Home ROSEMARIE MURPHY and MARY BOOGAARD, Plaintiffs v. ELIZABETH L. BAGNI, INDIVIDUALLY AND IN HER CAPACITY AS Trustee of The 34 Douglas Avenue Trust, and RICHARD J. BAGNI, d/b/a Jodi General Contractors, Defendants

MISC 20-000423

OCTOBER 16, 2020




This action, filed with this court on October 8, 2020, is a dispute concerning the management of a trust. The claims in the complaint are identical to those in a previous case between the same parties that was dismissed by the court on January 4, 2019. The plaintiffs allege that they are beneficiaries of a trust of which the defendant Elizabeth Bagni is trustee. They allege mismanagement of the trust, and seek, in Count I, an accounting; in Count II, removal of the trustee; in Count III, a declaratory judgment ordering a division of the assets of the trust; in Count IV, a reformation of the trust; and in Count V, damages and equitable relief for trespass by the defendant Richard Bagni.

"Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Mass. R. Civ. P. 12 (h) (3). The court may raise lack of subject matter jurisdiction sua sponte. See Abate v. Fremont Investment & Loan, 470 Mass. 821 , 828 (2015). The Land Court has jurisdiction over, among other things, "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts." G. L. c. 185, $ 1(k).

In the present case, however, with only the possible exception of the claim for equitable relief for trespass in Count V, the dispute concerns allegations of mismanagement and breach of fiduciary duties by a trustee to the beneficiaries of a trust. None of these claims involve a dispute concerning a right, title or interest in land. Count V, alleging trespass, sounds in tort, and similarly is not a claim involving a right, title or interest in land, except to the extent it seeks injunctive relief. These issues, with the sole exception of Count V, do not "implicate any special expertise of the Land Court." Steele v. Kelley, 46 Mass. App. Ct. 712 , 725 (1999).

Furthermore, these same allegations, between the same parties, were the subject of Murphy, et al., v. Bagni, et al., 16 MISC 000462. That case was reported to the court as settled, and the court issued a nisi order. After three extensions of the nisi order, with the parties neither seeking another extension nor filing a stipulation of dismissal or agreement for judgment, the court ordered the dismissal of the case on January 4, 2019. Pursuant to Mass. R. Civ. P. 41(b)(3), that dismissal "operate[d] as an adjudication on the merits."

Therefore, it is

ORDERED that the plaintiffs shall appear before the court by videoconference on Thursday, December 3, 2020 at 10:00 A.M. to show cause why this action should not be dismissed, and plaintiffs shall file any written material concerning this matter with the court no later than November 25, 2020. It is further

ORDERED that plaintiffs shall serve a copy of this Order on the defendants no later than October 30, 2020.

So Ordered.