Opinion
20-P-308
11-13-2020
JAMES R. BARRINGTON v. THOMAS P. CROTTY & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After signing a settlement in the Probate and Family Court, the plaintiff, James R. Barrington, filed a complaint in the Superior Court that sought, inter alia, to undo the settlement. The complaint was dismissed. A panel of this court affirmed the judgment of the Superior Court dismissing the plaintiff's complaint. The plaintiff then filed a new complaint, which was likewise dismissed by another justice of the Superior Court. The plaintiff appeals therefrom. We affirm.
Background. On August 1, 2011, the plaintiff sold to Barbara L. Barrington (Barbara) a sixty-one percent interest in property in South Dartmouth as part of her planning for long-term care. She conveyed her interest in the property into the William D. Barrington and Barbara L. Barrington Revocable Trust, which was established in North Carolina. Barbara and William D. Barrington, Jr. (William) were the plaintiff's parents. The plaintiff retained a thirty-nine percent interest in the property. At one point, William sold certain vintage military vehicles in North Carolina to the plaintiff for $20,000.
On March 28, 2012, Barbara died. On April 8, 2015, William, as surviving trustee of the trust, conveyed the sixty-one percent share of the property to himself individually. On December 24, 2015, William filed a petition in the Probate and Family Court to partition the property that he coowned with the plaintiff. During that proceeding, the plaintiff challenged whether William, as trustee, could have conveyed the sixty-one percent share of the property to himself individually.
On September 2, 2016, the plaintiff and William signed a settlement agreement. Among many things, the parties agreed that William would convey his sixty-one percent interest in the property to the plaintiff, and the plaintiff would transfer the military vehicles to William, except one. The settlement agreement provided that the parties agreed that "they have had, at all times, the benefit of independent counsel of their own choice, that they are relying on their own judgments, beliefs, knowledge and the advice of counsel in executing this agreement . . . and are not relying upon any representation or statement made by each to the other."
The plaintiff and William agreed to dismiss the claim with prejudice and it was dismissed. Defendant Thomas P. Crotty represented William on this matter. On March 23, 2017, William died. Defendant Jean C. Dyer became the executrix of William's estate; she is William's daughter and the plaintiff's sister.
On March 5, 2018, the plaintiff filed his first complaint in the Superior Court, which is not on appeal here. The defendants were William's estate and Crotty. The plaintiff alleged, among other things, that the defendants had induced him to sign the settlement in the Probate and Family Court through fraud by omission. He sought, among other things, the return of the military vehicles or their fair market value.
The first complaint was dismissed on three grounds. First, the judge quoted the language in the settlement agreement that the parties had not relied on each other's representations, and noted that because the complaint constituted an impermissible collateral attack on the judgment of the Probate and Family Court, the Superior Court lacked subject matter jurisdiction. Second, the judge determined that the Superior Court lacked personal jurisdiction over Dyer, as William was not a resident of Massachusetts and William's estate had no contacts with Massachusetts. Third, invoking the doctrine of forum non conveniens, the judge noted that the plaintiff had filed a similar complaint in North Carolina's courts and that issues about a North Carolina trust were more appropriately and efficiently litigated in that State.
The plaintiff unsuccessfully appealed to this court, Barrington v. Dyer, 95 Mass. App. Ct. 1116 (2019); unsuccessfully moved for a reconsideration of the summary decision; and unsuccessfully applied to the Supreme Judicial Court for further appellate review.
In August of 2019, the plaintiff filed a second complaint in the Superior Court. He then filed an amended complaint, which is the subject of this appeal. The amended complaint named Dyer as executrix of William's estate and Crotty as defendants. The plaintiff alleged that (1) Dyer breached the settlement agreement; (2) Crotty aided and abetted Dyer in committing a breach of trust; (3) Crotty civilly conspired with Dyer; (4) Crotty and Dyer committed fraud by omission; and (5) Crotty and Dyer breached their fiduciary duty to the plaintiff as beneficiary of the trust. The plaintiff sought the following: a declaration that the settlement agreement was void; the return of the military vehicles or their fair market value, estimated at $270,000; and punitive damages, costs, and interest.
Dyer moved to dismiss under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974), and 12 (b) (10), as appearing in 450 Mass. 1403 (2008). Crotty moved to dismiss under Mass. R. Civ. P. 12 (b) (1).
On November 27, 2019, a judge of the Superior Court allowed the defendants' motions to dismiss "for the reasons provided b[y] the defendants and for those referred in Barrington v. Dyer, 95 Mass. App. Ct. [1116] (2019)." That is, the judge dismissed the plaintiff's second complaint for the following reasons. First, the court lacked subject matter jurisdiction to collaterally attack the judgment of the Probate and Family Court. See Fishman v. Alberts, 321 Mass. 280, 282 (1947); Tuite & Sons, Inc. v. Shawmut Bank, N.A., 43 Mass. App. Ct. 751, 755 (1997). Second, the doctrine of res judicata barred the plaintiff from relitigating all claims that he brought or could have brought in the first complaint. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843-844 (2005); Bagley v. Moxley, 407 Mass. 633, 638 (1990); Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). Third, a reasonable likelihood existed that damages for the plaintiff's claim regarding one military vehicle would be less than the $25,000 threshold to establish jurisdiction in the Superior Court. See G. L. c. 212, § 3. Fourth, Crotty, as William's lawyer, did not have a fiduciary duty to the plaintiff, who was William's legal adversary. See Spinner v. Nutt, 417 Mass. 549, 552 (1994); Beecy v. Pucciarelli, 387 Mass. 589, 597 (1982). Fifth, "[t]he plaintiff's contention that the stipulation of dismissal is invalid (because it was procured by fraud) . . . must be established by means of a motion in the Probate and Family Court for relief from the judgment entered on the stipulation, and not by a separate action in the Superior Court." Barrington v. Dyer, 95 Mass. App. Ct. 1116 (2019). Sixth, the Uniform Trust Code "does not authorize a collateral attack on a judgment of the Probate and Family Court based on a claim that the agreement on which it was based is invalid." Id.
Discussion. 1. Dismissal. "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Here, it is black letter law that the Superior Court lacked jurisdiction to hear and decide claims in the second complaint that stemmed from the judgment entered in the Probate and Family Court. "Further discussion is not necessary." New England Theatres, Inc. v. Olympia Theatres, Inc., 287 Mass. 485, 495 (1934), cert. denied, 294 U.S. 713 (1935).
We agree with the defendants that the judge also could have dismissed the complaint on some, if not all, of the alternative bases asserted in the motions to dismiss.
2. Attorney's fees. Dyer moved for appellate attorney fees, but not costs, under G. L. c. 211A, § 15, and Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). An appeal is frivolous "[w]hen the law is well settled, when there can be no reasonable expectation of a reversal" (citation omitted). Avery v. Steele, 414 Mass. 450, 455 (1993). "The determination whether an appeal is frivolous is left to the sound discretion of the appellate court." Id.
We conclude that the appeal is frivolous and allow Dyer's request. She may submit a petition for such fees, together with supporting materials, to the clerk of this court within fourteen days of the date of this decision. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The plaintiff shall have fourteen days thereafter to respond. See id.
Judgment affirmed.
By the Court (Wolohojian, Neyman & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 13, 2020.