on January 12, 2000 and met with Mr. Wagner, together with Messrs. Citron and Hertzberg; that in the January 12, 2000 meeting, she executed a number of documents that had been prepared as a result of her instructions in the January 6, 2000 meeting; that at no time in the January 12, 2000 meeting did Rita Genecin ever state that she had made a gift of 100% of the Lautrec to her son, Paul Genecin; that Mr. Wagner met with Rita Genecin, and spoke with her by telephone, on a number of occasions after January 12, 2000 and before her death on August 4, 2000, but that at no time did she ever state that she had made a gift of 100% of the Lautrec to her son, Paul Genecin; that in the January 12, 2000 meeting, Rita Genecin executed a First Codicil to her Will; that during our January 12, 2000 meeting, Ms. Sullivan, who is a Notary Public of the State of Maryland, joined them and Ms. Sullivan witnessed and certified the execution by Rita Genecin of certain documents, including the four fractional gift documents that Mr. Hertzberg had prepared, in each of which Rita Genecin purported to make a gift of 1/15 th of the Lautrec to an individual member of Paul Genecin s family and a Deed, in which Rita Genecin conveyed ownership from herself alone to herself 8

9 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 9 of 58 and Victor Genecin and Paul Genecin as joint tenants of the real property and improvements thereon known as 5616 Cross Country Boulevard, Baltimore, Maryland 21209, which was her personal residence; that on August 7, 2000 Mr. Wagner met with Victor Genecin and Paul Genecin at which time he gave them copies of the four 1/15 th fraction share documents concerning the Lautrec and Paul Genecin acknowledged having received the originals of them from his mother. Mr. Wagner s testimony is expected to be of approximately two hours in duration. 3. Marc J. Hertzberg Wagner Capital Management Corp Greene Tree Road Baltimore, Maryland Tel.: (410) Marc J. Hertzberg is expect to testify concerning discussions with Rita Genecin regarding making gifts of personal property including art work, so as to minimize estate and gift taxes; discussions with Rita Genecin regarding making a gift of fractional interests in a color lithograph by Henri de Toulouse-Lautrec entitled Partie de campagne; discussions with Rita Genecin concerning allocation of benefits in her Schwab IRA 60 percent to Victor Genecin and 40 percent to Paul Genecin; the preparation of documents stating that Rita Genecin was giving 1/15 interest each in the Lautrec to Paul Genecin, his wife and his two sons; discussions with Rita Genecin regarding, the execution of a codicil to her will and a deed to her personal residence in January, 2000; and the transmittal to Schwab on October 21, 1999 of certain documents signed by Rita Genecin; including, inter alia, that he is Vice President of Wagner Capital Management Corp. ( WCM ); that he was personally involved in the management of Rita Genecin s accounts from January, 1999 until her death; that during a January 12, 2000 meeting at WCM with Rita Genecin, Ms. Sullivan, an employee 9

10 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 10 of 58 of WCM who is a Notary Public of the State of Maryland, was asked to join them; that during this part of the meeting, Ms. Sullivan witnessed and certified the execution by Rita Genecin of certain documents, including four fractional gift documents that he had prepared, in each of which Rita Genecin purported to make a gift of 1/15 th of the Lautrec to an individual member of Paul Genecin s family; and a deed, in which Rita Genecin conveyed ownership from herself alone to herself and Victor Genecin and Paul Genecin as joint tenants of the real property and improvements thereon known as 5616 Cross Country Boulevard, Baltimore, Maryland 21209, which is her personal residence; and that in the January 12, 2000 meeting with Rita Genecin, Rita Genecin stated that she would send the originals of the four fractional gift documents to Paul and Victor Genecin; that she took the originals of those documents with her when she left; that on October 21, 1999 he sent an IRA beneficiary Supplement signed by Rita Genecin on October 21, 1999 to Schwab and at the same time, without informing Rita Genecin that he was doing so or being instructed to do so by her, sent to Schwab an original document headed Rita Genecin Beneficiary Designation dated October 6, 1998 which he found in the file. duration. Mr. Hertzberg s testimony is expected to be of approximately one and a half hours in 4. Carol N. Sullivan Wagner Capital Management Corp Greene Tree Road Baltimore, Maryland Tel.: (410) Carol N. Sullivan is expected to testify concerning the preparation of Rita Genecin s Schwab IRA Application and the Rita Genecin IRA Designation and the transmittal of that application and designation to Schwab; the execution by Rita Genecin in January, 2000 of 10

