Opinion
No. 12–P–935.
2013-05-17
Ulrika Sorman RAMSTEN & others v. Lee P. ALFIERI, executor, & others.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the allowance of a motion for injunctive relief by a judge of the Probate and Family Court. The plaintiffs, beneficiaries of the estate of the late Priscilla S. Miles, sought and obtained an order enjoining Lee P. Alfieri and Loren C. Nass, Jr ., from improving and subdividing property bequeathed to the beneficiaries by Miles. Alfieri and Andrea Mary Hunter appealed, and we reverse.
Nass has not appealed from the order granting the preliminary injunction.
Background. Miles and her husband owned property located at 907 Tremont Street in Duxbury (residential lot). In 2006, the Mileses pooled a portion of their property with their neighbors, Nass and his wife, to create a 2.05–acre vacant parcel between their respective homes (vacant lot). The vacant lot was owned eighty percent by the Mileses and twenty percent by the Nasses. Miles's husband passed away in 2009. In July 2010, Miles and Nass established the Nass/Miles Realty Trust (trust) and each conveyed by deed their respective portions of the vacant lot to the trust. Nass was named trustee of the trust. The beneficiaries were Miles and Nass with beneficial interests in a ratio reflecting the amount of property each contributed. Miles died on August 3, 2010. In her last will and testament, Miles designated Alfieri the executor of her estate. The will gave Alfieri the power to sell any property forming a part of Miles's estate. The will did not expressly or separately dispose of the residential lot and the vacant lot; rather, “all property” was included in the residuary estate, which was devised to certain beneficiaries.
Nass's wife passed away in 2007.
The will stated: “Without intending to limit or restrict the usual powers of any executor or of any trustee appointed hereunder, I hereby expressly authorize and empower the executor or trustee ... To sell ... or otherwise dispose of or grant options with respect to any and all property or business at any time forming a part of said estate, in such manner, at such time or times, for such purposes, for such prices and upon such terms, credits and conditions as he may deem advisable.”
The will devised the residuary estate to the following beneficiaries: Mary Andrea Hunter (10%), Nancy Service Hale (10%), David Corshia (10%), and the remainder to Ulrika Sorman Ramsten. Hunter is in favor of Alfieri's subdivision plans and is a defendant in this action. All of the remaining beneficiaries object to Alfieri's plans and are plaintiffs in this action.
The will was allowed on September 27, 2010, at which time Alfieri was appointed executor of the estate. Shortly thereafter, Alfieri notified the plaintiffs that he intended to sell the residential lot and the vacant lot. There is some dispute among the parties whether objections were made to this plan. Nonetheless, Alfieri assumed control of the properties and, in November or December 2010, devised a strategy to subdivide the vacant lot into two separate buildable lots. In doing so, Alfieri executed an agreement with Nass to move the boundary of the residential lot, giving the vacant lot additional land. He also consulted with a landscape architect about the feasibility of subdividing the lots and determined that the subdivision, including site improvements and road construction, would cost approximately $100,000 (this number was later revised to $60,000). The parties dispute whether subdivision is in fact feasible or desirable.
Alfieri asserts that subdivision is feasible based on the plans provided by the landscape architect, Daniel Orwig. The plaintiffs assert that subdivision is not feasible because Thomas Broadrick, planning director for the town of Duxbury, determined, based on preliminary conceptual sketches, that the total available land area was too small to support the establishment of three buildable lots.
On October 26, 2011, the plaintiffs filed an action seeking declaratory judgment and injunctive relief to prevent Alfieri and Nass from selling, subdividing, or developing the residential and vacant lots. After a hearing on November 9, 2011, a judge of the Probate and Family Court granted the plaintiffs' request for a preliminary injunction and enjoined Alfieri and Nass from taking any further action to sell, subdivide, or develop the residential and vacant lots. Alfieri and Hunter appealed to this court.
Discussion. Alfieri and Hunter assert that the probate judge abused her discretion in allowing the plaintiffs' application for a preliminary injunction. A party seeking a preliminary injunction must show that success is likely on the merits, irreparable harm will result from denial of the injunction, and the risk of irreparable harm to the moving party outweighs any similar risk of harm to the opposing party. Packaging Indus. Group. Inc. v. Cheney, 380 Mass. 609, 616–617 (1980). “We review the grant or denial of a preliminary injunction to determine whether the judge abused [her] discretion, that is, whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of factual questions.” Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008).
Here, the parties' dispute is, simply put, a disagreement about maximizing the value of the real property in the estate. Alfieri, as executor, determined that he could maximize the value of the real property by creating an additional buildable lot and marketing the three lots as independent parcels. Meanwhile, the plaintiffs assert that they want the lots sold in as-is condition, or alternatively that they want to retain title to the lots. It is undisputed that the will gave Alfieri broad, discretionary power to sell any property constituting a part of the estate, without the beneficiaries' or the court's permission. See note 6, supra. Alfieri's subdivision plan does not appear to be unreasonable, and we conclude that by allowing the plaintiffs' application for a preliminary injunction, the judge substituted her judgment for that of the executor. Indeed, the judge did not find that the plan constituted a fraudulent, arbitrary, or capricious use of Alfieri's discretionary power as executor. That there may have been an easier course of action in dealing with the lots is beside the point.
The plaintiffs asserted in a letter to Alfieri dated August 17, 2011, that they wanted the lots sold as soon as possible in “as is” condition. In their pleadings in the present action, however, the plaintiffs appear to have changed their position and now assert that they wish to retain title to the lots. This new approach seems untenable in light of the fact that at least one of the beneficiaries, the defendant Hunter, wishes to sell.
The plaintiffs have no specific entitlement to the real estate itself; their interest as beneficiaries of the will is solely in the effective and economically profitable administration of estate assets. Consequently we discern no likelihood of success on the merits. Moreover, the only harm that the plaintiffs allege would result from Alfieri's plans is a possible decrease in the value of the estate. Assuming that such a loss could be demonstrated, the plaintiffs would have an action against Alfieri in the final accounting of the estate. Irreparable harm is that harm that cannot be adequately addressed by money damages. See Packaging Indus. Group. Inc. v. Cheney, 380 Mass. at 617 n. 11;Westinghouse Bdcst. Co. v. New England Patriots Football Club, Inc., 10 Mass.App.Ct. 70, 75 (1980) (affirming order denying preliminary injunction where the party alleging injury could be adequately compensated by monetary damages after trial).
Because the order allowing the plaintiffs' application for a preliminary injunction constitutes an abuse of the judge's discretion, we reverse and remand the case to the Probate and Family Court for further proceedings consistent with this memorandum and order.
So ordered.