MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from an adverse judgment entered after cross motions for summary judgment. More specifically, he appeals from (1) an order denying his motion for summary judgment on all claims asserted in his complaint, and allowing the defendants cross motion for partial summary judgment on her counterclaim seeking a declaratory judgment; and (2) an order denying his motion for reconsideration and to alter or amend the judgment. We affirm in part and reverse in part.
Background. The plaintiff filed an equity complaint in the Probate and Family Court on December 7, 2016, asserting claims of breach of fiduciary duty, unjust enrichment, and constructive trust. In essence, the claims were based on the plaintiffs allegations that the defendant (his sister) acted inappropriately as trustee of the Kane Unit #3 Cambridge Realty Trust (trust) established by the parties mother
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that held a condominium located in Florida. In response, the defendant denied liability on the claims and also asserted counterclaims for a declaratory judgment as to the market value of the property and that she had not breached her fiduciary duties to the plaintiff, and breach of fiduciary duty against the plaintiff for his actions while he was predecessor trustee of the trust.
Approximately one year thereafter, without having sought or made any discovery,
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the plaintiff moved for summary judgment. The motion was accompanied by an affidavit from the plaintiff (first affidavit). The defendant opposed the motion, and cross-moved for partial summary judgment on her counterclaim for declaratory judgment. The defendants opposition and cross motion was supported by her own affidavit, and by the parties joint statement of material facts (both undisputed and disputed), as required by Rule 27C (b) (5) of the Supplemental Rules of the Probate and Family Court. In opposition to the cross motion and in further support of his own summary judgment motion, the plaintiff submitted an additional affidavit (second affidavit), to introduce new information not included in the first affidavit.
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As all of these materials were before the judge when she ruled on the cross motions, we take them into account here. Furthermore, we take the factual record in the light most favorable to the plaintiff, as the party against whom summary judgment was allowed. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 516 (2011) (involving cross motions for summary judgment).
We recite first the undisputed facts contained in the summary judgment record. Shirley Kane (Shirley), the parties mother, established the trust on March 5, 2004,
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which took title to a condominium and boat dock in Delray Beach, Florida. Shirley was the original and sole trustee until her death on May 22, 2012. By the terms of the trust, the plaintiff and his sister, Kathleen Adams (Kathleen), succeeded Shirley as cotrustees upon Shirleys death.
After Shirley died, the beneficiaries of the trust became (although the summary judgment record does not establish when or how) the plaintiff, the defendant, and three other siblings (Kathleen, James, and Jacqueline), with each sibling holding a twenty percent interest. Because the original schedule of beneficiaries has not been included in the record,
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and there are six Kane siblings (not only the five having beneficial interests after Shirleys death), it is not clear from the summary judgment record whether these five siblings and their beneficial interests were the same as those originally established by Shirley when she created the trust.
In or about May 2012, the plaintiff and Kathleen, as the then-trustees of the trust, engaged appraiser Frederick Smith to appraise the trust property. Smith appraised the property as having a fair market value of $325,000.
In October 2015, the defendant purchased the beneficial interests of Kathleen, James, and Jacqueline, subject to a right of first refusal that each transferring sibling retained in the event the defendant decided to sell the property in the future. As a result of these purchases, the defendant held an eighty percent beneficial interest in the trust, and the plaintiff held a twenty percent interest.
On October 19, 2015, the defendant, acting as holder of the majority of the beneficial interest, removed the plaintiff and Kathleen as trustees and appointed herself sole trustee. The removal and appointment of trustee instrument was recorded with the Palm Beach County Clerk of Court on October 26, 2015.
In March 2016, the defendant retained Frederick Smith to again appraise the property. He did so, and this time appraised the property at $370,000. The defendant then retained two other appraisers in May 2016, one of whom appraised the property at $375,000; the other appraised the property at $380,000.
On May 24, 2016, the defendant, acting as trustee of the trust, conveyed the property to herself individually for $375,000. The following month, the defendant terminated the trust, and distributed $68,759.50 to the plaintiff, which she contended represented twenty percent of the proceeds from the sale (after deducting certain expenses). The defendant later distributed an additional $321.71 to the plaintiff, which she contended was his final share of the trust assets. Both of these amounts were rejected by the plaintiff.
