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COMMONWEALTH OF MASSACHUSETTS. APPEALS COURT. No. 2005-P-1712. Bristol County Division. Dorothy Moreau, Manuel DeAmaral, v. George DeAmaral and Mabel A. DeAmaral, Defendants-Appellants.
ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT DEPARTMENT. Brief for the Defendants-Appellants,
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| Edward F. Grourke |
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| i. Table of Contents. Statement of the Issues Presented For Review...........................................................................1 Statement of the Case...............................................................................................................2 Statement of the Facts.............................................................................................................16 Argument
Conclusion..............................................................................................................................49 Addendum.......................................................................................................................... post Statutory and Rule Addendum.............................................................................post Addendum Certification........................................................................... post Statutory and Rule Addendum ii. Table of Authorities. Cases. Adoption of Astrid, 45 Mass. App. Ct. 538, 547 (1998).......................................................28 Barry v. Covich, 332 Mass. 338, 342-343 (1955)..........................................................34; 35 Binder v. Binder, 7 Mass. App. Ct. 751, 755 (1979)............................................................29 Blackwell v. E.M. Helides, Jr., 368 Mass. 225, 226 (1975).................................................29 Bowman v. Heller, 420 Mass. 517, 522 n.6 (1995)..............................................................30 Brown v. Little, Brown and Company, 269 Mass. 102, 117 (1929)....................................36 Busiere v. Reilly, 189 Mass. 518, 519-521 (1905)..........................................................44-45 Cann v. Berry, 293 Mass. 313, 317 (1936)..........................................................................33 Ciarlo v. Ciarlo, 244 Mass. 453, 456 (1923).................................................................35; 42 Custody of Eleanor, 414 Mass. 795, 799 (1993).................................................................29 Danca v. Taunton Savings Bank, 385 Mass. 1, 8 (1982)....................................................34 Demoulas v. Demoulas Super Markets, Inc., Druker v. Druker, 308 Mass. 229, 230-231 (1941)............................................................36 Felton v. Felton, 383 Mass. 232, 239 (1981).....................................................................28 Foster v. Hurley, 444 Mass. 157, 168 (2005)....................................................................36 Greenfield Country Estates Tenants Association, Inc. v. Deep, Guardianship of Clyde, 44 Mass. App. Ct. 767, 774 (1998)..............................................28 Hall v. Horizon House Microwave, Inc., iii.
Hazleton v. Lewis, 267 Mass. 533, 538 (1929)......................................................35; 36; 44 Kaltsas v. Kaltsas, 22 Mass. App. Ct. 689, 691 (1986) ....................................................34 Kelly v. Kelly, 358 Mass. 154, 156 (1970)..................................................35; 36; 40; 42-43 Kerrigan v. Fortunato, 304 Mass. 617, 620 (1939)...........................................................36 Krokyn v. Krokyn, 378 Mass. 206, 208 (1979)..................................................................28 Lighter v. Lumbermans Mutual Casualty Insurance Company, Malone v. Walsh, 315 Mass. 484, 490 (1944).....................................................................29 Meskell v. Meskell, 355 Mass. 148, 150 (1969)................................................35; 35; 40; 44 Miles v. Edward O. Tabor, M.D., 387 Mass. 783, 785-786 (1982)....................................47 National Medical Care, Inc. v. Ziegelbaum, Nessrella v. Peck, 403 Mass. 757, 762-763 (1989) ...............................................34; 35; 44 Newburyport Soc'y For the Relief of Aged Women v. Noyes, Nile v. Nile, 432 Mass. 390, 401-402 (2000) .....................................................................34 Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., Ranicar v. Goodwin, 326 Mass. 710, 713 (1951).........................................................35; 44 Robertson v. Gaston Snow & Ely Bartlett, Rood v. Newberg, 48 Mass. App. Ct. 185, 190-191 (1999)..........................................29; 36 Sanguinetti v. Nantucket Construction Co., Inc., Schuler v. Schuler, 382 Mass. 366, 368 (1981)...................................................................28 iv. Simon v. Weymouth Agricultural & Industrial Soc., Snyder v. Sperry & Hutchinson Co., 368 Mass. 433 (1975)...............................................34 Stapleton v. Macchi, 401 Mass. 725, 728 (1988)...............................................................47 State Street Bank & Trust Co. v. Beal Swinton v. Whitinsville Sav. Bank, 311 Mass. 677 (1942).................................................36 Toy v. Green, 319 Mass. 354, 360 (1946)..........................................................................36 Turnpike Motors, Inc. v. Newbury Group, Inc., Zimmerman v. Kent, 31 Mass. App. Ct. 72, 78-79 (1991)................................................34 Other Authorities Mass. R. Dom. Rel. P. 52(a)...............................................................................................28 1 Statement of the Issues Presented for Review. 1. Whether the trial judge erred on this record by adopting in his decision the jury's factual determination that either one or both of the defendants-appellants had committed fraud when they received title to the property at 88 Salisbury Street in Rehoboth in 1989? 2. Whether the lower court erred in denying the defendants-appellants' motions for a directed verdict and for judgment notwithstanding the jury's verdict? 3. Where the decisional law of this Court has unambiguously held that a refusal to carry out an oral promise to convey real estate does not, standing alone, constitute fraud, did the lower court err in adopting the jury's verdict which rested precisely on the premise that such a refusal, standing alone, does constitute fraud? Statement of the Case. On March 31, 1951, Manuel DeAmaral and his wife Mary C. DeAmaral acquired from Manuel's parents title to approximately thirty-five (35) acres of land located at 88 Salisbury Street in Rehoboth, Massachusetts (“the Farm”) (A.10;70;34-35). The property contained a dwelling (“the farmhouse”), had been in the DeAmaral family since 1908 and was operated as a family farm during that time (A.10). During the course of their marriage and by the time they acquired the Farm in 1951, Manuel and Mary had eight children, all of whom worked on the family farm while growing up (A.35;Tr.1:38-39;2:76-77). The eldest child is George DeAmaral (“George”), born in 1936(Tr.2:184-185). The next seven in descending order of age are Lillian Pierce (“Lillian”); Daniel DeAmaral (“Daniel”); Dorothy Moreau (“Dorothy”); Elizabeth Ireland (“Elizabeth”); Manuel DeAmaral (“Manuel Junior”); Patricia Rodriquez (“Patricia”); and Joseph DeAmaral (“Joseph”), born in 1951 (A.35; Tr.1:37-38;2:15). In 1966, Manuel and Mary for nominal consideration deeded a small portion of the Farm fronting on Salisbury Street “a little ways” down from their farmhouse to Elizabeth and her husband so that they could build a home there (A.70-71;Tr.2:78-79). The parcel was less than an acre but good, flat land for building(Tr.2:83-84). On March 17, 1971, Manuel and Mary for nominal consideration then deeded a larger tract of land (about five acres) further down Salisbury Street to his oldest son George and his wife, Mabel Ann DeAmaral (“Ann”) as tenants by the entirety (A.73;Tr.2:82-82;191-192).
