THE STATE OF NEW HAMPSHIRE MERRIMACK COUNTY TRUST DOCKET 6" CIRCUIT COURT PROBATE DIVISION VALERIE C. SANTILLI, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JOHN C. CHAKALOS, ELAINE CHAKALOS, AND CHARLENE GALLAGHER v. NATHAN JAMES CARMAN AND. VALERIE C. SANTILLI, LAWRENCE SANTILLI, AND PAUL STERCZALA, EACH AS TRUSTEE OF THE TERMINATING TRUST UNDER ARTICLE Ill OF THE JOHN C. CHAKALOS REVOCABLE TRUST; ELAINE CHAKALOS, AS. TRUSTEE OF THE RITA B. CHAKALOS NEW HAMPSHIRE PERSONAL. RESIDENCE TRUST, AND LAWRENCE SANTILLI, AND PAUL STERCZALA EACH AS TRUSTEE OF THE GHAKALOS FAMILY DYNASTY TRUST 313-2017-EQ-00396 ORDER ON MOTIONS AND SCHEDULING ORDER On May 21, 2018, the Court held a hearing to consider the Respondent Nathan Carman's Motion to Dismiss, see Index # 17, the Petition for Declaratory Judgment, Replevin, Restitution and Other Equitable Relief and to Impose a Constructive Trust (‘Patition’), see Index #1, as amended (“Amended Petition’), see index #37, filed by Petitioners Valerie C. Santill, individually and as Executrix of the Estate of John C. Chakalos (the “Estate’), Elaine Chakalos, and Charlene Gallagher (collectively the “Pi itioners"), and to schedule the matter for resolution. See Order dated December 22,2017 at 3 (‘December 22" Order’)(Index #24); see also Index ##23 (Petitioners? Response to Motion to Dismiss); 55 (Memorandum in Support of Petitioners’ Response); 59 (Joint Motion to Set Discovery Deadlines). Attending the hearing were: Attorney Daniel |. Small, Attorney William C Saturley, and Attorney Rue Koester Toland on behalf of the Petitioners; Nathan Carman, pro se; and Attorney Alexandra Saanen Cote on behalf of Intervenor Glenn Terk, as Trustee of the Property of Linda Carman. In addition, Attorney Gregory Sullivan, participated in the hearing on behalf of the Intervenors Union Leader Corporation and New England First Amendment Coalition (*NEFAC"), concaming a filed, but-not-then-ripe for consideration, Renewed Motion to Unseal All Petitions, Motions, Exhibits and Other Documents. See Index #60. |. Motion to Dismiss The Court first addresses the Motion fo Dismiss. See Index #17. Both the Petition and Amended Petition sought to impose a constructive trust over any proceeds from the John Chakalos Estate’ "which, absent any other action before the Estate is closed, will flow to a trust for Linda Carman.” Amended Petition at 1. They asserted jurisdiction was proper under RSA 547:3 and that venue is proper under RSA 547:8 and 8. Mr. Carman, in his Answer to the original petition, see Index #17, sought dismissal on the ground that this Court lacked jurisdiction under RSA §47:€? ‘over any of the decedent's assets... . including, but not limited to, the assets which the Petitioners seek to either piace into a constructive trust or to otherwise deprive the Respondent from " Jurisdiction over the Revocable Trust and sub-trusts does not appear to be challenged, and as such, this analysis will focus on the Cours junsdiction over his estate. See infra. * As set forth infra, RSA 647-8 is @ venue provision. There appears to be no dispute conceming this Court's subject matter jurisdiction over the Estate. See RSA 547 3,receiving,” Id, at 8. The basis for his jurisdictional claim is that "John C. Chakalos was not a resident of New Hampshire at the time of his death” and thus the Court does not possess jurisdiction over his estate* Id. The Petitioners initially responded that Mr. Carman “offers nothing more than the bare assertion that John C. Chakalos was not a resident of New Hampshire.” See Petitioners’ Response to Motion to Dismiss at 1 (Index #23). After the Court granted, by agreement of the parties, additional time to conduct jurisdictional discovery, see December 22 Order at 3 (Index #24), the Petitioners submitted a Supplement In Support of The Petitioners’ Response to the Motion to Compel. See Index #56. The Petitioners contend that: (1) “John Chakalos considered himself a resident of the State of New Hampshire"; and (2) New Hampshire was his domicile as he owned a residence here and intended to remain indefinitely. Id. In support thereof, the Petitioners attached (without affidavit)*: (1) a copy of his birth certificate listing his birthplace as Keene, New Hampshire, see id. Exh. A; (2) purported warranty deed for a residence in New Hampshire, see id. Exh. B; (3) a copy of his New Hampshire voter registration ® The Court observes that according to the Amended Petition, and documents attached thereto, the residuary ofthe Estate flows to the Revocable Trust. See Amended Petition Exh. A at 2 (Will Art (\(Index #37). Upon the death of the Seitior, a Terminating Trust’ was created See id. Exh B-1 (Second Amendment to the Revocable Trust Art I-C), Although intaly unclear, see Decernber 