Tetrault v. Mahoney, Hawkes & Goldings

• Decision Date: 16 July 1997
• Citation: 425 Mass. 456,681 N.E.2d 1189
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Marcia Seron TETRAULT & others 1 v. MAHONEY, HAWKES & GOLDINGS & others. 2

Page 1189

681 N.E.2d 1189

425 Mass. 456

Marcia Seron TETRAULT & others ¹ v. MAHONEY, HAWKES & GOLDINGS & others. ²

Supreme Judicial Court of Massachusetts Essex.

Argued Dec. 2, 1996.

Decided July 16, 1997.

Marc P. Frey, Salem, for Rose A. Seron & another.

Deborah McWade for Simone Tetrault.

Timothy W. Demakis, Salem, for Marcia Seron Tetrault.

Harvey Weiner, Boston (George C. Rockas, with him), for Mahoney, Hawkes & Goldings.

Thomas J. Barrett, Salem, for Nicholas A. Anagnostis & another.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

The plaintiffs, all blood relatives of the testator, Berj H. Seron, assert four claims against Mahoney, Hawkes & Goldings (MHG), the law firm that drafted his estate planning documents, which included a will, a deed, and a trust. They allege that MHG was negligent in preparing and attending to the execution of the documents, violated G.L. c. 93A, intentionally inflicted emotional distress on the plaintiffs, and fraudulently conveyed real estate in violation of G.L. c. 109A, §§ 4, 7. In addition, the plaintiffs asserted claims alleging fraud and fraudulent conveyance against Harriet A. Seron, the testator's wife, and Nicholas A. Anagnostis, the testator's stepson. The plaintiffs also asserted a claim against the wife, alleging intentional infliction of emotional distress.

On cross motions for summary judgment, a Superior Court judge allowed the defendants' motions for summary judgment on all counts. Thereafter, the plaintiffs appealed, and we transferred the case here on our own motion.

Documents properly before us. When the plaintiffs first moved for what they termed "Judgment on the Pleadings," they submitted extensive medical records and deposition transcripts. ³ The plaintiffs withdrew these documents when they were informed that a new rule required that summary judgment motions under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), be limited to twenty pages. According to the plaintiffs, at the hearing on the cross motions for summary judgment, they indicated that the record was incomplete; the judge, however, refused to accept for filing the additional documents and instructed the plaintiffs to reduce the proposed filing of more than 200 pages to a more manageable amount. According to their brief, the plaintiffs had not submitted the additional documents in accordance with the instructions at the time the judge ruled on the motions for summary judgment because she had informed them that summary judgment would not be decided for approximately ninety days but instead issued her memorandum of decision and order less than one month after the hearing. The plaintiffs then submitted all of the documents originally filed along with additional documents in support of a motion to reconsider. That motion was denied, but the judge declined to rule on MHG's motion to strike the additional documentation. ⁴

The plaintiffs argue that, in reviewing a grant of the summary judgment decision, the additional documents are properly before this court because the request to file the documents and the instruction by the judge below should be deemed to constitute a motion and order pursuant to Mass. R. Civ. P. 56(f). Rule 56(f) provides that parties objecting to the timing of summary judgment file an affidavit explaining that, "for reasons stated [they could not] present by affidavit facts essential to justify [their] opposition" to a summary judgment motion and request a continuance to complete discovery. See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307, 565 N.E.2d 1205 (1991); Aronson v. Commonwealth, 401 Mass. 244, 255, 516 N.E.2d 137 (1987), cert. denied, 488 U.S. 818, 109 S.Ct. 58, 102 L.Ed.2d 36 (1988); Godbout v. Cousens, 396 Mass. 254, 262 n. 11, 485 N.E.2d 940 (1985). Here, the plaintiffs did not rely on rule 56(f), and despite their argument to the contrary, we fail to see how the request to file additional documents and the instruction by the judge constitute a motion and order under rule 56(f). Cf. Aronson v. Commonwealth, supra at 254-255, 516 N.E.2d 137 (where affidavit was insufficient, court cannot conclude that judge abused discretion in denying plaintiff opportunity to obtain further discovery). Thus, their failure to file the requisite affidavit is fatal. See First Nat'l Bank v. Slade, 379 Mass. 243, 244-245, 399 N.E.2d 1047 (1979); Fidelity Mgt. & Research Co. v. Ostrander, 40 Mass.App.Ct. 195, 201, 662 N.E.2d 699 (1996); Atlas Tack Corp. v. DiMasi, 37 Mass.App.Ct. 66, 67 n. 2, 637 N.E.2d 230 (1994). Indeed, contrary to the plaintiffs' assertion, even if the judge considered their request a rule 56(f) motion for a continuance, her issuance of the summary judgment order prior to receiving any additional documents would suggest that the motion was denied. Moreover, the plaintiffs cannot point to anything in the record to support their claim that they were led to believe that disposition of the motion would take at least ninety days. Finally, we note that, in any event, if the judge did request that the plaintiffs reduce the filing to a more manageable amount of documents, the plaintiffs failed to do so, and merely resubmitted with the motion for reconsideration the 200 pages of documents that were previously rejected by the judge. In these circumstances, we shall not allow the plaintiffs whose summary judgment motion was denied reconsideration accompanied by additional documentation and then, on denial of that motion, to rely on and to cite to the additional documentation while appealing from the grant of summary judgment. Thus, MHG's motion to strike these additional documents filed in the Appeals Court is allowed and we do not consider these additional documents in reviewing the grant of summary judgment. See note 4, supra.

