Opinion
21-P-59
06-03-2022
ASIMAKIS IATRIDIS, trustee, [1] v. CHRISTOS ZAHOPOULOS[2] & others.[3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In broad summary, the plaintiff, Asimakis Iatridis (Maki), as successor trustee of the Mary D. Iatridis Revocable Trust (trust), brought the underlying suit claiming that two of his siblings, Stavros D. Iatridis (Stavros) and Anna Iatridis (Anna), as well as the other defendants, through undue influence, fraud, and other unlawful means, either themselves directly or indirectly through the previous trustee, Demetrius Iatridis (Maki's father and the settlor's husband), caused assets to be diverted away from the trust. All of the claims were ultimately dismissed, and Maki now appeals. For the reasons that follow, we conclude that the legal malpractice claim against attorney Alice Taylor was prematurely dismissed given the allegations of the operative complaint, which we are required in this posture to accept as true. We otherwise affirm the judgment.
Because several individuals involved share the last name Iatridis, we refer to them by their first names for ease of reference.
Judgment entered in favor of the defendants after a Superior Court judge dismissed Maki's second amended complaint with leave to amend certain claims, and a different Superior Court judge dismissed the subsequently filed third amended complaint with prejudice.
We treat Maki's appeal as from the final judgment that entered subsequent to entry of the two orders allowing the motions to dismiss. Maki's notice of appeal was timely filed but identifies only the two orders and not the final judgment. See Lynch v. Crawford, 483 Mass. 631, 634 (2019) (litigant generally entitled to appellate review only of final judgment, not interlocutory ruling).
Factual background.
For the purposes of our analysis, we accept as true the facts alleged in Maki's second amended complaint, supplemented by additional facts alleged in his third amended complaint. See Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). We briefly summarize those facts, reserving certain facts for our later discussion.
In 2006, Maki's mother, Mary, executed estate planning documents that, among other things, created the trust. The trust was to be funded upon Mary's death with the residue of her estate under a pour over provision in Mary's will. The initial co-trustees were Mary herself and Demetrius, her husband. Following Mary's resignation as co-trustee in 2007, Demetrius served as the trust's sole trustee until his death in 2018. Following Demetrius's death, Maki became successor trustee of the trust.
The trust provided that, if Demetrius survived Mary, the trust property be divided into two shares: a marital share and a family share. The net income of the marital share was to be paid to Demetrius during his life to provide for Demetrius's health, education, maintenance, and support. The trustee was required to "pay to Demetrius such sums from the principal of the [marital share] as Demetrius requests without limitation as to the reasons or the amount."
The trust documents contemplated that the marital share would be divided into two subtrusts: a generation-skipping transfer tax (GST) exempt marital subtrust and a nonexempt marital subtrust. Maki asserts that the GST exempt marital subtrust was not required and is not relevant to his claims for relief. Therefore, we use the term "marital share" to mean only the nonexempt marital subtrust.
The remainder of the trust property was designated as the family share. The trustee was authorized to use as much of the net income and principal of the family share as the trustee considered necessary to provide for the health, education, maintenance, and support of Demetrius as well as Mary and Demetrius's four children, Maki, Stavros, Anna, and Tanya.
As discussed infra, Tanya is not a party to this case.
The trust was to terminate on Demetrius's death. The income of the marital share was then to pass to Demetrius's estate. The remainder of the assets were to pass to the four children in accordance with Mary's intent that each of the children receive a "substantially equal share" of her estate, including her property that passed outside of the trust.
Maki alleges that Mary became incapable of making sound legal and financial decisions from 2010 until her death on July 25, 2015, and that Demetrius became incapable of the same from 2016 until his death on June 25, 2018. Maki also alleges that, by 2013, Anna was managing the parents' financial affairs and assisting with health care matters. Maki alleges that toward the end of their parents' lives, Stavros and Anna (and others assisting them) "stole from, abused, preyed upon, and exploited their elderly, ill parents" by embezzling money, forging and backdating documents, fraudulently transferring real estate, and exercising undue influence over Demetrius as follows.
a. Sifnos land.