In addition to the undisputed facts we have set out above, the plaintiffs second affidavit averred the following disputed facts, which we recite in the light most favorable to the plaintiff. It was Shirleys and her late husbands intent that five of their six children “own an interest in, use and enjoy the benefits of this vacation property.”
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The plaintiff and his family used the property as a vacation property multiple times a year through October 2015, when the defendant changed the locks and advised him via email that he could no longer use the property. After the dispute between the parties arose, the plaintiff retained an appraiser, who appraised the property at $565,000 as of March 14, 2016.
After a hearing, the judge issued a lengthy and detailed memorandum of decision denying the plaintiffs motion for summary judgment, and allowing the defendants cross motion for partial summary judgment with respect to her counterclaim for a declaratory judgment. The dismissal of the plaintiffs claims was without prejudice to his bringing an action seeking to challenge the final accounting of the trust. Partial judgment entered on August 24, 2018.
The plaintiff then, on September 4, 2018, filed a motion seeking reconsideration and to alter or amend the judgment. In support of this motion, the plaintiff submitted a supplemental affidavit (third affidavit) in which he averred the following new information. First, although he had previously admitted in the joint statement of materials facts that he, as trustee, had retained Frederick Smith to appraise the property in 2012, the plaintiff now asserted that he had not been involved in retaining Smith. He “believed” that Smith was retained in 2012 to provide a low appraisal of the property to minimize estate taxes. Second, in addition to the appraiser he disclosed in his second affidavit, the plaintiff hired two other appraisers during the summer of 2016, who both appraised the property at $560,000. Third, the parties received their twenty percent beneficial interests in the trust in August 2015, which was reflected in an April 7, 2016 Probate and Family Court agreement for judgment (2016 judgment) incorporating a global agreement among many parties resolving the distribution and allocation of Shirleys estate and associated trusts created by her and her late husband. Fourth, in October 2015, the defendant made the same offer to the plaintiff as she had made to her other siblings to purchase their beneficial interest in the trust. The plaintiff refused the offer, and the defendant thereafter removed him as trustee. Finally, against the plaintiffs stated wishes, the defendant refused him access to the property, despite the fact that he had a twenty percent beneficial interest in the property pursuant to the 2016 judgment.
The motion for reconsideration and to alter or amend the partial judgment was denied in a margin endorsement. This appeal followed after the parties stipulated to the dismissal without prejudice of the defendants second counterclaim for breach of fiduciary duty and final judgment entered.
Discussion. We review the judges decision on cross motions for summary judgment de novo. See Santana v. Commonwealth, 90 Mass. App. Ct. 372, 375 (2016). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). “[T]hat some facts are in dispute will not necessarily defeat a motion for summary judgment. The point is that the disputed issue of fact must be material.” Jenzabar, Inc. v. Long Bow Group, Inc., 82 Mass. App. Ct. 648, 649 (2012), quoting Hudson v. Commissioner of Correction, 431 Mass. 1, 5 (2000). “Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment.” Madsen v. Erwin, 395 Mass. 715, 721 (1985), quoting Olympic Jr., Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). Here, we review the plaintiffs motion for summary judgment to determine whether he had established that, based on the undisputed material facts, he was entitled to judgment on his claims for breach of fiduciary duty, unjust enrichment, and constructive trust. We review the allowance of the defendants cross motion for summary judgment on her counterclaim to determine whether she had established, based on the undisputed material facts, that she was entitled to a declaratory judgment that she had not breached her fiduciary duty. We begin with the plaintiffs motion.
1. Plaintiffs motion for summary judgment. The plaintiffs complaint alleged that the defendant breached her fiduciary duty by (a) improperly removing him as trustee of the trust, and appointing herself the sole successor trustee; (b) denying him use of the trust property; and (c) selling the trust property to herself at less than fair market value.
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The plaintiffs unjust enrichment claim alleged that the defendant benefited from selling the trust property to herself for less than fair market value and deducting expenses from the plaintiffs share of the sale proceeds. The third claim of the complaint sought a constructive trust as a remedy for the alleged actions of the defendant. We examine each of these claims in turn.
a. Removal of plaintiff as trustee and appointment of defendant as successor trustee. Under the terms of the trust,
“Any Trustee may be removed and Successor Trustee may be appointed, by a written instrument signed by beneficiaries holding a majority of the beneficial interests hereunder who are currently eligible for distribution of either income or principal. However, no such removal or appointment shall be effective until said instrument, or a certificate signed and acknowledged by the remaining Trustee of record in the Registry, if any, shall have been recorded in the Registry, setting forth the fact of such removal or appointment, and the acceptance in writing by any successor or additional Trustee or Trustees so appointed shall have been similarly recorded.”