11 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 11 of 58 documents stating that Rita Genecin was making gifts of fractional interests in a color lithograph by Henri de Toulouse-Lautrec entitled Partie de campagne; and the execution by Rita Genecin of a deed to her personal residence in January, 2000; including, inter alia, that she is administrator of Wagner Capital Management Corp. ( WCM ); that she is a Notary Public of the State of Maryland; that she knew Rita Genecin as a client of WCM for many years; that on October 8, 1998 Rita Genecin visited the offices of WCM for the purpose of filling out the application form necessary for her to be the owner of her late husband s IRA account with Charles Schwab & Co., Inc. ( Schwab ); that on October 8, 1998 she signed a Schwab IRA Application; that the handwriting on the first page of the Schwab IRA Application is that of Carol N. Sullivan; that she sent the original of the Schwab IRA Application signed by Rita Genecin to Schwab and kept a copy in the file of WCM; that also on October 8, 1998 Rita Genecin signed a document headed RITA GENECIN IRA DESIGNATION in her presence and which she countersigned; that she sent the RITA GENECIN IRA DESIGNATION to Schwab along with the Schwab IRA Application; that on January 12, 2000, Rita Genecin came to the office of WCM and met with Daniel E. Wagner, president of WCM, Marc J. Hertzberg, vice president, and David Citron, then also a vice president, and executed certain documents before her as a Notary Public, including four documents dated January 6, 2000; that these were executed by Rita Genecin in her presence at the offices of WCM on January 12, 2000; that each document stated that Rita Genecin was making a gift of a 1/15 th interest in the Lautrec lithograph, including one to Paul Genecin, one to Victoria Morrow, one to Samuel Genecin and one to Gregory Genecin; that Rita Genecin executed and acknowledged the originals of the four documents in her presence on January 12, 2000, and passed each document to her; that in her capacity as a Notary Public of the State of Maryland, executed the certification that 11

12 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 12 of 58 appears at the bottom of each document, and placed her notarial seal on the document; that in that same January 12, 2000 meeting, Rita Genecin executed a deed conveying ownership from herself alone to herself and Victor Genecin and Paul Genecin as joint tenants of the real property and improvements thereon known as 5616 Cross Country Boulevard, Baltimore, Maryland Ms. Sullivan s testimony is expected to be of approximately one hour in duration. 5. Custodian of Records Charles Schwab & Company, Inc. c/o CT Corporation System, Inc. 1 Commercial Plaza Hartford, Connecticut A subpoena has been served on Charles Schwab & Company, Inc. directing it to produce at trial the original of certain documents in its possession, including: 1. Schwab IRA Application for account no. BL by Rita Genecin on October 8, [DX 607]. 2. Rita Genecin IRA Beneficiary Designation dated October 8, 1998 [DX 608]. 3. Rita Genecin IRA Beneficiary Designation dated October 6, 1998 [DX 609]. This testimony is expected to be of approximately ten minutes in duration. 6. Douglas M. Lehman Pavia & Harcourt LLP 600 Madison Avenue New York, New York Tel.: (212) Mr. Lehman is expected to testify in rebuttal if the Court permits Defendant Paul Genecin to testify concerning transactions between him and Rita Genecin or admits into evidence Defendant Paul Genecin s proposed exhibit DX1 that in December 2000 he represented the Estate of Rita Genecin; that at that time Paul Genecin was represented by 12

13 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 13 of 58 Gerard P. Martin of the law firm of Martin, Snyder & Berstein, P.A. in Baltimore, Maryland and that on December 24, 2000 he received a letter from Mr. Martin by facsimile which is Plaintiff s proposed rebuttal exhibit DX23. Mr. Lehman s testimony is expected to be of less than one-half hour in duration. (2) Witnesses of Defendant Paul Genecin: The defendant Paul Genecin intends to call the following witnesses: A. Dr. Paul Genecin. It is anticipated that Dr. Genecin will testify about his relationship with his mother, gifts made to him by his mother, the circumstances of the gifting of the Lautrec to his by his mother, the transfer of the interest in his mother s home to him, and the circumstances concerning the IRA account. B. Dr. Victoria Morrow. It is anticipated that Dr. Morrow may testify as to statements made in her presence by Rita Genecin concerning the gift of the Lautrec to Dr. Genecin. C. Mr. Gregory Genecin. It is anticipated that Mr. Genecin may testify concerning statements made by Rita Genecin in his presence concerning the gift of the Lautrec to Dr. Genecin. D. Ms. Nuvi Sherlock. It is anticipated that Ms. Sherlock may testify concerning statements made to her by Rita Genecin concerning the gift of the Lautrec to Dr. Genecin. E. Attorney Kathy Priest. It is anticipated that Attorney Priest may testify concerning her representation of Dr. Genecin in connection with the Lautrec and the IRA account. F. Ms. Marion Mulrine. It is anticipated that Ms. Mulrine may testify concerning notarization of documents bearing Rita Genecin s signature. b. Exhibits: (1) Plaintiff s Exhibits: 13

