DORAN FUNERAL HOMES, INC. V. MARGUERITE COCCO and others [Note 1]

NESTOR, P.J. The issue in this appeal is whether the trial court erred in granting summary judgment to the third-party defendants on the third-party plaintiff's complaint for breach of fiduciary duty arising from the nonpayment of funeral expenses. For the reasons articulated in the trial court's thorough and thoughtful decision, we affirm.

The defendant, Marguerite N. Cocco ("Cocco"), was married to Christopher R. Cutaia ("Deceased"). Following his death, Cocco signed a contract with Doran Funeral Homes ("Doran"), agreeing to pay the funeral expenses for the Deceased. Soon thereafter, Attorney Blaine DeFreitas ("DeFreitas") allegedly advised Cocco not to pay the bill for those funeral expenses. DeFreitas was the attorney for the Estate of the Deceased ("Estate") as well as for Christopher P. Cutaia ("Cutaia"), who was appointed the personal representative of the Estate.

In its complaint, Doran brought a contract action against Cocco for breaching the agreement to pay the funeral expenses. [Note 3] Cocco then filed a third-party complaint against both DeFreitas and Cutaia for violating their fiduciary duties to both her and the Estate. DeFreitas and Cutaia then moved for summary judgment, which Cocco opposed. The trial court granted summary judgment to DeFreitas and Cutaia, and Cocco filed this appeal.

We review a decision granting summary judgment de novo, Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012), and so resolve all evidentiary inferences in favor of the opposing party. Nunez v. Carrabba's Italian Grill, Inc., 448 Mass. 170, 174 (2007). Summary judgment is appropriate where there are no genuine issues as to any material fact, and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). A party moving for summary judgment is entitled to it if that party demonstrates by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing

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materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991).

Background. We summarize the facts as set forth by the motion judge in his memorandum of decision and order allowing the third-party defendants' motions for summary judgment. The Deceased, who was married to Cocco, died on October 11, 2015. Prior to their marriage, the Deceased and Cocco entered into a prenuptial agreement regarding, among other things, to whom the Deceased's property would be bequeathed after his death. The Deceased's will, which was never challenged, stated that all his property (after the payment of funeral expenses, debts, and expenses of administration) would be given to Cutaia (the Deceased's son by a prior marriage) who was also appointed as representative of the Estate.

On October 11, 2015, Cocco signed a contract with Doran to pay the funeral expenses. Later in October, 2015, DeFreitas advised her not to pay the funeral expenses.

Cocco, on December 15, 2015, received from DeFreitas a copy of the "Petition for Formal Probate of Will with Appointment of Personal Representative," filed in Middlesex Probate and Family Court. Cocco never filed a claim, arising from her payment of the funeral expenses, against the Estate in the Probate Court. Nor did she ever file any other motion or appear at any proceedings in the Probate Court. [Note 4]

No later than May 5, 2016, Cocco knew, because she had been told by DeFreitas, that the Estate would not pay the funeral expenses and that she should pay them.

At the time of his death, the Deceased had an E-Trade Account with a balance of $23.13 and, additionally, may have owned a car and a motorcycle. Neither party submitted any evidence of ownership of either vehicle or of their value. Cocco testified that she paid $70.00 to have the "old car" (purchased between 10 and 15 years ago) to be taken away. There was no evidence that the proceeds of the Deceased's IRA account did not pass to the beneficiary named in the account. Cocco was not aware of any other property that could have been included in the Estate. Prior to his death, all the Deceased's assets had been placed in trusts for the benefit of Cutaia and others. As a result, these assets did not become part of the Estate.

Discussion. Claim against Cutaia. Cocco argues that Cutaia violated his fiduciary duty to her and to the Estate by not identifying and gathering the Deceased's assets and placing them in the Estate, so that the funeral expenses would have been paid, thereby eliminating any liability to Doran. We disagree because Cocco was not an intended beneficiary of the estate. Cocco was not mentioned in the Will. By entering a contract to pay the funeral expenses for the Deceased, Cocco became a creditor of the Estate. Because the Deceased's Will required the Estate

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to pay the funeral expenses before distribution of any property in the Estate, Cocco also became, at most, an unintended or incidental beneficiary. Cutaia, as the Personal Representative, owed a fiduciary duty to the Estate; he did not owe a fiduciary duty to Cocco. An incidental benefit does not impose an affirmative duty on the Estate's Personal Representative. See Spinner v. Nutt, 417 Mass. 549, 555-556 (1994).

Further, under G.L. c. 190B, § 3-803, a creditor of a deceased debtor must bring an action against the debtor's estate or the personal representative within one year of the date of death or the claim is barred. Cocco, as a creditor of the Estate, did not bring such an action or file an objection to inventory of assets or file a petition to contest the Deceased's Will, or take any other action regarding her claim. She did not appear at any proceedings in the Probate Court action.