It is undisputed that the defendant complied with the mechanical requirements of this provision when she elected, as the holder of eighty percent of the beneficial interest in the trust, to remove the plaintiff as trustee and then appoint herself successor trustee. Among other things, the summary judgment record contains the instrument by which the defendant, acting in her capacity as holder of eighty percent of the beneficial interest, removed the plaintiff and Kathleen as trustees and appointed herself as successor trustee, and that document reflects that it was recorded with the Palm Beach County, Florida registry.
A more fundamental problem for the plaintiff is that he has failed to identify any legal authority for the proposition that the defendant -- when acting (as she did in this instance) as a beneficiary -- owed any fiduciary duty to him (either as trustee or a cobeneficiary), let alone a fiduciary duty not to exercise her rights as holder of the majority beneficial interest to remove and appoint trustees. Although the plaintiff argues that the defendants motive was to “wrest” control from him and Kathleen of the trust, absent identifying any legal duty on her part to refrain from exercising her rights as the majority beneficiary, he cannot make out a claim for breach of fiduciary duty.
b. Denial of use of property. The plaintiff argues that the defendant breached her fiduciary duty when acting as successor trustee by changing the locks on the condominium and preventing him from using the property for vacations. We begin by setting out the chronology of pertinent facts that are sufficiently established by the summary judgment record, read in the light most favorable to the plaintiff. After she became sole trustee, the defendant sent an email to the plaintiff on November 24, 2015, that stated, among other things:
“Could you please send me all the documents, invoices, records and keys to the [F]lorida condo. You have been removed as trustee and I am the sole trustee responsible for all transactions related to the condo. The locks have been changed and I will be managing the keys and all access to the unit.”
There is nothing in the summary judgment record to show or suggest that the plaintiff sought to use or access the condominium after the defendant made herself sole trustee.
A trustees obligations are measured against the powers given to her under the trust instrument. Here, the trust provided:
“The Trustee shall have, in addition to those powers conferred by law or otherwise, the following discretionary powers, whether or not personally interested in the exercise thereof:
(A) To purchase, sell, mortgage, assign, transfer, pledge, borrow, lend, liquidate, improve and otherwise deal with or disease [sic] all or any part or parts of the trust property; and to execute, acknowledge and deliver leases, subleases, deeds, options, promissory notes, mortgages or any other agreements or contracts in writing, under seal or not, with respect to the trust property, any or all of which may extend beyond the date of the termination of the Trust; and to borrow money (with or without security), and to execute and deliver notes and other evidence of such borrowings; and to grant or acquire rights or easements with respect to the trust property; and to give releases, discharge, and extensions ․”
Apart from stating that the trust is designed to hold property “for and on behalf of the beneficiaries,” the trust instrument is silent as to any other purpose for the trust. More specifically, the trust instrument does not mention that the property was to be held for the beneficiaries as a vacation property.
The interpretation of a trust instrument is a question of law. See Ferri v. Powell-Ferri, 476 Mass. 651, 654 (2017); Sullivan v. OConnor, 81 Mass. App. Ct. 200, 204-205 (2012). “It is fundamental that a trust instrument must be construed to give effect to the intention of the donor as ascertained from the language of the whole instrument considered in the light of circumstances known to the donor at the time of its execution.” Watson v. Baker, 444 Mass. 487, 491 (2005), quoting Powers v. Wilkinson, 399 Mass. 650, 653 (1987). Absent ambiguity or where necessary to explain the language of the trust in order to effectuate the intent of the donor, see Clymer v. Mayo, 393 Mass. 754, 769 (1985), extrinsic evidence is not considered. See Ferri, supra. “[E]xtrinsic evidence cannot be used to contradict or change the written terms, but only to remove or to explain the existing uncertainty or ambiguity.” Id., quoting General Convention of the New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832, 836 (2007).