14 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 14 of 58 PX 1. Local Rule 56(a) 1 Statement of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin In His Individual Capacity dated December, 2003, preamble and paragraphs 1-12, PX 2. Defendant s Local Rule 56(A)2 Statement dated January 21, 2004, preamble and paragraphs 1-12, PX 3. Complaint in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 00211, dated February 9, 2001, paragraphs: 1-3, 7-10, 12-14, 16. PX 4. Answer to Complaint in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 00211, dated September 20, 2001, paragraphs: 1-3, 7-10, 12-14, 16. PX 5. Writing dated January 6, 2000 and executed January 12, 2000 by Rita Genecin gifting a 1/15 th interest in a piece of art by Henri de Toulouse-Lautrec called Partie de campagne to Paul Genecin. PX 6. Writing dated January 6, 2000 and executed January 12, 2000 by Rita Genecin gifting a 1/15 th interest in a piece of art by Henri de Toulouse-Lautrec called Partie de campagne to Victoria Morrow. PX 7. Writing dated January 6, 2000 and executed January 12, 2000 by Rita Genecin gifting a 1/15 th interest in a piece of art by Henri de Toulouse-Lautrec called Partie de campagne to Samuel Genecin. PX 8. Writing dated January 6, 2000 and executed January 12, 2000 by Rita Genecin gifting a 1/15 th interest in a piece of art by Henri de Toulouse-Lautrec called Partie de campagne to Gregory Genecin. PX 9. Deed by Rita G. Genecin to Rita G. Genecin, Paul Genecin and Victor Genecin executed January 12, PX 10. Last Will and Testament of Rita Genecin dated July 18, 1995 and First Codicil to the Last Will and Testament of Rita Genecin executed January 12, PX 11. Portion of insurance policy No issued by Chubb (Vigilant Insurance Company) to Estate of Rita Genecin c/o Paul Genecin effective 8/11/00 listing pieces of Fine Arts including a lithograph by Henri de Toulouse-Lautrec called Partie de campagne. 14

15 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 15 of 58 PX 12. Facsimile from Paul Genecin to Victor Genecin dated September 11, 2000 enclosing Insurance Bill from Chubb to Estate of Rita Genecin. PX 22. Appraisal dated June 8, 1998 from Conrad Graeber including an appraisal of Partie de campagne by Henri de Toulouse-Lautrec (From PX D to deposition of Paul Genecin). Plaintiff takes the position that, pursuant to the Maryland Dead Man s Statute, Md. Code Cts. & Jud. Proc. art. 1, 9-116, defendant Paul Genecin, may not be permitted to testify in this action concerning any transaction with or statement made by Rita Genecin. If, however, the court, notwithstanding the objection of Plaintiff, permits Defendant Paul Genecin to testify concerning transactions between him and Rita Genecin, inter alia, concerning the alleged gift to him of the lithograph by Henri de Toulouse-Lautrec called Partie de campagne, Plaintiff reserves the right to offer into evidence in rebuttal and without waiving its objections, all or part of the following exhibits: PX 13. Local Rule 56(a) 1 Statement of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin In His Individual Capacity dated December, 2003, preamble and paragraphs 13-18, 23-39, PX 14. Defendant s Local 56(A)2 Statement dated January 21, 2004, preamble and paragraphs 13-18, 23-39, PX 15. Complaint in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 00211, dated September 20, 2001, paragraphs 34-39, 41-48, 51. PX 16. Answer to Complaint in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 00211, dated September 20, 2001, paragraphs: 34-39, 41-48, 51. PX 17. Transcript of Deposition of Paul Genecin on June 2, 2003, pages: p. 7, lines 1-7 p. 25, lines 23 through p. 26, line 22 p. 27, lines 6-10 p. 28, line 2 through p. 31, line 13 p. 35, line 12 through p. 38, line 2 p. 61, line 8 through p. 62, line 18 p. 62, line 19 through p. 65, line 8 p. 78, line 22 through p. 88, line 25 p. 89, line 7 through 95, line 6 p. 95, line 19 through p. 98, line 18 15

