MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These two appeals deal with different aspects of a single piece of litigation. In that action, the plaintiff initially named three Danoff siblings as defendants:
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Carol, Edward (individually and as cotrustee), and Linda. Edward filed a counterclaim against the plaintiff and a third-party claim naming Christina, Deborah Danoff Hope (another Danoff sibling), and Deborahs son, D.J. The plaintiff voluntarily dismissed the claims against Linda and all claims against and by Edward were settled prior to trial leaving Carol Danoff Lawler, individually and as cotrustee, as the only remaining defendant in this litigation. The cases were not consolidated but were paired for consideration by the same panel.
The first case, no. 22-P-779, concerns the merits of a dispute about a power of attorney signed on August 16, 2016, by the decedent, Rose Danoff, which named her adult daughter, Carol Danoff Lawler, as her attorney-in-fact. While the details are well-known to the parties, and will not be spelled out here, the underlying issue has to do with real property in Otis. At the time the power of attorney was signed, Rose owned the property, and under her will, executed in 2014, it was upon her death to pass to three of her five children, not including Carol, in three equal shares.
Using the August 2016 power of attorney, Carol, with the help of her brother Edward, created a revocable trust, and transferred the Otis property from Rose to the trust. The trust instrument provided that, upon Roses death, the property would be divided equally among Roses five children, including Carol. Rose brought this action against Carol and Edward, challenging the validity of the power of attorney, the creation of the trust, and the transfer of the property. She died during the course of this litigation, however, and her estate has been substituted as plaintiff.
Rose had signed a previous power of attorney in July 2016 naming Carol her attorney-in-fact. But on July 30, 2016, she had revoked it. The revocation stated in part,
“I never intended to give my daughter, Carol Danoff Lawler, any authority to transfer any ownership interest in any real property that I own now or owned prior to this date. I do not intend to give my daughter, Carol Danoff Lawler any future Power of Attorney and any future Power of Attorney given to my daughter, Carol Danoff Lawler, shall not be valid unless it is signed by me, at a future date in front of my current attorney, John Discenza of JM Discenza Law LLC of Holyoke, Massachusetts, with full knowledge that I am doing the same.”
The August 16, 2016 power of attorney was not signed in front of the attorney named in the July 30, 2016 revocation.
The trial judge concluded that the August 16, 2016, power of attorney was invalid, because it failed to comply with that condition, and, independently, because it was obtained through undue influence.
Before us, Carol argues that the prior revocation condition could not be binding on Rose as it was not a contract for consideration, and Rose retained all her rights to create a power of attorney notwithstanding her prior announcement that it would not be valid.
We need not decide the merits of that argument, as we may assume, without deciding, that they are correct. Nonetheless, reversal is not warranted because the judge independently concluded that the power of attorney was obtained through undue influence. Carol does not even argue that there was any error with respect to that conclusion. Although, at one point, she does suggest that the judge failed to consider that Rose signed a health care proxy at approximately the same time, and that there was some evidence that the health care proxy was not the product of undue influence, she does not assert that any of the findings of fact subsidiary to the judges conclusion about undue influence with respect to the power of attorney were clear error, nor, given the evidence supporting them in the record, could she succeed with such an argument.
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The judgment in the first appeal therefore is affirmed.
The second appeal, no. 23-P-292, is brought from the denial of Carols postjudgment motion asking that the lis pendens on the property not be released while her appeal was pending. Because this would have rendered the estates title to the property unclear, it amounted to a request for at least a partial stay of the judgment.
Carol however, had previously sought a stay of the judgment from the trial judge, which was denied, and then sought a stay pending appeal from the single justice of this court, which was also denied. In both instances, she failed even to address her likelihood of success on the merits, the first test an appellant must meet if she is to be granted a stay pending appeal. See C.E. v. J.E., 472 Mass. 1016, 1017 (2015).
Were we to reach the merits of this second appeal, therefore, we would affirm it on the ground that Carol is directly estopped from requesting this relief by the orders denying her two motions for stay that previously issued. As it stands, however, in light of the predictable failure of her appeal in the merits case, the second appeal is moot, and it is dismissed.
The estates request for attorneys fees and costs in these appeals is allowed, as they are both frivolous. G. L. c. 211A, § 15; Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). The estate “may file [its] application for fees and costs, with any appropriate supporting materials, with the clerk of the [Appeals Court] within fourteen days” of the date of this decision. Fabre v. Walton, 441 Mass. 9, 11 (2004). The defendant may respond to the petition within fourteen days of said filing. Any request to enforce a fee award shall be brought in the Superior Court.
In no. 22-P-779, the judgment entered February 1, 2022 is affirmed. No. 23-P-292 is dismissed as moot.
So ordered.
FOOTNOTES
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. Because the relevant parties are or were all named Danoff, for clarity, we will refer to them by their first names.
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. This suffices to support affirmance. We note, however, that the judge also concluded that even if the power of attorney had been valid, the creation of the trust and the transfer of property into it were void because they amounted to a breach of fiduciary duty to Rose by Carol. In light of our conclusion in the text, we need not address this issue.