Jennifer R. Shaw ("Petitioner") filed her Petition for Partition on March 16, 2011, relative to property (the "Partition Property") located at 21 Briar Patch Lane in Sudbury, Massachusetts. [Note 1] On May 3, 2011, Darrell R. McKay ("Respondent") filed his Answer and Counterclaim, alleging that Petitioner wrongfully allowed the value of the Partition Property to decline by delaying its sale, and alleging that Petitioner mishandled or did not properly account for certain assets from the parties' parents' estates. [Note 2] Petitioner filed her Answer to Counterclaims on May 23, 2011. A case management conference was held June 15, 2011, on which date Attorney Joseph P. DiBlasi (the "Commissioner") was appointed as commissioner. On July 28, 2011, the Commissioner filed his Interim Report (the "Interim Report"), including as Exhibit Q a spreadsheet summarizing Petitioner's claimed expenses relative to the Partition Property, filed with the Commissioner at an unknown date after May 13, 2011. [Note 3] Respondent filed his Statement of Set-Off Claims, [Note 4] with exhibits, on December 6, 2011. The Commissioner filed a Report (the "December Report") on December 7, 2011. Petitioner filed her Opposition to Portions of the December Report on December 7, 2011. This court issued a warrant of sale of the Partition Property dated December 8, 2011. On January 4, 2012, the Commissioner filed his Report Regarding Sale of the Partition Property (the "Sale Report"). On February 27, 2012, Respondent filed both his Motion to Strike Petitioner's Claimed Expenses [Note 5] and his Motion to Allow Set-Off of Loss of Value, along with supporting Affidavit of Attorney Nancy Sue Keller.
Respondent filed his Motion for Summary Judgment and Appendix on May 1, 2012. Respondent filed his Motion for Partial Release of Escrowed Funds on May 7, 2012, which this court allowed on May 22, 2012. [Note 6] Petitioner filed her Opposition to Respondent's Motion for Summary Judgment and Cross Motion for Summary Judgment on June 1, 2012, including Petitioner's claim for a set-off for her expenses relative to the Partition Property, and including as Exhibit C documentation of such expenses. Respondent filed his Response to Petitioner's Opposition and Opposition to Petitioner's Cross Motion for Summary Judgment on June 15, 2012. A hearing was held on July 11, 2012, on all motions, at which time the matter was taken under advisement. A Decision of today's date (the "Decision") has been rendered. In accordance with the Decision it is:
ORDERED and ADJUDGED that Respondent is not entitled to compensation for the diminution in value of the Partition Property prior to its sale, inasmuch as Petitioner had no legal obligation to sell the Partition Property on an expedited basis, and inasmuch as Respondent had full authority as a tenant in common to bring a partition action, if the parties could not otherwise agree to sell the Partition Property.
ORDERED and ADJUDGED that the expenses requested by Petitioner are not unreasonable on the basis of any unreasonable delay in sale of the Partition Property by Petitioner.
ORDERED and ADJUDGED that this court does not have jurisdiction to consider Respondent's counterclaims to the extent that they seek a set-off resulting from Petitioner's use of the Life Insurance, the Raytheon Account, the 401(k) account, the Pension Payments, or Alden's or Virginia's personal property. [Note 7]
ORDERED and ADJUDGED that there is no basis to reduce Respondent's contribution to Petitioner's requested expenses as a result of any tax benefit to Petitioner.
ORDERED and ADJUDGED that expenses for electrical and telephone service to maintain an alarm system at the Partition Property are reasonable, especially since the record implies that the Partition Property was at times unsupervised, inasmuch as the flooding caused by the burst pipes was not discovered immediately or by Petitioner. [Note 8]
ORDERED and ADJUDGED that it is inappropriate to allow a set-off for the cost of the post office box.
ORDERED and ADJUDGED that it is inappropriate to allow a set-off for Petitioner's legal costs.
ORDERED and ADJUDGED that it would be inappropriate to grant Petitioner's request for legal costs, including costs incurred defending against Respondent's counterclaims.
ORDERED and ADJUDGED that it would be inappropriate to grant Respondent's request for costs on the basis of Petitioner's decision to bring this partition action.
ORDERED and ADJUDGED that Respondent's motions for sanctions for Petitioner's failure to comply with discovery requests are DENIED.
