(This article by Bob Audette was published in the Brattleboro Reformer on April 4, 2017.)
BELLOWS FALLS — A former assistant judge awaiting a decision from the Judicial Conduct Board was served with a setback last week when a Windsor Superior Court judge dismissed his appeal of a Windsor Probate Court decision.
According to court documents, Paul Kane had asked Windsor Probate Court Judge Joanne Ertel to award him possession of a home in Bellows Falls or allow him to live in it for the time being as a tenant. The problem for Kane, however, is that he is the subject of a complaint filed with the Judicial Conduct Board, alleging he abused the power of attorney granted to him by Catherine Tolaro four years before she died in April 2014. Tolaro was the owner of the home in question.
Following Tolaro’s death, questions arose about how Kane handled her estate, both while she was alive and after her death. The Judicial Conduct Board asked Ian Carleton, an attorney with Sheehey Furlong & Behm in Burlington, to conduct a review of Kane’s conduct. Carleton provided the board with “facts supporting a misconduct charge,” which included violations of professional ethics related to a judge’s duties and responsibilities. Last week, Kane had a trial before a Rutland Superior Court judge in response to Carleton’s complaint. A decision is expected within 30 days.
The proceedings were moved out of Windham County to avoid any appearance of conflicts of interest. Kane, who held an elected position as an assistant judge in Windham County, resigned the position in February.
Prior to Kane’s involvement, Tolaro’s assets totaled nearly $800,000. Between 2010 and 2014, wrote Bellows Falls attorney L. Raymond Massucco in a filing before the Windsor Probate Court, the estate was eventually depleted to a balance of zero, not including the value of the home, which he is entitled to receive under the will as it currently stands. Massucco is representing Michael Tolaro and the Knights of Columbus, both beneficiaries of the will.
In court filings, Massucco maintained that Kane used his “power of attorney and influence [over Tolaro] to transfer the vast majority of her assets to himself and his late wife.”
In October 2016, Ertel ruled in favor of motions submitted by Massucco and Jodi French, a Brattleboro attorney, who was appointed as administrator of the estate.
Kane had asked Ertel to either award him the house immediately or allow him to be a tenant there, but Massucco and French stated it would be inappropriate to award the home to anyone until the status of Tolaro’s estate could be resolved.
French also asked Ertel to allow her to lease the house to pay for maintenance costs and told the judge she had found someone who could both rent the house and maintain it.
Ertel agreed with French and Massucco and denied Kane’s request to award him the property “prior to the issuance of a final decree in the probate division,” before turning the property over to the care of French.
“At this juncture,” wrote Ertel, “the court cannot possibly make the determination that there will be sufficient assets remaining if the court were to [turn over] the property. … This task has been complicated by Kane’s failure to provide a complete accounting of his actions … The piecemeal provision of documents does not substitute for an accounting.” The judge also expressed concerns that Kane “has treated the assets of the estate as his own which is demonstrated by his possession of the real estate, his rental of the real estate, and his sale of estate assets.”
Massucco, in his filing before the Windsor Probate Court, noted “Paul Kane has personally filed a claim against the estate in the amount of $833,292.51,” contending he spent personal funds on maintaining the estate, including making renovations to the house.
“Kane … has no authority to reimburse himself for expense alleged to have been made on behalf of the estate without court approval,” wrote Ertel. “While it is certainly possible that Kane is entitled to reimbursement, any such request must be authorized by the court.”
French is attempting to hold Kane liable to the estate to the fullest extent of the law, including return of any and all sums which he was not entitled to receive or retain, damages and costs to the estate resulting from his handling of Tolaro’s funds.
Massucco and French have taken the position that the house might have to be sold to recover the $600,000 if Kane is unable to repay the estate.
“The administrator also alleges that it is possible that Tolaro’s will may be set aside because she was not competent, was subject to undue influence and because heirs at law were not given the opportunity to object and be heard,” wrote Ertel. “If the will were set aside, Kane would take nothing because he is not an heir at law.
“The court does not even reach this argument because the court is not satisfied that Kane has shown that there will be sufficient assets.”
On March 27, Windsor Superior Court Judge Robert P. Gerety Jr., dismissed Kane’s appeal of Ertel’s ruling. “The final decree of the real property at issue remains to be determined by the probate court,” he wrote.
