2018 Mass. App. Div. 46

November 3, 2017 - March 15, 2018

Appellate Division Southern District

Court Below: District Court, Orleans Division

Present: Hand, P.J., Welch & Finnerty, JJ.

Peter S. Farber for the plaintiff.

Jennifer S.D. Roberts for the defendant.

HAND, P.J. Appellant Lisa F. Sherman, personal representative of the estate of Star T. Waage, appeals the trial court's denial of her motion to dismiss a claim for breach of contract brought against her in her capacity as personal representative by appellee, Kim L. Farber. [Note 2] For the reasons below, we reverse. [Note 3]

This case has a long and acrimonious history. Relevant to this appeal, we rely on the following facts to put the case in context. Lisa F. Sherman ("Sherman") was appointed personal representative of the estate of Star T. Waage ("Estate") on June 4, 2014. At the time of her death in 2012, Star T. Waage ("Waage") left two adult children: appellee Kim L. Farber ("Farber") and Jesse Roger Ling ("Ling"). In her will, Waage left her home at 57 Winter Home Road, Chatham, Massachusetts ("Property") to Farber and Ling in equal shares.

Sherman's appointment followed Farber's commencement of a partition action in the Probate and Family Court seeking the sale of the property. Additionally, after the petition for partition was filed, and before Sherman's appointment as personal representative of the Estate, Ling had begun his own equity action in that court requesting a temporary order granting him sole occupancy of the Property during the pendency of the action. [Note 4] On June 27, 2014, in Temporary Orders ("Temporary Orders") applicable to both Farber's partition action and Ling's equity case, and over Farber's objection, the Probate Court granted Ling's motion for sole occupancy of the Property. [Note 5] Significant to this

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appeal, in those Temporary Orders, the Probate Court judge wrote that, while Ling's challenges to his mother's will were not certain of success,

"the Court is very concerned with the acrimony between the parties and the confrontations that have occurred between brother and sister at the home since the death of their mother. The Court also wishes to minimize the possibility of the parties returning to Court for further orders to deal with situations that may arise. Accordingly, it is further ordered as follows:

"8. Should there be any dispute between the parties as to the orders set forth above, particularly but not limited to paragraph 3, which allows access to Farber upon 'reasonable notice' and for 'legitimate reasons,' and requires that Ling not 'unreasonably' withhold access, the parties shall submit these issues first to the Personal Representative ('PR') of the Estate of Star T. Waage, Attorney Lisa F. Sherman, for resolution. The Court hereby authorizes the PR to assess the situation as she deems fit, and to make any and all decisions that need to be made, and these decisions shall be immediately binding upon the parties, except that either party may, with forty-eight (48) hours' notice to the other party, schedule a hearing in Court seeking to overturn the decision of the PR."

After trial in December, 2014, the Probate Court dismissed Ling's equity proceeding against Farber. Noting in its decision, dated January 13, 2015, that despite the disposition of the equity case, the petition to partition the Property between Farber and Ling remained pending, the court explicitly continued the Temporary Orders, including Sherman's authority to determine access to the Property:

"By virtue of [the dismissal of Ling's equity claims] any specific orders granted previously in this matter have now been nullified. However, for practical purposes these orders shall remain in effect, but only until such time as the Personal representative . . . makes decisions or takes steps that may be contrary to those Orders."

On April 17, 2015, after further contention among Farber, Ling, and Sherman, the parties filed a signed Agreement on Petition for License to Sell ("Agreement") detailing the terms of a private auction of the Property to be conducted by Sherman, with the bidders limited to Farber and Ling. The Agreement required the successful bidder to "immediately execute a purchase and sale agreement" attached to the Agreement ("Purchase and Sale").

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Among other things, the Agreement provided:

"[T]he successful bidder shall be entitled to possession of the Premises and that, upon request of the successful bidder, a justice of the Probate & Family Court may issue orders enforcing that right of possession forthwith, provided however:

a. That, if Ms. Farber is the successful bidder, Mr. Ling may remain in physical possession of the Premises until 5:00 p.m. on May 19, 2015 . . . ; [and]

. . .

c. That, if Ms. Farber is required to enforce the judgment for possession in order to remove Mr. Ling from the Premises, all reasonable costs associated therewith will be charged to Mr. Ling's share of the Estate . . . ."

The Purchase and Sale as agreed by all parties provided that "[f]ull possession of said Premises free of all tenants and occupants, except as otherwise noted in this agreement, is to be delivered at the time of the delivery of the deed," and that the deed was to be delivered at 1:00 P.M. on May 20, 2015.

The auction took place on April 23, 2015, with Farber emerging as the successful bidder.