George and Ann built their home on this parcel and have lived there ever since with their children (Tr.2:191-192). Elizabeth and her husband sold their smaller parcel to a third party in 1978 and moved to Maine where they still live (Tr.2:75; 84). On July 3, 1981, Manuel and Mary executed a will which inter alia acknowledged all of their eight children “whom [they] had amply provided for during [their] life-time”(A.75). Besides giving all of their property to the other and nominating him/her the executor/executrix in the event one of them predeceased the other, their will further provided that:
(A.75). Finally, they appointed George together with their oldest daughter Lillian to be the executors of their will (A.75). On March 23, 1989, Manuel and Mary met with an attorney and for nominal consideration then conveyed the entire remaining part of the Farm including the farmhouse to George and his wife Ann as tenants by the entirety (A.77-78). This conveyance expressly included all of the premises conveyed to Manuel and Mary in 1951 but expressly excepted those two parcels which they had already conveyed out to Elizabeth and her husband in 1966 and to George and Ann in 1971 (A.77). At the time, Patricia, the youngest daughter of Manuel and Mary, was living in the upstairs apartment at the farmhouse with her daughter; and she remained in the farmhouse but began to pay rent to George and Ann (Tr.2:123;126;133-134;272;276). After the conveyance, Manuel and Mary continued to live in the farmhouse but George alone maintained the property, paying the property taxes and insurance as well as dedicating the rent money to pay the utilities(electric and oil heat)(Tr.2:262-265).
Manuel died in 1990 and by 1993, Mary suffered a broken her hip, making the family's care for her difficult at the farmhouse and requiring her residence in a nursing home where she lived until her death in 1999 (Tr.2:170-171). In the aftermath of Mary's death, each of the eight children were given the proceeds of passbook savings accounts maintained for their benefit by Manuel and Mary during their lives; each of them received between $30,000 and $35,000 from these accounts. However, based upon some of the DeAmaral children's expectation that George and Ann were now under a duty either to divide the Farm among the six children who had not received any of the property during their parents' lives or to sell it and then divide the proceeds in some manner which would benefit them, they brought suit against George and Ann in the Bristol Division of the Superior Court Department on November 14, 2001 (A.1-4;9-17). The five plaintiffs-appellees are Dorothy, Daniel's surviving spouse Brenda DeAmaral, Manuel, Patricia, and Joseph (“the Children”)(A.9-10).
Neither Elizabeth nor Lillian chose to participate in this litigation. Elizabeth concluded that she had already received her share of the Farm in 1966, a parcel which she and her husband eventually sold in 1978 before moving to Maine (Tr.2:105-108). As for Lillian, she never expected George and Ann to divide the Farm upon the passing of both their parents (Tr.2:245-246). As she tes-tified, if Manuel and Mary decided to deed the entire Farm to George and Ann, that was their decision and she had no objection to it (Tr.2:246). She therefore chose not to become involved in this litigation (Tr.2:249). In their first amended complaint, the Children alleged that Manuel and Mary deeded the property to George (and Ann) in 1989 only “because he was their eldest son” and that it was really their parents' intention that upon the death of the last surviving parent, George would sell the property “and equally distribute the proceeds among the five (5) Plaintiffs and their sister, Lillian Pierce”(A.11). According to the Children's allegations, George and Elizabeth were not to partake in this distribution as each of them had previously been provided with other property by their parents on which to build their homes (A.11).
Moreover, the Children alleged that “[t]hroughout the two (2) decades preceding the death of Mary,” George repeatedly advised the Children that he held title to the Farm in name only and that he would carry out his parents' intention that the proceeds from the sale of the Farm following their deaths be distributed to the six (6) siblings (A.11). Claiming that since Mary's death in 1999, George has made no attempt to sell the Farm and that, contrary to his earlier representations to them, now maintains that he owns the Farm in fee simple with no duty to make any distribution at all, the Children sought a declaratory relief and damages in seven counts (A.12-17). In Count I, they alleged that their parents in deeding the property to George and Ann in 1989 for nominal consideration intended that George and Ann would hold the Farm in trust until the last of the parents died, then distributing the proceeds from the sale to the six siblings; that there was created a fiduciary duty on the part of George and Ann to do so; and that they breached this duty by inter alia committing waste and by refusing to make this intended distribution (A.12). They asked for a judgment imposing a constructive trust upon the Farm in their favor (A.12). Count II sought an award of damages for the breach of this fiduciary duty by George and Ann (A.13).
