Opinion
No. 12–P–1668.
2013-10-16
Lewis C. COHEN, trustee, & others v. Betsy A. SOLOMON, trustee, & others.
By the Court (CYPHER, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment of the Superior Court dismissing their amended complaint because the issues raised involve the same parties and relate to the same underlying dispute as an earlier case filed in the Probate and Family Court by the defendants. In applying Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008), a motion judge ruled that the plaintiffs could not split their claims between the two courts. Judgment was entered on July 31, 2012, dismissing all counts in the amended complaint, as well as all other claims, cross claims, and counterclaims, without prejudice.
Background. This case concerns a dispute between cotrustees Betsy Solomon (Solomon) and Lewis Cohen (Cohen) over the administration of the Marilyn A. Cohen Revocable Trust (MAC Trust). Following two amendments of the trust, the second in May, 2010, and the third in November, 2010, Cohen asserted that Marilyn Cohen (Marilyn) lacked testamentary capacity at the time she executed the amendments, and that the amendments were the product of undue influence by, among others, J. Robert Casey (Casey), who by the third amendment had been appointed a third trustee. Solomon and Casey filed a complaint on July 27, 2011, amended on March 9, 2012, in the Suffolk division of the Probate and Family Court, seeking a declaratory judgment on the issues raised by Cohen. On or about April 11, 2012, Cohen filed an answer and counterclaim, asserting the issues of lack of testamentary capacity and undue influence, and alleging breach of fiduciary duties by Solomon and Casey. Solomon filed a cross claim relating to a condominium trust. Cohen's motion to dismiss the cross claim was denied, and he filed a reply to the cross claim in the probate action, denying the allegations and asserting affirmative defenses.
Marilyn Cohen was the beneficiary of the trust during her lifetime. Upon her death, the property was to be divided equally in subtrusts for Solomon and Cohen and their issue.
Cohen filed motions to dismiss for lack of proper venue and for failure to join necessary parties. The motions were denied on March 13, 2012. Those denials are not at issue in this appeal.
Cohen, taking no further action in the Probate and Family Court, on October 17, 2011, filed (along with two coplaintiffs) a six-count complaint in the Norfolk division of the Superior Court, seeking, inter alia, a declaratory judgment on the validity of the second and third amendments to the MAC Trust. In addition, he sought removal of the trustees and appointment of a trustee ad litem; the transfer of assets to his remainder trust; and a remedy for alleged breach of fiduciary duties by Solomon and Casey.
The complaint was not served until mid-January 2012.
The Solomon defendants filed a joint motion dated March 9, 2012, to dismiss Cohen's complaint pursuant to Mass.R.Civ.P. 12(b)(9), asserting that the parties and issues are the same as in the prior action pending in the Probate and Family Court. The Cohen plaintiffs filed an opposition and an amended sixteen-count complaint in the Superior Court on April 17, 2012, asserting the same claims related to the MAC Trust, but adding several allegations and parties.
During consideration of Cohen's motion to dismiss for lack of proper venue, the probate judge suggested considering a request for an interdepartmental transfer. Solomon requested on February 17, 2012, that the Chief Justice for Administration and Management of the Trial Court (CJAM) make an interdepartmental assignment of the two cases to the Probate and Family Court. On March 6, Cohen requested that the assignment be made to the Superior Court. No action has been taken on either request.
The rule 12(b)(9) motion was argued in the Superior Court on April 24, 2012. The judge allowed the motion to dismiss on July 11, 2012. This appeal by the Cohen plaintiffs (sometimes referred to collectively as Cohen) followed entry of the judgment of dismissal without prejudice.
Cohen quarrels with the Superior Court judge's dismissal of his complaint and her conclusion that he could “address the entire dispute as the pleadings stand now, or through amendments, in the Probate action.” He asserts that the dismissal requires him to bring some of his claims as thirdparty claims in the Probate and Family Court in violation of the rules of civil procedure, and to forgo his constitutional right to a jury trial on other claims. The several arguments advanced by Cohen in this appeal essentially are attempts to justify the filing of his complaint in the Superior Court, the only court which he asserts has jurisdiction over all the parties and all the issues.
All of these arguments ignore the analysis required by Mass.R.Civ .P. 12(b)(9) when a court, as here, is presented with two cases in different courts. We proceed to conduct that analysis.