The plaintiff does not argue that the trust language cited above is ambiguous, or that it requires explication through extrinsic evidence. At least for purposes of determining whether the defendant was permitted as trustee to change the locks of the condominium and to control who had access, the argument would be unsuccessful if the plaintiff had made it. See Ferri, 476 Mass. at 654 (determining existence of ambiguity is question of law). The trust permitted the trustee to “deal with” the property within her discretion, a term that easily accommodates the actions of changing the locks and controlling access to the unit.
Even were we to assume that the plaintiff sought to access or use the condominium after the defendant became sole trustee, that assumption would not help the plaintiff. This was not a nominee trust, see note 4 supra, and therefore fiduciary duty did not require the defendant to accede to the plaintiffs requests to use the property. See Shear v. Gabovitch, 43 Mass. App. Ct. 650, 681 (1997).
c. Self-interested sale. The defendant argues that he was entitled to summary judgment because -- regardless of price -- the defendant breached her fiduciary duty by selling the property to herself. He contends that, even if made at fair market value, a trustee may not stand on both sides of a transaction. Moreover, the plaintiff argues that, even if the sale was at fair market value, the defendant breached her fiduciary duty to him because the sale deprived him of using the condominium.
Contrary to the plaintiffs argument, the law does not categorically prohibit a trustee from self-dealing. Instead, “a sale, encumbrance or other transaction involving the investment or management of trust property entered into by the trustee for the trustees own personal account or which is otherwise affected by a conflict between the trustees fiduciary and personal interests shall be voidable by a beneficiary affected by the transaction unless[, among other possibilities not relevant here] the transaction was authorized by the terms of the trust.” G. L. c. 203E, § 802 (b).
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“A trustee, unless authorized by the trust instrument or by a decree of a court, or unless he has the consent of all the beneficiaries, if they are of age and competent to decide and are fully informed of all the details of the transaction, which in fact must be fair and reasonable, cannot act in a dual capacity as a seller of trust property to himself or as a purchaser for the trust of his own property.” Boston Safe Deposit & Trust Co. v. Lewis, 317 Mass. 137, 140 (1944).
“A settlor or testator may authorize a trustee to sell the trust property to himself at a price to be determined by the trustee, and a sale to him at the price fixed is valid if the trustee acted fairly and in good faith. A trustee has all the powers expressly granted to him and such powers as are necessarily implied for the due and faithful execution of the trust; and where the method selected by a testator for the accomplishment of the purpose and object of the trust cannot be adopted by a trustee without dealing with himself individually, it may be fairly assumed that such dealing was contemplated by the testator” (citations omitted). Id. at 141.
We accordingly begin with the language of the trust which, in pertinent part as we have already set out above, provides that “[t] he Trustee shall have, in addition to those powers conferred by law or otherwise, the following discretionary powers, whether or not personally interested in the exercise thereof: ․ [the power t]o purchase, sell, ․ and otherwise deal with or disease [sic] all or any part or parts of the trust property.” This power was not unlimited because the trust exempted the trustee from liability only if the trustee acted in good faith and did not commit a “willful breach of trust.”
As we have noted above, “a trust instrument must be construed to give effect to the intention of the donor as ascertained from the language of the whole instrument considered in the light of circumstances known to the donor at the time of its execution.” Watson, 444 Mass. at 491, quoting Powers, 399 Mass. at 653. Here, we think it plain that the phrase “whether or not personally interested in the exercise thereof” permitted the trustees to stand on both sides of a transaction involving the trust property. This interpretation naturally follows from the fact that Shirley provided that two of her children would become the trustees upon her death, even though they were also beneficiaries. In other words, the grantor provided and anticipated that the affairs of the trust would be conducted by trustees who were also beneficiaries and, therefore, not disinterested. A contrary interpretation would deprive the trustees of essential enumerated powers under the trust. Thus, the trust gave the defendant the power to sell the property to herself provided she acted in good faith and did not commit a willful breach of the trust.
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Finally, the plaintiff argues that, by selling the property, the defendant breached her fiduciary duty by depriving him of his use of the property. However, he points to no trust provision requiring that the property never be sold. Indeed, to the contrary, the trustees were expressly empowered to sell or otherwise dispose of the property.
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In summary, the plaintiff was not entitled to summary judgment on his fiduciary duty claim.
