Opinion
15-P-1676
05-26-2017
Michael J. PRICE & another v. Bradley R. COOK, executor.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Michael J. Price, the named executor and beneficiary of a will of Gianulderico Camuzzi executed in 2011—after the execution of the 2001 will that was allowed in probate—appeals from a summary judgment dismissing his petition to vacate the allowance of the 2001 will and from the denial of his motion pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), for relief from that judgment. Gala Brodsky, a beneficiary of the 2011 will, appeals only from the denial of her rule 60(b)(6) motion for relief from judgment; she did not appeal from the underlying judgment dismissing the petition to vacate. For the reasons discussed herein, we affirm the judgment dismissing the petition and the orders denying Price's and Brodsky's motions for relief from judgment.
Bradley R. Cook cross appeals from an interlocutory order entered before the judgment and order from which Price and Brodsky appeal; because of our disposition of the case, we need not reach Cook's cross appeal.
We first address Price's appeal from the allowance of Cook's motion for summary judgment on Price's petition to vacate the allowance of the 2001 will. As our review is de novo, we review the summary judgment record to determine whether the evidence, viewed in the light most favorable to the nonmoving party, establishes that the moving party is entitled to judgment as a matter of law. See Ramirez v. Commerce Ins. Co., 91 Mass. App. Ct. 144, 146 (2017). Summary judgment is appropriate if the moving party has established "that the nonmoving party has no reasonable expectation of proving an essential element of its case." Miller v. Mooney, 431 Mass. 57, 60 (2000). "The nonmoving party's failure to prove an essential element of its case ‘renders all other facts immaterial’ and mandates summary judgment in favor of the moving party." Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 781 (2007), quoting from Kouravacilis v. General Motors Corp., 410 Mass. 706, 711 (1991).
Pursuant to G. L. c. 190B, § 3-412, inserted by St. 2008, c. 521, § 9, the Probate and Family Court "shall entertain a petition for vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication." Accordingly, for the probate court to "entertain" Price's petition to vacate the allowance of the 2001 will, Price was required to make a threshold showing that he was either unaware of the existence of the 2011 will at the time of the proceedings on the 2001 will, or that he was unaware of the proceedings and given no notice thereof, other than by publication.
The summary judgment record establishes that, although Price was not given formal notice of the proceedings, he was aware both of the existence of the 2011 will and of the proceeding to probate the 2001 will, while that proceeding was pending. The proceeding for allowance of the 2001 will was pending from March 21, 2012, when the petition was filed, to June 21, 2012, when the decree allowing the will entered. In a May 10, 2012, letter from Price to Cook, Price acknowledges the existence of the 2011 will. In an affidavit filed with the court, Price also acknowledges receipt of a copy of an April 12, 2012, letter from counsel for the children, filing the 2011 will with the court. This letter references the filing of the earlier (2001) will and the docket number for that filing. Although there is additional evidence in the record concerning Price's awareness of the existence of the 2011 will and the pending proceedings on the 2001 will, the evidence cited above is sufficient to establish that Price cannot make the necessary threshold showing required by c. 190B, § 3-412. That Cook failed to send formal notice to Price is immaterial to the analysis as the statute contemplates that notice was not given, but requires an additional showing that a petitioner also be unaware of the proceedings. See G. L. c. 190B, § 3-412 ("proponent of later-offered will must show he was unaware of the earlier proceeding and given no notice thereof" [emphasis supplied] ).
Price argues that it was insufficient to show his mere awareness of the existence of the 2011 will. Rather, he argues that the restrictions of G. L. c. 190B, § 3-412, are not triggered until a proponent becomes aware that the will was potentially valid. If the restrictions of § 3-412, could be defeated by a proponent's subjective belief in the validity of a competing will, long after the proceedings had concluded, the requirements of the provision would be rendered meaningless. It is incumbent upon the proponents of a potentially flawed will to offer it for probate, where its validity can be determined. See Ferriter v. Borthwick, 346 Mass. 391, 392-393 (1963) (later will never made subject to petition for probate is not evidence of revocation of prior will unless it is admitted to probate; within the power of probate judge to hear petitions together); In re Estate of Galatis, 88 Mass. App. Ct. 273, 281-282 (2015) (incumbent upon proponents of a document purporting to be a will to present it for probate; document not presented for probate not properly before the court).
