JOHN MOSS and AMY BORNER v. GARY LINGLEY and ANNMARIE LINGLEY as trustees of the JMJ REALTY TRUST, and TOWN OF WAYLAND acting by and through its Board of Selectmen, Board of Public Works, and Conservation Commission

Introduction

Contrary to every case that has addressed and decided the issue, defendant JMJ Realty Trust (Gary and AnnMarie Lingley, trustees) asserts that a trust can be represented in court by a non-attorney trustee. [Note 1] Despite weeks of prior notice from this court that the long-settled law was otherwise and that, after its initial counsel withdrew, if the Trust did not retain new counsel by the deadline set by the court (neither Mr. Lingley nor Mrs. Lingley are attorneys) judgment would be entered against it, the Trust still did not do so. Judgment then entered on that and other grounds. [Note 2] The Trust did not hire a lawyer even after that judgment entered and, instead, filed a notice of appeal signed only by Mr. Lingley. When that notice was struck for that reason, the Trust still did not hire a lawyer and continued to file notices of appeal signed only by Mr. Lingley.

Ultimately, this court did two things. It continued to strike the Trust's notices of appeal signed only by Mr. Lingley, but it also assembled and transferred the record to the Appeals Court. There, counsel entered an appearance for the Trust and had the appeal formally entered and docketed, thus giving the Trust full opportunity to present its arguments to the Appeals Court. Moss v. Lingley, Trustee, Appeals Ct. Case No. 2018-P-1535. But once the appeal was entered, the Trust did nothing with respect to that appeal - no brief, no appendix, no motions, no status report, and no filings or submissions of any kind - and, in consequence, after due notice, the Appeals Court dismissed the appeal for lack of prosecution. [Note 3]

Instead, the Trust made two further submissions to this court, both of which are presently before me. The first was its January 9, 2019 notice of appeal of this court's December 11, 2018 order striking the Trust's September 10, 2018 notice of appeal signed by Mr. Lingley, [Note 4] and the second was its motion, also filed on January 9, 2019 - presumably, although not so designated, under Mass. R. Civ. P. Rule 60(b)) - seeking "to restore appeal", although which appeal was not identified in the motion. The basis of that motion is its argument, notwithstanding the consistent appellate rulings to the contrary, that non-attorney trustees can conduct court proceedings on behalf of trusts, and its assertion that, notwithstanding the court decisions that came afterwards, the 2012 adoption of G.L. c. 203E, §§202 & 303, negates all those rulings.

As discussed more fully below, I DENY the Trust's motion "to restore appeal" because it has no merit. G.L. c.203E, §§202 & 303 (enacted in 2012) do not allow non-attorney representations of trusts by their trustees and, as the post-2012 Appeals Court rulings in Staten v. O'Neill (2013) [Note 5] and Eresian v. Mantalvanos (2018) [Note 6] make plain, the case law requiring trusts to have counsel remains controlling law. With respect to the Trust's January 9, 2019 notice of appeal from the court's December 11, 2018 order, because it was filed by counsel, that notice is not stricken. But as the notice states, it appeals only this court's striking of the Trust's September 10, 2018 notice of appeal signed by Mr. Lingley (not the April 6, 2018 Decision and Judgment) and, since both the September 10, 2018 notice and the December 11, 2018 Order striking it were part of the record in the prior appeal, it may well be barred by the Trust's failure to prosecute that appeal - a question for the Appeals Court to decide. Because the law requiring trusts to have counsel is so longstanding and well-settled, I do not believe that this new appeal has any merit, but that too is for the Appeals Court to determine should the Trust elect to pursue the appeal.

Facts

The procedural posture of this case is important, so I begin with a summary of the relevant rulings.

Plaintiffs John Moss and Amy Borner live at 50/54 Lake Shore Drive on Dudley Pond in Wayland. On a dozen occasions during the year before this case was brought, Gary Lingley [Note 7] drove onto the plaintiffs' yard and parked on the grass, remaining in that location for an extended period of time with no attempt to access the pond. He had not done so at any time before. When challenged by the plaintiffs, he said that the place where he was parking was part of "Crown Path" (a paper street on a 1914 subdivision plan, never built or used), that he had a right to use it because he lived in a house on a lot shown on that plan, [Note 8] and that he would continue parking there until they paid him to stop, referring them to his then-attorney to negotiate an amount he would accept. The plaintiffs declined to pay him, and instead filed this lawsuit seeking a declaration that he had no such right. See Docket Entry (Aug. 13, 2014). The Town of Wayland subsequently intervened in the lawsuit to assert its own easement claim. [Note 9]

