Opinion
No. 12–P–254.
2013-02-1
Carol DiSTEFANO & others v. Deborah V. McNEILL, trustee.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs brought this suit seeking a declaratory judgment that they are current beneficiaries of the Fano Realty Trust, which was established by Albert N. DiStefano (Senior) in 1976. The original beneficiaries of the trust were Senior's six children, one of whom was Albert N. DiStefano Jr. (Junior), who is now deceased.
The plaintiffs are Junior's widow and two children.
In 1983, one of the original beneficiaries died intestate, unmarried, and without children, resulting in her interest passing equally to her parents, Senior and Anna M. DiStefano. When Anna subsequently died intestate, her interest passed in equal shares to Senior and her five remaining children.
In December, 2002, the then living primary beneficiaries of the trust
(with the exception of Senior) executed disclaimers to “irrevocably renounce, disclaim, release and waive any and all interest, right or title which [they], [their] heirs, successors and or assigns may have in the Fano Realty Trust ... and any and all assets of said trust.” All parties appear to have treated these documents as valid disclaimers, the intended effect of which was to return (by operation of the doctrine of merger) the trust res to Senior as the trust's settlor and (as a result of the disclaimers) then sole beneficiary. Everyone appears to have operated with that understanding thereafter, the res was removed from the trust, and the trust was terminated. Junior and Senior had a falling out over the family business and, after Senior died on December 16, 2009, it was discovered that he had left nothing to Junior or the plaintiffs.
These were Junior, Deborah V. McNeill, Anthony J. DiStefano, Dorina C. Doherty, and James DiStefano.
Junior predeceased Senior by approximately three months.
The parties cross-moved for summary judgment. The plaintiffs argued that they remained beneficiaries of the trust despite Junior's disclaimer because, even if Junior's disclaimer were valid as to his own interest in the trust, Junior had no right to disclaim the plaintiffs' contingent interest. Only they, the plaintiffs argued (relying on paragraph ten of the trust
), could disclaim their own interest and such disclaimer needed to be in writing. It is undisputed that no such written disclaimers were made. The plaintiffs argued, therefore, that (a) their interests in the trust were never disclaimed and therefore did not merge into Senior's interest, (b) the trust accordingly continued, and (c) they were entitled to receive their portion of the trust res when Junior died.
Paragraph ten of the trust provided that the trust could be modified or terminated only in writing “signed and acknowledged by the then acting trustee and assented to in writing by all the beneficiaries of age and full legal capacity then entitled to distributions of income and principal if such were then to be made by the trustee” (emphasis supplied). It is undisputed that the plaintiffs did not execute written disclaimers.
An amendment to the trust (which was made originally in 1990 and again in 1997, and which was executed by all of the then primary beneficiaries, including Junior) provided in relevant part: “If any of said Beneficiaries should die during the continuation of this Trust, then the Trust shall continue for the benefit of those whom he/she may appoint such fraction interest by his/her last will and testament, and in default of or failure to so appoint said fractional interest to his or her heirs, in equal shares, share and share alike. The share or interest of any Beneficiary in the principal or income of the Trust estate shall not be subject to alienation, gift, sale, assignment, pledge or transfer, except by will or by operation of law in the event of death of any Beneficiary .”
The judge allowed summary judgment in the defendant's favor. In his thoughtful decision, the judge reasoned that paragraph ten of the trust (see note 6, supra ) did not require that contingent beneficiaries disclaim their interest when a disclaimer was made by the primary beneficiary through whom their interest depended. As a result, the judge concluded that, when all of the primary beneficiaries, except for Senior, disclaimed their interests, Senior became the sole trustee and beneficiary and, by operation of the doctrine of merger, the trust terminated.
See Restatement (Third) of Trusts § 69 (2003).
Declaratory judgment entered in the defendant's favor ordering that (1) the trust terminated by operation of law in December, 2002 (when the disclaimers were made), (2) the plaintiffs are not current beneficiaries of the trust, and (3) the defendant is not required to make an accounting.
The plaintiffs filed a motion for reconsideration in which they argued—for the first time—that the disclaimers were invalid because they did not satisfy the requirements of G.L. c. 191A, § 3 (which is now repealed
General Laws c. 191A was repealed effective March 31, 2012. See St.2008, c. 521, §§ 11, 44 (as amended by St.2011, c. 224). However, c. 191A was in effect at all other times relevant to this suit. The plaintiffs' motion to reconsider was filed on November 17, 2011, and their motion for summary judgment was filed on August 9, 2011.
In relevant part, G.L. c. 191A, § 3, provided: “A disclaimer shall be executed and filed pursuant to the provisions of this chapter at any time after the creation of the interest in property being disclaimed, but in any event not later than nine months after the event determining that the beneficiary is finally ascertained as the beneficiary of such interest and that such interest is indefeasibly vested.”
That statute provided that a disclaimer could be made no later than nine months after the interest indefeasibly vested in the beneficiary. The plaintiffs also argued that even if the disclaimers were valid, the effect was to accelerate the plaintiffs' interest on the date of disclaimer. For this argument—also raised for the first time—they relied on G.L. c. 191A, § 7 (which dealt with disclaimers). See note 9, supra. The defendant did not oppose the motion for reconsideration on its merits concerning G.L. c. 191A, §§ 3 or 7; rather, she essentially argued that the motion should be denied because it raised new theories without giving any reason why they could not have been raised before. Given that the motion was denied without explanation, we presume that the judge accepted the defendant's argument and denied the motion on the ground of waiver.
According to the docket sheet, on the same date, the plaintiffs also filed a notice of appeal from the denial of their motion for summary judgment. This notice of appeal was not submitted to this court.
Before us now is only the appeal from the denial of the motion for reconsideration.
We have not found, and the plaintiffs have not pointed us to, any case where we have ruled that a judge has abused his or her discretion in denying a motion for reconsideration on grounds not previously raised, particularly where no reason has been offered for the failure to raise the ground earlier. In fact, all of our cases have run to the contrary. See Commonwealth v. Gilday, 409 Mass. 45, 46 n. 3 (1991); Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312–313 (2009) (and cases cited therein). See also Audubon Hill S. Condominium Assn. v. Community Assn. Underwriters of America, Inc., 82 Mass.App.Ct. 461, 470 (2012) (listing “practical criteria” for submission of a motion for reconsideration). The plaintiffs offered no reason why their arguments concerning the validity of the disclaimers under G.L. c. 191A, §§ 3 or 7, were not, or could not have been, raised in their summary judgment papers. Motions for reconsideration “are themselves not ‘appropriate vehicles to advance ... new legal theories not argued before the ruling.’ “ Commissioner of Rev., supra at 313, quoting from Zurich Capital Mkts. Inc. v. Coglianese, 383 F.Supp.2d 1041, 1045 (N.D.Ill.2005). Although the judge could have exercised his discretion and allowed the motion for reconsideration, he was certainly not required to, particularly given the complete absence of any explanation as to why the arguments had not been previously made.
The plaintiffs' timely notice of appeal from the motion for reconsideration makes no mention of the earlier ruling on the cross motions for summary judgment or the declaratory judgment entered on October 21, 2011. See Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999) (“The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from”).
Order entered December 16, 2011, denying motion for reconsideration affirmed.