Staten v. O'Neill

Vuono

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

The three plaintiffs, Richard Nazzaro and Patricia Chryst Staten, as trustees of the Meljac Realty Trust (trustees), and Norma Gardiner, as executrix of the estate of Melba M. Nazzaro (executrix), appeal from final judgments dismissing their entire claims against the defendants, Attorney Richard O'Neill, Jr., and his law firm, Richard O'Neill, Jr., & Associates, PC (the O'Neill parties), and Attorney W. Paul Needham, and his law firm, Needham and Johnson (the Needham parties). The judgments of dismissal resulted from the separate allowances of motions pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), submitted, respectively, by the Needham and O'Neill parties. For the following reasons, we now affirm the judgments of dismissal.

Facts. The pertinent factual background consists of the allegations appearing in the complaint filed by the trustees and executrix against the Needham and O'Neill parties in Superior Court, and of the treatment of those allegations by the respective motion judges.

The complaint included the following allegations. In 1989, John R. Nazzaro, Jr., and his wife, Melba M. Nazzaro, as settlors created and recorded the Meljac Realty Trust. Attorney O'Neill appears as the notary upon the trust declaration. John and Melba Nazzaro both died in December of 2004. Plaintiffs Richard Nazzaro and Patricia Chryst Staten became the trustees of the Meljac Realty Trust. Plaintiff Norma E. Gardiner is the executrix of the estate of Melba Nazzaro. Attorney O'Neill drafted the trust declaration and remained as attorney to the trust until his resignation in March of 2005. In addition, he was attorney of record in the Probate and Family Court for the estates of John Nazzaro and Melba Nazzaro. According to the Superior Court complaint, Attorney O'Neill has served or appeared as counsel of record for trustee Richard Nazzaro and executrix Norma Gardiner in litigation against them in the Land Court since 2005.

In or about October, 2006, one Barbara Eversman King wished to pursue a lawsuit against the trustees. Attorney O'Neill referred her to Attorney Needham of Needham and Johnson, allegedly O'Neill's personal attorney, for pursuit of her claim against the trustees. Attorney Needham thereafter prosecuted King's claims against the trustees in Probate and Family Court. The suit resulted in a final judgment in favor of King and against Richard Nazzaro and Patricia Chryst Staten, both individually and as trustees, for (1) joint and several liability for damages in the amount of $290,500, plus interest at the rate of twelve percent compounded monthly from September 29, 2006, until full payment; (2) an assessment of attorney's fees in the amount of $15,000; and (3) an accounting of the assets of the Meljac Realty Trust from December 3, 2004, until distribution of the final trust assets.

The plaintiff trustees and executrix allege specifically that Attorney O'Neill referred the King claims to Attorney Needham and that O'Neill engaged in a four-hour telephone conversation with Needham as Needham was drafting the probate complaint against Richard Nazzaro and Patricia Chryst Staten in their capacities as both trustees and individuals.

The plaintiffs have organized these allegations into the following theories of liability or claims: count one for negligence against Attorney O'Neill individually and against his law firm; count three for negligence against Attorney Needham and his law firm; count four for breach of fiduciary duty against Attorney O'Neill individually and his law firm; count five for fraud against Attorney O'Neill and his law firm; and count six for 'conflict of interest' against Attorney O'Neill and his law firm. In addition, the complaint contained as count two against the O'Neill parties an unintelligible allegation captioned as negligence.

The Needham parties moved for dismissal under rule 12(b)(6). The first judge allowed the motion upon two independent grounds: (a) that the negligence claim against the Needham parties failed as a matter of law because those parties owed no recognized duty to the trustees and executrix; and (b) that the trustees and executrix, as proposed pro se litigants, could not prosecute the claims of the trust and estate because, under Massachusetts law, nonlawyer individuals may pursue only their own personal claims and not the claims of any separate legal entities.

Subsequently a second judge allowed the rule 12(b)(6) motion of the O'Neill parties against the remaining five counts. He did so upon the sole ground that the nonattorney trustees and executrix lacked legal authority to pursue the claims of the legally distinct and separate trust and estate.

On appeal, the trustees and executrix argue that they are entitled to pursue the claims because the probate judgment for damages of $290,500 and attorney's fees of $15,000 runs against both the trust and the trustees in their individual capacities.