At some point, Mary executed a power of attorney in Greece in favor of another person (who appears to be unnamed in the complaint). The power of attorney was allegedly void under Greek law due to Mary's incapacity. Nonetheless, the putative attorney-in-fact transferred Mary's twenty percent interest in land on the Greek island of Sifnos to Anna in July 2013.
b. Isari house.
During Mary's lifetime, Anna forged a handwritten Greek will for Mary dated August 20, 2014. Pursuant to that will, Mary's ownership of a house in the Greek village of Isari passed to a distant relative on Mary's death in July 2015.
c. Greek apartment.
Sometime after Mary's death, Demetrius signed a document that purported to transfer an apartment Mary owned in Neo Psyhikon, Greece, to Anna. That document was executed sometime during or after March 2016, but was backdated to July 22, 2015, shortly before Mary's death. A Greek lawyer, defendant Giorgios Tsaraboulidis, worked with Anna and her husband, defendant Christos Zahopoulos, to effectuate this transfer.
d. Newton house.
Mary and Demetrius owned their primary residence, a house in Newton, as tenants in common. Under the terms of her will, Mary's fifty percent interest in the house was to pass upon her death to the trust. On May 18, 2018, shortly before his death, Demetrius signed documents at the United States embassy in Greece that created the 288 Prince Street Nominee Realty Trust (realty trust). Without obtaining authorization from the beneficiaries of the trust, Demetrius transferred the trust's share of the Newton House, as well as his own share, to the realty trust.
Demetrius allegedly never executed a deed reflecting the transfer of Mary's interest to the trust.
Stavros currently serves as trustee of the realty trust.
The documents for this transfer were drafted by an attorney in Massachusetts, defendant Alice Taylor, who allegedly failed to properly advise Demetrius concerning the transaction, including that the transfer to the realty trust would have negative tax implications and that Demetrius did not have the authority to transfer the fifty percent interest in the property that he held as trustee. During the course of her representation, Attorney Taylor allegedly primarily took direction from Anna and Stavros despite being "on notice" that the two siblings had previously stolen funds from Demetrius and that Anna had fraudulently transferred the Greek apartment. Attorney Taylor also was allegedly aware that Demetrius's prior estate planning attorney (not a party to this suit) expressed concern that Anna was exerting undue influence over Demetrius.
Attorney Tsaraboulidis was present at the embassy when Demetrius signed the documents and served as a witness to his signing of another document, a codicil.
e. 2013 promissory note.
Stavros allegedly received loans and embezzled funds from Mary and Demetrius in the amount of $1,023,413. In November 2013, Stavros and Demetrius executed a promissory note wherein Stavros promised to pay back that amount "either before or on the deaths of both" Demetrius and Mary. However, the promissory note also provided that any debt Stavros still owed at the time of both his parents' deaths, "after taking into account [Stavros's] equal share of the inheritance," would be forgiven. Stavros never made any payments on the note.
f. 2016 promissory note.
Between November 2013 and July 2016, Anna, then acting under a power attorney executed by Demetrius, provided an additional $386,070 to Stavros. In July 2016, Stavros executed a promissory note requiring that he repay that amount with interest to Demetrius within five years. Neither Mary (who was by then deceased) nor the trust were a party to the promissory note. Less than a year later, in June 2017, at a time when Demetrius lacked capacity to make financial and legal decisions, he signed a document forgiving the underlying debt.
g. Anna's debts.
Between 2013 and November 2016, Anna spent approximately $2 million of her parents' money. At some point in time, Mary and Demetrius also lent $60,000 to Anna and Zahopoulos, which they never repaid. Anna also convinced Demetrius to take out a $300,000 home equity loan on the Newton house for renovations that were wasteful and remained unfinished as of the time suit was filed.
Procedural background.