16 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 16 of 58 p. 101, line 16 through p. 108, line 2 p. 109, line 2 through p. 117, line 18 p. 118, line 18 through p. 119, line 8 Signature page dated July 28, 2003 Plaintiff takes the position that, pursuant to the Maryland Dead Man s Statute, Md. Code Cts. & Jud. Proc. art , Victoria R. Morrow, the wife of Defendant Paul Genecin, may not be permitted to testify in this action concerning any transaction between Rita Genecin and her husband, Defendant Paul Genecin, or any statement made by Rita Genecin. If, however, the court, notwithstanding the objection of Plaintiff, permits Victoria R. Morrow to testify concerning transactions between her husband, Paul Genecin, and Rita Genecin concerning, inter alia, the alleged gift to him of the lithograph by Henri de Toulouse-Lautrec called Partie de campagne, Plaintiff reserves the right to offer into evidence in rebuttal and without waiving its objections, all or part of the following exhibits: PX 18. Plaintiff s Local Rule 56(a)1 Statement by Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin In His Individual Capacity in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 00211, dated December 2003, paragraphs: 51 and 52. PX 19. Defendant s Local 56(A) 2 Statement in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 00211, dated January 21, 2004, paragraphs: 51 and 52. PX 20. Copy of dated November 23, 2003 from Victoria R. Morrow to Max Blumenthal, Esq. PX 21. from Victoria R. Morrow to Richard L. Mattiaccio, Esq. dated November 16, PX 23. Letter from Gerald P. Martin to Douglas M. Lehman sent by facsimile on December 24, PX 24. Facsimile from Paul Genecin to Max Blumenthal dated September 5, 2000 enclosing note from Paul Genecin to Max Blumenthal dated September 5, 2000 and purported letter from Rita Genecin dated January 4, In addition, Plaintiff reserves the right to introduce portions of the transcript of the deposition of any witness who has been deposed and who testified at trial in connection with the cross-examination of that witness. 16

17 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 17 of 58 (2) Exhibits of Defendant Victor Genecin, in his individual capacity: DX 601. Local Rule 56(a)1 Statement of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin In His Individual Capacity dated December, 2003, preamble and paragraphs 43-45, 53-55, 61-65, DX 602. Defendant s Local 56(A) 2 Statement dated January 21, 2004, paragraphs 43-45, 53-55, 61-65, DX 603. Defendant s Local Rule 56(a)(1) Statement dated December 31, 2003, paragraphs 12-17, 20. DX 604. Local Rule 56(a)2 Statement of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin In His Individual Capacity dated January 21, 2003, paragraphs 12-17, 20. DX 605. Complaint in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 0021, dated February 9, 2001 paragraph 18. DX 606. Answer in Estate of Rita Genecin v. Paul Genecin, et al, Civil No. 301 CV 0021, dated September 20, 2001, paragraph 18. DX 607. Schwab IRA Application for account no. BL by Rita Genecin dated October 8, DX 608. Rita Genecin IRA Beneficiary Designation dated Oct. 8, DX 609. Letter dated October 19, 1998 from Max E. Blumenthal, Esq. to Daniel E. Wagner. DX 610. Rita Genecin IRA Beneficiary Designation dated October 6, DX 611. IRA Beneficiary Designation Supplement dated October 21, DX 612. Letter from Marc Hertzberg to Charles Schwab & Co., Inc. dated October 25, 1999 enclosing Rita Genecin IRA Beneficiary Designation dated October 6, 1998 and IRA Beneficiary Designation Supplement dated October 21, In addition, Defendant Victor Genecin, in his individual capacity reserves the right to introduce portions of the transcript of the deposition of any witness who has been deposed and who testified at trial in connection with the cross-examination of that witness. 17