2. Unjust enrichment. The plaintiff moved for summary judgment in his favor on his unjust enrichment claim. The defendant did not cross-move for judgment in her favor on the claim. Unjust enrichment is an equitable claim defined as the “retention of money or property of another against the fundamental principles of justice or equity and good conscience.” Shea v. Cameron, 92 Mass. App. Ct. 731, 740 (2018), quoting Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005). However, “[t]he fact that a person has benefitted from another is not of itself sufficient to require the other to make restitution therefor” (quotation and citation omitted). Keller v. OBrien, 425 Mass. 774, 778 (1997). A claim for unjust enrichment may lie where a trustee sells trust property to himself or herself at below fair market value. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 544 (1997) (in context of officers and directors of corporation).
Here, the complaint alleged that the defendant was unjustly enriched by selling the condominium to herself at less than fair market value. Although it is true, as the defendant argues, that there was no dispute that (a) she obtained three appraisals of the property during the month preceding the sale, (b) there is no suggestion in the record that those appraisals were anything but arms length and disinterested, and (c) that the defendant paid the average of these three appraisals, the fact remains that the plaintiffs second affidavit attached an appraisal reflecting a significantly higher value for the condominium at the time of the sale.
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This, combined with the plaintiffs allegations that the defendant acted unfairly by not offering him the same price she had paid the other siblings and that she deducted too many expenses from the sale proceeds, was sufficient to preclude summary judgment against him on this claim.
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We do not mean to suggest that summary judgment in favor of either party might not be appropriate on a fuller record after discovery on remand. We rule only that it was premature to enter judgment against the plaintiff on the summary judgment record as it was presented below.
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3. Constructive trust. Because summary judgment should not have been entered on the plaintiffs unjust enrichment claim in light of the dispute regarding the fair market value of the property, summary judgment was also premature on the plaintiffs constructive trust claim. See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 246 (2007) (constructive trust is flexible equitable remedy for unjust enrichment). See also Cavadi v. DeYeso, 458 Mass. 615, 627 (2011) (“One type of constructive trust, implied by law as a result of mistake, violation of a fiduciary duty, or unjust enrichment, may be imposed, generally as between transferor and transferee, without proof of fraudulent intent”).
4. Defendants cross motion for partial summary judgment. The defendants cross motion was limited to her declaratory judgment counterclaim which sought a declaration that she did not breach her fiduciary duty. For the reasons set out in our discussion of the defendants fiduciary duty claim (which we need not repeat here) and a further one we discuss next, the defendant was entitled to summary judgment on her crossclaim.
Although the record presented a factual dispute with respect to the fair market value of the property at the time of sale, that dispute did not foreclose summary judgment in the defendants favor on her declaratory judgment claim. Because the defendant had the power under the terms of the trust to sell the property to herself and the trust did not require that the property be held so the plaintiff could use it ad infinitum, and it was undisputed that the defendant obtained three outside appraisals before doing so and there was no evidence to suggest that those appraisals were anything other than independent and disinterested, and it was undisputed that she paid the average of those three appraisals, the fact that a post hoc appraisal valued the property differently was not enough to raise a triable issue of fact that the defendant had acted in bad faith or willful breach in selling the property at the amount she did. See Boston Safe Deposit & Trust Co., 317 Mass. at 141.
5. Plaintiffs motion for reconsideration and to alter or amend judgment. We review the denial of a motion for reconsideration for abuse of discretion. Blake v. Hometown Am. Communities, Inc., 486 Mass. 268, 278 (2020). “Decisional law has developed several practical criteria for submission of a request for a second consideration. They apply with special force if the applicant has already received a written, reasoned explanation of a ruling. The applicant should specify (1) ‘changed circumstances’ such as (a) newly discovered evidence or information, or (b) a development of relevant law;[
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] or (2) a particular and demonstrable error in the original ruling or decision” (citation omitted). Audubon Hill South Condominium Assn v. Community Assn Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 466-467 (2012). “[I]f there is no material change in circumstances, a judge is not obliged to reconsider a case, issue, or question of law after it has been decided.” Littles v. Commissioner of Correction, 444 Mass. 871, 878 (2005). “[A] party, purely in the hopes of defeating summary judgment, may not submit at the eleventh hour an affidavit that contradicts the partys earlier statements and discovery responses. Such an affidavit is not enough to create a triable issue.” Locator Servs. Group, Ltd. v. Treasurer and Receiver Gen., 443 Mass. 837, 864 (2005).