Counts III and IV characterized this alleged duty of George and Ann to make such a distribution as one founded upon an express agreement between them and the Children or as one based upon the doctrine of promissory estoppel, seeking damages for its breach (A.13-15). Count V alleged that George and Ann had committed fraud by refusing to make a distribution to the Children consistent with their parents' supposed intention when they made the 1989 conveyance (A.15-16). Count VI claimed that it would be un-just to allow George and Ann to retain the benefits of their fee simple ownership of the Farm when that own-ership is in derogation of their rights; and Count VII alleged that George and Ann had committed waste of the Farm by encumbering it with a mortgage (A.16-17). A jury trial was claimed (A.17). In their answer, George and Ann admitted most of the facts already adverted to herein concerning their ownership of the Farm; but they denied that they had ever told any of the Children that a distribution from the proceeds of a sale of the Farm would be made following the death of their parents or that they were liable for on any theory for their failure to do so (A.5;18-23). In affirmative defenses, George and Ann further asserted, among other things, that the complaint fails to state a claim upon which relief may be granted; that the action is barred by the Statute of Frauds; and that they had failed to plead fraud with sufficient particularity (A.18-19). They also claimed a jury trial on all issues so triable (A.23). With the matter in this posture and after some discovery, this action came on for a three-day trial in the Superior Court Department before Moses, J., and a jury, beginning on May 31, 2005 (A.5-6;69-86;Tr.1:1-68; 2:1-299;3:1-69;4:1-5). At a lobby conference before trial and at the close of their evidence at trial, the Children waived any claims for relief based upon breach of contract by George and Ann or upon any breach of a fidu-ciary duty by them (A.34-35;37;Tr.2:235-236). Instead, the Children submitted their case to the jury on the sole claim of whether there was fraud committed by George and Ann sufficient to impose a constructive trust upon them in order “to undo the unjust enrichment of the defendants and to effectuate the intent of the parents to form a trust relationship for the benefit of the siblings” (Tr.2:236).
As for the alleged fraud committed by George and Ann necessary to support imposing a constructive trust upon their ownership of the Farm, both the Children and the trial judge relied not upon any writing by George and Ann promising to sell the Farm and make a distribution of the proceeds to the siblings after both parents had died but rather upon “verbal communications between the parties that title was taken [to the Farm by George and Ann] based upon misrepresentation”(Tr.2:237). In denying George and Ann's motion for a directed verdict at the close of the Children's evidence based upon the Statute of Frauds and the Children's failure to prove any actionable fraud to support imposing a con-structive trust, Judge Moses ruled that
(Tr.2:237-239). At the close of all the evidence, George and Ann renewed their motion for a directed verdict which the trial judge again denied (Tr.3:30-31). In his instructions to the jury on fraud, Judge Moses defined its five elements and then twice told the jury that
(Tr.3:62). Accordingly, he framed the special question for the jury to decide in this way: Was the legal title of the defendants in 88 Salisbury Street, Rehoboth, obtained by fraud on the part of either or both of the defendants?(A.35;Tr.3:63). An hour later, the jury returned asking for a legal definition of fraud (Tr.3:66). The trial judge repeated the definition he originally gave together with his statement that one who obtains a deed by false and fraudulent representations that the deed would not deprive the owner of the right to transfer the property or to have it transferred later pursuant to the owner's wishes becomes a constructive trustee and is obligated to reconvey the property (Tr.3: 67-68). At mid-morning the next day, the jury returned with a verdict which answered “Yes” to the special question posed it (A.35; Tr.4:4). With the jury having responded to the special ques-tion, Judge Moses issued his memorandum of decision and judgment on June 8, 2005 (A.6; 34-40). He adverted to the Children's duplicative testimony about their conversa-tions with Manuel and Mary during their lives about dividing up the Farm among all the children once they were gone; and he referred to the Children's other conversations with George after the 1989 conveyance wherein he is alleged to have said that even though he and Ann now owned it outright as tenants by the entirety, the six children who had not received any land would determine what to do with the Farm once both their parents had passed away (A.36).
Except for an indirect reference to George's proof which rebutted all the Children's testimony, the trial court did not mention it at all. It minimized entirely the testimony of the most disinterested witness at trial, Attorney Kelley, who presided over the 1989 conveyance of the Farm from Manuel and Mary to George and Ann (A.36-37). According to the lower court, the attorney testified that “Manuel had indicated that he wanted the deed transferred to George's name...”(A.36-37). Yet the attorney's unqualified testimony showed that Manuel and Mary, both smart and independent persons, wanted the deed to convey title to both George and his wife Ann as tenants by the entirety and that Manuel was insistent that the deed mirror the one given him and Mary when they acquired the Farm as tenants by the entirety in 1951. The trial judge also found that “although Manuel and Mary would live in the Farm for their lifetime, the deed was not to reflect same”(A.37). However, the attorney testified with clarity that during the drafting and execution of the deed, Manuel and Mary repeatedly refused to have a life estate in the Farm; and they both wanted George and Ann to own the Farm outright, just like they had owned the Farm since 1951. Nor was it true, as the lower court found, that Attorney Kelley “did not recall” discussing any responsibility on the part of George or Ann to distribute the Farm to George's siblings after Manuel and Marry had passed away (A.37). Instead, it was the attorney's unqualified testimony that he received no instructions from either Manuel or Mary on this score (A.37). Finally, the trial judge completely overlooked the testimony of Ann when he found that only George and Attorney Kelley were present at the execution of the deed (A.36). In his rulings of law, Judge Moses repeated his earlier statement to the jury that one who obtains a deed to real estate by false and fraudulent representations to the owner that the deed would not deprive the owner of the right to transfer the property or have it transferred pursuant to his wishes, becomes a constructive trustee and is obligated to reconvey the property (A.38). Since the Children's testimony about their conversations with Manuel and Mary before and after the conveyance and with George as well concerning George's duty to divide the Farm up among the six children were at odds with the testimony of George and Ann (as well as Attorney Kelley) about the conveyance itself and the nature of the conversations with the Children, “there was a clear conflict in the testimony which required a determination by a jury”(A.38).