18 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 18 of 58 (3) Exhibits of Defendant Paul Genecin: The defendant Paul Genecin intends to use the following exhibits: DX 501. Deed of Gift dated 1/4/00 from Rita Genecin to Dr. Paul Genecin of signed lithograph by Henri de Toulouse-Lautrec, entitled La Chariot Anglais DX 502. Correspondence from Marc J. Hertzberg to Max E. Blumenthal, Esquire dated 9/12/00 DX 503. Deed of Gift dated 1/4/99 from Rita Genecin to Dr. Paul Genecin of one lithograph by Edvard Munch entitled Das Wieb (Die Sphinx) DX 504. Deed of Gift dated 12/25/97 from Rita Genecin to Dr. Paul Genecin of one lithograph by Jasper Johns (American, b. 1930), entitled Numbers DX 505. Deed of Gift dated 4/4/98 from Rita Genecin to Dr. Paul Genecin of One Lithograph by Jasper Johns (American, b. 1930), entitled Two Flags DX 506. Deed of Gift dated 5/6/98 from Rita Genecin to Dr. Paul Genecin of One Lithograph by Philip Pearlstein (American, b. 1924), entitled Nude on Orange and Black Mexican Rug DX 507. Deed of Gift dated 1/4/00 from Rita Genecin to Dr. Paul Genecin of one wood cut print by Munakata, entitled The Hawk Woman DX 508. Charles Schwab Risk Management & Investigations Interview Case Summary dated 1/19/01 DX 509. Correspondence from Marc Hertzberg to Charles Schwab & Co., Inc. dated 10/25/99 Re: Rita Genecin IRA, Account # DX 510. Correspondence from Max E. Blumenthal to Rita Genecin and Daniel E. Wagner dated 9/29/98 DX 511. Checks bearing Rita Genecin s signature 9/8/00 DX 512. Correspondence from Max E. Blumenthal to Daniel E. Wagner dated 18

19 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 19 of 58 c. Objections to Exhibits: (1) Objections of Defendant Paul Genecin to Exhibits of Plaintiff and Defendant Victor Genecin in his individual capacity Defendant Paul Genecin hereby objects to the following exhibits which were transmitted to defense counsel via a letter dated May 5, Exhibit No. Objection PX 1 The defendant objects on the ground that this is a pleading in connection with a motion which was not granted. Accordingly, it is not evidence. It also contains hearsay information as well as irrelevant information. PX 2 See objection to Exhibit No. 1. PX 3 See objection to Exhibit No. 1. PX 4 See objection to Exhibit No. 1. PX 10 PX 11 PX 12 Irrelevant. Irrelevant. Irrelevant. PX 13 See objection to Exhibit No. 1. PX 14 See objection to Exhibit No. 1. PX 15 See objection to Exhibit No. 1. PX 16 See objection to Exhibit No. 1. PX 17 Since Dr. Genecin will be testifying at trial, there is no need to offer deposition testimony. Some of this testimony is irrelevant. PX 18 See objection to Exhibit No. 1. PX 19 See objection to Exhibit No. 1. PX 20 Irrelevant, hearsay. 19

20 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 20 of 58 PX 21 PX 22 PX 23 PX 24 Irrelevant, hearsay. Irrelevant, hearsay. Irrelevant, hearsay. Irrelevant, hearsay. DX 601 See objection to Exhibit No. 1. DX 602 See objection to Exhibit No. 1. DX 603 See objection to Exhibit No. 1. DX 604 See objection to Exhibit No. 1. DX 605 See objection to Exhibit No. 1. DX 606 See objection to Exhibit No. 1. (2) Statement of Plaintiff and Defendant Victor Genecin in his individual capacity regarding admissibility of their proffered exhibits objected to by Defendant Paul Genecin Exhibit No. PX 1 Basis for Admissibility PX 1 is offered in conjunction with PX 2. PX 1 is the Local Rule 56(a) Statement in this case of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin in His Individual Capacity. PX 2 is Defendant s Local Rule 56(A) 2 Statement admitting as undisputed the facts set forth in PX 1. These exhibits are offered as evidentiary admissions. PX 2 See basis for admissibility stated in connection with PX 1. PX 3 PX 3 is offered in conjunction with PX 4. PX 3 is the Complaint in this action. PX 4 is the Answer of Defendant Paul Genecin. These exhibits are offered as both judicial admissions binding on Defendant Paul Genecin and as evidentiary admissions. PX 4 See basis for admissibility stated in connection with PX 3. PX 10 The Will of Rita Genecin is relevant to as circumstantial 20