Analysis. 1. Standard of review. “We review the grant of a motion to dismiss de novo....” Housman v. LBM Financial, LLC, 80 Mass.App.Ct. 213, 216 (2011). “Dismissal under [Mass.R .Civ.P. 12(b)(9) ] is proper when the same parties are involved in two actions, one begun before the other, and ‘[i]t is apparent from the face of the present complaint ... that all the operative facts relied on to support the present action had transpired prior to the commencement of the first action.’ “ Zora Enterprises, Inc. v. Burnett, 61 Mass.App.Ct. 341, 346 (2004), quoting from Keen v. Western New England College, 23 Mass.App.Ct. 84, 85–87 (1986).
2. The rule 12(b)(9) motion to dismiss. We first briefly review the actions in the Superior Court which led to the judge's decision. The Solomon parties' March 9, 2012, motion to dismiss argued that the same parties were involved in both actions and that Cohen's claims arise out of the same conduct and transactions as in the parties' original submissions in the Probate and Family Court. Moreover, the Solomon defendants correctly note that the relevant facts arose from events which occurred prior to Marilyn's death in November, 2010, and Cohen's allegations relate to events in 2010, more than eight months before the Probate and Family Court action, thereby establishing the probate case as the first filed action.
Cohen filed an objection to the rule 12(b)(9) motion on April 13, 2012, referring to issues contained in his amended complaint of the same date, filed in the Superior Court. Cohen's objection discussed the additional parties and issues which had been added to the original Superior Court complaint.
The Solomon parties replied to Cohen's objection on April 23, noting that, although the pleadings in the probate case were substantially complete and Cohen had conducted extensive document discovery, rather than defend in that action, Cohen first responded to the rule 12(b)(9) motion by seeking an extension of time to await a determination of the request to the Chief Justice for Administration and Management (CJAM) for consolidation and interdepartmental assignment. When that motion was denied, Cohen chose to file an amended complaint in the Superior Court, asserting that it should be viewed as the prior pending action, and arguing justification for the addition of parties and claims, count by count.
Now presented with detailed assertions of claims and responses, we proceed to examine the counts in Cohen's amended complaint and compare them with the complaint filed in the Probate and Family Court by Solomon.
Claims asserted in Cohen's amended complaint.
Count I. Cohen alleges that Marilyn was under undue influence of others when executing the 2010 MAC Trust amendments, and lacked testamentary capacity due to illness. Cohen seeks a declaration that the amendments are invalid.
Count II. Cohen seeks removal of the trustees of the MAC Trust and the appointment of a trustee ad litem.
Count III. Cohen seeks to compel immediate distribution of his share of the MAC Trust to his remainder trust.
Count IV. Cohen seeks an accounting from Betsy Solomon of the sale of the LLL & B Trust property.
Count V. Cohen as cotrustee of the Insurance Trust asks for a complete accounting.
Count VI. Cohen as cotrustee of the Irrevocable Trust demands a complete accounting by Betsy Solomon.
Count VII. Cohen, cotrustee of the 2005 Nominee Trust (Cohen Florence Nominee Trust), seeks a full disclosure and accounting from Betsy Solomon.
Count VIII. Cohen asks that an independent trustee ad litem be appointed to administer the Cohen Florence Nominee Trust during this litigation.
Count IX. Cohen and others are uncertain with respect to property under the MAC Trust, the 2005 Nominee Trust, the Irrevocable Trust, and the QTIP Trust, and seeks instructions from the court on distribution or whether the FPE Foundation has a superior claim. He also asks for a declaratory judgment with respect to assets transferred by QTIP Trust trustees.
Count X. Cohen asserts that Betsy Solomon, Casey, and Martin Solomon, as trustees of several trusts, failed in their fiduciary duties to fully disclose their dealings, causing Cohen to sustain damages.
Count XI. Cohen claims he and other beneficiaries of various trusts have been damaged by breaches of fiduciary duties by Casey and Betsy Solomon and seeks damages.
Count XII. Cohen claims Betsy Solomon and Casey have wastefully expended assets in legal fees and other expenses of the MAC Trust and should be surcharged.
Count XIII. Alleging that the third amendment of the MAC Trust is not valid and that Casey acted ultra vires, Cohen seeks restitution.
Count XIV. Cohen, as trustee of the QTIP Trust, asserts a legal malpractice claim against Casey with respect to his recommendations concerning exhausting the QTIP Trust assets, and seeks compensatory damages to the extent that Cohen is liable to the FPE Foundation.