(A.38-39). The lower court thereupon declared that George and Ann now own the Farm as constructive trustees for the benefit of the Children as well as for Lillian Pierce (A.39). It further ordered George and Ann to issue a quitclaim deed transferring all of their right, title and interest in the Farm to each of six siblings with each to hold an unencumbered, undivided one-sixth interest in the Farm (A.39-40). A judgment entered consistent therewith on June 9, 2005 (A.7;41). Following the denial of their post-trial motion for a judgment in their favor notwithstanding the jury's verdict, George and Ann have now prosecuted this appeal (A.7-8;42-66;67). Statement of the Facts. The gist of the Children's testimonial proof in support of their claim that a constructive trust should be imposed upon George and Ann was three-pronged: (1) that their conversations with their parents Manuel and Mary through the years indicated to them that the Farm would be divided up at some point in time after their deaths so that all the children would share equally in the property; (2) that their serial conversations with George after Manuel and Marry had conveyed to him and Ann ownership of the Farm in 1989 indicated that George would either sell the property and distribute the proceeds to each of the six children who had never received any land or let the six children decide what they wanted to do with the Farm; and (3) that Manuel and Mary's 1981 will indicated their intent that each child was to share equally in their parents' estate, including the Farm, upon their passing.
Thus Manuel Junior testified that upon his return to the Farm in 1988 and nearing completion of a 17-year career in the military, his father asked him to take the Farm in his name and run it (Tr.1:48-49). When he refused the offer because he didn't want to be a farmer, his father told him that it didn't matter, that his will would show everybody what he wanted and it would “explain everything” about how the land was to be divided among the children when he and Mary passed away (Tr.1:50-51; 2:9). When he found out later that George and Ann owned the property outright and were refusing to divide it up as his father had told him would be done, it bothered him because “if my father told me one thing and told my brother the same thing, [then] my brother should be carrying out his wishes ...”(Tr.1:67;2:8). He admitted, however, that his parents' 1981 will never addressed a division of the Farm specifically; and he could not explain how the will's treatment of eight (8) children should govern a division of property where now only six (6) children are the presumptive recipients (Tr.2:9-10). Joseph never discussed with his parents their intentions for the Farm (Tr.2:17;21). However, he knew from his discussions with his sisters that once their mother Mary passed away, the land would be divided up and distributed to those children that didn't already receive any land (Tr.2:20;21). Daniel testified through an earlier deposition introduced at trial that he found out from his sister Patricia in 1989 that George had become the owner of the Farm (Tr.2:36-37). According to Daniel, when he met with George soon thereafter; George told him not to worry because he was going to sell the Farm after both parents had passed away and the proceeds would be divided up “amongst those who didn't get their share”(Tr.2:38;63-65). When Daniel asked George what would happen if he died in the meantime, George responded that Ann would own the property (Tr.2:39-40). Daniel wanted some document to avoid that event and, according to Daniel, George pro-mised to take care of it (Tr.40-41).
When most of the siblings, including George, met in 1993 at the Farm to discuss the funding of Mary's imminent nursing home care, George stated that he would not sell the Farm; and Daniel assumed from this that George was going to wait until Mary had passed away before selling the property and dividing it up (Tr.2:43-44). He also testified that his father Manuel told him on more than one occasion that when he and Mary passed away, the Farm would be sold and divided “amongst the ones who didn't get their share”(Tr.2:47). While Daniel thought that George should pay all the taxes, insurance and main-tenance expenses while holding the Farm for their benefit until Mary died, he did not expect to reimburse George for these sums since he supposed that George was not spending his own money on these costs (Tr.2:67). Elizabeth, like Manuel Junior, pointed to their father's statements about his will as reason for her thinking that the Farm would be divided up by its executors (George and Lillian) for each of the children (Tr.2:94-95;97). Manuel told her that every child was going to receive a share and since she had already received her share (in 1966), she was not part of this lawsuit (Tr.2:105). Patricia has been living in the upstairs apartment at the farmhouse since the late 1980's (Tr.2:123). She wanted to buy the farmhouse from her parents; Manuel told her that when he and Mary passed away, everything will be divided up anyway and that he wanted the Farm to remain in one of his son's name so that the DeAmaral name stayed with the Farm (Tr.2:127-128;131;142). When she discovered that they had deeded the Farm to George and Ann in March of 1989, she became upset (Tr.2:130). Mary told her George would “take care” of the Farm and probably divide the property upon their passing so she shouldn't worry about it (Tr.2:131;145). Patricia stated that George told her that she didn't have to move and that once Manuel and Mary passed on, the six siblings would ultimately decide what to do with the Farm (Tr.2:133;143;147).
Dorothy refused Manuel and Mary's offer of a parcel of land on the Farm when she was at first unable to build on a small parcel she had purchased nearby in Rehoboth (Tr.2:152-153). She did eventually build a home there and when she visited with her father at the Farm, he told her that he wanted to keep it in the DeAmaral name, that it probably would be divided once he and Mary were gone and “shared amongst those who didn't get any property,” i.e., among the six siblings (Tr.2;156-157;167-168;176). She claimed her conversations with George led her to believe that once their parents had passed on, George would divide the Farm up or let the six siblings decide what to do with it (Tr.2:160;176;181-182). According to Dorothy, after the Farm was deeded to George and Ann as tenants by the entirety in 1989, George was supposed to take care of the property, pay all the bills, watch over it, maintain it and then upon their parents' passing, make arrangements to divide it among his six siblings, not including himself (Tr.2:176). George was called by the Children and testified that when he returned to Massachusetts from 4 years of service in the Air Force in 1959, he rented an apartment with his wife Ann in Seekonk and then moved to Attleboro (Tr.2: 186). As Manuel approached retirement, he asked his father for a parcel of the Farm's land on Salisbury Street down from the farmhouse on which to build a home (Tr.2:188-189). Manuel and Mary offered him the parcel and told him that if he didn't want it, they were going to give it to Manuel Junior(Tr.2:189-190). The conveyance took place in 1971 and he and Ann have lived there ever since (A.73;Tr.2:191-192).