21 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 21 of 58 evidence of her intent to give unequal portions of her estate to her sons Paul Genecin and Victor Genecin. PX 11 PX 12 PX 13 The insurance policy obtained by Defendant Paul Genecin and issued by Chubb is relevant because in it Paul Genecin arranged to have the Lautrec insured on behalf of the Estate of Rita Genecin and, therefore, constitutes an implied admission that the Estate owned the Lautrec lithograph. The insurance bill tendered to the Estate of Rita Genecin by Defendant Paul Genecin is relevant as an implied admission that the Estate owned the Lautrec lithograph because Defendant Paul Genecin arranged to have insurance on the Lautrec taken out in the name of the Estate. PX 13 is offered in conjunction with PX 14. PX 13 is the Local Rule 56(a) Statement in this case of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin in His Individual Capacity. PX 14 is Defendant s Local Rule 56(A) 2 Statement admitting as undisputed the facts set forth in PX 13. These exhibits are offered as evidentiary admissions. PX 14 See basis for admissibility in connection with PX 13. PX 15 PX 15 is offered in conjunction with PX 16. PX 15 is the Complaint in this action. PX 16 is the Answer of Defendant Paul Genecin. These exhibits are offered as both judicial admissions binding on Defendant Paul Genecin and as evidentiary admissions. PX 16 See basis for admissibility stated in connection with PX 15. PX 17 PX 18 Defendant Paul Genecin s deposition testimony is admissible as an admission of a party opponent whether or not he testifies at trial. Defendant Paul Genecin s objection does not state which portions he contends are irrelevant. PX 18 is offered in conjunction with PX 19. PX 18 is the Local Rule 56(a) Statement in this case of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin in His Individual Capacity. PX 19 is Defendant s Local Rule 56(A) 2 Statement 21

22 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 22 of 58 admitting as undisputed the facts set forth in PX 18. These exhibits are offered as evidentiary admissions. PX 19 See basis for admissibility stated in connection with PX 18. PX 20 PX 21 PX 22 PX 23 PX 24 DX 601 PX 20 is relevant to whether Victoria Morrow is barred from testifying under the Maryland Dead Man s statute since it shows that she acted on behalf of her husband, Defendant Paul Genecin, in connection with this dispute. PX 21 is relevant for the reasons stated in connection with PX 20. PX 22, is not offered for the truth of the matters asserted therein, but is offered to show the information made available by Rita Genecin to Wagner Capital Management, Inc. which provided the basis for calculating the 1/15 th fractional share of the Lautrec by Rita Genecin to Defendant Paul Genecin and other members of his family in January This exhibit is offered as an admission by defendant Paul Genecin through his then attorney Gerald P. Martin, concerning the untrue assertion that Rita Genecin executed the purported January 4, 2000 letter giving the Lautrec to Defendant Paul Genecin in New Haven, Connecticut. This Exhibit is offered as an admission by a party-opponent. DX 601 is offered in conjunction with DX 602. DX 601 is the Local Rule 56(a) Statement in this case of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin in His Individual Capacity. DX 602 is Defendant s Local Rule 56(A) 2 Statement admitting as undisputed the facts set forth in DX 601. These exhibits are offered as evidentiary admissions. DX 602 See basis for admissibility stated in connection with DX 601. DX 603 DX 603 is offered in conjunction with DX 604. DX 603 is the Local Rule 56(a) Statement in this case of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin in His Individual Capacity. DX 604 is Defendant s Local Rule 56(A) 2 Statement 22

23 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 23 of 58 admitting as undisputed the facts set forth in DX 603. These exhibits are offered as evidentiary admissions. DX 604 See basis for admissibility stated in connection with DX 603. DX 605 DX 605 is offered in conjunction with DX 606. DX 605 is the Local Rule 56(a) Statement in this case of Plaintiff Estate of Rita Genecin and of Defendant Victor Genecin in His Individual Capacity. DX 606 is Defendant s Local Rule 56(A) 2 Statement admitting as undisputed the facts set forth in DX 601. These exhibits are offered as evidentiary admissions. DX 606 See basis for admissibility stated in connection with DX 605. (3) Objections of Plaintiff and Defendant Victor Genecin in his individual capacity to Exhibits of Defendant Paul Genecin Plaintiff and Defendant Victor Genecin hereby objects to the following exhibits which were transmitted to Plaintiff s counsel via a letter dated May 11, 2004 and via an dated May 12, 2004: Exhibit No. DX 501 DX 502 DX 503 Objection This document is irrelevant and immaterial in the absence of admissible evidence establishing that it was delivered by Rita Genecin to Defendant Paul Genecin; there is insufficient evidence to establish the authenticity of the document; any testimony offered by Defendant Paul Genecin or his wife and agent Victoria Morrow to establish the authenticity of this document is precluded by the Maryland Dead Man s statute, MD. Code Cts. & Jud. Proc. art., This document contains hearsay if offered in the case in chief of Defendant Paul Genecin. This document is irrelevant and immaterial in the absence of admissible evidence establishing that it was delivered by Rita Genecin to Defendant Paul Genecin; there is insufficient evidence to establish the authenticity of the document; any testimony offered by Defendant Paul Genecin or his wife and agent Victoria Morrow to establish the authenticity of this 23

