GRAEME D. FISHER, M.D., Personal Representative of the Estate of Ardell Fisher v. CAMERON A. FISHER

It is axiomatic that one cannot pursue a claim unless one has suffered a legally cognizable injury as a result of the complained-of conduct of the defendant. "To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury." Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 21 (2006), quoting Slama v. Attorney Gen., 384 Mass. 620 , 624 (1981). And so the threshold question before the court in the present case is not whether Cameron Fisher obtained title to his parents' house through undue influence, as alleged by his brother Graeme Fisher, but whether Graeme Fisher, as co-personal representative of his mother's estate, is entitled to raise the claims in this action. Primarily because I find and rule that the claims in this action - to the extent that they otherwise have any legal merit - belong to the estate of Graeme Fisher's and Cameron Fisher's father Donald, and because the personal representative of Donald's estate has chosen not to pursue the claim, this action must be dismissed.

RELEVANT PROCEDURAL HISTORY

The plaintiff, Graeme D. Fisher, filed a verified complaint in Land Court on August 11, 2017. In it, he asserted seven claims: Count I, for undue influence exerted by his brother Cameron Fisher [Note 1] over their parents Ardell and Donald Fisher; Count II, for Cameron's violation of the Massachusetts Civil Rights Act; Count III, for Cameron's breach of fiduciary duty owed to Donald and Ardell; Count IV, for rescission of the property transfer from Donald and Ardell to Cameron; Count V; for imposition of a constructive trust for Graeme's benefit; Count VI, for Cameron's unjust enrichment; and Count VII, seeking declaratory judgment that the property conveyance to Cameron was void.

On June 28, 2019, Cameron moved for summary judgment against Graeme, claiming both that Graeme could not establish standing and that he could not "establish the essential elements of the claims upon which he seeks relief[,]" namely, the undue influence claim. [Note 2] A summary judgment hearing was held before me on October 10, 2019, after which I took the matter under advisement.

FACTS

1. The plaintiff, Graeme D. Fisher and the defendant, Cameron A. Fisher are the co-personal representatives of the Estate of Ardell Manetia Fisher. [Note 3]

2. Graeme and Cameron are the children of the late Donald Fisher and Ardell Fisher. [Note 4]

3. In 1999, Donald and Ardell purchased property at 19 Weatherdeck Drive, Bourne, taking title as tenants by the entirety ("Bourne property"). [Note 5] The purchase was financed, in part, by a loan Donald and Ardell received from The Community Bank, which was secured by a mortgage on the property. [Note 6] The promissory note for the loan was signed by Donald, Ardell, and Cameron. [Note 7]

4. Donald, Ardell, and Cameron resided at the Bourne property after its purchase. [Note 8]

5. Donald and Ardell conveyed the Bourne property to Cameron, for nominal consideration, by quitclaim deed dated August 28, 2003. [Note 9] They were represented by counsel at the time of the conveyance. [Note 10]

6. At the time of the conveyance of the Bourne property to Cameron, Ardell and Donald were capable of driving, travelling, going to appointments, and shopping by themselves. [Note 11]

7. Ardell died on June 17, 2013. [Note 12] Ardell died having a last will and testament dated June 5, 2013. [Note 13] The will designated Ardell's surviving spouse as the recipient of her estate, and alternatively, if she had no surviving spouse, the will designated Graeme and Cameron as recipients in equal parts of her estate. [Note 14]

8. On January 26, 2015, a petition to probate Ardell's estate was filed in Barnstable Probate and Family Court. [Note 15] On March 27, 2015, the Probate Court entered a decree allowing Ardell's will and appointing Graeme and Cameron as co-personal representatives of Ardell's estate. [Note 16]

9. Donald died on August 8, 2016. [Note 17]

10. On September 27, 2018, Attorney Stuart Rapp was appointed by the Probate and Family Court to serve as personal representative of the estate of Donald Fisher. [Note 18], [Note 19]

11. Attorney Rapp informed the court by letter dated February 8, 2019, that he concluded "it is not now in the best interests of the Estate of Donald Fisher to intervene in the . . . Land Court matter." [Note 20]

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

Further, "a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing 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 , 714 (1991). To succeed, the party moving for summary judgment does not need to submit affirmative evidence to negate one or more elements of the opposing party's claim, but the motion must be supported by some material contemplated by Rule 56(c). Id. Although the supporting material offered does not need to disprove an element of the claim of the party who has the burden of proof at trial, it "must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.