Facts. In order for their motions for summary judgment to be upheld, the defendants must establish that there are no genuine issues of material fact, Mass. R. Civ. P. 56(c); Golub v. Milpo, Inc., 402 Mass. 397, 400, 522 N.E.2d 954 (1988), and that they are entitled to judgment as a matter of law. Madsen v. Erwin, 395 Mass. 715, 719, 481 N.E.2d 1160 (1985). "[The] 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 ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Symmons v. O'Keeffe, 419 Mass. 288, 293, 644 N.E.2d 631 (1995), quoting Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397, 636 N.E.2d 265 (1994).

Viewed in the plaintiffs' favor, the summary judgment record before the judge reveals the following facts. The testator's estate plan consisted of a deed, a will, and an inter vivos trust. These documents were drawn up by MHG, who was hired by the stepson to prepare an estate plan for his stepfather, Berj H. Seron (testator). At the stepson's request an attorney at MHG prepared a deed that was signed and delivered transferring the testator's residence to the testator and his wife, as tenants by the entirety. MHG also drafted a will which provided that the wife was to receive all of the testator's personal property with the exception of cash, stocks, and bonds. The cash, stocks, and bonds were bequeathed by the residuary clause to the wife (50%) and Simone Tetrault, the testator's granddaughter (50%). The testator then reviewed the documents, and decided to leave certain "investment" artwork to his granddaughter. The attorney then advised the stepson that an inter vivos trust would accomplish the testator's intention; he drafted a trust agreement for the Berj H. Seron Revocable Trust (trust). The will made the trust a beneficiary of 50% of the testator's residuary estate and the 50% bequest to his granddaughter eliminated. The stepson also told the testator to prepare a list of art pieces he wished to give to the trust.

The testator again reviewed the deed, will, and trust; he revised the trust to designate his daughter, Marcia Seron Tetrault, and granddaughter, each as 50% income beneficiaries of the trust. After these revisions were made by the attorney, the testator signed the deed, will, and trust in the presence of two witnesses and a notary public. At this time, he changed the will by writing in that Rose A. Seron and Nuart J. Liz, his two sisters, were each to receive a 5% interest in the residue of his estate; the trust's portion of the residuary estate was reduced to 40%. The wife's portion of the residuary estate remained at 50%. The testator executed the will but, because he forgot to sign a page, he reexecuted the will the next day at the attorney's direction.

Because the testator died on September 2, 1990, without preparing the list of investment artwork to go into the trust, it was largely unfunded at the time of his death. On November 28, 1990, the Essex Division of the Probate and Family Court Department allowed the testator's will with the interlineations that gave each of the testator's sisters a 5% interest in the residuary portion of the estate. The testator's daughter assented to the probate of the will.

The negligence claim. The plaintiffs contend that MHG owed a duty of care to them arising from the fact that they were intended beneficiaries of the testator, and thus the duty to the testator also extended to them. The plaintiffs allege that MHG had a duty to ascertain the extent of the testator's assets and the form in which they were held, to advise the testator that the practical effect of his estate plan was that his child, grandchild, and sisters would receive nothing, and to ascertain whether that was, is fact, the testator's intent. ⁵ We need not decide whether such a duty exists because a review of the documents submitted by MHG in support of its summary judgment motion shows there is no genuine issue of material fact regarding the testator's intent.

MHG...