ORDERED and ADJUDGED that Respondent's Motion for Summary Judgment is DENIED, inasmuch as Respondent is not entitled to reimbursement for any diminution in value of the Partition Property, and inasmuch as this court does not have jurisdiction to hear Respondent's counterclaims that are not in reference to the Partition Property.
ORDERED and ADJUDGED that Petitioner's Cross Motion for Summary Judgment is ALLOWED IN PART, inasmuch as Petitioner is entitled to reimbursement from the proceeds of the sale of the Partition Property (the "Remaining Proceeds") for certain of her expenses in maintaining the Partition Property.
ORDERED and ADJUDGED that Petitioner's Cross Motion for Summary Judgment is DENIED IN PART, inasmuch as Petitioner is not entitled to reimbursement from the Remaining Proceeds for attorney(s fees or the post office box.
ORDERED and ADJUDGED that the Remaining Proceeds shall be distributed as follows: Of the one-hundred eighty-nine thousand one-hundred twenty dollars and seventy cents ($189,120.70) in Remaining Proceeds, [Note 9] eighty-three-thousand five-hundred seventy-three dollars and sixty-six cents ($83,573.66) is awarded to Petitioner, effectively a set-off representing Respondent's contribution of forty-one-thousand seven-hundred eighty-six dollars and eighty-three cents ($41,786.83) toward the expenses itemized in Exhibit Q of the Interim Report, but not including any contribution toward Petitioner's legal costs or the post office box. After such award to Petitioner, Petitioner and Respondent shall each receive fifty-two thousand seven-hundred seventy-three dollars and fifty-two cents ($52,773.52), being one-half of the amount that remains.
By the court. (Sands, J.)
[Note 1] The Partition Property is improved with a single-family house.
[Note 2] Petitioner and Respondent are siblings. Petitioner was formerly known as Jennifer R. McKay.
[Note 3] The spreadsheet is undated. The last item listed on such spreadsheet is an insurance payment made on May 13, 2011. The Interim Report states that the Commissioner received and reviewed canceled checks and receipts relative to Petitioner's claimed expenses. Such checks and receipts are before this court as Exhibit C to Petitioner's Opposition to Respondent's Motion for Summary Judgment.
[Note 4] Respondent does not claim a set-off for any expenditure made by him, except legal costs. Respondent's set-off claims are based on an alleged diminution in value of the Partition Property due to delay in sale, Petitioner's alleged misappropriation of certain assets from the parties' parents' estates (or use of such assets to maintain the Partition Property), and the costs of litigating this partition action.
[Note 5] Such motion was apparently filed in response to Petitioner's claims as summarized in the Interim Report, since Petitioner had not yet filed anything relative to such claims with this court. Such motion generally "moves that this . . . [c]ourt strike any and all claimed expenses incurred on the [Partition Property] after 2004 on the grounds that the claimed expense[s] cannot be viewed as reasonable charges . . . where they are attributable to Petitioner's breach of her fiduciary duties . . ." (emphasis added).
[Note 6] Respondent's Motion for Partial Release of Escrowed Funds (from the Remaining Proceeds, as hereinafter defined) requested that the Commissioner distribute forty thousand dollars ($40,000.00) to each party.
[Note 7] Alden Low McKay (Alden) and Virginia Ruth McKay (Virginia) were the parties' parents. These assets are alleged to be part of their estates.
[Note 8] As stated in the Decision, "[i]n February of 2009, a water pipe froze and burst at the Partition Property . . ."
[Note 9] The Sale Report, dated December 30, 2011, stated that the Commissioner at that date held in escrow as net proceeds from the sale of the Partition Property two-hundred seventy-two thousand eight-hundred ninety-nine dollars and forty-four cents ($272,899.44). On April 13, 2012, the Commissioner filed an additional bill of three-thousand seven-hundred seventy-eight dollars and seventy-four cents ($3,778.74). Subtracting such bill from the net proceeds, and subtracting the eighty thousand dollars ($80,000.00) already distributed to the parties, leaves one-hundred eighty-nine thousand one-hundred twenty dollars and seventy cents ($189,120.70).
Respondent's Motion for Partial Release of Escrowed Funds, dated May 4, 2012, stated that the Commissioner held in escrow two-hundred sixty-nine thousand one-hundred forty-seven dollars and forty-six cents ($269,147.46) before the distribution to the parties, which would leave the slightly greater amount of one-hundred eight-nine thousand one-hundred forty-seven dollars and forty-six cents ($189,147.46). The cause of this discrepancy is unknown.