On January 8, 2019, after Demetrius's death, Maki initiated this action against Anna, Zahopoulos, Stavros (individually and as trustee of the realty trust), Helen Sousounis (Stavros's spouse), Attorney Taylor, Attorney Tsaraboulidis, Kyriakoula Asikidou, a retired nurse from Greece who Anna hired to provide full-time health care services for Demetrius, and the tenants of the Newton house.
Maki failed to serve Asikidou and we affirm the judgment of dismissal as to the claims against her without further discussion.
The claims against the tenants, Ross and Shoshana Anapolle, have been settled, and are no longer part of this appeal. We accordingly affirm the dismissal of those claims without further discussion.
Maki subsequently filed a second amended complaint which spanned eighty pages, set forth twenty claims, and included forty-eight prayers for relief. Maki sought certain declarations concerning the property and debts and to quiet title, alleged violations of the Federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (RICO), and G. L. c. 93A, and asserted numerous additional claims sounding in contract and tort.
Stavros, Anna, their respective spouses, and Attorney Taylor all moved to dismiss the second amended complaint. Following a hearing, a Superior Court judge entered a written memorandum of decision and order dismissing the second amended complaint with prejudice as to Attorney Taylor for failure to state a claim. The judge also allowed the motions of the siblings and their spouses, but granted Maki leave to file a third amended complaint as to those defendants so long as he addressed certain deficiencies in his second amended complaint.The judge's order highlighted several of those deficiencies, including the absence of factual basis for Maki's standing to assert claims concerning wrongs to his parents, whether the alleged wrongful acts were within the relevant statutes of limitations, the basis of the Superior Court's jurisdiction over property located in Greece, the failure to adequately plead facts to support certain claims, and the failure to comply with the heightened pleading requirement for certain claims pursuant to Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974).
The judge also allowed in part Attorney Taylor's motion to disqualify Maki, who is a licensed attorney in Massachusetts, from acting as counsel for the trust. A different panel of this court affirmed that order on appeal. See Iatridis v. Zahopoulos, 99 Mass.App.Ct. 1117 (2021) (summary disposition pursuant to Rule 23.0 of the Appeals Court, as appearing in 97 Mass.App.Ct. 1017 [2020]).
Maki responded by filing a lengthier third amended complaint that spanned 128 pages, set forth fourteen claims, and included forty-eight prayers for relief. Stavros, Anna, their spouses, and Attorney Tsaraboulidis moved to dismiss.Following a hearing, a different Superior Court judge allowed the motions and dismissed the third amended complaint in its entirety on the bases that Maki had failed to address the pleading deficiencies highlighted by the first motion judge and failed to comply with the pleading requirements of Mass. R. Civ. P. 8 (a) (1) and (e) (1), 365 Mass. 749 (1974). This appeal followed.
Attorney Tsaraboulidis filed his motion to dismiss in between the dismissal of the second amended complaint and the filing of the third amended complaint. The second motion judge chose to treat it as a motion to dismiss the third amended complaint.
Although our decision affirms the dismissal of the complaints on substantive grounds, we note that we discern no abuse of discretion in the judge's dismissal of the third amended complaint on the ground that it failed to rectify the pleading deficiencies identified in the first judge's order.
Discussion.
It is important at the outset to stress that Maki brings this suit solely in his capacity as successor trustee of the trust. It is in that capacity that he purports to challenge the transfers of the Sifnos land, Isari house, Greek apartment, and Newton house, and seeks to collect on the 2013 and 2016 promissory notes as well as to recover money allegedly embezzled by or loaned to Anna. Also in his capacity as successor trustee, Maki presses claims against Attorneys Taylor and Tsaraboulidis, who he alleges represented Demetrius in his capacity as predecessor trustee of the trust. We discuss each of these claims in turn, bearing in mind that our review is de novo, see A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424 (2018), and we "may consider any ground apparent on the record that supports the result reached in the trial court." Feeney v. Dell Inc., 454 Mass. 192, 211 (2009) .