On May 26, 2015, Sherman delivered to Farber the deed to the Property. Subsequently, in the District Court, Farber filed suit against Sherman individually and in her capacity as personal representative. Pursuant to Mass. R. Civ. P. 12(b)(6), Sherman moved to dismiss Farber's claims against her. After hearing, the District Court allowed Sherman's motion to dismiss as to all counts other than Farber's claim against her, as personal representative, for breach of contract. As to that count, the court decided because "there was no indication in the Amended Complaint or other pleadings" to allow the court to determine the status of the Petition at the time of the alleged breach of contract, it was not appropriate to dismiss the complaint based on Sherman's claims of judicial immunity.

We review the court's ruling de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). It is well established that to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must set forth "factual 'allegations plausibly suggesting (not merely consistent with),' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "We 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 Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).

We begin with the settled principle that, unlike final orders, an interlocutory ruling, including the denial of a Rule 12(b) motion to dismiss, is generally not subject to review unless such review is authorized by rule or statute, or requested by the trial court. See, e.g., Breault v. Chariman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 30 (1987); Kargman v. Superior Court, 371 Mass. 324, 329-330 (1976); Quint v. Moffie, 1987 Mass. App. Div. 133, 133-134; Seigal v. Fitz Taxi, Inc., 1986 Mass. App. Div. 42, 43. The doctrine of present execution, however, presents a limited exception to this general rule: "Under present execution, an order is immediately appealable if it concerns an issue that is 'collateral to the basic controversy' and if 'any later appeal

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would be futile' were the order to be presently executed. Brum v. Town of Dartmouth, 428 Mass. 684, 687 (1999) (citations omitted)." Suarez v. Massachusetts Bay Transp. Auth., 2015 Mass. App. Div. 147, 149. The doctrine applies "if an appeal from [final disposition of the case] would not be likely to protect the [party's] interests." Brum, supra at 687, quoting Maddocks v. Ricker, 403 Mass. 592, 600 (1988).

Relevant to the parties' arguments here, the doctrine of present execution applies to permit interlocutory appeal of the denial of a claim of immunity from suit: "The right to immunity from suit would be 'lost forever' if an order denying it were not appealable" before the final disposition of the action. Id. at 688, citing Breault, supra at 31.

Here, Sherman has claimed that as the Probate Court's designee under its Temporary Orders, and as those Temporary Orders were continued by the Probate Court, she is a quasi-judicial officer entitled to the protections of judicial immunity. "It is a principle lying at the foundation of our jurisprudence, too well settled to require discussion, that every judge, whether of a higher or lower court, is exempt from liability to an action for any judgment or decision rendered in the exercise of jurisdiction vested in him by law." Allard v. Estes, 292 Mass. 187, 189-190 (1935). [Note 6] Judicial immunity "insulates the judge from liability for acts committed in the exercise of his jurisdiction." Temple v. Marlborough Div. of the Dist. Court Dep't, 395 Mass. 117, 129 (1985).

The protections afforded by judicial immunity extend to non-judges to the extent that those individuals, while not judges, perform functions "to aid and inform the . . . court," sometimes at the court's direction, and so may be viewed as "quasi-judicial officers." Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989). In determining whether a particular individual is acting in a quasi-judicial role, courts will take a "functional approach," analyzing "the nature of the duties performed, and whether they are 'closely associated with the judicial process.'" Id., quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985). While those quasi-judicial actors may not have authority congruent with that of judges, those to whom quasi-judicial functions are delegated enjoy the same "absolute immunity" applicable to judges. See Cok, supra at 3 (holding guardian ad litem and conservator acting as quasi-judicial officers "were involved in the adjudicative process and shared in the family court judge's absolute immunity"). "[Quasi-judicial officers] are involved in an integral part of the judicial process and thus must be able to act freely without the threat of a law suit." LaLonde v. Eissner, 405 Mass. 207, 211 (1989). See Commonwealth v. O'Neil, 418 Mass. 760, 767 (1994); Comins v. Sharkansky, 38 Mass. App. Ct. 37, 39 (1995).

Here, contrary to Farber's argument, Sherman's acts were not only delegated to her to "aid and inform" the court, but they were explicitly judicial in nature: in the words of the Temporary Orders, Farber and Ling were required to submit any

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disputes as to the Temporary Orders to Sherman for binding "resolution," in order to "minimize the possibility of the parties returning to Court for further orders" relating to the ongoing disputes about access to the Property. The Probate Court's Temporary Orders clearly invested Sherman with the authority to act for the court, and thus, clothed her in the protections of quasi-judicial immunity while she exercised that authority. See Cok, supra at 3 (court-appointed conservator entitled to quasi-judicial immunity where it was clear that conservator's "functions were performed to aid and inform the family court").