22° Order at 5 (Index #24), in the Amended Petition, 4 was made clear to the Court thatthe situs of the Terminating Trust and various sub-trusts is presently New Hampshire, and the trusts are to be governed by the laws of New Hampshire. See id. Exh. B-2__As such, this Court has junsdiction over the trusts, see RSA 564-B:2:201(c), B:2-202 -B'203, see also RSA 564-8:1-107-108, and New Hampshire isthe proper venue for adjudication of a common law slayer action. See RSA 864-8 2-204 (venue), RSA 564-B 1-108, (Trust Code supplemented by common law and principles of equity); of. RSA 564-8'1-112 (rules of Construction that apply inthis state tothe interpretation and disposition of property by wil also apply as ‘appropriate to the interpretation ofthe terms of a trust and the disposition of tust property"), of Estate of Mullin, 769 N.H. 632, 639 (2017), Bartlett v Dumaine, 128 N.H. 497, 817 (1986), Ince Famsworth’s Estate, 109 NH. 16, 17-16 (testamentary trust) “ Mr. Carman does not dispute the authenticity of these documents, only that his grandfather isrepresented his New Hampshire residency/domicile for tax purposes. ° The copy provided to the Court is not complete and does not demonstrate the fact asserted. Itis undisputed, however, that he owned a home in West Chesterfield. The Court notes tha tis unclearcard, see id. Exh C; (4) a copy of his Will declaring himself a resident of New Hampshire, see id, Exh. D; (5) a copy of his New Hampshire drivers’ license with a verification, see id. Exh. E; and (6) John Chakalos's death certificate, as amended. see id. Exh. F. Mr. Carman did not file any additional pleadings concerning the Motion to Dismiss,° but asserted at the hearing that based upon his persona! knowledge: (1 ) his. grandfather actually was a Connecticut resident and spent only one day per week in New Hampshire; (2) did not consider the state his home; (3) and did not intend to return here permanently. He did not, however, offer testimony under oath to that effect, and did not offer supporting evidence of it” As the Court observed in the December 22"° Order: Itis well-established that the Petitioner bears the burden of demonstrating sufficient facts to support this Court's personal and subject matter jurisdiction. Unlike the general rule applicable to motions to dismiss on the ground of failure to state a claim, when jurisdictional facts are challenged, Plaintiffs must not only plead facts sufficient to support jurisdiction, but must also go beyond the pleadings and make affirmative proof. A prima facie showing of jurisdiction, however, will be sufficient to overcome a motion to dismiss. Mosier v. Kinley, 142 N.H. 415, 418 (1997)(quotations and citations omitted)(personal jurisdiction). RSA 547-8 provides. Probate of the will and granting administration on the estate of a person deceased shalll belong to the judge for the county in which such person was last an inhabitant; but if such person was not an inhabitant of this state the same whether the property was transferred to the Revocable Trust, and if that impacts the jurisdictional analysis. The Court does not, however, depend upon this deed for its determination of the Motion to Dismiss {The Motion was not separately filed, but embedded in his Answerto the Petition See Index #17 Mr. Carman stated he did not have an opportunity to participate in an evidentiary nearing, however, the ‘Court observes that following its December 22nd Order, Mr Carman did not fie further pleadings nor request an evidentiary hearingshall belong to the judge for any county in which such person had estate, or in which the personal representative or kin of such person has a cause of action RSA 547-9 directs that “fall proceedings in relation to the settlement of the estate of a person deceased shall be had in the probate court of the county in which his will was proved or administration on his estate was granted.” Although undefined in the estate statutes, the term “resident; inhabitant’ is defined in the general rules of statutory construction as: Aresident or inhabitant or both of this state and of any city, town or other political subdivision of this state shall be a person who is domiciled or has a place of abode or both in this state and in any city, town or other political subdivision of this state, and who has, through all of his actions, demonstrated a current intent to designate that place of abode as his principal place of physical presence for the indefinite future to the exclusion of all others. RSA 21:6. The New Hampshire Supreme Court, in the leading case interpreting an RSA 547:8, noted that where a petition for administration alleged that the decedent had a residence in New Hampshire and an “estate in the county at the time of his death{,] {t]he judge