Because he is proceeding solely as trustee of Mary's trust, Maki lacks standing to challenge the disposition of any property belonging to Demetrius individually, any power of attorney elections made by Demetrius, or any estate planning documents executed by Demetrius in his individual capacity. Similarly, Maki does not have standing to bring claims against Attorney Taylor to the extent she was acting as Demetrius's personal counsel.
1. Sifnos land and Isari house.
Maki's claim to quiet title with respect the Sifnos land and Isari house fails because he alleges that both properties were transferred from the trust prior to or at the time of Mary's death. Although it is true that Maki alleges that the properties were transferred wrongfully, the fact remains that they were transferred before Mary's death and, therefore, never were subject to the residuary clause of Mary's will by which the trust was to be funded. Because these properties were never subject to the trust, Maki -- who is proceeding only as successor trustee of the trust --has no standing to pursue an action to quiet title to those properties. An action to quiet title "cannot be maintained unless both actual possession and the legal title are united in the petitioner." Daley v. Daley, 300 Mass. 17, 21 (1938). Accordingly, this claim was properly dismissed. See Bevilacqua v. Rodriguez, 460 Mass. 762, 767 n.5 (2011).
Even were we to construe Maki's claims concerning the 2013 transfer of the Sifnos land and 2015 transfer of the Isari house to sound in tort, they would be subject to a three-year statute of limitations under G. L. c. 260, § 2A.' Where, as here, the complaint was filed more than three years after those real estate transfers occurred, "the plaintiff bears the burden of alleging facts which would take his . . . claim outside the statute [of limitations]," through pleadings, affidavits or other documents. Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC, 84 Mass.App.Ct. 75, 90 (2013), quoting O'Connor v. Redstone, 452 Mass. 537, 551 (2008) .
Read liberally, the complaints include several claims sounding in tort -- namely, for conversion, fraud, deceit, negligent misrepresentation, undue influence, breach of fiduciary duty, civil conspiracy, and unjust enrichment -- in connection with the real estate transfers. See 0'Connor v. Redstone, 452 Mass. 537, 551 (2008) (statute of limitations for breach of fiduciary duty); Howe v. Palmer, 80 Mass.App.Ct. 736, 742 (2011) (undue influence); Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 770 (2006) (conversion); Stolzoff v. Waste Sys. Int'l, Inc., 58 Mass.App.Ct. 747, 755 (2003) (fraud and misrepresentation); Pagliuca v. Boston, 35 Mass.App.Ct. 820, 823 (1994) (civil conspiracy). Cf. Sacks v. Dissinger, 488 Mass. 780, 791 n.14 (2021) (assuming without deciding unjust enrichment claim predicated on tortious conduct subject to three-year statute of limitations).
The complaints also contain a cause of action called "lack of capacity," but in his reply brief Maki has waived any argument on appeal concerning the dismissal of that claim.
Maki has failed to meet his burden here. In response to the motion to dismiss, he cited only basic legal principles about tolling where a cause of action was fraudulently concealed, see G. L. c. 260, § 12, or under the so-called discovery rule. See, e.g., Lindsay v. Romano, 427 Mass. 771, 774 (1998). But these general legal principles were not supported by any specific factual allegations with respect to the transfers of the Sifnos land or Isari house.
We reject Maki's argument that the defendants failed to adequately raise the statute of limitations defense in the proceedings below; the issue was raised in their motions to dismiss and during argument on their motions. See Epstein v. Seigel, 396 Mass. 278, 278-279 (1985) (motion to dismiss proper vehicle to raise statute of limitations defense).
Maki further argues that the limitations period was tolled pursuant to G. L. c. 260, § 7, because Demetrius "lacked mental capacity as of 2016 until his death in June 2018" and Maki could not bring the action until he was appointed successor trustee in September 2018. However, G. L. c. 260, § 7, only applies if a person is a minor or incapacitated at the time the cause of action first accrues. Here, there is no allegation that Demetrius was incapacitated in 2013 (Sifnos transfer) or 2015 (Isari transfer); instead, the allegation is that Demetrius became incapacitated in 2016, one or three years after the time of those transfers, i.e., the point in time when any cause of action first accrued. See Currier v. Gale, 3 Allen 328, 330 (1862); Dow v. Warren, 6 Mass. 328, 329 (1810).