In 1988, Manuel began discussing with George his intentions about the Farm, telling him that he wanted to put the Farm in George's name (Tr.2:201-202). George was skeptical; the other siblings would not like the idea (Tr.2:202;204). But Manuel told him that none of his siblings wanted the Farm, that they were interested in money and that he and Mary had already been provided for each of them with passbook accounts (Tr.2:202-203). In 1989, Manuel called George and Ann over to the farmhouse and began to discuss the conveyance again (Tr.2:205). When George asked him whether he had told the other children about this yet, Manuel became angry and stated that “this is my place...I can give it to whoever I want...I don't have to check with my children”(Tr.2:206). As far as what George would do with the Farm when he didn't want to own it anymore, Manuel suggested that George give it his own sons or “do anything you want with it”(Tr.2:206). Manuel concluded: “After I sign it to you, it's yours”(Tr.2:206-207). In addition, Manuel wanted to sign it over to George the way it was signed over to him in 1951, i.e., to him and his wife Mary as tenants by the entirety (Tr.2:208). As Mary told Ann that day, “[o]nce this is signed over to you and George, if anything happens to George, this place is yours”(Tr.2:208). At Manuel's instructions, George called a lawyer (Edward J. Kelley, Esq., who had helped George in 1971 with his house lot) to make an appointment (Tr.2:209;210). On March 23, 1989, the four went to Attorney Kelley's office where Manuel and Mary first met privately in a conference room with the attorney for about 30 minutes while George and Ann waited outside (Tr.2:210; 213). Attorney Kelley then came out of the room with Manuel and Mary and asked George to explain again to Manuel that he could reserve a life estate in the Farm for himself and Mary or he could make an outright conveyance (Tr.2:213-214;215-216). George asked Manuel if he understood; Manuel was adamant that he did understand and he wanted the deed to be just like his 1951 deed (Tr.2:215-217). The deed was then drafted and signed (Tr.2:217-218).
George denied that he had ever told Patricia that he would divide up the Farm among the six siblings once their parents had passed on; he only told her, at Manuel's suggestion, that she would have to start paying rent (Tr.2:220). He further denied having any conversa-tions with Daniel or Dorothy or with any other sibling about dividing up the Farm (Tr.2:221;233-234). He always told them upon their inquiry that he didn't know what he was going to do with the Farm and that he wasn't “doing anything with it right now” (Tr.2:222). He reiterated this thought at the 1993 family meeting about Mary's impending residence in a nursing home (Tr.2:225). He and Lillian were eventually able to obtain full Medicaid eligibility for Mary's nursing home expenses (Tr.2:226). Following the denial of George and Ann's motion for a directed verdict, Lillian testified in their defense that she lived in the upstairs apartment of the farmhouse with her children for about 50 years before moving to Seekonk (Tr.2:241). She had no conversations with her parents about the disposition of the Farm except for one instance after she had moved to Seekonk when Manuel told her that “he was going to give [the Farm] to George as long as Pat could stay living there”(Tr.2:242). She was never aware of any scenario whereby the Farm was supposed to be sold or divided upon her parents' passing (Tr.2:245-246). She did remember Dorothy saying that it “wasn't fair for George to get everything”(Tr.2:248).
Upon being recalled, George testified that at no time did Manuel ever tell him that he was to hold the Farm only until Manuel and Mary passed away and then was to sell it and divide the proceeds among the other children (Tr.2:260-261). He understood the conveyance to him and Ann as a completed transfer, not one whereby he was to hold the property in trust for anyone else (Tr.2:261). If his father had wanted that, he would have told him and Attorney Kelley to make the deed out that way (Tr.2:261-262). The only thing Manuel did mention to George was to let Patricia continue to live in the farmhouse while paying rent (Tr.2:272). Once again, he denied telling Patricia anything about dividing the Farm up among the six siblings upon their parents' passing; and he denied telling Daniel that he did not want to own the Farm (Tr.2:277; 287). Ann next testified and corroborated in every essential respect George's testimony about how they came to own the Farm(Tr.2:291-294). Finally, Attorney Kelley testified that on March 23, 1989, he met with Manuel and Mary alone in his conference room (Tr.3:5-6). He explained to them that by signing the deed, they were giving up all of their right and title to the Farm (Tr.2:6;11-12;26). Both replied: “We want George to have the property” (Tr.2:6;26). Neither one mentioned deeding the Farm to anyone else other than George and Ann; nor did they say anything about what should happen to the Farm after they died (Tr.2:6;27). Because they intended to live on the Farm after the conveyance, Attorney Kelley asked if they wanted a life estate (Tr.2:6-7;12). They replied that they did not; they wanted a deed just like the one they received in 1951 when they became the owners of the Farm; and they expressed their wish to have Ann on the deed before George ever came into the room (Tr.2:7;18;27). Because Attorney Kelley had mistakenly drafted “Maria” instead of “Mary” on the deed, a redrafting ensued and it was then executed by Manuel and Mary with Attorney Kelley notarizing it (A.77;Tr.2:7-9;26). The deed reflected their intentions because, as Attorney Kelley testified, Manuel
(Tr.2:9;27).
Argument. 1. The Lower Court Erred By Adopting In Its Decision The
Consistent with this scope of review, Judge Moses' findings of fact will stand unless they are clearly erroneous within the meaning of Mass. R. Civ. P. 52(a). A finding of fact is “clearly erroneous” under Rule 52(a) when there is no evidence in the record to support it. Adoption of Astrid, 45 Mass. App. Ct. 538, 547 (1998). Guardianship of Clyde, 44 Mass. App. Ct. 767, 774 (1998). Even if there is some evidence in the record to support a given finding, it still will be characterized as clearly erroneous if this Court on the entire evidence is “left with the definite and firm conviction that a mistake has been committed.” Custody of Eleanor, 414 Mass. 795, 799(1993). Rood v. Newberg , 48 Mass. App. Ct. 185, 190-191 (1999). Lighter v. Lumbermans Mutual Casualty Insurance Company, 43 Mass. App. Ct. 415, 418 (1997).