could not decline or neglect to act upon the petition without violating the duty imposed upon him by law... ..” Knight v. Hollings, 73 N.H. 495, 498 (1906). Indeed, it also directed that given that the decedent held property having a situs in New Hampshire, a New Hampshire court properly possessed jurisdiction over the “probate of the will, even if [the decedent's] domicile was [elsewhere],” Id. at 499; see, e.g. Robinson v. Carroll {Dana's Estate], 87 N.H. 114, 115 (1934)(referring to RSA 547°8, “{aldministration is thus to be granted on the estate of a decedent resident, and, as toa decedent non-resident, in any county where he ‘had estate”).As it observed in its December 22nd Order, the Petitioners have made a prima facie showing that this Court properly has jurisdiction over the Estate of John Chakalos. ‘The Court observes that an estate had been open in New Hampshire, unchallenged, since June 17, 2014. See Estate of John C. Chakalos, No. 313-2014-ET-00187 (Index #6). The Petitioners made a prima facie showing he was an “inhabitant” under RSA 557:8 (ie: it was his current intent at death that West Chesterfield was “his principal place of physical presence for the indefinite future to the exclusion of all others”) by demonstrating, inter alia, that he held a valid driver's license, indicated in his Will that he lived in West Chesterfield, and registered to vote there. Mr. Carman, despite argument at the hearing to the contrary, did not rebut that showing. Accordingly, the Motion to Dismiss is DENIED Scheduling Orders The Petitioners and Mr. Carman submitted a Joint Motion to Set Discovery Deadlines, see Index #59, requesting that this Court, inter alia, set the close of discovery for November 30, 2018, and schedule trial after April 1, 2019, Id. As the Court indicated at the hearing, given that the instant Petition was filed in July 2017, the Estate has been open for nearly four years, and Mr. Carman has been a suspect in John Chakalos's death since at least July 2014," itis not convinced that itis necessary to defer the trial until April/May 2019. The Court recognizes that Petitioners’ counsel was very accommodating and allowed Mr. Carman time to find and retain counsel, and then extended the time for Mr. Carman’s then counsel to file an answer, all of which delayed the beginning of formal discovery. That extension in no way delayed the ability * The Risk Warrant dated July 18, 204, indicated that investigators unsuccessfully sought an arrest warrant for Mr. Carman on July 17, 2014. See Index #61 (Risk Warrant at $23)of Petitioners to otherwise work on trial preparation, notably retention of experts and other investigatory work. When asked specifically what kinds of experts the Petitioners planned to call, counsel pointed out the distinction between the two aspects of this case, the death of John Chakalos and the disappearance of Linda Carman. With respect to Mr. Chakalos's death, they anticipate calling a forensic expert to reconstruct the scene, something that has already been done by the police - who found a “clean” crime scene, and possibly an expert to inspect a yet to be produced weapon.° It was not made clear how this new forensic expert would be able to recreate the scene but, in any event, counsel has had nearly a year to explore this. With respect to an expert on the disappearance of Linda Carman, counsel offered that they need an “expert to show that Mr. Carmen's story is nonsense.” That offer gives the Court little to go on. Mr. Carman stated that he needed an additional four months to prepare for trial, but was willing to agree to six more months as an accommodation to the Petitioners. Having heard from both sides, the Court remains unconvinced, given the amount of time this matter has been pending, that the proposed schedule is reasonable, and concludes that itis in the best interest of justice to resolve this matter sooner. It thus will set an earlier trial date than that requested by the parties ‘See generally, In the Matter of Sawyer & Sawyer, 161 N.H. 11, 18 (2010)( “The trial court has broad discretion in managing the proceedings before it"), RAL Autom. Group, Inc. v. Edwards, 151 N.H. 497, 499 (2004)("A decree granting specific relief is not a matter of right, but rests in the sound discretion of the trial court according to the * The police in Connecticut executed a warrant to search Mr Carman's residence and motor vehicle in July 2014. The return and inventory discioses that two Weapons were discovered, a Remington shotgun and a Gamo Whisper Pellet gun. It appears that the only 308 caliber rifle found by authorities was one ‘belonging to John Chakalos, which was located in his atic, and of a caliber class “consistent” with bullet fragments found at the crime scene, according