Opinion
14-P-941
05-26-2015
ERIK MORAD, administrator, v. EMILE MORAD, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from a dispute between two brothers, Erik Morad (plaintiff) and Emile Morad, Jr. (defendant), concerning the estate of their father, Emile E. Morad, Sr. (decedent). The plaintiff, who serves as administrator of the decedent's estate, filed this equity action against the defendant in the Probate and Family Court, where a judge allowed the defendant's motion to dismiss. After a premature attempt by the plaintiff to seek review of that order, see Morad v. Morad, 84 Mass. App. Ct. 1125 (2013) (memorandum and order pursuant to our rule 1:28), judgment entered, and the plaintiff timely appealed.
The plaintiff now argues that the judge erred in dismissing the complaint. We conclude that dismissal was proper as to the plaintiff's claims pertaining to real estate located at 18 Freedom Boulevard, New Bedford; however, we further conclude that the plaintiff's claims pertaining to certain funds and personal property should not have been dismissed.
We review the allowance of a motion to dismiss de novo, accepting as true the factual allegations in the plaintiff's complaint, as well as any favorable inferences reasonably drawn therefrom. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Although detailed factual allegations are not required, the complaint must set forth more than labels and conclusions; the allegations must suffice to plausibly suggest an entitlement to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).,
The judge dismissed the case without opinion. We therefore are unable to assure ourselves that the judge did not rely upon information extraneous to the complaint, which was presented in the parties' papers and at the motion hearing. This is of concern because there is no indication in the hearing transcript that the provisions of Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974), relating to treating a motion to dismiss as a motion for summary judgment were followed, and because the extraneous information included unauthenticated documents, representations of counsel, and answers to questions directed by the judge to the unsworn defendant, who was present in court.
We disagree with the defendant's suggestion at oral argument that the complaint is so poorly drafted that the plaintiff's claims cannot be understood. While the complaint is prolix, the relevant factual allegations and the nature of the claims are able to be ascertained.
With respect to the real estate, it is evident from the complaint that the estate is not the owner of record; it merely owns a fifty percent interest on a mortgage on the property, with the remaining fifty percent owned by the defendant. The complaint requests that the court order the defendant to make the estate whole for its interest in the mortgage, to vacate the premises, to pay real estate taxes, and to refrain from interfering with foreclosure and sale of the property. However, the complaint alleges no facts that would give rise to an obligation on the part of the defendant to buy out the interest of the estate, or to make payments to the estate (as opposed to the owner of the property) in return for his use and occupancy of the premises. As a mortgagee, the plaintiff's remedy is foreclosure.
The plaintiff's remaining claims arise from allegations that the defendant has possession of three discrete items that rightfully belong to the estate. The first item is the sum of $100,000 received by the decedent in settlement of a personal injury case in which he was represented by the defendant. According to the plaintiff, the defendant placed the money in his own account and has failed to account for it. The second item is a 1958 Corvette convertible, which is alleged to have been in the possession of the defendant since the decedent's death. The third item is a twenty-six foot Sea Ray motor boat, which the defendant is alleged to have sold without accounting for the proceeds.
The complaint acknowledges that, prior to his death, the decedent went through bankruptcy and that the bankruptcy trustee initiated but later discontinued efforts to recover the $100,000 from the decedent. The defendant argues that the reason for discontinuing the claim was that the money was spent by the decedent and no longer was part of the bankruptcy estate. However, the plaintiff alleges in his complaint that the bankruptcy trustee abandoned his attempt to recover the funds only because the decedent's creditors were paid in full from other assets, and the funds in the defendant's possession were not needed. For purposes of a motion to dismiss, we accept the plaintiff's factual allegations as true. See New Eng. Insulation Co. v. Liberty Mut. Ins. Co., 83 Mass. App. Ct. 631, 632 (2013). Accordingly, the claim regarding the $100,000 should not have been dismissed.
The defendant also claims that the convertible and the motor boat did not belong to the decedent, as shown by the absence of these items from a schedule of assets filed in the decedent's bankruptcy proceedings. In support of this argument, the defendant relies upon two uncertified, unauthenticated pages attached to his motion to dismiss. These pages were not properly before the motion judge and should not have been considered.
The two pages were unaccompanied by any attestation or affidavit as to their provenance.
Even if the documents had been presented in proper form, the judge could only take judicial notice that a schedule of assets was filed in the bankruptcy court and that the convertible and the boat were not listed. The judge could not take judicial notice that the items did not belong to the decedent. See Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011); Cannonball Fund, Ltd. v. Dutchess Capital Mgmt., LLC, 84 Mass. App. Ct. 75, 91 (2013).
Finally, the defendant contends that the plaintiff's claims for the funds, the convertible, and the motor boat are barred by the statute of limitations. While we do not discount the possibility that a statute of limitations argument ultimately could prevail on a fully developed and substantiated record, on the basis of the complaint alone, factual questions remain as to the date of accrual and the existence of grounds for tolling.
The defendant's request for double costs and attorney's fees is denied.
Conclusion. So much of the judgment that dismisses the plaintiff's claims regarding the insurance settlement funds, the Corvette, and the motor boat are reversed. The remainder of the judgment is affirmed.
So ordered.
By the Court (Cohen, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 26, 2015