Here, the judge did not abuse her discretion in denying the motion for reconsideration, which sought to interject new factual matters the plaintiff had strategically decided not to disclose earlier, to raise new legal arguments, and to contradict earlier admitted facts.
Conclusion. So much of the judgment as pertains to the claims for unjust enrichment and the imposition of a constructive trust are vacated, and the matter is remanded for further proceedings consistent with this decision. The judgment is otherwise affirmed.
So ordered.
Affirmed in part; vacated in part and remanded
FOOTNOTES
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. The complaint alleged that the trust was created by the parties sister (see ¶5 of the complaint) which, taking the rest of the record into account, as well as the parties assertions in their briefs, appears to be a typographical error.
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. At the summary judgment hearing, plaintiffs counsel acknowledged that the decision to move for summary judgment before engaging in discovery was strategically made, and that the plaintiff wished to avoid any disputed areas of fact that might require trial (which, in this equity case, would be to a judge).
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. The defendant moved to strike the second affidavit on the ground that it was based on inadmissible hearsay. The judge appears to have taken no action on this motion given her disposition of the summary judgment motion.
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. A realty trust is ordinarily a nominee trust, i.e., one that acts only at the direction of the beneficiaries. See Bellemare v. Clermont, 69 Mass. App. Ct. 566, 571 (2007). The trust at issue here was not a nominee trust, but rather a traditional donative trust even though it was entitled a “realty trust.”
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. The trust document states that the beneficiaries of the trust, together with their beneficial interests, were set out in a schedule of beneficiaries. That schedule, however, is not included in the record, and we thus have no direct evidence of the identities or beneficial interests of the original beneficiaries of the trust.
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. This statement was a subject of the defendants motion to strike on the ground that it could have only been based on inadmissible hearsay.
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. The complaint also claimed that the defendant breached her fiduciary duty by making improper deductions from the plaintiffs share of the sale proceeds. However, there was nothing in the summary judgment record to support this contention. Instead, the only information in the summary judgment record was provided by the defendant, which was the final accounting of the trust detailing the various deductions. Although the plaintiff stated that he “disputed” this evidence, that naked assertion was not enough to raise a disputed issue of material fact for purposes of summary judgment. What was required were “specific facts showing that there [was] a genuine issue for trial.” Mass. R. Dom. Rel. P. 56 (e). Despite this, judgment entered without prejudice to the plaintiff bringing a claim for an accounting in the future.
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. The filing of this suit, and the actions that prompted it, all postdate the enactment of the Massachusetts Uniform Trust Code (MUTC) in 2012, and, accordingly, the provisions of the MUTC apply. See St. 2012, c. 140, § 66 (a). The parties both nonetheless rely on pre-MUTC cases, as do we, where necessary to address their arguments. See Mackey v. Santander Bank, N.A., 98 Mass. App. Ct. 431, 437 (2020).
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. The plaintiff (in our view, correctly) did not seek summary judgment below in his favor on the question of the defendants good faith or willful breach, both of which he conceded involved disputed issues of fact which he wished to avoid. Instead, he argued that disputed issues of fact (namely, the fair market value of the property) precluded summary judgment on the defendants cross motion.
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. At the hearing on the motion for summary judgment, the plaintiff acknowledged that selling the property to a third party would not constitute a breach of fiduciary duty simply because it deprived him of his use of the property, had that sale been made at fair market value.
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. The defendant challenges the soundness of this post hoc appraisal, but for purposes of summary judgment we accept the record in the light most favorable to the losing party.
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. We note that the plaintiffs contention that he was offered less than his siblings is contradicted by materials he himself later submitted in connection with his motion for reconsideration. It is true, however, that the net proceeds he received from the sale were less than the $100,000 the plaintiff paid the other siblings for their beneficial shares.
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. Our ruling in this regard should not be construed to indicate that the appraisals are admissible for their truth at trial. The plaintiff agreed that the appraisals would not be admissible for their truth at trial, and that the appraisers would need to testify at trial.
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. In support of its motion, the plaintiff pointed almost exclusively to Steele v. Kelley, 46 Mass. App. Ct. 712 (1999), which had been decided approximately twenty years earlier, and did not constitute a new development.