to the Risk Warrant affidavitcircumstances of the case")(quotations omitted)). As such, it will enter a detailed scheduling order See infra. The Court expects both sides to conduct discovery ina reasonable manner, consistent with New Hampshire practice. If there are discovery disputes that cannot be worked out, the Court will entertain requests for a prompt hearing to address the issue, which may be scheduled telephonically or in person In addition, as discussed at the hearing, given the 5" Amendment issues which permeate this case, a referee will be appointed to attend the deposition of Nathan Carman. The Court appoints Hon. David A. Garfunkel, retired Justice of the Superior Court, as a referee to attend Mr. Carman’s deposition and to rule on objections raised by Mr. Carman implicating a privilege. Judge Garfunke''s rulings on objections shall determine whether Mr. Carman is required to answer the pending question at the deposition and any rulings made by the referee will be binding on the parties. Judge Garfunkel will not offer legal advice to any party and shall be paid a fee by the New Hampshire Judicial Branch for his services for preparation and attendance at the deposition. The parties are DIRECTED to contact Denise Peari, court monitor specially assigned to the Trust Docket, at least forty five (46) days prior to scheduling the deposition so that she may arrange for attendance of the referee. The Court ENTERS the following ORDERS with respect to trial schedule ‘A. Hearing on the Merits - A ten-day trial on the merits will be held on January 21 - February 1, 2019, beginning each day at 9:00 a.m. at the 6"" Circuit — Probate Division - Concord, 2 Charles Doe Drive, Concord, N.H."° The Court expects to be holding its proceedings al the new probate courthouse, formeriy the ‘Administrative Office of the Court building in Concord, N H., at 2 Charles Doe Drive, beginning at least in December 2018.B. Status Conference - The parties are directed to attend a status conference on October 4, 2018 at 1:00 p.m, at the 6th Circuit - Probate Division - Concord, 32 Clinton Street, Concord, N.H. C. Discovery ~ a. Paper Discovery-The parties will propound all requests for production and interrogatories by July 16, 2018 b. Depositions— All depositions of fact witnesses shall be completed by October 1, 2018. Expert depositions shall be completed by the close of discovery. c. Expert Disclosures — The Petitioners shal disclose, in accordance with Circuit Court-Probate Division Rule 35(f), their expert report(s) on or before October 1, 2048, Mr. Carman shall disclose his expert report(s) to the Petitioners on or before November 18, 2018, d. Close of Discovery - December 31, 2018. D. Exhibits Exchange - To further simplify and expedite submission of the merits, the parties are ordered to exchange copies of ali documentation any may wish to submit into evidence prior to January 4, 2019. Those documents that they agree may be admitted as full exhibits are to be so marked by January 14, 2019 in cooperation with the Clerk’s office. If there be any objection by a party to the introduction of a document as a full exhibit, it shall be marked for identification purposes only and the propriety of its admission will be addressed on its presentation during the course of trial Adherence to this procedure will help to ensure that all documentary evidence has been examined andconsidered by the parties in advance of trial, minimizing the time otherwise needed for any party to become familiar with it at the time of its proposed introduction. The marking of an exhibit as a full exhibit by agreement will be construed only as a waiver of any procedural objection to its admission, not as an admission of the substantive evidentiary worth or factual veracity of its content, in the absence of an agreement to that effect. Parties are instructed that those exhibits stipulated, as well as those that are marked for identification only, shall be presented at the commencement of trial in four sets of binders (one each for the official record, witnesses, the staff attorney, and the judge) containing organized documentation based on the nature of its content (e.g., medical reports; emails, letters, memo or other forms of correspondence; legal instruments, etc.), labeled for ease of identification and access during the course of questioning of a witness. The parties are requested, whether they file their exhibits as stipulated for admission and/or for identification purposes only, to avoid duplication such that the same exhibit is not contained in more than one set of binders, Pretrial Conference ~ A final pretrial conference is assigned for January 14, 2019 at 1:00 p.m., at the 6th Circuit - Probate Division - 2 Charles Doe Drive, Concord, N.H., unless