Apart from the trial judge's findings of fact, the reasonable inferences to be drawn from those basic findings of fact are open for this Court's determination and the inferences drawn by the trial court are entitled to no weight in this tribunal. National Medical Care, Inc. v. Ziegelbaum, 18 Mass. App. Ct. 570, 574 (1984) quoting from Malone v. Walsh, 315 Mass. 484, 490(1944). Accordingly, this Court may find additional facts beyond those made by the trial judge. Blackwell v. E.M. Helides, Jr., 368 Mass. 225, 226 (1975). Binder v. Binder, 7 Mass. App. Ct. 751, 755 (1979). As for the trial court's conclusions of law, this Court is not bound by them. See Simon v. Weymouth Agricultural & Industrial Soc., 389 Mass. 146, 148-149 (1993). Newburyport Soc'y For the Relief of Aged Women v. Noyes, 287 Mass. 530, 532-533 (1934). See Greenfield Country Estates Tenants Association, Inc. v. Deep, 423 Mass. 81, 82(1996). It may therefore reverse the judgment if any of Judge Moses' rulings is tainted by legal error. Bowman v. Heller, 420 Mass. 517, 522 n.6(1995). Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 659 (1984).
The inquiry, then, for this Court is whether there is any record support for the trial judge's crucial findings of fact and whether notwithstanding even some record support for those findings there arises upon a review of the entire evidence (and the reasonable inferences drawn therefrom) the firm conviction that the lower court was mistaken in finding that George and Ann committed fraud at the time of the conveyance. See Bowman v. Heller, supra. National Medical Care, Inc. v. Ziegelbaum, 18 Mass. App. Ct. at 574-575. See also Lighter, 43 Mass. App. Ct. at 419. George and Ann submit that a review of the entire record should leave this Court with such a definite and firm conviction. The factual cornerstones for the trial judge's ultimate finding that either George or Ann, or both of them, committed fraud when they received title to the Farm on March 23, 1989, were (1) the Children's testimony about what Manuel and Mary may have said to them before or after this event; (2) the conversations they may have had with George after this event; and (3) the jury's unguided determination that despite far more probative evidence to the contrary from Attorney Kelley about the conveyance which he himself superintended, all of this hearsay evidence from the Children permitted the inference of actionable fraud at the time of the conveyance by George and Ann .
None of this evidence justifies the jury's finding of fraud and it was wrong for the trial judge to adopt this finding in his decision. The jury's verdict rests on surmise and conjecture, depends upon irrelevant and immaterial hearsay having nothing to do with the convey-ance itself and ignores the most probative evidence on the issue of whether fraud was committed at the time of the conveyance. This finding of fraud is therefore without record support and cannot survive the “clearly erroneous” standard of review. Instead of showing fraud, the evidence supports the unmistakable inference that Manuel, a smart and inde-pendent man, decided sometime in 1988 to give the Farm to his eldest son George and his wife Ann in order to keep the Farm in the DeAmaral name and insure that it was maintained as he entered his last years in failing health. Manuel knew what he wanted to do, angrily telling George that it was his property and that he didn't have to check with his children for approval; and he decided to deed the Farm to George and Ann as tenants by the entirety, just the way he and Mary received the Farm from his father in 1951. When he and Ann met alone with Attorney Kelley in his office, he made his wishes clear, rejecting any suggestion of a life estate and repeating several times for Attorney Kelley in the presence of others that he “wanted George to have the Farm.” As Attorney Kelley testified without qualification, at no time during his meeting with Manuel and Ann did Manuel ever indicate to him that George was to hold the Farm in trust for anyone, including his six siblings.
None of this most probative evidence permits the inference that George or Ann committed fraud at the time of the conveyance as a matter of fact or as a matter of law and Judge Moses erred in concluding otherwise. This Court should therefore vacate and reverse the judgment below which imposes a constructive trust upon George and Ann's ownership of the Farm and enter a new judgment declaring that they own the Farm in fee simple as a result of the 1989 conveyance, dismissing the Children's complaint and providing them with such other relief as is fair and just in the circumstances. There Was No Evidence of Fraud By George or Ann At The Time Of The Conveyance. A constructive trust is a remedial device invoked by courts in order to prevent injustice, unjust enrichment or fraud. State Street Bank & Trust Co. v. Beal, 353 Mass. 103, 105 (1967). Cann v. Berry, 293 Mass. 313, 317 (1936). Sanguinetti v. Nantucket Construction Co., Inc., 5 Mass. App. Ct. 227, 236-237 (1977). It is employed in equity, in the absence of any intention by the parties to create a trust, in order to avoid the unjust enrich-ment of one party at the expense of the other where legal title to property was obtained by fraud, in violation of a fiduciary relationship or where confidential informa-tion was misused. Demoulas v. Demoulas, 428 Mass. 555, 572 (1998). Nile v. Nile, 432 Mass. 390, 401-402 (2000). Nessrella v. Peck, 403 Mass. 757, 762-763 (1989). See Barry v. Covich, 332 Mass. 338, 342-343 (1955); Kaltsas v. Kaltsas, 22 Mass. App. Ct. 689, 691 (1986).
During the trial, the Children abandoned their reliance upon an express contract and reduced their claims to just one: that a constructive trust should be imposed not because of any fiduciary or confidential relationship between the parties but solely because of the fraud committed by George or Ann in receiving title to the Farm on March 23, 1989. They were therefore bound to show by a preponderance of believable proof that George or Ann made a false statement of material fact with knowledge of its falsity for the purpose of inducing Manuel to act thereon and that he relied upon their representation as true and acted upon it to his detriment. Danca v. Taunton Savings Bank, 385 Mass. 1, 8 (1982). Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 444-445 (1975). Zimmerman v. Kent, 31 Mass. App. Ct. 72, 78-79 (1991). Just as important, the Children were obligated to show by their proof that this fraud by George or Ann occurred at the time that title to the Farm was conveyed to them on March 23, 1989. This is because “the fraud required to create a constructive trust must occur at the time the property was transferred.” Meskell v. Meskell, 355 Mass. 148, 151 (1969)(emphasis supplied). Accord , Nessralla v. Peck, 403 Mass. at 759; 762-763; Kelly v. Kelly, 358 Mass. 154, 156 (1970); Ranicar v. Goodwin, 326 Mass. 710, 713 (1951); Hazleton v. Lewis, 267 Mass. 533, 538 (1929); Ciarlo v. Ciarlo, 244 Mass. 453, 456 (1923). See Barry v. Covich, 332 Mass. at 343 (“The rights of the parties are to be determined at the time [the defendants] became the owners...”).
