Opinion
14-P-1443
06-08-2015
MARY NELSON & another v. CAROLE HAMILTON & others.
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 appeal concerns the development of lots in Wilmington that were on roads not shown on the official town map. See G. L. c. 41, § 81E. A controversy ensued over what improvements would have to be made to the roads (and about what approvals would need to be obtained) before the lots could be developed. This spawned decades of litigation against town officials brought by the plaintiffs, other members of their family, and/or entities associated with the family.
In the appeal before us, the underlying action was filed in 2014, purportedly on behalf of Mary Nelson, individually, and Mark Nelson, both individually and as "agent" of two trusts. After the defendants moved to dismiss the sixty-six page complaint, the plaintiffs moved to amend their complaint to add one additional defendant, one additional count, and additional background allegations. A Superior Court judge allowed the motion to amend and then dismissed the amended complaint. We affirm.
The amendment also made various minor edits (e.g., retitling or renumbered existing counts).
As an initial matter, we note that the plaintiffs have purported to appear through filings submitted by plaintiff Mark Nelson. Mark Nelson, who is not an attorney, may not represent his coplaintiff. See Varney Enterprises, Inc. v. WWF, Inc., 402 Mass. 79, 82 (1988) (outside of small claims proceedings, nonattorney may represent only himself). Nor may Mark Nelson invoke the interests of the two trusts by purporting to appear (without counsel) in a representational capacity as "agent" of the trusts. Ibid. Although Mark Nelson may represent himself personally, his individual interest in this litigation is not apparent despite the length of the pleadings. The appeal could be dismissed for these reasons alone. Nevertheless, we proceed to address the merits of the motion judge's ruling.
Even if Mary Nelson were taken to have adopted the brief that Mark Nelson apparently executed on her behalf, the pleadings do not actually set forth what interest she has in the property. In fact, the complaint itself acknowledges that the lot that was the principal focus of the case actually was sold to an independent third party before the complaint was filed.
To complicate things further, it is not clear that Mark Nelson is otherwise even a party to this appeal. Because he is not listed in the trial court docket as having appealed, the clerk's office of this court directed that references to him as a party in the appellate brief be removed unless the trial court docket were amended. After a motion to correct the trial docket in this respect was denied, references in the appellants' brief to Mark Nelson as a party were crossed out by hand. However, the relevant notice of appeal included in the record appendix does identify Mark Nelson as an appealing party. Therefore, for purposes of resolving this appeal, we have assumed that Mark Nelson is a party to it.
The judge relied on several independent grounds in dismissing the amended complaint. It suffices to address his initial ground, which is applicable to all claims. The original complaint, which totaled sixty-six pages, included allegations that were "incoherent, repetitive, and excessively long." The amended complaint was, if anything, worse. As the judge ruled, the plaintiffs "failed to succinctly and specifically allege the requisite requirements for each claim, thereby violating [Mass.R.Civ.P.] 8(a)[, 365 Mass. 749 (1974)]." The judge's assessment is plainly correct and the entirety of the amended complaint was properly dismissed on this ground.
In a concise manner, the judge went on to catalog additional respects in which he concluded the plaintiffs' individual purported claims failed as a matter of law. These additional grounds included, among others, res judicata, statute of limitations, prior pending action, immunity, and failure to state a claim. Given the grounds on which we rely, we need not reach these issues.
Judgment affirmed.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 8, 2015.