the parties sooner file, on or before January 4, 20189, an assented-to motion to cancel the pretrial on assertions that: (a) there are no open issues; (b) the case is prepared for trial; and (c) the time previously allotted for presentation of the entire case is needed, less than the time will be adequate, or more time will be needed. If less time than previously allotted will 10be needed, or what has been previously allotted will be insufficient, then a good faith representation shall be made with respect to how much less, or more, time will be reasonably required. In either event, pretrial statements must be filed on or before January 11, 2019, in accordance with Circuit Court-Probate Division Rule 62. F. Record — If the parties wish to engage an approved court stenographer, they must arrange with the Clerk's office prior to trial for the private hire of an approved stenographer. The parties are reminded that even if they hire a court approved stenographer, the digital recording made by the Probate Division constitutes the official record. See Circuit Court - Probate Division Rule 78-A G. Memoranda of Law and Findings of Fact ~ All memoranda of law and reasonable requests for findings of fact and rulings of law the parties wish to ‘submit shall be filed with the Court no later than January 21, 2018. Failure to file the requests by that date will be deemed a waiver of the right of that party to receive written grant or denial of any requests later submitted qu Motion(s) to Compe! On May 11, 2018, the Petitioners filed two Motion(s) to Compel, see Index ### 56- 57, seeking a court-order compelling release of Mr. Carman’s cell phone records from a third-party provider and John Chakalos's credit card records from American Express Company in accordance with a subpoena duces tecum served on the resident agent of those companies. See 1. Just prior the hearing, the Petitioners withdrew their Motion to Compe! production of the cell phone records. See Index #58. As such, the Court GRANTS the Notice of Withdrawal of Petitioners’ Motion to Compel Third Party New 1Cingular Wireless PCS, LLC to Respond fo Subpoena Duces Tecum. See Index #58. ‘The associated Motion to Compel, see Index #57, is marked as “withdrawn.” At the hearing, the Petitioners indicated, however, that they continued to request compelled production of the American Express records"', see Index #56, and Mr. Carman, who had not filed a responsive pleading, indicated that he did not object to that Motion. The Court however, observes upon closer review that the Motion to Compel appears to never have been served on American Express, or its resident agent, see (certification of copies to parties), and thus it is unclear whether the Petitioners have complied with Circuit Court ~ Probate Division Rule 44 which requires the propounding party to give “notice to all Persons affected thereby” upon the filing of a Motion fo Compel. As such, the Court DEFERS consideration of the Motion to Compel pending notification by the Petitioners that the Motion has been sent to, and received by, the resident agent (and the date received). It will then take up consideration fourteen days following that notification to allow American Express, or its resident agent, to respond to the Motion V. Renewed Motion to Unseal On the morning of the hearing, the Union Leader Corporation and NEFAC. submitted a Renewed Motion to Unseal All Petitions, Motions, Exhibits and Other Documents, see Index #60, seeking an order unsealiing the unredacted version of the Court's Order dated May 1, 2018, see Index ##53 & 54, and the “April 5” Letter” placed "" The Court is puzzied by this request since Ms. Santill is executrix of the Estate of John Chakalos and should be bie to obtain those records in the normal course. The Motion to Compel, however, did not indicate why the Executrix has not been able to obtain those records, indicating only that “rjecipient [of the subpoena duces tecum] failed to present and produce documents by the Production Deadline or ‘appear for a Deposition Date." Motion to Compel Third Party Amencan Express to Respond to Subpoena Ducos Tecum 93 (Index #56) 12under seal until the Court could determine whether it was appropriate to unseal the “Risk Warrant’ attached to the April 5" Letter. See Order to Seal (Index #54). At the hearing, it was determined that the Risk Warrant is a matter of public record, and as such, the Court GRANTS the Renewed Motion to Unseal All Petitions, Motions, Exhibits and Other Documents. See Index #60. The Clerk is instructed to place the unredacted Order dated May 1, 2018, see Index #53, in the public file, and docket and place the “April Sth Letter” in that file as well. SO ORDERED. f CEE Dated: 5/50/20 & David D. King, Judge 13,