Stated another way, the Children's evidence had to demonstrate more probably than not that when Manuel and Mary conveyed the Farm to George and Ann as tenants by the entirety on March 23, 1989, it was incident to a promise made by George and/or Ann to Manuel and Mary that they would hold the property for the benefit of George's six siblings to be divided upon the passing of George's parents and that when they made this promise to Manuel and Mary at the time of the conveyance, they did not intend to carry it out. Meskell, supra . Kelly, supra. Hazleton, supra. Such fraud cannot usually be inferred; it is never presumed and it must be proved affirmatively by the party who relies upon it. Toy v. Green, 319 Mass. 354, 360 (1946). Kerrigan v. Fortunato, 304 Mass. 617, 620 (1939). Brown v. Little, Brown and Company, 269 Mass. 102, 117 (1929). The Children's proof failed in this fundamental regard. There was no evidence adduced to show that either George or Ann made a false representation or statement of material fact which was deceptive or that Manuel relied upon it to his detriment at the time of the conveyance. Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 678-679(1942). Druker v. Druker, 308 Mass. 229, 231(1941). Rood v. Newberg, 48 Mass. App. Ct. at 192. See Foster v. Hurley, 444 Mass. 157, 168(2005). Instead, all the Children's evidence showed was that four of them (Daniel, Elizabeth, Dorothy and Patricia) had intermit-tent conversations with Manuel or Mary through the years before and after the 1989 conveyance which led them to believe that the Farm would be divided up after their parents' deaths so that all the children who had not already received property would be given something Three of them (Daniel, Dorothy and Patricia) also testified that they had sporadic conversations with George after the 1989 conveyance which led them to be-lieve that upon their parents' passing, he would sell the Farm and divide the proceeds for the benefit of the six siblings or let them decide what to do with the property. Three of the Children (Manuel Junior, Elizabeth and Patricia) also pointed to their parents' 1981 will as some indication that an equal division of the Farm was contemplated by their parents. Neither Joseph nor Lillian had any independent knowledge of either their parents' or George's alleged plan to divide up the Farm upon their parents' passing. None of this self-serving, anecdotal evidence speaks to the crucial fact question of whether the 1989 conveyance was incident to or caused by a knowingly false promise by George and/or Ann to Manuel and Mary that they would hold the property for the benefit of George's six siblings. The evidence adduced by George and Ann, however, spoke directly to this issue. George described in detail the conveyance itself on March 23, 1989: Manuel and Mary first met privately in a conference room with Attorney Kelley for about 30 minutes (Tr.2: 210; 213). Attorney Kelley then came out of the room with Manuel and Mary and asked George to explain again to Manuel that he could reserve a life estate in the Farm for himself and Mary or he could make an outright conveyance (Tr.2: 213-214; 215-216). George asked Manuel if he understood; Manuel was adamant that he did understand and he wanted the deed to be just like his 1951 deed (Tr.2: 215-217). The deed was then drafted and signed with due deliberation after its redrafting to correct Mary's first name (Tr.2: 217-218).
Attorney Kelley, the most disinterested witness at trial, testified that on March 23, 1989, he met with Manuel and Mary alone in his conference room (Tr.3: 5-6). He explained to them that by signing the deed, they were giving up all of their right and title to the Farm (Tr.2: 6; 11-12; 26). Both replied: “We want George to have the property”(Tr.2: 6; 26). Neither one mentioned deeding the Farm to anyone else other than George and Ann; nor did they say anything about what should happen to the Farm after they died (Tr. 2: 6; 27). They refused to have a life estate; they wanted a deed just like the one they received in 1951 when they became the owners of the Farm; and they expressed their wish to have Ann on the deed before George ever came into the room (Tr. 2: 7; 18; 27). The deed reflected their clear intentions because, as Attorney Kelley testified, Manuel
(Tr. 2: 9; 27). In the absence of any proof by the Children that George or Ann made a promise to Manuel and Mary at the 1989 conveyance to hold the Farm for the benefit of his six siblings while intending later to refuse to perform it and in the absence of any proof that Manuel and Mary conveyed the Farm relying on such a promise, there was no factual foundation from which a jury or later the trial judge could reasonably infer that either George or Ann had committed fraud when they took title to the Farm on March 23, 1989. Indeed, all the first-hand, probative evidence on this core issue, especially the testimony of Attorney Kelley, showed that no such fraud had taken place. The finding of fraud on this record is clearly erroneous and the trial court erred by adopting this finding in its decision. Meskell, supra. Kelly, supra.
There Was No Evidence of Any “Family Deal” Or Understanding That George Would Hold The Farm In Trust For the Six Siblings. Running throughout the Children's testimony is their belief that because their intermittent conversations with their parents before and after the 1989 conveyance together with their conversations with George after the conveyance led them to believe that George was holding the Farm for their benefit, there was a “family deal” or understanding in place that George would do so; that George had breached this deal or understanding; and that the 1989 conveyance of the Farm to George and Ann alone as tenants by the entirety, in derogation of this deal or understanding, therefore must have been the result of fraud committed by George and/or Ann. The trial court itself adopted this view of the Children's proof when it found that
(A.38-39). As matter of fact and as a matter of law, none of this testimony by the Children can justify a finding that George and Ann committed fraud at any time--much less at the time of the conveyance---to justify now imposing a constructive trust on their ownership of the Farm. In the first place, the Children proffered no evidence that Manuel and George together stated to any of them that there was a deal or understanding between them that George would hold the Farm for his six siblings. All of the conversations recounted by the Children are with either their parents alone or with George alone. Contrast Ciarlo, 244 Mass. at 454-455(a “distinct understanding” of duties between two family members expressed while together in the presence of a third family member).