24 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 24 of 58 document is precluded by the Maryland Dead Man s statute, MD. Code Cts. & Jud. Proc. art., DX 504 DX 505 DX 506 DX 507 DX 508 This document is irrelevant and immaterial in the absence of admissible evidence establishing that it was delivered by Rita Genecin to Defendant Paul Genecin; there is insufficient evidence to establish the authenticity of the document; any testimony offered by Defendant Paul Genecin or his wife and agent Victoria Morrow to establish the authenticity of this document is precluded by the Maryland Dead Man s statute, MD. Code Cts. & Jud. Proc. art., This document is irrelevant and immaterial in the absence of admissible evidence establishing that it was delivered by Rita Genecin to Defendant Paul Genecin; there is insufficient evidence to establish the authenticity of the document; any testimony offered by Defendant Paul Genecin or his wife and agent Victoria Morrow to establish the authenticity of this document is precluded by the Maryland Dead Man s statute, MD. Code Cts. & Jud. Proc. art., This document is irrelevant and immaterial in the absence of admissible evidence establishing that it was delivered by Rita Genecin to Defendant Paul Genecin; there is insufficient evidence to establish the authenticity of the document; any testimony offered by Defendant Paul Genecin or his wife and agent Victoria Morrow to establish the authenticity of this document is precluded by the Maryland Dead Man s statute, MD. Code Cts. & Jud. Proc. art., This document is irrelevant and immaterial in the absence of admissible evidence establishing that it was delivered by Rita Genecin to Defendant Paul Genecin; there is insufficient evidence to establish the authenticity of the document; any testimony offered by Defendant Paul Genecin or his wife and agent Victoria Morrow to establish the authenticity of this document is precluded by the Maryland Dead Man s statute, MD. Code Cts. & Jud. Proc. art., This document contains hearsay; there is insufficient evidence to establish a foundation for its admissibility; the information contained is irrelevant and immaterial to the issues in this action 24

25 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 25 of 58 in that no party to this action is seeking to offer the document to which the information contained in this proposed exhibit relates. DX 510 DX 511 This document contains hearsay; there is insufficient evidence to establish a foundation for its admissibility; it contains an expression of legal opinion that would be inadmissible even if the witness were present to testify. The documents are irrelevant and immaterial and there is insufficient evidence to establish a foundation for their admissibility. DX 512 d. Deposition Testimony: The document contains hearsay; it is incomplete in that it fails to include the documents which the proposed exhibit says are enclosed; the documents which the proposed exhibit enclosed are inadmissible for independent reasons if offered by Defendant, Paul Genecin in that they contain hearsay statements or are inadmissible for the reasons stated in the object to DX 501. (1) Deposition Testimony to be Offered by Plaintiff. See paragraph 8.b.(1) above, PX 17 (2) Deposition Testimony to be Offered by Defendant Victor Genecin in his individual capacity: None (3) Deposition Testimony to be Offered by Defendant Paul Genecin: None 9. STIPULATIONS AND PRPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW: a: Stipulated of Facts The parties agree that the following facts are true: 25

26 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 26 of Rita Genecin, a citizen and resident of the State of Maryland, took her own life at her residence in Baltimore, Maryland on August 5, She left a will dated July 18, 1995, supplemented by a codicil dated January 12, 2000 (collectively, the "Will"). 2. The Will was admitted to probate on August 18, Victor Genecin was named Personal Representative of the Estate on that date. 3. Victor Genecin is a son of Rita Genecin, and a citizen of the State of New York. 4. Defendant Paul Genecin is also a son of Rita Genecin, and a citizen of the State of Connecticut. 5. The Will provided for three Personal Representatives: Paul Genecin, Victor Genecin, and Daniel Wagner, Rita Genecin s investment adviser. On October 9, 2000, Paul Genecin executed a consent to the appointment of Victor Genecin as sole Personal Representative. 6. Shortly after Rita Genecin s death, the Lautrec was appraised at a value of $135, The Lautrec was in Rita Genecin s home in Baltimore, Maryland at the time of her death on August 5, During the period December 1999 until just after Rita Genecin s death, the Lautrec never left that home. 8. Upon learning of their mother s death, Victor Genecin and Paul Genecin went to her house in Baltimore, where they both arrived on August 6, 2000, and stayed for some days. 9. Also during the week of August 6, 2000, Paul Genecin sought and obtained Victor Genecin s agreement that Paul Genecin would remove all of the works of art, including the Lautrec and the Vuillards, from Rita Genecin s home for safekeeping. 10. Paul Genecin represented that the works of art would be safer in his Connecticut home, which had an alarm system and a safe, than in the decedent's home, which was now uninhabited as a consequence of the death of Rita Genecin. 26