Claim against DeFreitas. Cocco argues that DeFreitas violated his fiduciary duty to her and to the Estate by wrongly advising her not to pay the funeral expenses. Cocco further argues that because she relied upon that advice and never paid Doran for the funeral expenses, she suffered damages.

As noted above, Cocco was not an intended beneficiary of the Estate. Under the prenuptial agreement, Cocco was not mentioned in the Will. Cocco agreed to pay the funeral expenses for the Deceased's Estate without seeking or relying on any advice from DeFreitas, thereby becoming a creditor of the Estate. Because the Deceased's will required the Estate to pay the funeral expenses before distribution of any property in the Estate, Cocco also became, at most, an unintended or incidental beneficiary.

DeFreitas owed a fiduciary duty to his clients, the Estate, and the Personal Representative. DeFreitas did not owe a fiduciary duty to Cocco. There was no formal or informal attorney-client relationship between Cocco and DeFreitas. Cocco was not an intended beneficiary of the Estate; she was, at most, a third party, unintended or incidental beneficiary of the Estate and a creditor of the Estate. An incidental benefit does not impose an affirmative duty on the attorney for the Estate or the Estate's Personal Representative. See Spinner, supra 555-556 (1994). See also Miller v. Mooney, 431 Mass. 57, 62-63 (2000). DeFreitas never told Cocco that the Estate would pay the funeral expenses. However, in October, 2015, after Cocco had already entered a contract with Doran to pay the Deceased's funeral expenses, DeFreitas did tell Cocco not to pay those expenses. Therefore, Cocco also claims relief against DeFreitas on a promissory estoppel or detrimental reliance theory.

There are three elements necessary to prove a claim based upon promissory estoppel or detrimental reliance: "(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission." Nardone v. LVI Servs., Inc., 94 Mass. App. Ct. 326, 330 n.2 (2018), quoting Sullivan v. Chief Justice of Admin. & Mgt. of the Trial Court, 448 Mass. 15, 27-28 (2006). In this case, DeFreitas's advice may have created what may have been a reasonable presumption on Cocco's part that the Estate would pay the funeral expenses. Therefore, Cocco may have reasonably relied on DeFreitas's advice not to pay the funeral expenses. DeFreitas may have had reason to know of that reliance, and, initially at least, DeFreitas may have done

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nothing to negate that reliance. Cocco did not produce, however, any evidence that DeFreitas intended to induce reliance by Cocco on his advice. Nor did Cocco produce any evidence that she has suffered any detriment because of reliance on that advice, especially since by December 15, 2015, she knew that there were pending proceedings regarding the Estate in Probate Court and that by May 5, 2016, she knew that the Estate would not by paying those funeral expenses.

Similarly, Cocco may be seeking relief based on an implied attorney-client relationship, which can create a corresponding duty if: the nonclient relies on the attorney; the attorney has reason to know of such reliance; and that attorney does nothing to negate that reliance. See Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass. App. Ct. 509, 515-517 (1994). In this case, Cocco may have relied on the advice of DeFreitas, and DeFreitas may have had reason to know of such reliance. By May 5, 2016, he told Cocco that the Estate would not pay for the expenses communicated. In addition, Cocco did not produce any evidence in support of damages suffered. Therefore, a reasonable fact finder could not find that after May 5, 2016, Cocco was reasonably relying on DeFreitas's advice or that DeFreitas knew that Cocco was relying on that advice.

Further, under G.L. c. 190B, § 3-803, a creditor of a deceased debtor must bring an action against the debtor's estate or the personal representative within one year of the date of death or the claim is barred. Therefore, Cocco had ample opportunity, more than five months, between May 5, 2016, and October 10, 2016 (one year after the death of the Deceased), to file her claim, challenge the alleged failure of Cutaia (who was represented by DeFreitas) as the Personal Representative of the Estate to include identifiable property in the Estate, or take other action in the Probate Court. However, Cocco did not bring such an action or file an objection to the inventory of assets in the Probate Court. Cocco did not contest the Deceased's will, or file any motions regarding her claim, or appear at any proceedings in the Probate Court action. Therefore, even if at any time Cocco suffered any damages by not filing a claim or otherwise challenging the proceedings in Probate Court, those damages cannot be traced to any actions by DeFreitas.

In addition, a reasonable fact finder could not find that Cocco had incurred any damages because of her relying on that advice during that period. See, e.g., McCann v. Davis, Mahn & D'Agostine, 423 Mass. 558, 560-61 (1996); Van Brode Group, Inc., supra at 517 ("It is fundamental that a tort action cannot be sustained without proof of damages, whether the action is framed as legal malpractice . . . or breach of fiduciary duty" [citations omitted].). Therefore, there was no detrimental reliance by Cocco on DeFreitas's advice.

Finally, even if DeFreitas did breach his fiduciary duty to the Estate, Cocco was at most an unintentional or incidental beneficiary of the Estate and, therefore, any claim as such was in the exclusive jurisdiction of the Probate Court.

For all the foregoing reasons, the judgments entered in favor of Cutaia and DeFreitas are affirmed.