Fisher v. Fisher

99 Mass.App.Ct. 1132

170 N.E.3d 721 (Table)

Graeme D. FISHER¹

v.Cameron A. FISHER.

20-P-635

Appeals Court of Massachusetts.

Entered: July 6, 2021

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Graeme D. Fisher, in his capacity as the co-personal representative of his mother Ardell Fisher's estate, appeals from a judgment of the Land Court granting summary judgment in favor of his brother, defendant Cameron A. Fisher. On appeal, Graeme³ primarily argues that (1) he has standing to bring this action on behalf of his mother's estate because, specifically, the claim of undue influence survived her death; (2) the evidence demonstrated undue influence by Cameron in the conveyance of certain property, establishing a breach of his fiduciary duty to Ardell and requiring the property deed be declared null and void, rescission of the deed, and the establishment of a constructive trust; (3) the evidence was sufficient to support the civil rights claim after transfer by the judge to a court with subject matter jurisdiction; and (4) the judge erred in denying Graeme's motion to alter and amend the judgment. For the reasons that follow, we affirm.

Background. In 1999, Ardell and Donald Fisher purchased a home located on Weatherdeck Drive in Bourne (property). A check shows that Cameron contributed $27,000 to the purchase of the home.⁴ Donald and Ardell secured a mortgage for the remainder of the $280,000 purchase price, minus a $1,000 deposit; the promissory note for the mortgage was signed by Donald, Ardell, and Cameron. The three resided together in the home after it was purchased.

By quitclaim deed dated August 28, 2003, Donald and Ardell conveyed the property to Cameron for nominal consideration; Donald and Ardell were represented by Attorney J. Ford O'Connor at the time of the conveyance, and he attested in his March 2018 affidavit that when he assisted Donald and Ardell in conveying the deed to Cameron, both Donald and Ardell "were of sound mind, ... they understood and approved the deed conveying the [p]roperty to Cameron [and] ... they signed the deed voluntarily without any indication that they were influenced in any way." According to Attorney O'Connor, Donald and Ardell wanted the property to stay with Cameron after their death because he had financially contributed to the property, had made the mortgage payments, and had lived in the home with them; they did not want Graeme to have any interest in the property due to their strained relationship. In March 2004, Cameron secured a mortgage on the property in his own name, and a previous mortgage held in both his and Donald's name was discharged.

Ardell died on June 17, 2013; Graeme and Cameron were appointed the co-personal representatives of her estate. Her June 5, 2013, self-proving will left the entirety of her estate to Donald. Donald died on August 8, 2016; Attorney Stuart Rapp was appointed the personal representative of Donald's estate. Donald's will (of the same date), in the event that Ardell predeceased him, divided his estate equally between Graeme and Cameron.⁵

On August 11, 2017, fourteen years after the conveyance of the property to Cameron, Graeme, in his capacity as the co-personal representative of Ardell's estate, filed in the Land Court a verified complaint alleging, among other things, that Cameron had unduly influenced Donald and Ardell to convey the property to him in 2003 and that such intimidation or coercion was in violation of Ardell's civil rights under the Declaration of Rights of the Massachusetts Constitution. Graeme also brought a claim for breach of fiduciary duty and sought equitable relief in tandem with the undue influence claim by asserting claims for rescission, constructive trust, unjust enrichment, and declaratory judgment. On March 28, 2019, Graeme's motion to add Attorney Rapp (as the representative of Donald's estate) as a necessary party was denied, after Attorney Rapp declined to intervene and the judge found under Mass. R. Civ. P. 19, 365 Mass. 765 (1974), that Attorney Rapp was not a necessary party.

On June 28, 2019, Cameron filed a summary judgment motion asserting that Graeme lacked standing to bring this action because, at the time of Ardell's death in 2013, she had no interest in the property; Cameron alternatively claimed that Graeme could not establish the essential elements of the various claims brought. After a summary judgment hearing, the judge agreed with Cameron, and on February 14, 2020, a judgment entered in his favor on all counts and dismissing Graeme's complaint; the judge determined that he lacked jurisdiction over the civil rights claim. The summary judgment order also stated that it was a "full adjudication" and that all prayers for relief not explicitly addressed were denied.

On February 28, 2020, Graeme's motion to alter, amend, or vacate the judgment was denied after the judge, treating the motion as one for reconsideration, found that Graeme had "no standing whatsoever to pursue any interest in the disputed real estate" as was detailed and determined in the summary judgment order; the judge further determined that Graeme could not raise for the first time in his motion for reconsideration that he had standing to bring this action as a beneficiary of Donald's estate. Graeme timely filed a notice of appeal solely as to the February 14, 2020, judgment.

Discussion. 1. Standing. Graeme claims that he has standing to bring this action on Ardell's behalf seeking redress for the loss of her ownership rights to the property as a result of Cameron's undue influence over their mother (and father), a claim, he argues, that survives her death.

"The standing requirement exists because ‘[c]ourts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property,’ but rather only those matters in which they have a ‘definite interest’ such that their ‘rights will be significantly affected by a resolution of the contest point’ " (citation omitted). Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 128-129 (2018).

Graeme's argument fails for at least two reasons. First, at the time of Ardell's death in 2013, she had no ownership interest in the property conveyed to Cameron nearly ten years earlier and, therefore, she was not an "aggrieved" party. Altshuler v. Minkus-Whalen, 31 Mass. App. Ct. 937, 938 (1991) (administratrix lacked standing because not aggrieved by decree removing her as trustee and appointing successor). See Cambridge St. Realty, LLC, 481 Mass. at 128-129. "[A] person is aggrieved if some pecuniary interest or personal right of [hers] has been adversely affected." Altshuler, supra, quoting McKay v. Audubon Soc'y, Inc., 318 Mass. 482, 484 (1945).

In the event that Ardell had retained an interest in the property during her lifetime, that right would have automatically transferred by operation of law to Donald at the time of her death, as the property was held by them as tenants by the entirety, eliminating any interest in the property by her estate.⁶ "[E]ach holder of a tenancy by the entirety has an indestructible right of survivorship." Bakwin v. Mardirosian, 467 Mass. 631, 636 (2014). Thus, after Ardell's death any claim to the property was held exclusively by Donald, or his estate after his death. See Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150 (1993). Attorney Rapp, as the personal representative of Donald's estate, was given the opportunity under Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), to intervene in this action to challenge the validity of the property conveyance but declined to do so. After determining that Attorney Rapp (or Donald's estate) was not a necessary party in this action, the judge did not abuse his discretion in denying Graeme's motion to add Attorney Rapp as a party. See Johnson Turf & Golf Mgt., Inc. v. Beverly, 60 Mass. App. Ct. 386, 389 (2004).

Second, Graeme bringing this action as only one of the two co-personal representatives of Ardell's estate, and without Cameron's consent or delegation to act on his behalf, is expressly prohibited by statute and by the language contained in Ardell's will. General Laws c. 190B, § 3-717, provides that "[i]f [two] or more persons are appointed co-representatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate." Ardell's will specifically provided that "[i]f there are two co-[personal representatives] serving, they shall act by unanimous agreement."

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