Opinion
19-P-1090
08-07-2020
CLAUD THOMAS & another v. TRICIA THOMAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This case arises out of allegations that a daughter fraudulently conveyed the parents' family home to herself in 2004. After the plaintiff parents Claud and Edith Thomas discovered the fraud some fourteen years later in 2018, they filed a complaint in Superior Court and successfully moved for a lis pendens. Defendant daughter Tricia Thomas subsequently filed an unsuccessful special motion to dismiss the lis pendens and the complaint under G. L. c. 184, § 15 (c). She appeals from that denial, arguing that the judge erred in finding that there was evidence of fraudulent concealment through affirmative acts on her part to effectuate the transaction. She also asserts that the judge wrongly tolled the statute of limitations because the alleged fraud was knowable and a reasonable person would have detected the harm when it occurred. We affirm.
The usage of "Claud" and "Claude" is alternated throughout the pleadings. We refer to the plaintiff as "Claud," the spelling used in the verified complaint.
The parents' complaint alleges fraud in the inducement, intentional misrepresentation and fraud, and a violation of G. L. c. 93A, §§ 2 and 11.
Background. We summarize the allegations within the complaint and the affidavits filed regarding the defendant's special motion to dismiss. The plaintiffs purchased the family home -- which upon the record includes two or three ancillary dwelling units -- in 1994. The defendant, the youngest child of five, was thirteen years old when the family moved into the home. Both of the parents were born in Trinidad and had limited education; both struggle with reading and have limited understanding of financial matters. In July 2004, the defendant, who was living in Georgia with her four children, approached the parents to propose taking a loan against the family home in an unspecified amount. The parents agreed because they wanted to help their daughter and believed that she may have needed the money to pay the mortgage on her Georgia home. The defendant returned to Massachusetts in order to effectuate the loan. She took the plaintiffs to her lawyer's office to sign papers that were not explained to them beyond that they were necessary to secure the loan against the home. While at the attorney's office and prior to executing the paperwork the defendant had a private meeting with the lawyer out of the presence of the parents. The parents did not read the documents or speak directly with the lawyer. As mentioned supra, unbeknownst to the plaintiffs, they were in fact signing a deed transferring the home to the daughter. The purported sale price of $400,000 was listed on the deed. It was never paid. The plaintiffs represent that they did not intend to sign over control of the home to their daughter and "would not have left [our] house, [our] only asset, to just one of [our] five children."
The daughter approached the parents because she was struggling financially to maintain her household in Georgia.
After the documents were signed, the plaintiffs remained in the home and the defendant remained in Georgia with her children. The defendant then offered to assist her parents with managing their finances. Toward that end, she had her parents deposit rent payments collected from a tenant on the property, along with what the parents understood to be their own mortgage payments, into her bank account. At the same time, the parents continued to pay bills for and make repairs to the property. For reasons unknown, the defendant with her children moved back into the Massachusetts property in 2008. In an effort to further assist their daughter and her children, the parents relocated from the larger second floor unit with four bedrooms to the smaller first floor unit with one bedroom. Believing they still owned the home, the parents continued to perform routine maintenance on the house and pay for monthly utility bills. They also paid the defendant's utility bills for her unit when she failed to pay them. The parents stopped depositing their mortgage payments in their daughter's account "in or about late 2015" when they received "a piece of mail that raised some questions as to the ownership of the property and around the same time, [the defendant] said something about being the owner of the Property." The parents were "very confused."
The record does not provide any detail on the piece of mail received by the plaintiffs that made them question their legal ownership of the home.
On May 13, 2018, the daughter prevented her mother and brother from entering the home. Finally, the parents discovered the daughter's ruse when they saw a "For Sale" sign on the property in early June 2018. On June 8, 2018, the plaintiffs filed an ex parte emergency motion for lis pendens. The motion was allowed the same day. The defendant, ten months later, filed the underlying special motion to dismiss under G. L. c. 184, § 15 (c). She argued that the complaint was filed outside the applicable statutes of limitations periods and that the plaintiffs' claims were frivolous. The judge denied the motion, finding that the plaintiffs' claims were not frivolous and that the alleged fraudulent concealment claim would have tolled the statutory limitation periods.
