Opinion
16-P-395
03-13-2017
Raymond J. MADDEN & another v. Peter S. FARBER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Peter S. Farber, an attorney appearing pro se, seeks to enforce rights based on a mortgage granted to him by his client, Robert L. Walsh, for payment of attorney's fees. We affirm the summary judgment for the plaintiffs, who initiated this case in Superior Court, seeking either a discharge of the mortgage or a declaration that the mortgage does not encumber their property.
The facts are known to the parties, and we need not belabor them. In a prior action brought in Superior Court by Walsh's sisters, a judge issued a judgment terminating the life estate granted to Walsh in his mother's last will and testament as to property located at 61 School Street in Chatham (the property). Farber represented Walsh in the prior action. In addition to terminating the life estate on grounds of waste and awarding damages to Walsh's sisters, the judgment dated October 29, 2009, declared that all right, title, and interest in the property was then held in undivided interests by Walsh and his sisters, Elizabeth Gay Matteson (Matteson), and Catherine Baisly (Baisly) as tenants in common.
The original judgment was amended on December 8, 2009, to correct the spelling of Baisly's first name, which had been incorrectly stated as "Katherine."
On November 5, 2009, just one week after the Superior Court entered judgment, Walsh granted a mortgage on the property to Farber in the amount of $12,000 "and such further sums as may accrue pursuant to mortgagor's agreement dated of even date herewith." That mortgage was recorded in the Barnstable Registry of Deeds on November 6, 2009.
The parties cross-appealed from the Superior Court's judgment, with Walsh challenging the finding of waste and with Matteson and Baisly challenging the determination that Walsh held a one-third interest in the property. In Matteson v. Walsh , 79 Mass. App. Ct. 402 (2011), this court held that pursuant to the will of the parties' mother, Walsh never held any remainder interest in the property. Instead, this court determined that, upon "termination" of the life estate, an undivided fee simple interest in the property was held by Matteson, Baisly, and the "heirs of" Walsh. See id . at 410-411. We upheld the finding of waste, and explicitly "vacated" that portion of the Superior Court's decision that held that Walsh owned a one-third interest in the property. See id . at 406-407, 411. Additionally, we remanded the case to the Superior Court for identification of Walsh's heirs. See id . at 411. The Supreme Judicial Court denied further appellate review on July 1, 2011. See 460 Mass. 1108 (2011).
The pertinent text of the will is: "I devise my house ... to my son, ROBERT L. WALSH, for his life provided that he survives me for thirty (30) days, and in the event he does not so survive me or at his death, the remainder is to be divided in three (3) equal shares between the heirs of the said ROBERT L. WALSH, ELIZABETH G. MATTESON, ... and CATHERINE T. BAISLY ... or their heirs by right of representation."
This court wrote, "We also note from the record that Matteson and Baisly appear to be Walsh's only heirs, but as there was no definitive finding that such was the case as of the date of the termination of Walsh's life estate, a remand is necessary to ascertain the heirs in whom the remainder interests have vested." Matteson v. Walsh , 79 Mass. App. Ct. at 411.
On remand, the judge held that Walsh's only heirs were Baisly and Matteson. Accordingly, the judge revised the judgment to state that the property was held in its entirety by Matteson and Baisly, individually and as the heirs of Walsh. The parties did not appeal from the revised judgment after remand.
In 2012, Baisly conveyed her interest in the property to Russell T. Baisly (Russell). In 2013, Matteson died, and Raymond J. Madden inherited her interest in the property. In July, 2015, after Farber refused to sign a discharge of the mortgage, Russell and Madden brought the instant action.
We use this party's first name for clarity, since he has the same surname as Catherine Baisly.
In a decision dated December 18, 2015, a judge of the Superior Court allowed Russell and Madden's summary judgment motion. Judgment entered for the plaintiffs on January 4, 2016, with the judgment expressly dismissing the counterclaim that had been filed by Farber. This appeal followed.
Farber argues that Walsh had a one-third interest in the property at the time he granted the mortgage, and thus, the property remained encumbered by that mortgage as of the commencement of this action. Farber is incorrect.
At some point after commencement of this action, Farber signed a discharge of the mortgage so that the property could be sold to a third party, on the condition that $17,000 from the sale would be held in escrow. The property was sold, and the dispute between the parties now concerns the escrowed funds, the distribution of which is apparently to be determined based on whether the mortgage was effective and enforceable to encumber the property prior to its discharge. Although these facts raise the question whether the appeal before us is now moot, we exercise discretion to reach the legal issue because it has been fully briefed, was the subject of a thoughtful decision of the motion judge, and, if not decided, will likely resurface in the form of a dispute concerning distribution of the escrowed funds. See Lockhart v. Attorney General , 390 Mass. 780, 783 (1984).