Final Judgment entered on April 6, 2018, with a declaration that neither the Trust nor the Town had easement rights of any kind over the plaintiffs' land. Judgment against the Town came after trial. Judgment against the Trust was based on two grounds: its failure to respond to the plaintiffs' interrogatories (Mass. R. Civ. P. 33(a)) [Note 10] - a judgment entered at a time when it was still represented by counsel [Note 11] - and its failure to retain successor counsel to represent it by the court-ordered deadline. The Town did not appeal. The Trust attempted to appeal on May 4, 2018, but that appeal was stricken because it was filed by Mr. Lingley pro se. [Note 12]

That the Trust was required to have counsel represent it in the lawsuit, and could not be represented by a non-attorney trustee, was not news to Mr. Lingley. It had come up seven times during the course of the case, with the court bringing the applicable case law to the Trust's attention on each of those occasions. These are the seven.

The Trust was initially represented by counsel (attorney Robert Meltzer), and the issue first arose when this court denied that counsel's motion to withdraw (he was no longer being paid) on precisely the ground that the Trust needed representation and would be defaulted without it. [Note 13] It arose again when this court denied attorney Meltzer's motion to reconsider its denial of his motion to withdraw. [Note 14] It arose a third time when, at a status conference after the Appeals Court Single Justice (Maldonado, J.) denied attorney Meltzer's petition to reverse this court's denial of his motion to withdraw, [Note 15] this court vacated the stay of discovery that had been put in place pending the outcome of the single justice petition and counsel was thus on notice that the plaintiffs' interrogatories, the responses to which were long overdue, had to be answered. [Note 16] It arose a fourth time after Mass. R. Civ. P. Rule 33(a) Judgment entered against the Trust for failure to respond to those interrogatories, [Note 17] attorney Meltzer renewed his motion to withdraw without moving to vacate that Judgment or responding to discovery, and the court required oral argument of the motion to withdraw "because of the issues it raise[d], the consequences for the Trust if it [was] allowed, and the opposition of the other parties." [Note 18] It arose a fifth time when, at a motion hearing attended by both attorney Meltzer and the Lingleys themselves, attorney Meltzer's motion to withdraw was finally allowed and the Lingleys were told that (1) successor counsel must file an appearance within thirty days, and (2) if such an appearance was not filed by that time, judgment would be entered against the Trust on that basis as well as Rule 33(a). [Note 19] It arose a sixth time at a hearing held on the plaintiffs' motion to disqualify the new attorney the Trust had retained (Edward Collins, Esq.) when, after that motion was allowed and attorney Collins was disqualified because of his conflict of interest, [Note 20] the Trust was told that new counsel had to enter an appearance by no later than March 26, 2015 or it would be precluded from contesting judgment against it. [Note 21] And it arose a seventh time at a telephonic status conference on March 30, 2015 (four days past the deadline) during which Mr. Lingley (1) orally moved for more time for the Trust to retain new counsel and that motion was denied (no such motion had been made before the March 26 deadline expired, and Mr. Lingley admitted that he had neither retained new counsel nor was close to doing so), and (2) orally moved for reconsideration of the court's previous rulings that the trustees could not represent the Trust (which the court also denied). [Note 22] No single justice review was sought of either of those rulings.

As noted above, final judgment entered on April 6, 2018. Despite knowing that counsel was required, Mr. Lingley signed and filed a notice of appeal from that judgment purportedly on behalf of the Trust on May 4, 2018. On motion of the plaintiffs, that notice was stricken because it had not been made by an attorney. [Note 23] Mr. Lingley then signed and filed a notice of appeal from that order on June 7, 2018, again purportedly on behalf of the Trust, and that notice was also stricken on motion of the plaintiffs because it had not been made by an attorney. [Note 24] On August 2, 2018, Mr. Lingley signed and filed a document entitled "Is it Error to Claim a Trustee Cannot Represent a Trust?", again purportedly on behalf of the Trust, which was stricken because it had not been made by an attorney. [Note 25] On September 10, 2018, Mr. Lingley signed and filed a notice of appeal from the order striking his August 2 notice, again purportedly on behalf of the Trust. This time, however, this court did three things. First, the record on appeal was assembled and forwarded to the Appeals Court, where counsel entered an appearance for the Trust and the case was entered on the Appeals Court Docket. [Note 26] Second, on motion of the plaintiffs, this court struck that notice of appeal because it had not been made by an attorney. [Note 27] Third, so that the Appeals Court would know of this ruling, the record on appeal was amended to include it. [Note 28] Thus, all of this court's rulings on the need for the Trust to have counsel were part of the record before the Appeals Court.

