Opinion
No. 11–P–183.
2012-10-16
Nicholas KALTSAS & others v. Marcia CALCAGNI & another.
By the Court (RAPOZA, C.J., MILLS & GRAHAM, JJ.).
Justice Mills participated in the deliberation on this case prior to his retirement.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment of the Superior Court dismissing their lawsuit against Attorney Marcia Calcagni and their sister, Eugenia Sakellis, pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), because the plaintiffs lacked standing to bring their claim. We affirm.
Background. The plaintiffs brought a complaint in Superior Court to recover funds paid to Calcagni by George Kaltsas, who was father to the plaintiffs and Sakellis. Kaltsas died in February, 2009, and the plaintiffs, acting in a putative representative capacity, seek to have these funds returned to Kaltsas's estate. The present lawsuit does not concern Kaltsas's will, whose validity the plaintiffs challenge in separate litigation in the Probate and Family Court. The complaint in issue here is a Superior Court tort action for money had and received and conspiracy (as to Calcagni), and for breach of fiduciary duty and conspiracy (as to Sakellis). The plaintiffs seek the return of $68,041.14 that they allege was paid by Kaltsas to Calcagni at Sakellis's behest for legal services rendered during a period when Sakellis was Kaltsas's temporary guardian.
The Superior Court judge dismissed the complaint on Sakellis's rule 12(b)(1) motion, which Calcagni joined. The judge concluded that the plaintiffs “lack standing to maintain this lawsuit for the benefit of the estate or heirs of the late George Kaltsas since they presently are not heirs or the appointed representatives of the estate.”
Discussion. The plaintiffs argue that dismissal of their complaint was erroneous because: (1) certain court orders associated with the Probate and Family Court litigation gave them standing to maintain their Superior Court action; and (2) even if they lacked standing, the Superior Court judge erred by dismissing their complaint before allowing them a reasonable time to join the temporary executor as the real party in interest pursuant to Mass.R.Civ.P. 17(a), as amended, 454 Mass. 1401 (2009). Both arguments are unavailing.
1. Standing. The plaintiffs argue that two Probate and Family Court orders conferred standing on them to sue in Superior Court. The first, issued December 11, 2009, was an order on the temporary executor's motion for instructions, in which the temporary executor asked whether it was his responsibility “to seek the return of [Kaltsas's property] to the estate and/or to enjoin the individuals in whose name the property is now titled from transferring the property.” The judge ruled that it was not the temporary executor's responsibility to take those actions.
The plaintiffs subsequently filed a verified motion for preliminary injunction to prevent the disposal of assets that Sakellis received from Kaltsas after January 1, 2005. That motion was denied on May 17, 2010, by the same Probate and Family Court judge who decided the temporary executor's motion for instructions. The judge explained her reasoning as follows:
“On December 11, 2009, the Court ... said it is not the responsibility of the Temporary Executor to seek the return of the property to the estate and/or to enjoin the individuals in whose name the property is now titled from transferring the property. Therefore, the Objectors have standing to request a preliminary injunction from the Court. However, the action before the Court is a Petition to Probate the Will of George Kaltsas. Currently, there is no pending Complaint against Eugenia Sakellis on which to grant the preliminary injunction.”
The judge thus concluded that the plaintiffs had standing in Probate and Family Court to seek an injunction against Sakellis but in the absence of a pending complaint against her could not do so, as the only action then pending before the judge was a petition to probate Kaltsas's will. The order says nothing about the plaintiffs' standing to bring a complaint in Superior Court on behalf of an estate in which they have no interest. Nor was the Probate and Family Court judge asked to decide that issue. Res judicata principles do not apply here. See Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 135 (1998).
Whatever the import of that ruling with respect to proceedings in the Probate and Family Court, the plaintiffs lack standing to sue anyone in Superior Court on behalf of Kaltsas's estate. See Batt v. Vittum, 307 Mass. 488, 489–490 (1940) (heir-at-law lacked standing to dispute revocation of provisions in will from which she would take nothing); Barbara F. v. Bristol Div. of the Juvenile Ct. Dept., 432 Mass. 1024, 1024–1025 (2000). Accordingly, the Superior Court judge properly dismissed their complaint pursuant to rule 12(b)(1).
2. Dismissal and joinder. Finally, even if the temporary executor was the real party in interest, a matter we do not decide, the Superior Court judge was not required to grant the plaintiffs time to join or substitute him before dismissing their complaint. Indeed rule 17(a) of the Massachusetts Rules of Civil Procedure states that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed [for] ... joinder or substitution of, the real party in interest.” This provision is consistent with Massachusetts practice for amendments as to parties under G.L.c. 231, § 51, which are addressed to a judge's discretion. Reporters' Notes to Rule 17, Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 403 (LexisNexis 2011). See Berman v. Linnane, 434 Mass. 301, 304 (2001). On this record, we discern no abuse of discretion on the part of the Superior Court judge.
Judgment affirmed.