To the extent Farber questions whether this court's prior determination that Walsh's heirs (and not Walsh himself) held a one-third interest in the property after the life estate was terminated, that ship has long since sailed. Even though Farber was not a party to the prior action in which his client Walsh's interest was determined, he is in privity with Walsh as Walsh's purported mortgagee. Accordingly, res judicata applies, and Farber is precluded from relitigating the issue of Walsh's title. See DeGiacomo v. Quincy , 476 Mass. 38, 41-42 (2016).
The Appeals Court is empowered to "affirm, reverse, or modify the judgment appealed from." G. L. c. 231, § 115, inserted by St. 1973, c. 1114, § 202. The period for bringing appeals from a Superior Court judgment is thirty days. Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). Moreover, judgments of the trial courts (other than those for injunctive relief) are generally unenforceable until the appeal period has run or all appeals have been resolved. See Mass.R.Civ.P. 62(a), as amended 423 Mass. 1409 (1996), and 62(e), as amended, 382 Mass. 821 (1980) ; G. L. c. 235, § 16. See also Sliney v. Previte , 473 Mass. 283, 290 & n.13 (2015) ("[A] judgment becomes final and the case is closed only when all appeals are resolved or the time for appeal has expired").
By its express terms, Mass.R.Civ.P. 62(a) does not apply to stay the enforceability of a judgment in an action for receivership or an injunction. Rule 62(d) of the Mass.R.Civ.P., 365 Mass. 829 (1974), stays the issuance of an execution during the pendency of an appeal. It is not entirely clear whether these provisions stay the enforceability of a declaratory judgment. See Schlager v. Board of Appeal of Boston , 9 Mass. App. Ct. 72, 77 & n.12 (1980) ; Lydon v. Coulter , 85 Mass. App. Ct. 914, 915, n.5 (2014).
When Farber took a mortgage from Walsh as security just one week after the entry of judgment in the case brought by Walsh's sisters, he gambled on whether that judgment would remain undisturbed. As it turned out, this court expressly vacated the portion of the judgment on which Farber had relied, and he lost his bet. Accordingly, Walsh had no interest in the property as of November 5, 2009, the date he granted the mortgage to Farber. Because Walsh had nothing to give, the mortgage granted nothing and was a mere nullity. See Bongaards v. Millen , 55 Mass. App. Ct. 51 (2002), S .C ., 440 Mass. 10 (2003). The plaintiffs were entitled to judgment on their claims.
To the extent Farber suggests that the judge had the authority in a claim for waste to give Walsh an interest in the property that did not otherwise exist, this suggestion is misplaced. The waste statute does not confer any such authority, see G. L. c. 242, § 1, and we know of no other possible source of any such authority. At all relevant times, the Superior Court was simply declaring the ownership interests after termination of the life estate based on the intent of the parties' mother as expressed in her last will. The task before the court involved interpreting the will and applying any relevant statutes and common law—it did not amount to the creation of a new interest that did not otherwise exist.
Farber's claim that he qualified as a bona fide purchaser for value is likewise unavailing. See Greenfield Country Estates Tenants Assn., Inc . v. Deep , 423 Mass. 81, 90 (1996). Further analysis of this claim is not necessary. See Commonwealth v. Domanski , 332 Mass. 66, 78 (1954) ("Other points, relied on by [Farber] but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion").
Although we affirm the result reached by the motion judge, albeit for reasons different from those articulated by the judge, we remand for a modification of the form of the judgment. See G. L. c. 231, §§ 115, 125. As written, the judgment states as follows: "the defendant, Peter S. Farber's, co-extensive interest as mortgagee in the property ... be and hereby is extinguished." This language is imprecise for a number of reasons, including that Walsh never had any interest in the property that he could have granted to Farber, and thus, there was nothing that could be "extinguished."
Additionally, even if Farber had an interest in the property as mortgagee, that interest was not necessarily coextensive with that of Matteson and Baisly, especially since it was limited to the amount of Walsh's debt. Finally, to the extent the mortgage had already been discharged prior to the entry of judgment (as is indicated by the Superior Court's ruling on the plaintiffs' motion for a preliminary injunction), the judgment was erroneous insofar as it states that the mortgage "hereby is extinguished."
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Disposition . Insofar as the judgment dismisses the defendant's counterclaim, it is affirmed. That portion of the judgment stating that the defendant's coextensive interest as mortgagee is extinguished is vacated, and a modified judgment shall enter stating that because Walsh had no interest in the property as of the date of the mortgage, the mortgage conveyed nothing to Farber and was, thus, a legal nullity that did not encumber the property.
So ordered .
Affirmed in part; modified in part; and modified judgment entered.