Second, neither Joseph nor Lillian had any inde-pendent knowledge of this family deal or understanding; and Lillian has refused to participate in this lawsuit. All the Children's proof showed was that some of them thought that they would be given part of the Farm or its sale proceeds upon Mary's passing, an expectation which, as they admitted below in abandoning the claim, does not amount to an enforceable contract. Nor does it amount to a family deal or understanding without the knowing participation of George, Joseph or Lillian, the oldest daughter. Third, a family deal or understanding about dividing property, even if proved and found to have been violated by one of the family members, cannot as a matter of law provide the justification for imposing a constructive trust on that family member in the absence of proof that he committed fraud when he received the property . Kelly, 358 Mass. at 155-156. In Kelly, the Court ignored “a long-discussed family understanding” that each of the three children there was to have three acres each of family land when it refused to impose a constructive trust on one of the siblings who held nine acres because there was no fraud at the time of the transaction giving her the nine acres. The fact that there was “a long-discussed family understanding” about dividing up the property and that this understanding had been breached could not supply the fraud element necessary at the time of the transaction giving the daughter the nine acres to warrant imposing a constructive trust upon her. Id. The same is true here. That the Children regard George and Ann's fee simple ownership of the Farm to be a violation of a family deal or understanding about the Farm's disposition after Mary's death, even if true, it cannot supply the fraud element necessary at the time of the 1989 conveyance to justify imposing a constructive now upon George and Ann's ownership of the Farm. Fourth, even if the Children's proof of a deal or understanding showed some kind of oral assent by George and Ann to its terms at some indefinite point in time, there was still nothing in their evidence to show that at the time they assented to the deal or understanding about the Farm, they had no intention of performing their promise, a required showing for fraud. Nessralla, 403 Mass. at 762-763. Ranicar, 326 Mass. at 713. Hazleton, 267 Mass. at 538.
What remains when all the Children's evidence is considered in its best light and believed for its full probative value is at most possibly an oral promise by George (to Daniel, Dorothy and Patricia) after the 1989 conveyance to convey the property at some indefinite point in time following the death of Mary, a promise, however, unaccompanied by any intent not to perform it. But “a subsequent refusal to carry out an oral promise to convey land, standing by itself, is not fraud,” even more so when the promisor comes to own the land honestly and in good faith. Meskell, 355 Mass. at 151. Ranicar, supra. Hazleton, supra, and cases cited. See Nessralla v. Peck, 403 Mass. at 763. The trial judge avoided all of these relevant legal principles by deciding instead that Busiere v. Reilly, 189 Mass. 518, 519-521(1905) controls this case. There the plaintiff's devisor, ignorant in the law, unwittingly transferred her property in Taunton to her brother in fee simple saving to herself a life estate, upon his fraudulent representation to her that the deed would not deprive her of disposing of the property at any time during her life. Id. at 519; 520. The jury found that the brother had obtained title to the property by actionable fraud warranting cancellation of the deed and a reconveyance of the property. Id . at 520. In so ruling, the Busiere Court stated:
Id. Nothing considered in Busiere took place here and that case should not have controlled the disposition of this litigation. Manuel and Mary were fully advised by independent, competent counsel as to the legal effect of their deed. Both were given time to reflect on their decision, both were advised about their legal rights (to a life estate and otherwise) and both were given every opportunity to make whatever voluntary decision they wished concerning their disposition of the Farm. Most important, there was no proof by the Children that George or Ann made a promise to Manuel and Mary at the 1989 conveyance to hold the Farm for the benefit of his six siblings while intending later to refuse to perform it. There was no proof that Manuel and Mary conveyed the Farm relying on such a promise; and there was no factual foundation from which a jury or later the trial judge could reasonably infer that either George or Ann had committed fraud when they took title to the Farm on March 23, 1989. Busiere's facts of blatant, actionable fraud at the time of the conveyance by someone in a fiduciary capacity to the grantor have no application here and the trial judge was wrong to find and rule otherwise.
For all of these reasons, the lower court erred by adopting in its decision the jury's clearly erroneous determination that George or Ann, or both of them, com-mitted fraud when Manuel and Mary gave them title to the Farm on March 23, 1989. 2. The Trial Judge Erred As A Matter Of Law In Denying The Defendants ' Motions For A Directed Verdict And Their Motion For Judgment Notwithstanding The Jury's Verdict. In deciding whether Judge Moses properly denied George and Ann's motions for a directed verdict and for judgment notwithstanding the jury's verdict, this Court inquires whether without weighing the credibility of the witnesses or the weight of the evidence, the jury could reasonably return a verdict in favor of the Children, i.e., whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the Children's case. Miles v. Edward O. Tabor, M.D., 387 Mass. 783, 785-786(1982). Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89(1987). The plaintiffs cannot avoid the entry of judgment n.o.v. if any essential element of their case rests on a “mere scintilla” of evidence, see Stapleton v. Macchi, 401 Mass. 725, 728((1988); or where the trial judge apprehends that the jury “failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.” Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 127 (1992) quoting Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989).
Given this standard of review and for the reasons already identified in Part 1., supra, George and Ann submit that the trial court erred as a matter of law in denying their motions for a directed verdict and for judgment notwithstanding the jury's verdict. This Court should therefore vacate and reverse the judgment below which imposes a constructive trust upon George and Ann's ownership of the Farm and enter a new judgment declaring that they own the Farm in fee simple as a result of the 1989 conveyance, dismissing the Children's complaint and providing them with such other relief as is fair and just in the circumstances. Conclusion. For all of the reasons identified herein, this Honorable Court should vacate and reverse the judgment below which imposes a constructive trust upon George and Ann's ownership of the Farm and enter a new judgment declaring that they own the Farm in fee simple as a result of the 1989 conveyance, dismissing the Children's complaint and providing them with such other relief as is fair and just in the circumstances.
Respectfully submitted,
Edward F. Grourke
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