I. THE PLAINTIFF LACKS STANDING TO PURSUE ANY OF THE CLAIMS IN THIS ACTION.

With the lone exception of the plaintiff's claim of violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§11H-11I, over which this court does not have subject matter jurisdiction, Graeme's claims are generally derivative of his claim of undue influence. He claims that Cameron unduly influenced the brothers' parents to convey their house to Cameron in 2003. Graeme's claims for rescission, breach of fiduciary duty, constructive trust, unjust enrichment, and for declaratory judgment all stem from the undue influence allegedly exercised by Cameron to get his parents to convey their home to him. All of these claims rely on the facts alleged to support the undue influence claim. The rescission claim is essentially an alternative remedy sought for the undue influence claim, and is supported only by the allegation that Cameron obtained the parents' house "by illegal and otherwise improper means," namely, his alleged exercise of undue influence. The same is true of the other claims; they are essentially alternative equiitable remedies sought, not alternative substantive claims. To the extent any of these claims require additional discussion, they are addressed below.

a. Any Claim of Undue Influence Must be Raised by the Estate of Donald Fisher

"Undue influence involves some form of compulsion which coerces a person into doing something the person does not want to do." Tetrault v. Mahoney, Hawkers, & Goldings, 425 Mass. 456 , 464 (1997). To succeed in making an undue influence claim, a plaintiff must prove that (1) an unnatural disposition was made, (2) "by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means." Howe v. Palmer, 80 Mass. App. Ct. 736 , 741 (2011) (quoting Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 , 604-605 (2009). "The party challenging the validity of the document, on the ground that it was procured and executed as a result of undue influence, bears the burden of proving the allegation by a preponderance of the evidence." Howe v. Palmer, 80 Mass. App. Ct. at 740.

The parties dispute the extent to which Cameron exerted undue influence over his parents Ardell and Donald, if he did at all. Graeme claims that his parents were elderly and susceptible to undue influence around the time they conveyed the Bourne property to Cameron, and that Cameron did exert undue influence over them by threatening, intimidating, and coercing them. [Note 21] Cameron contends that his parents lived independently, and that he contributed to the purchase of the property by contributing a portion of the down payment for the house, cosigning their home loan, and making multiple payments on the home mortgage loan. [Note 22] There are plentiful factual disputes on this issue, and it would therefore be inappropriate to decide the merits of this claim at the summary judgment stage. However, Graeme's undue influence claim fails regardless of the substantive merits of the claim, for the reasons that follow.

In order for the personal representatives of Ardell's estate (Graeme and Cameron) to make a claim on her behalf, the claim must be of the sort that survives the death of the claimant. Actions that survive death can be split into two categories, generally: those that have been found to survive at common law, and those that survive by statutory provision. Putnam v. Savage, 244 Mass. 83 , 85 (1923); G. L. c. 228, §1.

Pursuant to common law, many contractual actions will survive death of the claimant. These include claims such as contractually based G. L. c. 93A actions, Montanez v. 178 Lowell Street Operating Co., LLC, 95 Mass. App. Ct. 699 , 701 (2019); actions arising out of employment contracts, see Rendek v. Sheriff of Bristol County, 440 Mass. 1017 , 1017-1018 (2003); and malpractice actions against attorneys arising out of an existing contractual attorney-client relationship, Kraft Power Corp. v. Merrill, 464 Mass. 145 , 154, 160-161 (2013).

The Massachusetts survival statute, G. L. c. 228, §1, "provides for the survival of enumerated tort actions, '[i]n addition to the actions which survive by the common law.'" Kraft Power Corp. v. Merrill, 464 Mass. Supra, at 149-150. It provides in pertinent part that surviving actions include "[a]ctions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property[.]" G. L. c. 228, §1. A claim contesting a conveyance procured by undue influence is "in the nature of a property right and, thus, survives the contestant's death." Sheldone v. Marino, 398 Mass. 817 , 819 (1986).