Count XV. Cohen and others seek indemnification for any damages suffered as a result of Casey's legal advice and the transactions Cohen conducted at the urging of Casey, Betsy Solomon, and Martin Solomon.
Count XVI. Wells Fargo and Irving Marcus (Marcus) caused $200,000 to be misappropriated from the QTIP Trust and converted by another.
Analysis of Cohen's claims under rule 12(b)(9). We first note that claims under counts I, II, III, X, XI, XII, and XIII all are equitable in nature and readily fall within the jurisdiction of the Probate and Family Court, whose procedures and powers long have been applied to resolve disputes of the type presented in this case. Moreover, these claims either were made in the pleadings filed in that court, or could be made there without difficulty.
Count XIII is embodied in the Probate and Family Court dispute as to the validity of the third amendment of the MAC Trust appointing Casey as a trustee. The relief sought is the same as the relief sought in Cohen's counterclaim.
Therefore, these claims properly are dismissed under rule 12(b)(9). See also the background and reasons given in detail in the Solomon defendants' brief at pages 23 through 31. However, the motion judge's dismissal was without prejudice to Cohen's claims in the probate action. Cohen may seek leave to add them.
Second, counts VI, VII, and VIII relate to the Condominium Trust (also known as the Irrevocable Trust or the 2005 Nominee Trust). Solomon filed a cross claim in the probate action seeking an order permitting her to proceed with the sale of the condominium. Cohen's motion to dismiss was denied. Allegations of Solomon's failure to disclose information; of a “deadlock” between the parties; and the lack of specificity of the relief requested, all are insufficient to state a claim under the standard of Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and these counts properly are dismissed. In any event, Cohen is free to pursue these claims through the pleadings already filed in the probate action. See also the detailed discussion of these claims in Solomon's brief at pages 32 through 38.
Next, we consider count IX, related to the QTIP Trust. That trust was established by Marilyn's husband to benefit her during her lifetime and, on her death, any unexpended funds were to pass to a charitable remainderman, now known as the FPE Foundation. This count raises vague uncertainties about specific trust assets and whether the FPE Foundation may have superior claims over them. After initially filing an action in the Superior Court, later the FPE Foundation voluntarily dismissed its suit and commenced a separate action in the United States District Court, filing a complaint on July 23, 2012. The Cohen and Solomon parties are all defendants in that case. The uncertainty expressed in this count will be resolved in that court, and therefore count IX properly may be dismissed. For further detailed background and reasons see the defendants' brief at pages 39 through 43.
Counts XIV and XV are claims alleging legal malpractice by Casey and claims for damages allegedly resulting from his legal advice. The first count does not allege any damages and if there were any improper property transfers as a result of Casey's advice, the remedy would be to return the properties to the QTIP Trust for later proper transfer. The claim asserted in count XIV has been alleged as a cross claim by Cohen against Casey in the Federal action and the dispute will be resolved in that court. These two counts are properly dismissed. For further detailed background and reasons see the Solomon defendants' brief at pages 43 through 45.
Cohen has argued in his brief that the dismissal of his amended complaint would deny him his right to a jury trial. There is no merit in this argument. There is no right to a jury trial in cases falling within the jurisdiction of a court of equity, and only the present count XIV, alleging legal malpractice, arguably could be tried to a jury. However, while we dismiss that count, Cohen has asserted this claim against Casey as a cross claim in the Federal action, and may assert his claim in that case.
There are three remaining claims, counts IV, V, and XVI. Count IV concerns the LLL & B Trust and the property it held was sold in 1996. The claim is time-barred, but also has been advanced by the FPE Foundation in the Federal action, and its merit, vel non, will be decided there. Count V requests an accounting of an Insurance Trust which is not described. There is a failure to state a claim. See Iannacchino, supra. These counts properly are dismissed. For further background and reasons see the Solomon defendants' brief at pages 45 through 47.
Count XVI is an allegation that the QTIP Trust sustained damages when Wells Fargo processed a transfer of funds on a verbal order of Marcus, who allegedly caused the funds to be misappropriated from the trust and converted by another. The count fails to allege facts sufficient to make out the elements of a claim of conversion, as correctly stated in Marcus's brief. This count properly is dismissed. See Iannacchino, supra.
Conclusion. We conclude from our review of the counts in Cohen's amended complaint, the helpful detail presented in the Solomon defendants' brief, and the review by the motion judge, that the motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(9) properly was allowed.
Judgment affirmed.