The claims concerning the Sifnos land and Isari house also fail for failure to name indispensable parties: the person(s) who own the remaining eighty percent interest in the Sifnos land and the distant relative to whom the Isari house was purportedly transferred on Mary's death. See Kitras v. Aquinnah, 64 Mass.App.Ct. 285, 290 (2005) ("A person with an interest in land ordinarily should be joined if a judgment could affect that interest") .
2. Greek apartment and Newton house.
For the same reason we have set out above, the claims to quiet title to the Greek apartment and the Newton house were properly dismissed for lack of standing; both properties were transferred from the trust during Demetrius's tenure as predecessor trustee. See Daley, 300 Mass. at 21 (action to quiet title "cannot be maintained unless both actual possession and the legal title are united in the petitioner").
Maki's tort claims concerning the transfer of the Greek apartment and the Newton house cannot be adjudicated in the absence of Demetrius's estate. Joinder is required where: (1) a party's absence would prevent complete relief from being afforded to those who are already parties, or (2) a party "claims an interest relating to the subject of the action" and disposition in that party's absence may "impair or impede his ability to protect that interest or . . . leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974). Even accepting the underlying premise that Demetrius, as predecessor trustee, either failed to take control of trustee property, or improperly disposed of trust assets, see, e.g., G. L. c. 203E, § 809 (trustee must take control of and protect trust property); G. L. c. 203E, § 810 (a.) & (b) (trustee must keep adequate records of administration of estate and treat trust property as separate from personal property), Maki was required to name all persons having an interest in the assets that were subject to his claims. In this case, given the terms of the trust, both Demetrius's estate and Tanya were required to be joined because they were beneficiaries entitled to distributions during Demetrius's lifetime and also upon his death and the termination of the trust. Joinder of Demetrius's estate and of Tanya was thus required and dismissal was appropriate in their absence. See Hamilton v. Conservation Comm'n of Orleans, 12 Mass.App.Ct. 359, 371 (1981) (dismissal necessary for failure to name indispensable party). See also Southeastern Ins. Agency, Inc. v. Lumbermens Mut. Ins. Co., 423 Mass. 1008, 1009 (1996) (appellate court may address absence of indispensable party sua sponte).
Because ownership of the Greek apartment cannot be adjudicated in the absence of these parties, Maki's trespass claim concerning Anna and Zahopoulos's use of the Greek apartment following Demetrius's death also necessarily fails. The claim for false imprisonment against Anna, Stavros, and Zahopoulos based on allegations that they kept Demetrius captive in Greece against his will also was properly dismissed because any such claim would belong to Demetrius personally (and now to his estate), not to him in his capacity as trustee of the trust.
We are unpersuaded by Maki's suggestion that he is able to adequately represent the absent parties' interests here. In the circumstances, there is an inherent conflict between Maki's interests as trustee and beneficiary, and those of the other beneficiaries. See New England Peabody Home for Crippled Children v. Page, 325 Mass. 663, 667-668 (1950) (ordinary rule that trustees may represent interests of beneficiaries not applicable where interests of beneficiaries and trustees conflict); Amrhein v. Amrhein, 29 Mass.App.Ct. 336, 340 (1990) (where "inherent conflict of interests between the trustee . . . and the beneficiaries" exists, beneficiaries "are entitled to be heard in order to protect their rights and should not be compelled to depend upon the defence made by the trustee" [quotation omitted]). See also Bogert & Bogert, Law of Trust and Trustees § 593, at 423-426 (rev. 2d ed. Supp. 2021) ("it has been held that where the trustee has an interest adverse to that of the beneficiary . . . the beneficiaries must be brought into the action"); id. § 594, at 438 ("if there is conflict of interest between the trustee and beneficiary, or a divergence of interests between the beneficiaries, the beneficiaries may be necessary parties to a suit"). Cf. Gulda v. Second Nat'1 Bank of Boston, 323 Mass. 100, 102-103 (1948) (trustee generally held to sufficiently represent the estate if litigation does not involve conflict between trustee and beneficiaries).
