Daniel DeSouza.
Daniel DeSouza. (Handout Photo)

A family drama involving a paternity test, a revised will and an empty bank box ended in a $1.47 million judgment against a man the jury found stole from his dying father.

In fall 2015, doctors told Felix Piccolo Sr. he had weeks to live due to failing kidneys. As part of his estate planning, the patriarch told two of his adult children, Felix Jr. and Diana, about $350,000 in gold coins and $50,000 in cash he kept in a Coconut Creek bank safe deposit box. A third child, Frank, already knew about the box and was given access to it as executor of a previous version of his father’s will.

But when the ailing Piccolo visited the BB&T deposit box with Felix Jr. and Diana, they found it empty, according to a federal lawsuit Piccolo filed against Frank.

In a recorded call, Frank told his father he hadn’t touched the coins, said Fort Lauderdale attorney Daniel DeSouza of DeSouza Law, who represented Piccolo in the litigation.

“Frank repeatedly, one after another, says ‘I don’t know what happened to your gold. I’ve never seen it, Dad. You must be getting old and senile,’ ” DeSouza said.

The son said the same thing to police, according to the lawsuit filed Nov. 22, 2015. But DeSouza said BB&T records and surveillance footage told a different story: Frank Piccolo and his wife, Eve, accessed the deposit box three times in March 2015.

As the case proceeded toward trial, a more complicated version of events began to emerge.

In court documents, Frank said the gold coins and cash were a gift from his father, as was $200,000 that Piccolo’s lawsuit called a loan. Frank also filed counterclaims against his father, arguing the lawsuit was defamatory.

Frank claimed he had a DNA paternity test done in November 2015 that showed he was not Piccolo’s son. He alleged that his father overheard the results and, with the encouragement of Felix Jr., “tried to rescind past gifts.”

Piccolo also drew up a new will with Felix Jr. as executor. DeSouza said the previous will listed Frank as the major beneficiary, and the new will divided the estate up evenly among the three children.

Felix Jr. carried on the lawsuit on behalf of the estate after Piccolo died in May 2016. The case headed to trial in Fort Lauderdale in December, with Frank hiring new lawyers a few days beforehand. Those attorneys are Michael Blacker of Michael Blacker P.A. in Miami and John Weinberg of John M. Weinberg P.A. in Fort Lauderdale.

The defense attorneys withdrew the counterclaims when the trial began, which DeSouza said was likely a strategic move to keep the jury from hearing that Frank was also charged with theft in a case pending in Broward County. Blacker did not respond to a request for comment on the civil case, and Weinberg declined to comment beyond saying that he believed an appeal would be meritorious.

“The judge permitted us to enter an appearance but did not permit us to modify the case in any fashion,” Weinberg said. “That does not make for a viable situation … We were locked into exactly how the case was postured when we came in.”

At trial, Frank sought to rectify the differences between what he said to his father about the deposit box and what he later said in defense documents, said DeSouza, who refers to Piccolo as “Senior.”

“His explanation at trial was that he promised Senior he would keep the existence of the gold and the cash a secret and he would never tell anyone, any member of the family or anyone else,” DeSouza said. “And because he’s a Marine and was trained to do the honorable thing … that is why he lied to Senior on [Nov.] 17th, [2015] and lied to the detectives on the 18th.”

DeSouza told the jury the explanation was simpler, arguing Frank lied because he didn’t yet have a lawyer and didn’t know BB&T had videotaped his visits.

The alleged paternity test also complicated the case. U.S. District Judge Beth Bloom had granted the plaintiff’s request to keep out of evidence two minutes of a videotaped deposition showing Piccolo’s reaction to being asked about the DNA test. But the case was sent to trial in Fort Lauderdale, where U.S. District Judge James Cohn ruled the defense could mention the paternity test — but not the results.

DeSouza said he wanted to avoid confusing the jury, so he asked to present the previously excluded deposition testimony. The last evidence at trial was the two minutes of video, in which Piccolo was asked at least a dozen times whether he had made up the theft because he found out he wasn’t Frank’s biological father.

“Senior really kind of was puzzled during the whole thing,” DeSouza said. “Maybe some would say he’s the world’s best actor. I would say he sounded like an 87-year-old who’s hearing this for the first time.”

The jury sided with the estate, ruling Frank and his wife were liable for the $400,000 plus $33,000 of interest, as well as repayment of about $238,000 for the loan. Because Frank was found liable for civil theft, the judge entered triple damages for a final judgment of $1.47 million.

Case: Felix Piccolo Jr. v. Frank Anthony Piccolo et al

Case no.: 15-62463-CIV-BLOOM/VALLE

Description: Civil theft

Filing date: Nov. 22, 2015

Verdict date: Dec. 16, 2016

Judge: U.S. District Judge Beth Bloom

Plaintiffs attorney: Daniel DeSouza, DeSouza Law, Fort Lauderdale

Defense attorneys: Michael Blacker, Michael Blacker P.A., Miami; John Weinberg, John M. Weinberg P.A., Fort Lauderdale

Verdict amount: $1.47 million