The more challenging question is the scope of Sherman's quasi-judicial role and, thus, her entitlement to quasi-judicial immunity. The dispute underlying Farber's breach of contract claim against Sherman, as personal representative of the Estate, centers on Sherman's alleged failure to allow Farber possession of the Property on a date included in the parties' Agreement. [Note 7] In considering Sherman's immunity claims in the context of her motion to dismiss all claims against her in Farber's complaint, the District Court appears to have determined that while Sherman was entitled to judicial immunity through the conclusion of Farber's and Ling's partition and equity actions, her immunity would have ended when both of those actions were concluded. [Note 8] The District Court denied Sherman's motion to dismiss Farber's breach of contract claim based on the court's uncertainty about the termination date of the partition action.

We view the issue of immunity differently, primarily because we read the Probate Court's orders, in totality, to extend Sherman's quasi-judicial role through the completed transfer of the Property, and the end of the parties' disputes over it, not merely through the disposition date of the action. It is clear to us that the Probate Court intended that Sherman's role in troubleshooting the property transfer extend to the transfer's completion, rather than being contingent on the disposition of the actions that gave rise to that transfer. [Note 9] We adopt the First Circuit's "functional approach" to the immunity determination, expressed in Cok, and conclude that the Probate Court's delegation of responsibility for overseeing the parties' access to the Property was intended to, and did, extend through the final transfer of possession of

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that Property. Accordingly, we determine that Sherman was entitled to quasi-judicial immunity at all times relevant to Farber's breach of contract claim against her, as personal representative of the Estate. Whether Sherman's actions were a breach of contract or not is irrelevant in light of this determination. See, e.g., Cok, supra at 2, citing Cleavinger, supra at 199-200 ("[Judicial] immunity applies no matter how erroneous the act may have been, how injurious its consequences, how informal the proceeding, or how malicious the motive.").

Accordingly, the District Court's denial of Sherman's motion to dismiss that claim is reversed, and the claim is dismissed.


[Note 1] As she is personal representative of the estate of Star T. Waage.

[Note 2] Kim L. Farber brought other claims against Lisa F. Sherman, both individually and in her capacity as personal representative of the estate of Star T. Waage. Those other claims are not before us on this appeal.

[Note 3] In connection with this appeal, Lisa F. Sherman filed a Motion to Strike Portions of Appellee's Brief. While we agree that much of the information to which Sherman objects is irrelevant to this appeal, and that the appellee failed to seek or obtain permission to include the documents attached as addenda to her brief, we deny the motion to strike.

[Note 4] At the time of his mother's death, Ling had lived at the Property since 1998.

[Note 5] In addition to granting Ling use and occupancy of the Property, the Temporary Orders imposed on Ling responsibility for maintaining the Property and paying the taxes on it; required, at paragraph 3, that Farber have access to the Property on reasonable notice; required Farber and Ling to return to the Property any personal property and furnishings listed in Waage's will and that had been removed from the Property; required the parties to prepare a full inventory of their mother's personal property; required that the parties cooperate in any necessary appraisals; and prohibited either Farber or Ling from removing any personal property or furnishings from the Property.

[Note 6] We interpret the phrase "liability to an action" as being synonymous with "immunity from suit." See Cruthird v. Clinton Div. of the Dist. Court Dep't, No. 05-P-1244 (Mass. App. Ct. November 3, 2006) (unpublished Rule 1:28 decision). See also R.J.L. v. Mayer, No. 14-P-537 (Mass. App. Ct. July 24, 2015) (unpublished Rule 1:28 decision) (absolute immunity for quasi-judicial officer is immunity from suit); Grady v. Commonwealth, No. 09-P-693 (Mass. App. Ct. March 22, 2010) (unpublished Rule 1:28 decision).

[Note 7] Farber's complaint also alleges that Sherman breached the Agreement in failing to remove an alarm system from the Property.

[Note 8] The District Court noted that it was not clear from the pleadings whether the petition to partition the Property was still pending at the time of Sherman's allegedly wrongful conduct, i.e., between May 19, 2015, and May 26, 2015. Our record indicates that the Probate Court dismissed the action on May 1, 2015, shortly after the private auction between Farber and Ling was concluded, with Farber emerging as the high bidder for the property. As discussed below, however, we do not reach the trial court's conclusion that Sherman's quasi-judicial function, and hence her entitlement to immunity, ended with that dismissal.

[Note 9] Further, in its Decree of Sale of Real Estate, dated April 22, 2015, the Probate Court authorized Sherman to sell the Property "consistent with the terms" of the parties' Agreement -- a document that, itself, envisioned Sherman's involvement in the property transfer process beyond the date of the auction for that Property. Sherman's quasi-judicial role was expected to last, and did last, beyond the date of the auction itself, and extended through the practical transfer of possession of the Property.