3. 2013 promissory note.
Maki contends that the 2013 promissory note executed by Stavros and Demetrius either "as the trustee of Demetrius' trust or ... as the trustee of Mary's trust" is void and the underlying debt still may be recovered by the trust. To the extent the claims rest on the allegation that Demetrius executed the promissory note in some capacity other than in his capacity as trustee of Mary's trust, Maki lacks standing to pursue any claim. Moreover, even if Demetrius executed the note in his capacity as trustee of the trust, Maki's contract and tort claims still fail. The tort-based claims are barred by the appliable statute of limitations for the same reasons described above. See G. L. c. 260, § 2A. The breach of contract claim fails because the promissory note had a provision that any debt was forgiven at the time of Demetrius's death; Stavros was not required under the terms of the note to repay the debt, i.e., it was a "promise by Stavros to do nothing." Accordingly, the complaints failed to allege and cannot allege an essential element of a contract claim, namely, that Stavros's nonpayment was a breach of the note.
We construe the complaint to allege claims for conversion, fraud, deceit, negligent misrepresentation, undue influence, breach of fiduciary duty, spousal debt, civil conspiracy, and unjust enrichment with respect to the 2013 promissory note. To the extent that the unjust enrichment claim sounds in contract, it fails for the same reason identified above.
4. 2016 promissory note.
Maki as trustee lacks standing to pursue any claim related to the 2016 promissory note or the 2017 document executed by Demetrius that purportedly forgave that debt. According to the complaint, neither Mary (who was then deceased) nor the trust was a party to the promissory note. Therefore, any claim concerning the collection of the note belongs to Demetrius's estate. See G. L. c. 106, § 3-301 (limited circumstances where nonholder of instrument may enforce it). Even were we to overlook the fact that Maki as trustee lacks standing, any claim he could bring in that capacity would have to be brought against Demetrius's estate.
The same is true of any "extra" debts incurred by Stavros through embezzlement of the parents' funds, which Maki argues "may not be part of the two promissory notes."
5. Anna's debts.
Maki also lacks standing to pursue his claim to collect on Anna's debts. The complaint alleges that, during Demetrius's lifetime, Anna used Demetrius's credit and debit cards to pay for personal expenses without permission, and withdrew funds from Demetrius's bank account and retirement account without explanation. Any claim for wrongful transfer of these funds belongs to Demetrius's estate, not to Maki as trustee of Mary's trust. To the extent the complaint can be read to suggest that the transferred monies were partially trust assets that Demetrius intermingled with his personal funds, Maki as successor trustee must seek recovery from Demetrius's estate.
The same is true of Maki's challenge to the $300,000 home equity loan that Mary and Demetrius took out on the Newton house and Anna allegedly wasted. That Mary's interest in the house purportedly passed to the trust subject to that encumbrance does not confer standing on Maki as trustee to challenge how the funds were used.
The complaints do not allege the date on which Mary and Demetrius loaned $60,000 to Anna and her spouse. Even were we to assume that the claims based on this loan are not time barred, an action to recover any money loaned by Mary and Demetrius must be maintained by their estates. See G. L. c. 190B, § 3-703; G. L. c. 260, § 10. Therefore, Maki in his capacity as trustee does not have standing to collect on the loan directly from Anna.