27 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 27 of 58 b: Proposed Findings of Fact of Plaintiff Estate of Rita Genecin and Defendant Victor Genecin (1) Proposed Findings of Fact of Plaintiff Estate of Rita Genecin and Defendant Victor Genecin 1. Rita Genecin, a citizen and resident of the State of Maryland, took her own life at her residence in Baltimore, Maryland on August 5, She left a will dated July 18, 1995, supplemented by a codicil dated January 12, 2000 (collectively, the "Will"). (Stip. Fact 1; PX 1 1; PX 2; PX ; PX ; Test. of Victor Genecin). 2. The Will was admitted to probate on August 18, Victor Genecin was named Personal Representative of the Estate on that date. (Stip. Fact 1; PX 1 2; PX 2; PX 3 4, 11; PX 10; Test. of Victor Genecin). 3. Victor Genecin is a son of Rita Genecin, and a citizen of the State of New York. (Stip. Fact. 3; PX 1 3; PX 2 3; PX 3 8; PX ; Test. of Victor Genecin) 4. Defendant Paul Genecin is also a son of Rita Genecin, and a citizen of the State of Connecticut. (Stip. Fact 5; PX 1 4; PX 2 4; PX 3 7; PX ; Test. of Victor Genecin). 5. The Will provided for three Personal Representatives: Paul Genecin, Victor Genecin, and Daniel Wagner, Rita Genecin s investment adviser. On October 9, 2000, Paul Genecin executed a consent to the appointment of Victor Genecin as sole Personal Representative. (Stip. Fact 5; PX 1 5; PX 2 5; PX 10; Test. of Victor Genecin). 6. In her Will, Rita Genecin made no specific bequests, but specified that her residuary estate was to be divided between her two sons, with 55% to belong to Victor Genecin and 45% to belong to Paul Genecin. (PX 1 6; PX 2 6; PX 3 13; PX ; PX 10; Test. of Victor Genecin). 27

28 Case 3:01-cv MRK Document 88 Filed 05/14/2004 Page 28 of Upon her death, Rita Genecin left two types of assets. Her probate assets are those governed by the terms of her Will. Her non-probate assets are not governed by the terms of her Will, but are included in her Estate for purposes of calculating federal and state estate tax liability. (PX 7 7; PX 2 7; PX 3 14; PX 4 12, 14; Test. of Victor Genecin). (2) Proposed Findings of Fact of Plaintiff Estate of Rita Genecin 8. The probate assets of the Estate consist primarily of the personal possessions of Rita Genecin. A collection of works of art, consisting of eleven original lithographs by various European artists, plus two paintings on paper by Indian artists (collectively, "the works of art"), were located in the decedent's home, located at 5616 Cross Country Boulevard in Baltimore, Maryland, at the time of her death in August, (PX 1 8; PX 2 8; PX ; PX 4 16; Test. of Victor Genecin). 9. The most valuable of the works of art is an 1897 color lithograph by the French artist Henri de Toulouse-Lautrec entitled Partie de campagne (le chariot anglais) ("the Lautrec"). The Lautrec represents more than 50 percent of the total value of the works of art. (PX 7 9; PX 2 9). 10. Shortly after Rita Genecin s death, the Lautrec was appraised at a value of $135, (PX 1 10; PX 2 10). 11. The Lautrec was in Rita Genecin s home in Baltimore, Maryland at the time of her death on August 5, During the period December 1999 until just after Rita Genecin s death, the Lautrec never left that home. (PX 1 11; PX 2 11). 12. Upon learning of their mother s death, Victor Genecin and Paul Genecin went to her house in Baltimore, where they both arrived on August 6, 2000, and stayed for some days. (PX 24 12; PX 25 12; PX15 34; PX 16 34; Test. of Victor Genecin). 28