Opinion
11-P-958
04-27-2012
KRISTINE KAIDEN & another v. FREDERICK ZIMONJA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Kristine Kaiden and Richard Hallberg, appeal from a decision of the Superior Court dismissing their complaint against Frederick Zimonja for failure to state a claim upon which relief may be granted pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Substantially for the reasons stated by the judge, we affirm.
We review a decision to dismiss a 'complaint de novo, accepting as true all allegations in the complaint and drawing any reasonable inferences in the plaintiff's favor.' Amato v. District Attorney for Cape & Islands Dist., 80 Mass. App. Ct. 230, 234 (2011). We look beyond conclusory allegations and labels in the complaint 'and focus on whether the factual allegations plausibly suggest an entitlement to relief' beyond the speculative level. Ibid., quoting from Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We apply these principles to the facts alleged in the complaint. Beginning after her husband's death in 1995, the decedent, Sonja Busi exhibited signs of depression. Between 1995 and 2002, she failed to recognize her grandnieces' advancing ages, regularly forgot names, misstated past events, became disoriented during discussions, and reported seeing and talking with her deceased mother and husband. By the 2000's, the decedent was unable to run errands without assistance, used a cane for ambulation, was dependent on others, was prone to falls, and suffered from incontinence. Her home became cluttered and dirty and her bathroom plumbing was nonfunctional at times.
The plaintiffs, who are the children of the decedent's only sister, are the decedent's only legal heirs.
In or around 1998, the decedent began to attend church regularly at the Christ Lutheran Church (church). As she declined, she began to rely on the church to assist her with the maintenance of her home and her personal needs. In 2002, the decedent created an inter vivos trust, naming herself as the sole trustee and beneficiary during her lifetime and providing that, upon her death, the trust assets are to be sold and equal distributions made to four groups of beneficiaries: the church, Lutheran Social Services; the Salvation Army; and the plaintiffs. The defendant is named executor of her will and successor trustee of the trust.
At the same time she created the trust, the decedent executed her will leaving her personal property to the plaintiffs and the rest of her estate to the trust. Within weeks of creating the trust, she also transferred the deed to her real property, her principal asset, to it. The plaintiffs contend that the decedent's estate plan is inconsistent with her representations to them in 1995 and in subsequent years that substantially all of her assets would go to them, with only a small amount to two organizations in which both the decedent and her husband had been actively involved. In addition, they allege the decedent lacked the intellectual acuity to understand the nature of the documents executed by her in 2002, including the trust and deed.
The plaintiffs further allege the decedent felt uncomfortable with what she perceived as the church's requests for money from her. Fellow church members explained the church's financial difficulties and she believed they were seeking financial assistance from her. In addition, the plaintiffs allege that the church failed to make promised repairs of the decedent's property.
The defendant, an attorney and an elder at the church, notarized the will, trust, and deed. There is no allegation that he drafted the documents or that he otherwise advised the decedent regarding her estate plan. There are no allegations regarding the decedent's relationship with the defendant, whether the defendant visited her regularly, if at all, or whether the defendant was ever in a position to influence her decisions.
In 2006, the defendant took over the decedent's finances and health care. Pursuant to a health care proxy and a power of attorney executed in 2007, the defendant admitted the decedent to hospitals and nursing homes as needed, without informing the plaintiffs, even though the decedent desired them to be informed of her health and whereabouts. The defendant promised the decedent she could retain ownership of her home, but at the same time he explored opportunities to sell or lease the property. The defendant contacted a developer, he knew to solicit offers for the decedent's property. There is no allegation that the defendant stood to personally profit by engaging that developer, nor is there an allegation that the property was sold during the decedent's lifetime.
The defendant charged the decedent a fee for managing her finances. There is no allegation that the fee was excessive or otherwise improper. The complaint asserts the defendant allowed a purchase and sale agreement for the decedent's property to lapse and then entered into a second agreement for a lower price. Finally, without a single specific example, the plaintiffs allege that the defendant disposed of, removed, or otherwise made unavailable personal property belonging to the decedent during the decedent's lifetime.
The plaintiffs filed a multicount complaint claiming that the defendant (i) breached his fiduciary duty to the decedent; (ii) breached his confidential relationship with the decedent; (iii) unduly influenced her to gain control of her assets and financial affairs; (iv) breached his promise to care for the decedent and enable her to keep her home; (v) tortiously interfered with the plaintiffs' expectancy; (vi) committed legal malpractice in handling the decedent's general affairs and in the sale of her real property. They seek rescission of the transfer of the decedent's real property to the trust due to the defendant's fraud and undue influence. The judge granted the defendant's motion to dismiss generally, concluding that the plaintiffs failed to allege sufficient facts to suggest an entitlement to relief beyond the speculative level.
Although the defendant claims that the plaintiffs have also challenged the will in Probate and Family Court, neither party has included any pleadings in the record.
Discussion. With regard to the decedent's estate planning documents, the most that can be said from the complaint is that the defendant notarized the decedent's signature on her will, trust, and deed. There is no allegation that he negligently or falsely notarized the documents. See Bernal v. Weitz, 54 Mass. App. Ct. 394, 396 (2002). The facts alleged do not suggest he was the drafting attorney or played any role in advising the decedent as to her estate plan. While we infer in the plaintiffs' favor that there must have been some interaction between the decedent and the defendant for the decedent to have named him executor and successor trustee, we cannot infer from those facts that the relationship was such that the defendant was able to and did, in fact, influence her estate planning.
The defendant was named in the complaint in his individual capacity. The church is not named as a defendant. From the sole allegation that the defendant is an elder of the church, we cannot draw an inference that he is responsible for the church's actions or inactions. Thus, the allegations and inferences that the members of the church were applying pressure on the decedent for money are unconnected to the defendant. The conclusory allegation that the defendant applied pressure is unsupported by any factual assertions. The counts claiming undue influence, breach of fiduciary duty and breach of confidential relationship, founded as they are on the defendant's alleged role in creating the trust and transferring the decedent's property to it, correctly were dismissed. Similarly, in order to sustain a claim of tortious interference with the expectancy of receiving a gift, the plaintiffs must show, among other things, that the defendant 'intentionally interefere[d] with the plaintiff's expectancy in an unlawful way.' Labonte v Giordano, 426 Mass. 319, 320-321 (1997). In the absence of facts suggesting the defendant advised the decedent as to her estate plan or sought to influence her gifting in any way, much less an unlawful way, the claim correctly was dismissed.
We turn next to the plaintiffs' allegations that the defendant mishandled the decedent's financial matters and health care in and after 2006, when he was her health care proxy and attorney in fact, thereby breaching a contract with her and committing legal malpractice. These claims fare no better. There is no allegation that the defendant sold the decedent's property during her lifetime and, therefore, he could not have breached a promise that the decedent could retain her home. Further, that he enlisted the services of someone he knew to solicit bids on the property, alone, does not give rise to a claim of breach of the duty of loyalty. There is no allegation that he stood to profit personally. Further, there simply are no facts alleged that would support the conclusion that the defendant was negligent or otherwise legally responsible for the lapse of an unidentified purchase and sale agreement.
Finally, nothing in the complaint suggests the defendant neglected the decedent's health care. To the extent the complaint implies that the decedent wanted to remain in her home, there are no allegations that she safely could have done so and did not in fact require hospital and nursing home care. No amount of speculation can support a complaint and there was no error in allowing the defendant's motion to dismiss.
Judgment affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),