Analysis. 1. Representative capacity. Although the probate judgment for damages and attorney's fees does indeed run against the trustees Nazzaro and Chryst Staten in both their fiduciary and individual capacities, they brought their claims in the underlying Superior Court action exclusively in their fiduciary capacities. Consequently, the Superior Court motion judges correctly applied the governing Massachusetts law prohibiting any nonattorney representative from pursuing litigation for any legal entity other than himself or herself as a natural person. The authorities are consistent and emphatic upon this point. The two judges cited them accurately and abundantly. See G. L. c. 221, § 46A (only a licensed attorney may practice law) and § 48 ('Parties may manage, prosecute or defend their own suits personally . . .' [emphasis added]); Varney Enterprises, Inc. v. WMF, Inc., 402 Mass. 79, 82 (1988) (nonattorney corporate officer or employee may not represent corporation in judicial proceedings other than small claims court); Burnham v. Justices of the Superior Ct., 439 Mass. 1018 (2008) (nonattorney not entitled to represent anyone other than himself or herself); LAS Collection Mgmt. v. Pagan, 447 Mass. 847, 849-850 & n.5 (2006) (property manager or agent may not represent property owner principal in Housing Court); Kitras v. Zoning Administrator of Aquinnah, 453 Mass. 245, 250 n.14 (2009) (dictum warning that nonattorney trustees may not represent real estate trust in legal proceedings).

The trustees argue nonetheless that we should treat the omission of their individual capacities in the Superior Court action as a technical failing and remand the case for amendment of the complaint substituting those capacities and enabling them to pursue their claims against the Needham and O'Neill parties. However, we have examined the entire record. We have discretionary authority to affirm a trial judge's dismissal upon any ground visible in the record and supportive of the judgment under appeal. See National Lumber Co. v. Canton Inst. for Sav., 56 Mass. App. Ct. 186, 187 n.3 (2002); Curtis v. Herb Chambers I-95, Inc., 75 Mass. App. Ct. 662, 670 (2009). Our survey of the entire record convinces us that strong independent grounds support the dismissal of all claims and that any remand and amendment would be futile. Those grounds follow.

2. Executrix Norma Gardiner. Similarly, nonattorney Norma Gardiner pro se lacks the requisite capacity to represent the estate of Melba Nazzaro. More fundamentally, the Superior Court complaint contains no allegations identifying any actionable conduct against, or recognizable injury to, the executrix on the part of the O'Neill and Needham parties. Consequently, the complaint fails to state any claim in her favor against the defendants. All defendants are therefore entitled to dismissal of her as a plaintiff. Mass.R.Civ.P. 12(b)(6).

3. Needham parties. The first motion judge correctly observed that no recognizable claim of negligence exists against the Needham parties. The sole allegation against those parties is that they should have screened out the referral of the King case impliedly because the O'Neill parties suffered from a conflict of interest by reason of the referral. However, no allegation states or suggests that the Needham parties had any prior connection whatsoever to the trustees or trust. No allegations indicate any duty of reasonable care or any breach of such a duty, on their part, toward the trustees. Those parties were complete strangers to each other. Nor do any allegations charge that the Needham parties colluded with the O'Neill parties as part of the O'Neill parties' violation of duties of trust, care, or fair dealing with the trustees.

4. O'Neill parties. The remaining claims of negligence, fraud, breach of fiduciary duty, and conflict of interest rest upon the premise that the O'Neill parties employed knowledge gained in their representation of the trustees and transmitted the benefit of it to the Needham parties so as to cause or contribute to the adverse probate judgment against the trustees. No specific allegations support this essentially speculative claim. The mere referral of a claim against the trustees by the O'Neill parties to separate counsel would not by itself constitute a breach of any duty or a betrayal. Equally plausibly, the referral could represent compliance with a duty not to undertake a matter against a present or former client. See Mass.R.Prof.C. 1.7, as amended, 430 Mass. 1301 (1999) (forbidding representation 'directly adverse' to another client without the consent of both clients). To survive rule 12(b)(6) dismissal, a claim of negligence, fraud, breach of fiduciary duty, and conflict of interest (as an apparently alternative formulation of breach of fiduciary duty) must not only be recognizable at law and in equity, but also inherently plausible. Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). Without more, the allegations rooted in the referral of the King claim against the trustees do not state a cause of action. The allegations lack the character of an established theory of liability and fail to show plausible causation of the eventual probate judgment by reason of mere referral.

Consequently, dismissal would be, and is, appropriate upon this independent ground.

Judgments affirmed.

By the Court (Vuono, Sikora & Hanlon, JJ.),