Price's argument that the judge failed to make "findings of fact" or rulings as to the proponent Price's awareness of the proceeding and the existence of the will, is unavailing for the reason, if no other, that our review of the summary judgment record is de novo, and we make our own determination of the sufficiency of Cook's showing of Price's awareness of the 2011 will and the proceedings on the 2001 will.
The 2011 will was not docketed by the clerk and was later withdrawn.
For instance, at the March 22, 2012, hearing on the appointment of Cook as temporary executor, counsel for the children argued for the appointment of Price as executor, indicating Price was willing to serve. In addition, electronic-mail correspondence from Brodsky to the testator's children in March, 2012, indicates "Michael P."'s willingness to serve, and a May 23 message describes conversations Brodsky had with Price concerning Cook's administration of the estate.
We turn to the appeals from the denial of the motions for relief from judgment, which "will not be overturned, except upon a showing of a clear abuse of discretion." Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987). Price's motion asserted that the 2011 will had been "published in Italy in accordance with the laws of that country as a valid last Will of an Italian national under Italian law," was "effective under the laws of that country," and that the probate court "should effectuate [the decedent's] most recent testamentary intent as expressed in the [2011] will." The motion, however, suffers from the same infirmity as his petition to vacate the allowance of the 2001 will. In the absence of the initial showing required by c. 190B, § 3-412, not made or alleged in the motion, there was no basis for reviving the action.
Brodsky's motion for relief from judgment alleged that Cook perpetrated a fraud on the court because he knew the 2011 will was valid and "deliberately withheld from the Court these significant facts and the applicable law." She further alleged that Cook, knowing the validity of the 2011 will, "intentionally refused to provide [her] notice of or an opportunity to be heard at the hearing at which the earlier, 2001 Will was allowed."
"A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 349 (2010), quoting from Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). "A party's nondisclosure to an adverse party ... or to the court ... of facts pertinent to a controversy before the court, without more, does not amount to ‘fraud on the court’ for purposes of vacating a judgment under rule 60(b)." Paternity of Cheryl, 434 Mass. 23, 36 (2001).
Here, the conduct complained of was not fraudulent, and certainly does not satisfy the onerous standard recited above. While it is questionable whether Brodsky was entitled to formal notice of the proceedings where the 2011 will was not "offered for ... probate," G. L. c. 190B, § 3-403, as inserted by St. 2008, c. 521 § 9, Brodsky was aware of the proceedings and the existence of the 2011 will but chose not to submit it to the court for probate. Brodsky also failed to demonstrate, clearly and convincingly, that Cook's statement concerning the testator's domicile in Massachusetts was false. In his 2001 will, the testator described himself as a resident of Weston, Massachusetts, and is also identified as a resident of Weston in his 2012 death certificate. This is a sufficient basis for Cook to infer and aver as executor that the testator was domiciled in Massachusetts at the time of his death. Finally, Brodsky's claim that Cook's failure to inform the judge that Price believed the 2011 will was valid under Italian law, cannot constitute fraud on the court. Cook was under no obligation to do so, see Paternity of Cheryl, supra at 36, particularly where neither Price nor Brodsky were sufficiently convinced of the validity of the 2011 will such that they sought to validate it while the probate proceedings remained pending.
The statute provides that notice be given to heirs at law, and "the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons." There is no allegation that Brodsky is an heir at law, and because the 2011 will was not offered for probate, she is not entitled to notice as a devisee.
The summary judgment record is replete with evidence of Brodsky's awareness of both the proceedings and the existence of the will. Given her failure to appeal from the summary judgment, we need not recount it here. See generally, Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994) ( rule 60 [b] motion cannot be used as substitute for appeal).
The result we reach is dictated by the provisions of G. L. c. 190B, § 3-412, and by the decisions of Price and Brodsky not to press their claim as to the 2011 will while the probate proceedings concerning the 2001 will, of which they were aware, remained pending. Accordingly, the summary judgment dismissing the petition to vacate is affirmed, and the orders denying Price's and Brodsky's motions for relief from judgment are affirmed.
Cook's request for attorney's fees and double costs is denied.
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Judgment affirmed.
Orders denying motions for relief from judgment affirmed.