MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Graeme D. Fisher, in his capacity as the co-personal representative of his mother Ardell Fishers estate, appeals from a judgment of the Land Court granting summary judgment in favor of his brother, defendant Cameron A. Fisher. On appeal, Graeme
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primarily argues that (1) he has standing to bring this action on behalf of his mothers 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 Graemes 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.
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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 OConnor 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 OConnor, 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 Donalds 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 Donalds estate. Donalds will (of the same date), in the event that Ardell predeceased him, divided his estate equally between Graeme and Cameron.
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On August 11, 2017, fourteen years after the conveyance of the property to Cameron, Graeme, in his capacity as the co-personal representative of Ardells 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 Ardells 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, Graemes motion to add Attorney Rapp (as the representative of Donalds 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 Ardells 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 Graemes 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, Graemes 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 Donalds 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 Ardells behalf seeking redress for the loss of her ownership rights to the property as a result of Camerons 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).
Graemes argument fails for at least two reasons. First, at the time of Ardells 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 Socy, 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.
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“[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 Ardells 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 Donalds 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 Donalds estate) was not a necessary party in this action, the judge did not abuse his discretion in denying Graemes 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 Ardells estate, and without Camerons consent or delegation to act on his behalf, is expressly prohibited by statute and by the language contained in Ardells 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.” Ardells will specifically provided that “[i]f there are two co-[personal representatives] serving, they shall act by unanimous agreement.”
Because Graeme did not have standing to bring this action in the Land Court, the judge lacked subject matter jurisdiction over it. See Cambridge St. Realty, LLC, 481 Mass. at 128. See also Revere v. Massachusetts Gaming Commn, 476 Mass. 591, 607 (2017) (“[w]e treat standing as an issue of subject matter jurisdiction” [citation omitted]); Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 125 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998). We therefore discern no error in the judge granting summary judgment in Camerons favor.
2. Undue influence. Even if Graeme had standing, we would still affirm. Cameron demonstrated that Graeme had no reasonable expectation of proving that Cameron exercised undue influence over their parents, specifically Ardell, in conveying the property to Cameron. In fact, the materials in the summary judgment record directly contradicted Graemes assertions. The attorney representing Ardell and Donald during the property conveyance process attested to their soundness of mind and that “they signed the deed voluntarily without any indication that they were influenced in any way.” It was undisputed that that in their later years Ardell and Donald traveled, drove, and went places on their own, had no health problems affecting their competency to sign legal documents at the time of the conveyance, and that during that time Graeme was in contact with his parents on a regular basis. Graeme failed to meet this evidence with countervailing materials showing that he could prove the elements of undue influence.
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Therefore, the judge did not err in dismissing the undue influence claim on summary judgment. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Because the declaratory judgment claim and the equitable remedies of rescission, constructive trust, and unjust enrichment were derivative of the undue influence claim, these claims also were properly dismissed.
In addition, Cameron did not owe any greater duty to Ardell because of their relationship. She was not dependent on Cameron in personal or business affairs, and there was no evidence in the summary judgment record showing a fiduciary relationship or relationship of trust and confidence. “[M]ere respect for the judgment of another or trust in his character is not enough to constitute a confidential [or fiduciary] relationship.” Bruno v. Bruno, 384 Mass. 31, 33 (1981). Therefore, the judge did not err in dismissing the claim of breach of fiduciary duty.
3. Civil rights claim. The judges conclusion that he lacked jurisdiction over the civil rights claim was correct. See G. L. c. 185, § 1. Although true that the judge could have cured the subject matter jurisdiction over this claim by seeking cross-departmental assignment, in this case, such process “would not [have] further[ed] the interests that reassignment of a case ordinarily serves.” LaRace v. Wells Fargo Bank, N.A., 99 Mass. App. Ct. 316, 321 (2021). A judge with proper jurisdiction would have been constrained to dismiss the claim of undue influence, as discussed supra, from which the civil rights claim stemmed, once those claims were transferred. See, e.g., id. at 322. In this case, as was held in LaRace, judicial economy dictates that we affirm the judges dismissal of the civil rights claim. See id.
4. Motion to alter or amend judgment. Because Graeme failed to include in his notice of appeal his intention to appeal from the order denying his motion to alter or amend, the issue is waived. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018) (“A timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal”). See also Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). However, even if Graeme had timely filed the appeal, the judge did not abuse his discretion in denying Graemes motion as each of the arguments made therein were similarly made previously and disposed of by the summary judgment order.
Judgment affirmed.
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FOOTNOTES
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. Because the parties share the same last name, we refer to each by their first name for ease of reference.
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. Graeme moved to strike the check, but the judge did not rule on the motion. Regardless, whether Cameron contributed $27,000 to the purchase of the home does not affect our decision.
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. Donald and Ardells daughter was intentionally excluded from both their wills.
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. Graeme also argues that even if he does not have standing to bring this action as a co-personal representative, he has standing as a beneficiary of Ardells estate. However, this argument fails as Graeme brought this action solely as a co-personal representative of Ardells estate, and amending his complaint to make a claim individually as a beneficiary would be futile in light of the transfer of ownership to Donald at Ardells death.
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. “A claim of undue influence is comprised of four elements: ‘(1) an unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means’ ” (citation omitted). Matter of the Estate of Sharis, 83 Mass. App. Ct. 839, 842 (2013).
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. Because Cameron made a specific request in his brief for attorneys fees, and because we agree that Graemes appeal was frivolous, we direct counsel to file with the clerk of this court within ten days of the date of the rescript a detailed and supported submission of the attorneys fees sought. Graeme shall have an additional ten days to respond thereto. See Fabre v. Walton, 441 Mass. 9, 10 (2004). We also award double costs.