Instead of pursing that appeal, and despite prior notice from the Appeals Court that the appeal would be dismissed unless the Trust proceeded with it, [Note 29] the Trust abandoned the appeal, filing nothing, and the Appeals Court dismissed the appeal pursuant to its Standing Order Governing Dismissals for Lack of Prosecution twenty-seven days after the Notice Preceding Dismissal was sent. [Note 30] Of note, the Appeals Court's dismissal was not based on this court's post-appeal striking of the underlying notice of appeal, but rather - and solely - on the Trust's failure to prosecute the appeal in any manner.

The Appeals Court's Notice Preceding Dismissal was sent on January 3, 2019. Rather than responding to that Notice and proceeding with that appeal, the Trust waited a week and then, on January 9, 2019, filed a notice of appeal in this court from this court's December 11, 2018 order striking the September 10, 2018 notice of appeal signed and filed by Mr. Lingley and, in addition, filed a "motion to restore appeal or for findings of fact and conclusions of law." [Note 31] Both of these were now signed and filed by counsel. The sole argument made in support of the motion and the associated notice of appeal was a contention that the 2012 enactment of the Massachusetts Uniform Trust Code, G.L. c.203E, §§ 202 and 203 allowed non-attorney trustees to represent trusts in court. For the reasons set forth below, I find and rule that there is no merit to that argument.

Discussion

In reviewing the Trust's January 9, 2019 motion and notice of appeal, I note four things at the outset.

First, as discussed above, the Appeals Court's January 30, 2019 dismissal of the Trust's previous appeal after it was duly docketed and entered may very well preclude this attempt by the Trust to raise the representation issue once again. I am unfamiliar with how the Appeals Court makes such a determination and was unable to find any reported decision but, as a general rule, the law does not favor multiple apple bites. At the least, the Trust's abandonment of that prior appeal - an appeal in which it was represented by counsel - is an admission that an effective notice of appeal required counsel, conceding the point it now seeks to raise.

Second, the judgment against the Trust was based not only on its failure to have counsel, but on another and independent ground - the Mass. R. Civ. P. 33(a) sanction for its failure to respond to the plaintiffs' interrogatories, which occurred while it did have counsel. Neither the motion nor the notice of appeal challenges that aspect of the judgment, making the motion and appeal a moot exercise. [Note 32]

Third, the grounds on which the intervenor-defendant Town's similar lot owner-based easement claims were dismissed (the abandonment of any rights that may ever have existed, see Decision at 5-9 (Apr. 6, 2018)) would also apply to the Trust, since Mr. Lingley's attempt to "revive" them by parking there came long after abandonment had become effective. Fourth, at this stage, the Trust's arguments are not truly an appeal (the time for that has long-since past, as well as this court's ability to extend it, see Mass. R. App. P. 4(a) & (c)), nor a timely motion for reconsideration (also time-barred, see Mass. R. Civ. P. 50(e)) but, at best, a Rule 60(b) motion to vacate the judgment, addressed to the court's discretion. Such relief is "extraordinary [,] and may be granted only upon a showing of exceptional circumstances." See Thibbitts v. Crowley, 405 Mass. 222 , 226 (1989) (internal citations and quotations omitted). No such circumstances are presented here, where the law requiring counsel is clear, the Trust was given repeated warnings, a clear deadline was set, the consequences of ignoring that deadline were made plain, and the Trust affirmatively chose to proceed otherwise. In any event, under any standard of review, the Trust's "representation" argument fails on its merits alone. Put simply, the Mass. Uniform Trust Code, G.L. c.203E, §§ 202 and 303, does not authorize non-attorney trustee representation of a Trust in court proceedings. The statutory language does not say so, it cannot be contorted to say so, "[p]ermission to practice law is within the exclusive cognizance of the judicial department[;] [s]tatutes may provide penalties for the unlicensed practice of law, but may not extend the privilege," LAS Collection Mgmt., 447 Mass. at 849, and, as the appellate-level rulings Eresian (2018) and Staten (2013) make clear, the law requiring trusts to have counsel is still the law post- the 2012 enactment of these provisions. See L.J. v. M.L., Mem. & Order Pursuant to Rule 1:28, 95 Mass. App. Ct. 1120 , 2019 WL 3003601 at *1, n. 3 (Jul. 10, 2019) (no requirement that court articulate legal standard applied when making a ruling; judge presumed to know the law and apply it correctly).