6. Chapter 93A and RICO claims against siblings and their spouses.
Maki's c. 93A and RICO claims were properly dismissed. Where, as here, a trust "serves a principally private function," Maki cannot satisfy the trade or commerce requirement of a c. 93A claim. Quinton v. Gavin, 64 Mass.App.Ct. 792, 798 (2005). As to the RICO claim, the complaints fail because they do not identify the predicate acts of mail or wire fraud with particularity. See North Bridge Assocs., Inc. v. Boldt, 274 F.3d 38, 43 (1st Cir. 2001), quoting Feinstein v. Resolution Trust Corp., 942 F.2d 34, 42 (1st Cir. 1991) ("As in any other fraud case, the pleader is required to go beyond a showing of fraud and state the time, place and content of the alleged mail and wire communications perpetrating that fraud. ... It is not enough for a plaintiff to file a RICO claim, chant the statutory mantra, and leave the identification of predicate acts to the time of trial" [quotation omitted]).
7. Claims against Attorney Taylor.
Maki advances several claims against Attorney Taylor primarily based on her representation of Demetrius during the transfer of the Newton house. The c. 93A, RICO, fraud, deceit, misrepresentation, and breach of fiduciary duty claims are easily disposed of. At best, the allegations of the complaint might amount to professional negligence, which are insufficient to support a claim for a violation of c. 93A. See Poly v. Moylan, 423 Mass. 141, 151 (1996), cert, denied, 519 U.S. 1114 (1997) (legal malpractice absent conduct by attorney amounting to dishonesty, fraud, deceit, or misrepresentation does not satisfy requirements for claim under c. 93A). See also Darviris v. Petros, 442 Mass. 274, 278 (2004) (c. 93A claim requires more than showing of professional negligence). Likewise, a claim under the Federal RICO statute would require more than an allegation of negligence in conveying legal advice to a trustee. See Walter v. Drayson, 538 F.3d 1244, 1249 (9th Cir. 2008) (providing legal services to trustee without role in management and operation of enterprise not conduct actionable under RICO statute). As to the claims for fraud, deceit, and negligent misrepresentation, the complaints fail to allege any specific statements by Attorney Taylor to support the claims. Finally, although in theory a client may bring a claim against an attorney for breach of fiduciary duty based on intentional conduct, no such claim has been adequately stated here. Instead, Maki has alleged only negligence on Attorney Taylor's part and so his breach of fiduciary duty claim was properly dismissed for failure to state a claim to the extent it rested on intentional conduct and as duplicative of the legal malpractice claim to the extent it rested on negligence. See Clark v. Rowe, 428 Mass. 339, 345 (1998).
What remains is the claim of legal malpractice based on the assertion that Attorney Taylor should have known that Demetrius's decision to transfer the Newton house to the realty trust was the product of undue influence. Attorney Taylor argues that because she represented Demetrius individually --and not in his capacity as trustee of the trust -- Maki as successor trustee lacks standing. In essence, Attorney Taylor's argument is that, because her client was Demetrius individually, any malpractice claim would be held by Demetrius's estate, not by Maki as trustee of Mary's trust. As a matter of legal principle, Attorney Taylor is correct. The problem for Attorney Taylor is that, on a motion to dismiss, we must accept as true the second amended complaint's allegation that Attorney Taylor represented Demetrius in his capacity as trustee. Accepting that allegation as true for purposes of the motion to dismiss only, Maki as successor trustee would have standing to pursue any malpractice claim that Demetrius as the predecessor trustee held against Attorney Taylor. See Restatement (Second) of Trusts § 280 comment j (1959) (successor trustee "can maintain the same actions or suits as could be maintained by the original trustee"). See also G. L. c. 203E, §§ 811, 816 (14). Contrast Spinner v. Nutt, 417 Mass. 549, 557 (1994) (trust beneficiaries lack standing to sue trustee's attorney). Accordingly, we must vacate so much of the judgment as dismissed the legal malpractice claim against Attorney Taylor and remand for further proceedings on that claim alone.
Nothing in this decision should be read to preclude Attorney Taylor on remand from developing a factual record (such as on a motion for summary judgment) to support her assertion that she never represented Demetrius in his capacity as trustee. As we have noted, if Demetrius was not the client in his capacity as trustee, then Maki as trustee would not have standing to pursue a malpractice claim against Taylor.
