Opinion
11-P-987
05-02-2012
CHRISTINA M. DeYESO, trustee v. JOHN A. HUMBERT (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, Christina M. DeYeso appeals from Superior Court orders ordering the release of funds held in escrow to Kyla A. McKay. DeYeso seeks a reversal of that decision, claiming that she is entitled to so much of the funds equal to the amount of a lien she seeks to enforce. We affirm the order of disbursement.
Facts. The facts are undisputed and are recited in the decisions of two Superior Court judges.
DeYeso seeks to enforce her claim of a lien for child support by opposing payment of the escrow proceeds to McKay. DeYeso argues that because the transferred property was liquidated, voiding the fraudulent transfer returned the interest in the proceeds to Stephen C. Barnes and made the proceeds available to his creditors.
There is no merit in this argument. When the property was sold, title was transferred to Mirick, O'Connell, Demallie, and Lougee, LLP (MODL), as trustee. Voiding the transfer to DeYeso as fraudulent did not divest title from MODL. The judge found that no order was sought or issued to reconvey the property to Barnes. Similarly, there was no order sought to return the proceeds of the sale to Barnes. By agreement of DeYeso and McKay, the proceeds were held in escrow and could be disbursed only by further agreement of the parties or a court order. Barnes had no interest either in the property or the proceeds. Accordingly, we do not consider DeYeso's arguments, which are grounded entirely in her assertion that McKay failed to name Barnes a party in this case. In any event, the judge found that Barnes properly was served with notice but did not appear to oppose McKay's motion.
While the judge found that although DeYeso 'technically' has a valid lien against Barnes and his property, '[s]he has no lien against the proceeds held by [MODL], to which Barnes has no claim, except in the world of legal fictions.' The judge found that DeYeso attempted 'to turn the judgment against her into the very vehicle of putting the assets of Stephen Barnes even further from [McKay's] reach.' The judge concluded that DeYeso must be 'judicially estopped from reversing her contracted position [in the escrow agreement] and now arguing that the proceeds held [in escrow] are not in fact the 'property' which [the first judge] intended to be liened' in the previous Superior Court bench trial.
We conclude that in ordering MODL to disburse the fund of $345,607.96 to McKay as trustee of the Grand Street Mortgage Investors Trust, the judge neither erred nor abused her discretion.
McKay has requested attorney's fees and costs for this appeal. We note DeYeso's lack of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In addition, we find that the appeal is frivolous and allow McKay's request. See Yorke Mgmt. v. Castro, 406 Mass. 17, 18-19 (1989). Within fourteen days of the date of the rescript, McKay shall file with this court, and serve on DeYeso, a motion for the determination of the attorney's fees and costs incurred in this appeal, supported by a detailed affidavit, in accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Within fourteen days thereafter, DeYeso may file with this court, and serve on McKay, an opposition.
Orders entered December 1, 2010, affirmed.
Amended order entered May 3, 2011, affirmed.
By the Court (Cypher, Cohen & Wolohojian, JJ.),
Of 400-404 K Street Realty Trust.