G.L. c. 203E, §202

G.L. c. 203E, §202 addresses jurisdiction over trustees and beneficiaries. Under its provisions, by accepting a trusteeship position in a trust having its principal place of administration in the commonwealth, or by moving that place to Massachusetts, the trustee submits personally to the jurisdiction of the courts of this state "regarding any matter involving the trust." It similarly provides that the beneficiary of a Massachusetts trust is subject to the jurisdiction of the Massachusetts courts with regard to their interests in the trust and, by accepting a distribution from the trust, subject to personal jurisdiction regarding any matter involving the trust. This is a long-arm jurisdictional statute, not an authorization allowing the trustees or beneficiaries to personally represent themselves in court proceedings. Nor could it be such an authorization since, as noted above, "[p]ermission to practice law is within the exclusive cognizance of the judicial department[;] [s]tatutes may provide penalties for the unlicensed practice of law, but may not extend the privilege," LAS Collection Mgmt., 447 Mass. at 849.

G.L. c. 203E, §303

The Trust contends that G.L. 203E, §303 (4) - "a trustee may represent and bind the beneficiaries of the trust" - authorizes non-attorney trustees to appear in court and conduct court proceedings on the trust's behalf. In truth, it does nothing of the kind, nor could it do anything of the kind. See LAS Collection Mgmt, supra (practice before the court within exclusive cognizance of judicial department; statutes "may not extend the privilege"). Trusts are made parties to lawsuits by naming their trustees, see Morrison v. Lennett, 415 Mass. 857 , 859-860 (1993), and the statute simply confirms that trustees, acting through counsel, control the litigation, and that their positions, stipulations, and the court rulings for or against them in that capacity bind the trust beneficiaries. The word "represent" does not mean "can act as counsel." In this context, it only means "standing for another so as to have the rights and obligations of the person represented." See "representation", Merriam-Webster Online Dictionary 2019, http://www.merriam-webster.com. The case of Morse, trustee v. Kraft, 466 Mass. 92 (2013), cited by the Trust, does nothing more than confirm this. It notes that, in the absence of potential conflicts of interest, minors may be "represented" in court proceedings by their parents (i.e. parents may bring and maintain or defend the action, as the named party, on their behalf). But it does not hold that they may personally appear in court and conduct court proceedings on their children's behalf if they are non-attorneys. Every party in that case, including all the parents, was represented by counsel, and there was no suggestion that it could be otherwise. See Morse, trustee v. Kraft, SJC-11233 (case docket). Indeed, every case both before and after the MUTC (2012) and Morse (2013) has consistently held that trusts require counsel. [Note 33] Those cases have also consistently rejected the Trust's argument that, for purposes of representation by counsel, trusts should be treated differently than corporations. All of the cases involving trusts have held to the contrary, and cited back to Varney (which involved a corporation) as equally applicable to trusts. [Note 34]

Conclusion

For the foregoing reasons, the Trust's motion to restore appeal is DENIED. With respect to the Trust's January 9, 2019 notice of appeal from the court's December 11, 2018 order, because it was filed by counsel, that notice is not stricken. But as the notice states, it appeals only this court's striking of the Trust's September 10, 2018 notice of appeal signed by Mr. Lingley (not the April 6, 2018 Decision and Judgment) and, since both the September 10, 2018 notice and the December 11, 2018 Order striking it were part of the record in the abandoned appeal (Moss v. Lingley, trustee, Appeals Ct. Case No. 2018-P-1535), it may well be barred by the Trust's failure to prosecute that appeal - a question for the Appeals Court to decide. As previously noted, because the law requiring trusts to have counsel is so longstanding and well-settled, I do not believe that this new appeal has any merit, but that too is for the Appeals Court to determine should the Trust elect to pursue the appeal.

SO ORDERED.