However, the inquiry does not end there. In this case, Graeme has brought (inter alia) an undue influence claim in his capacity as co-personal representative of the estate of his late mother, Ardell. Even assuming the undue influence claim would survive the death of Ardell, in these circumstances the surviving claim is illusory, at least as it pertains to Ardell's estate. There is no property interest in the Bourne property for the benefit of Ardell's estate that would survive Ardell's death, even in the absence of the conveyance of the Bourne property to Cameron. Ardell and Donald owned the property as tenants by the entirety. It is axiomatic that where property is held in tenancy by the entirety, "each holder of the tenancy by the entirety has an indestructible right of survivorship." Bakwin v. Mardirosian, 467 Mass. 631 , 636 (2014). Should one of the tenancy holders of the property die before the other, the surviving tenant by the entirety becomes the sole owner of the property. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145 , 150 (1993).

"If the tenancy is ended by the death of one spouse, that spouse's interest is wholly terminated and does not become part of his or her estate." In re Snyder, 213 B.R. 437, 442 (1999) (emphasis added). That is, a property held in tenancy by the entirety does not become part of the estate of the first tenancy holder to die, and never passes through that person's estate - rather, it immediately becomes the property of the surviving holder of the tenancy by the entirety. Id.

Had Ardell died never having conveyed the Bourne property to Cameron, Donald as surviving tenant by the entirety would become the sole owner of the property upon Ardell's death. The property would not become a part of Ardell's estate, and her estate therefore would have no claim to it. Effectively, Ardell's estate would be the same whether she and Donald had conveyed the Bourne property to Cameron or they had not. In neither case would her estate include any interest in the Bourne property. Since the property would not pass to Ardell's estate had she continued to hold ownership at the time of death, her claim for undue influence (as her other claims related to the alleged improper deprivation of the property) follows the rights of ownership of the property. In this case, whatever claims Ardell and Donald had related to the property at the time of Ardell's death became solely Donald's claims upon Ardell's death.

b. Graeme Lacks Standing to Assert the Present Claims on Behalf of Either of his Parents' Estates.

Notwithstanding that his undue influence claim on behalf of his mother's estate is illusory, since the estate has no standing to make such a claim, Graeme additionally lacks standing to assert this claim, on behalf of either of his parents' estates.

Graeme brings this action "as Co-Personal Representative of the Estate of Ardell Fisher[.]" [Note 23] However, in these circumstances Graeme cannot proceed alone to pursue this claim where there is another co-personal representative of his mother's estate. When there are co-personal representatives of an estate, "the concurrence of all is required on all acts connected with the administration and distribution of the estate" unless the will provides otherwise. G. L. c. 190B, §3-717. Ardell's will echoes the statutory rule of practice, stating that, "If there are two co-executors serving, they shall act by unanimous agreement." [Note 24] Therefore, Graeme would need to pursue this claim with the agreement of Cameron - which is plainly absent here. Graeme contends that to require assent of an allegedly wrongdoing co-personal representative in these circumstances would be contrary to the intent of the statute. That argument, while appealing, does not give the court the authority to proceed where both co-representatives do not agree to pursue a claim. Graeme's remedy is in the Probate and Family Court, where he could seek to have Cameron removed as co-representative. In any event, it is unnecessary to determine the merits of this argument. Even if Graeme were correct and could proceed unilaterally on behalf of his mother's estate, Graeme would nonetheless have no claim to make. As discussed above, his undue influence claim on behalf of his mother's estate is illusory.

