MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jonathan G. Sloane, in his individual capacity and as next friend of his mother, Barbara J. Sloane, appeals from a judgment on the pleadings entered in favor of his siblings, defendants Barry R. Sloane and Linda Sloane Kay. On the day before we heard oral argument, the parties filed suggestions of death stating that Barbara had very recently passed away.
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Barry and Linda also filed a motion to dismiss the appeal asserting that Barbaras death rendered the appeal moot. Jonathan opposed the motion during oral argument and subsequently filed a written opposition to the motion. Barry and Linda then filed a reply
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and a letter pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019). Jonathan filed a response to that letter. We conclude that the case is moot and vacate the judgment.
Background. This action concerns real property located in Bourne that was once owned by Barbara and her deceased husband, Marshall. The complaint alleges that Barry and Linda, acting as Barbaras agents pursuant to a durable power of attorney executed by her, transferred the property for the stated consideration of one dollar from Barbaras sole ownership into a realty trust of which Barry and Linda are the trustees. The complaint further alleges that Barry and Linda have used the property to the exclusion of others, including Barbara, who at the time the complaint was filed was suffering from dementia, and an elderly relative to whom Barbara had extended a long-standing invitation. Count one of the complaint asserts that Barry and Linda breached their fiduciary duty to Barbara by conveying the property without adequate compensation and using it to the exclusion of others. Count two of the complaint sought preliminary and permanent injunctive relief. In his prayer for relief, Jonathan requested that the court: “award [him] as Next Friend to Barbara damages in an amount to be established at trial”; “enter a preliminary and permanent injunction prohibiting Barry and Linda from using the Property themselves to the exclusion of others without providing adequate compensation in the form of fair market rent, and requiring Barry and Linda to convey the Property back to [Barbara] individually to restore her full ownership of the Property”; and “award Jonathan as Next Friend to Barbara such other relief as is just and reasonable under the circumstances.” Barry and Linda filed a motion for judgment on the pleadings asserting that Jonathan lacked standing and that the complaint failed to state a claim upon which relief can be granted. Following a hearing, a judge of the Superior Court dismissed the complaint on the basis that Jonathan lacked standing to pursue the action.
Discussion. “It is the general rule that courts decide only actual controversies ․, and normally do not decide moot cases.” Boston Herald, Inc. v. Superior Court Dept of the Trial Court, 421 Mass. 502, 504 (1995). The mootness doctrine extends to appellate review of lower court decisions. See International Marathons, Inc. v. Attorney Gen., 392 Mass. 376, 380 (1984). “[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome” (citation omitted). Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 816 (2019), cert. denied, 140 S. Ct. 858 (2020). “A moot case is one where a court can order ‘no further effective relief.’ ” Id. at 817, quoting Lawyers’ Comm. for Civ. Rights & Economic Justice v. Court Admr of the Trial Court, 478 Mass. 1010, 1011 (2017).
Here, Jonathan did not seek damages in his individual capacity; he only sought damages in his capacity as next friend to Barbara based on Barry and Lindas alleged breach of their fiduciary duty owed to Barbara. For injunctive relief, Jonathan sought to prohibit Barry and Lindas exclusive use of the property without compensation and sought conveyance of the property back to Barbara individually. Even if Jonathan was awarded all the relief he sought, it is clear that any damages collected on Barbaras behalf and title to the property at issue would now become part of Barbaras estate.
Barry and Linda provided copies of Barbaras will and the Barbara J. Sloane 2013 Revocable Trust (revocable trust) documents.
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Those documents demonstrate that Barbaras entire estate is to pour over into the revocable trust, Barry and Linda have been appointed to serve as the personal representatives of Barbaras estate and as trustees of the revocable trust, Barry and Linda are to inherit under the will and the trust, and Jonathan and his descendants are expressly excluded from inheriting under Barbaras will and the trust. Therefore, subject to further proceedings in the Probate and Family Court, all relief sought in this action would revert to Barbaras estate, of which Barry and Linda, and not Jonathan, are beneficiaries. Because we can offer no further effective relief and Jonathan has no personal stake in the outcome, this case is moot.
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See Branch, 481 Mass. at 816-817.
While we may consider the merits of an otherwise moot issue in limited circumstances, we decline to do so here. See Commissioner of Correction v. McCabe, 410 Mass. 847, 851 (1991) (court may consider moot question “where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot” [citation omitted]). In light of Barbaras death and her estate plan, “the factual underpinnings of the dispute have so changed ․ as to make an appellate decision ‘a useless and inappropriate exercise’ ” (citation omitted). Lockhart v. Attorney Gen., 390 Mass. 780, 784 (1984).
Because Jonathan cannot obtain appellate review of the judgment on the merits due to mootness, the judgment is vacated, and the case is remanded to the Superior Court for entry of a new judgment dismissing the action on the ground that the case has become moot.
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So ordered.
Vacated and remanded
FOOTNOTES
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. Because some parties share a surname, we use first names to avoid confusion.
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. The reply is the subject of a motion to strike filed by Jonathan. For the reasons explained below, we deny the motion to strike. See note 6, infra.
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. The defendants indicate that the will has since been filed with the Probate and Family Court.
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. As previously noted, we deny Jonathans request to strike these documents. We may properly consider them in connection with the mootness issue as they are authenticated by an affidavit from an attorney engaged to administer Barbaras estate. See Branch, 481 Mass. at 817 n.13 (“To determine whether a case has become moot while it is on appeal, we may consider evidence introduced by the parties in the form of affidavits”). Moreover, where the documents were produced less than a month after Barbaras death, we are satisfied that the defendants acted with appropriate speed.
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. To the extent that Jonathan brought this action in his individual capacity, he sought to do so on the basis that he stood to inherit if Barbara died intestate. See G. L. c. 190B, § 2-103. Given the will and trust documents reflecting that Jonathan was disinherited from Barbaras estate, this argument necessarily fails. Jonathan has expressed that the validity of those documents may be challenged; however, any such challenge would be the subject of a separate proceeding and, therefore, outside the scope of this appeal.
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. This disposition is prescribed by our case law. See Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631, 634-636 (2015); Building Commr of Cambridge v. Building Code Appeals Bd., 34 Mass. App. Ct. 696, 700 (1993); Easton Mobile Homes, Inc. v. Curtis, 9 Mass. App. Ct. 930, 930 (1980).
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. Although we do not reach the merits of Jonathans argument, we are not persuaded that the appeal was frivolous. See Avery v. Steele, 414 Mass. 450, 455 (1993). Accordingly, the defendants’ request for appellate attorneys fees is denied.