Opinion
14-P-1677
01-08-2016
RICHARD K. DEVINE v. JOHN E. DEVINE.
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
The plaintiffs, Richard K. and Robert C. Devine, and the defendant, John E. Devine, are brothers. Richard and Robert conveyed their inherited interest in their mother's home in Norwood (the property) to John approximately eighteen months after her death. Fifteen years after that conveyance they sought a declaratory judgment that the conveyance created a constructive trust for their benefit in the property and in certain other of John's assets. The basis of their suit is the claim that John promised more in consideration for the transfer than was paid to them at the time it occurred. A bench trial was held in the Superior Court. Richard has appealed from the amended judgment pursuant to which the plaintiffs were awarded relatively nominal sums and their request for a declaration of constructive trust was denied. We affirm, referring to undisputed facts except as otherwise noted.
We refer to the parties by their first names for the purpose of clarity.
The judge concluded correctly that the plaintiffs' claim of a promise by John to convey the property to them or their heirs as devisees in his will is subject to the Statute of Frauds. G. L. c. 190B, § 2-502. It is undisputed that no writing was created setting forth the agreements that were alleged by Richard and Robert. The judge credited testimony that John agreed to pay Robert and Richard each $50,000 for the conveyance; this finding is supported by undisputed evidence that John placed a $100,000 mortgage on the property and then paid each of his brothers $48,647.68. It was within the judge's discretion to find that even if the Statute of Frauds were not to bar the plaintiffs' claim, John had not agreed both to pay his brothers $100,000 but also to reconvey the property to them.
The balance of the mortgage proceeds, in the amount of $2,704.45, went to closing costs for the loan.
The judge determined that an oral promise had been made, evidenced by contemporaneous payments, pursuant to which Robert and Richard were each to receive one-half of the mortgage proceeds. Accordingly we discern no error in the denial of the request for a constructive trust and an award of the remaining shortfall, adjusted for subsequent payments and interest, to Robert and Richard.
John's request for attorney's fees in connection with the appeal is denied.
Judgment affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 8, 2016.