Opinion
14-P-1270
01-26-2016
JANE M. SCHUSTER v. BARBARA N. MASON.
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 plaintiff, Jane M. Schuster, filed a complaint in the Superior Court seeking damages from her mother's estate planning attorney, the defendant, Barbara N. Mason. The complaint alleged legal malpractice, breach of fiduciary duty, and breach of contract. A judge dismissed the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), essentially on the ground that Schuster was not Mason's client and therefore lacked standing. After judgment for Mason entered, Schuster filed a motion for relief from the judgment under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), that a different judge denied. In this consolidated appeal, Schuster appeals from the judgment and the order denying her motion for relief from judgment. We affirm.
We note that the appeal had entered in this court prior to Schuster filing her motion for relief from judgment and that Schuster obtained leave from a single justice of this court to file her motion in Superior Court.
Discussion. 1. Motion to dismiss. When reviewing a motion to dismiss, "[w]e take as true 'the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor.'" Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004), quoting from Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). A plaintiff is required to make "factual 'allegations plausibly suggesting . . . ' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007). Our review is de novo. See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012).
As alleged in her complaint, Schuster claims that she holds "power of attorney" to act on behalf of her mother, Marie T. Campanella. In that capacity, Schuster retained Mason to provide Campanella with estate planning advice. Schuster alleges that Mason negligently advised Campanella, created unnecessary estate documents, and failed to carry out Campanella's wishes properly. More specifically, according to Schuster, Mason allegedly failed "to draft appropriate documents to carry out the wishes of [Campanella] towards [Schuster] where upon the death of [Campanella] [Schuster] would be the sole owner of [Campanella's] home."
Mason moved to dismiss the complaint, contending that Schuster did not have standing to bring a complaint alleging claims on behalf of Campanella because, at the time Schuster filed her complaint, Campanella had already passed away. The complaint did not allege that Mason represented Schuster in her personal capacity.
We conclude, for the same reasons as the judge, that the durable general power of attorney did not confer standing on Schuster. "[P]owers of attorney are to be strictly construed to require explicit, and not inferential, grants of 'dangerous' agency authority the exercise of which is potentially destructive of the principal's interests." Gagnon v. Coombs, 39 Mass. App. Ct. 144, 158 (1995). Nothing in the power of attorney extended Schuster's authority to act on behalf of Campanella beyond her natural life. "It is a familiar law of agency that the relation ceases with the death of either party." Brown v. Cushman, 173 Mass. 368, 372 (1899). Therefore, Schuster did not have standing to file a complaint on behalf of Campanella under the durable power of attorney.
The durable general power of attorney states that "all things done hereunder by my said attorney . . . after my death but prior to my said attorney receiving reliable intelligence thereof" are binding (emphasis added). See G. L. c. 190B, § 5-504(a). This is the only reference to the power of attorney extending beyond the death of Campanella.
Schuster also claims that she has standing because the power of attorney was irrevocable, arguing that its grant of authority was coupled with an interest. This claim similarly fails because there is nothing in the language of the durable power of attorney that suggests it was coupled with such an interest.
Moreover, while Mason represented Campanella in matters regarding her estate, the complaint does not otherwise allege an attorney-client relationship between Schuster and Mason, nor any other relationship that would give rise to a claim for breach of contract or breach of fiduciary duty. The scope of the claims involved only Mason's representation of Campanella, and while the alleged injury appears to have harmed Schuster personally, it did not harm Campanella. See Spinner v. Nutt, 417 Mass. 549, 555-556 (1994), quoting from Goldberg v. Frye, 217 Cal. App. 3d 1258, 1268-1269 (1990) ("The fact that third parties are . . . benefited, or damaged, by the attorney's performance does not give rise to a duty by the attorney to such third parties, and hence cannot be the basis for a cause of action by the third parties for the attorney's negligence"). In these circumstances the complaint was correctly dismissed on the ground that Schuster lacked standing. See R.J.A. v. K.A.V., 34 Mass. App. Ct. 369, 373 n.8 (1993), citing Marotta v. Board of Appeals of Revere, 336 Mass. 199, 202-203 (1957) ("A plaintiff's proper standing is a jurisdictional prerequisite to being allowed to press the merits of any legal claim").
2. Motion for relief from judgment. In her motion for relief from the judgment, Schuster essentially contends that a proposed amended complaint would clarify her allegations so that the case could proceed. Schuster attached her proposed amended complaint to the motion. We review the denial of the motion for abuse of discretion, only overturning the denial if "the circumstances so require[]." Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 157-158 (1987).
Schuster moved for relief from judgment under rule 60(b)(1), which requires her to show "mistake, inadvertence, surprise, or excusable neglect." Here Schuster claims that the "mistake" or "excusable neglect" was her failure to provide in her original complaint "more facts to adjudicate the case," and that her amended complaint would "remedy . . . many if not all of the court's issues." "Excusable neglect, at least in theory, is something other than, 'Oops, I forgot.' It is meant to apply to circumstances that are unique or extraordinary, not any 'garden-variety oversight.'" Tai v. Boston, 45 Mass. App. Ct. 220, 222 (1998), quoting from Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981) (footnote omitted).
Here, although the proposed amended complaint provides further factual detail, it solves none of the original complaint's basic problems. In addition, Schuster has not offered any justification as to why she failed to file her proposed amended complaint sooner. Even if Schuster had filed her proposed amended complaint prior to the entry of the judgment, it would not have cured the defects in Schuster's claims. The proposed amended complaint posits that Mason and Schuster had an attorney-client relationship because Mason represented Schuster in a lawsuit brought against Schuster by her sister. However, Schuster does not allege that Mason negligently represented her in that matter.
Judgment affirmed.
Order denying motion for relief from judgment affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 26, 2016.