8. Attorney Tsaraboulidis.
Attorney Tsaraboulidis argues, as he did before the trial court, that any claims against him must be dismissed for lack of personal jurisdiction. "Personal jurisdiction over an out-of-State defendant is proper only where both the forum State's long-arm statute and the requirements of due process allow it." SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 328 (2017). On a motion to dismiss, the plaintiff bears the burden of making a prima facie showing of personal jurisdiction over the defendant. See Cepeda v. Kass, 62 Mass.App.Ct. 732, 738 (2004) .
The parties dispute the scope of the work that Attorney Tsaraboulidis provided to Demetrius (purportedly at the behest of Anna and Stavros). However, even accepting the facts alleged by Maki, as supplemented by the uncontroverted facts presented by both parties, Maki has failed to make a prima facie showing that Attorney Tsaraboulidis "contract[ed] to supply services or things in this commonwealth," as required under the long-arm statute. G. L. c. 223A, § 3 (b). See SCVNGR, 478 Mass. at 325 n.3; Cepeda, 62 Mass.App.Ct. at 738.
On appeal, Maki fails to specify which of the eight grounds enumerated in the long-arm statute gives rise to jurisdiction. See G. L. c. 223A, § 3. Therefore, we consider only his argument that § 3 (b) is applicable, which Maki raised before the trial court in opposition to the motion to dismiss.
Attorney Tsaraboulidis is a Greek national who has never visited or otherwise conducted business in Massachusetts. Moreover, Attorney Tsaraboulidis has never been licensed to practice law in Massachusetts and has never been admitted pro hac vice to a court in the Commonwealth. Therefore, as a practical matter, he cannot provide legal services in the Commonwealth. At most, his legal advice pertained solely to the transfer and valuation of trust and other property only in Greece (some of which, it appears, belonged only to Demetrius personally). Attorney Tsaraboulidis also served as a witness of Demetrius's signing of a codicil, an event which occurred in Greece. This falls far short of demonstrating that Attorney Tsaraboulidis, a childhood friend of Zahopoulos, supplied services in Massachusetts. See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 157 (1978) ("We construe the phrase 'in this commonwealth' as referring to the place where the services or things are to be supplied, rather than referring to the place of the contracting").
Attorney Tsaraboulidis's limited communication via Skype with Maki and Zahopoulos on two occasions in December 2015 and March 2016 -- while Demetrius and not Maki was serving as trustee -- to discuss whether Greek law recognizes trusts and allows for assets to be hidden through the transfer of title does not bolster Maki's jurisdictional argument. These conversations were initiated by Zahopoulos, and took place while Attorney Tsaraboulidis was in Greece and Maki and Zahopoulos were in Massachusetts. Because the long-arm statute was not satisfied, the claims against Attorney Tsaraboulidis were properly dismissed.'
Given our resolution of the jurisdictional issue on the basis of the long-arm statute, we need not reach the due process prong. However, we note that Maki's jurisdictional argument would fail under that analysis as well where Attorney Tsaraboulidis is a Greek resident who has never visited or otherwise conducted business in Massachusetts.
For the same reasons set forth above, we conclude that Maki's requests for declaratory relief were properly dismissed.
Conclusion.
So much of the judgment entered November 25, 2020, as dismissed the legal malpractice claim against Attorney Taylor is vacated and the matter is remanded on that limited claim for further proceedings consistent with this memorandum and order. In all other respects, the judgment is affirmed.
Maki's request for an award of his appellate attorney's fees and costs on appeal is denied, as is Maki's at best premature alternative request. To the extent so made, and insofar as we are unable to conclude that Maki's appeal is so frivolous as to fall within the class of "egregious" cases meriting sanctions, Marabello v. Boston Bark Corp., 463 Mass. 394, 400 (2012), the appellees' requests for an award of their respective appellate attorney's fees are denied.
So ordered.
Wolohojian, Henry & Englander, JJ.
The panelists are listed in order of seniority.