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Thompson v. Anthony

Appeals Court of Massachusetts.
Jun 6, 2012
81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1411.

2012-06-6

Christine THOMPSON & others v. Catherine ANTHONY & others.


By the Court (GRAHAM, KATZMANN & CARHART, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In a dispute among trust beneficiaries, the plaintiffs appeal from a separate and final judgment entered in favor of defendants Catherine Anthony, Robert J. Anthony, and Marianne Delsignore (hereinafter the defendants) as well as the order granting the entry of a separate and final judgment and the orders of dissolution of two lis pendens. We affirm.

Discussion. 1. Summary judgment. We review the grant of a motion for summary judgment de novo asking “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Roman v. Trustees of Tufts College, 461 Mass. 707, 710–711 (2012). A “nonmoving party's failure to establish an essential element of her claim renders all other facts immaterial and mandates summary judgment in favor of the moving party.” Id. at 711 (citations and quotations omitted).

a. Unjust enrichment. The plaintiffs argue that the motion judge incorrectly granted summary judgment for the defendants on the count of unjust enrichment because it was beyond the trustees' authority to convey the properties at issue to the defendants. The plaintiffs' claim should be viewed as a claim seeking the creation of a constructive trust due to unjust enrichment rather than a quasi-contract unjust enrichment claim.

“A constructive trust is a flexible tool of equity designed to prevent unjust enrichment resulting from ... a violation of a fiduciary duty ... or other circumstances in which a recipient's acquisition of legal title to property amounts to unjust enrichment.” Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 246 (2007), cert. denied, 552 U.S. 1099 (2008). Whether enrichment is unjust “turns on the reasonable expectations of the parties.” Community Builders v. Indian Motocycle Assocs., 44 Mass.App.Ct. 537, 560 (1998).

Here, the trust granted the trustees “absolute discretion” in relation to distributions. The trust placed no restrictions on the trustees' discretion and did not require that the beneficiaries receive equal or specified shares. In fact, under the terms of the trust, the trustees' discretion is such that the plaintiffs are not guaranteed to receive any portion of the trust. As such, the plaintiffs could not have had a “reasonable expectation” to the properties in question.

Moreover, even if the plaintiffs had a reasonable expectation of distribution from the trust, a constructive trust would not be imposed where “a recipient has given value or had no notice of the violation of duty.” Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. at 248. There is no evidence before us indicating that the defendants had notice of Anne Sansone's alleged breach of her fiduciary duty.

The judge properly granted summary judgment for the defendants on the claim of unjust enrichment.

b. Conversion. In order to succeed on a claim of conversion the plaintiffs must prove that the defendants “intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which [they had] no right of possession at the time.” Matter of Brauer, 452 Mass. 56, 67 (2008) (quotations omitted). As the plaintiffs allege conversion of real rather than personal property, we conclude that the motion judge properly granted summary judgment on this count in favor of the defendants.

The plaintiffs claim that had they been afforded an opportunity to be heard on this issue they “could have pointed to, among other things, evidence of the numerous other expenditures from the trust, during Anne B. Sansone's and Arthur T. Lucchini's tenure as trustees .” As, however, these “numerous other expenditures” were not alleged in the complaint, they are not properly before us.


We discern no merit to plaintiffs' claim that, with respect to both counts, the judge violated their due process rights by deciding the summary judgment motion on a different theory from that argued by the parties. We also note that the plaintiffs did not file a motion for reconsideration of the judge's decision.

2. Separate and final judgment. The plaintiffs also appeal from the orders granting separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974),

and from the dissolution of the lis pendens.

“When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

Rule 54(b) certification is to be granted in order “to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim.” Long v. Wickett, 50 Mass.App.Ct. 380, 384 n. 5 (2000) (citations and quotations omitted). The determination of such need “is left to the sound discretion of the trial judge and is subject to reversal only for an abuse of that discretion.” Id . at 386.

In this case, the plaintiffs obtained lis pendens against the two properties that the defendants received from the trust. A lis pendens may be dissolved “any time after final judgment ... or other final disposition.” G.L. c. 184, § 16. Thus, a delay in the entry of final judgment would result in a delay in the dissolution of the memoranda of lis pendens which would prevent the defendants from selling, mortgaging, or otherwise encumbering the property if they so desired. Moreover, the only claims against these defendants were the unjust enrichment and conversion claims that were resolved by summary judgment. The plaintiffs can pursue their claims against the trustees of the trust without the continued participation of these defendants as parties to the case. Thus, the motion judge did not abuse her discretion by granting separate and final judgment and dissolving the lis pendens.

Judgment pursuant to Mass.R.Civ.P. 54(b) affirmed.

Orders of dissolution of memoranda of lis pendens affirmed.


Summaries of

Thompson v. Anthony

Appeals Court of Massachusetts.
Jun 6, 2012
81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)
Case details for

Thompson v. Anthony

Case Details

Full title:Christine THOMPSON & others v. Catherine ANTHONY & others.

Court:Appeals Court of Massachusetts.

Date published: Jun 6, 2012

Citations

81 Mass. App. Ct. 1141 (Mass. App. Ct. 2012)
968 N.E.2d 941