The claims in this action, to the extent they are otherwise actionable, belong to the estate of Donald Fisher. Graeme is also not in a position to bring an undue influence claim on behalf of his father's estate. Survivorship is a fundamental feature of the tenancy by the entirety. If undue influence were exerted on Ardell (and Donald), Donald would lose his own survivorship interest in the Bourne property. This would give him standing during his lifetime to bring an independent claim of undue influence against Cameron. To the extent Ardell was the victim of undue influence, upon her death, her estate had no claim because Donald was the surviving joint tenant. It is undisputed that Donald brought no such claim during his life after Ardell died. Any claim Donald possessed passed to his estate, and to the representative of his estate, upon his death. Graeme appears to have acknowledged the validity of this conclusion when he asked the Probate and Family Court to appoint him as personal representative of Donald's estate so that he could pursue the claims in this action. The Probate and Family Court denied Graeme's petition, and as a result neither Graeme nor Cameron is the personal representative of Donald's estate; that responsibility belongs to Attorney Stuart W. Rapp, who was subsequently appointed as the personal representative of the estate of Donald Fisher.

Attorney Rapp appeared before the court at a status conference on January 31, 2019 and was given an opportunity to file a motion intervene in the present action on behalf of Donald Fisher's estate and, by a letter dated February 8, 2019, declined to do so. [Note 25] Graeme may not circumvent that decision by attempting to fashion his own standing on behalf of the estate of his mother Ardell.

II. REMAINING CLAIMS

In addition to the reasons stated above, the remaining claims fail for other reasons. Graeme's claim for breach of fiduciary duty fails, because he has not established that Cameron was a fiduciary for his parents. "Ordinarily, family relations do not suffice to create a fiduciary duty relationship that heightens scrutiny for fraud or undue influence." Cleary v. Cleary, 427 Mass. 286 , 292-293 (1998). A fiduciary relationship "does not arise merely by reason of family ties" but requires "evidence indicating that one person is in fact dependent on another's judgment in business affairs or property matters." Markell v. Sidney B. Pfeifer Found., Inc., 9 Mass. App. Ct. 412 , 444 (1980). It is undisputed that Ardell and Donald obtained counsel to assist in the conveyance of the Bourne property to Cameron; that in their later years, Ardell and Donald were able to drive, travel, and go places on their own; and that Ardell and Donald did not have any health problems that would have prevented them from competently signing documents at the time of the conveyance to Cameron. [Note 26] On the undisputed facts before me, and drawing every reasonable inference in favor of Graeme, the party opposing summary judgment, there is insufficient evidence to suggest that Cameron owed a fiduciary duty to his parents. There is no plausible claim that he breached a fiduciary duty owed to them.

Graeme's request for imposition of a constructive trust is likewise a request to impose an alternative equitable remedy for Cameron's alleged conduct constituting undue influence. "A constructive trust is a flexible tool of equity designed to prevent unjust enrichment resulting from . . . mistake, or 'other circumstances' in which a recipient's acquisition of legal title to property amounts to unjust enrichment." Maffei v. Roman Catholic Archbishop, 449 Mass. 235 , 246 (2007). See also Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781 , 789 (1994) ("Under Massachusetts law, a court will declare a party a constructive trustee of property for the benefit of another if he acquired the property through fraud, mistake, breach of duty, or in other circumstances indicating that he would be unjustly enriched."), and Foster v. Hurley, 444 Mass. 157 , 168-169 (2005) (A constructive trust may be imposed as an equitable remedy in order to avoid unjust enrichment in cases of fraud or violation of a fiduciary duty).

Where, as here, the claim of undue influence fails as a matter of law because the plaintiff does not have standing to raise it, or where there is no actionable evidence of fraud or breach of a fiduciary duty (because no such duty is shown to exist), the constructive trust claim fails as well. The same is true of the claims for rescission, unjust enrichment, and for declaratory judgment. They are alternative forms of equitable relief sought in tandem with the undue influence claim. Because the undue influence claim fails, these claims for equitable relief on the same basis also fail. Certainly it would not be equitable to award title to the estate of Ardell Fisher, as Cameron urges the court to do, where Ardell's estate never could have had any interest in or claim to the Bourne property.

Graeme's claim for violation of the Massachusetts Civil Rights Act ("MCRA") is not properly before me, as this court does not have subject matter jurisdiction to hear claims for monetary damages not involving a claim of right, title or interest in land, and therefore it will be dismissed on that basis.

CONCLUSION

For the reasons stated above, the defendant's motion for summary judgment is ALLOWED. Judgment will enter accordingly.