The judge ruled at the hearing "if I didn't make it clear, I am finding that there is evidence of fraudulent concealment of this transaction by your client, at least until late 2015."
Discussion. In order to dissolve a memorandum of lis pendens, the moving party must prove that the underlying claims are frivolous. G. L. c. 184, § 15. The statute defines frivolous to mean "(1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds." Id. We review a judge's decision allowing a memorandum of lis pendens and denying a special motion to dismiss lis pendens to determine whether the judge committed an error of law or abused his discretion. McMann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008). "Our review . . . involves an 'analysis [that] calls for an examination of the same factors properly considered by the judge in the trial court in the first instance.'" Gallipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 82 (2005), quoting Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 25-26 (1981)."
The judge did not abuse his discretion in concluding that the plaintiffs' claims were not frivolous. First, the factual support for the plaintiffs' claims, on this record, is sound. The complaint in essence alleges that the defendant took advantage of her parents' trust, generosity, and limited education to induce their signatures on a contract they did not understand. After the fraud was committed, the daughter apparently perpetuated her scheme by letting the parents pay routine bills and perform maintenance on the house while offering to "manage" their existing mortgage. Apart from a confusing piece of mail received in 2015, the daughter appears to have given the parents no indication of her well-disguised plan until 2018 when her behavior abruptly shifted. We agree with the judge that the plaintiffs' claims are bolstered by indications that the home was the parents' only asset and families rarely gift all of their assets to just one child. See Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 692 (1999) ("To establish fraud in the inducement . . . [the defendant] was required to establish the elements of common law deceit, . . . which include misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statement to the detriment of the person relying" [quotations and citation omitted]).
Second, the plaintiffs' claims were timely because the factual allegations support evidence of fraud, which tolls the statute of limitations. See G. L. c. 260, § 12; Puritan Med. Ctr. v. Cashman, 413 Mass. 167, 175 (1992) ("the statute of limitations may be tolled under G. L. c. 260, § 12, if the wrongdoer . . . concealed the existence of a cause of action through some affirmative act done with intent to deceive" [quotations and citation omitted]). Amongst other actions, the defendant seemingly misrepresented the purpose of their signature on the alleged loan documents and then affirmatively took control of the "management" of the mortgage whilst allowing the parents to continue to pay for the utilities and overall residential upkeep. Given that we consider "what a reasonable person in the plaintiff's position would have known or on inquiry would have discovered at the various relevant times" (quotations and citation omitted), AA&D Masonry, LLC v. South St. Business Park, LLC, 93 Mass. App. Ct. 693, 699 (2018), we are not persuaded by the defendant's assertion that a reasonable person would have detected the harm. Here, one could reasonably conclude that the plaintiffs had longstanding trust in the defendant daughter and had no reason to suspect their house was being conveyed given their loving relationship and the efforts taken by the defendant to conceal her actions. Compare Doe v. Creighton, 439 Mass. 281, 285 (2003) (court considered whether "the defendant made any attempt to cloak his actions behind a façade of normalcy or otherwise disguise the nature of the abuse"). Because it was reasonable to conclude that the parents were not placed on notice of the fraudulent activity before 2018 when the defendant prominently displayed a "For Sale" sign in the front yard and tried to bar the parents from entering the home, and because fraudulent concealment was at the root of the ruse, we see no error of law or abuse of discretion in the judge's ruling.
The defendant argues that "[t]here was not one shred of evidence that [she] took affirmative steps to conceal the property sale . . . ." To the contrary, she affirmatively misled her parents and affirmatively orchestrated the fraudulent signing with her attorney.
The plaintiffs' tax filings are not in evidence and we do not consider them.
For this reason, we cannot say that the parents failed to exercise reasonable diligence in detecting the "inherently unknowab[le]" wrong. Melrose Hous. Auth. v. New Hampshire Ins. Co., 402 Mass. 27, 31 n.4 (1988).
Even assuming arguendo that the parents had notice of the fraudulent activity in 2015 when they received the "confusing" mail, the statute of limitations would not bar the plaintiffs' claim as the suit was filed within three years of that date.
Order denying special motion to dismiss affirmed.
By the Court (Vuono, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 7, 2020.