GRAEME D. FISHER v. CAMERON A. FISHER & Another. ( 2023 )

NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-59
GRAEME D. FISHER
vs.
CAMERON A. FISHER & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This action was brought by Graeme Fisher (Graeme) against
his brother, Cameron Fisher (Cameron), in Cameron's capacity as
representative of the estate of their father, Donald Fisher
(Donald), pursuant to G. L. c. 230, § 5. That statute provides
that an heir, legatee, or creditor having an interest in the
enforcement of a claim "in favor of the estate" may bring a
civil action to enforce that claim where the executor or
administrator "refuses to bring such action at the request of an
heir, legatee or creditor." The case was dismissed on the
grounds that Graeme "failed to state a claim upon which relief
[could] be granted" and that his claim was subject to the
"doctrine of collateral estoppel." Graeme now appeals.
1 Stuart W. Rapp, as personal representative of the estate of
Donald C. Fisher.
"We review the allowance of a motion to dismiss de novo,
accepting as true all well-pleaded facts alleged in the
complaint." Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass.
612, 614 (2019), citing Calixto v. Coughlin, 481 Mass. 157, 158,
(2018).
Cameron argues that the dismissal of the complaint in this
matter should be affirmed because Graeme is collaterally
estopped from bringing this action. He does so on the basis
that Graeme, who along with Cameron was a co-personal
representative of the estate of their mother, Ardell Fisher
(Ardell), previously brought an action in the Land Court against
Cameron in his capacity as co-personal representative of their
mother's estate. That action, though substantially narrower
than this, alleged at least one of the same things that is
alleged here, that the transfer of certain property by Donald
and Ardell to Cameron for nominal consideration in 2003 was a
result of undue influence by Cameron.
The Land Court in that previous action granted summary
judgment in favor of Cameron. On appeal, a different panel of
this court concluded that Graeme lacked "standing" to have
brought the Land Court action. First, the panel concluded that
even if Ardell had retained an interest in the property at issue
during her lifetime, that right would have automatically
transferred by operation of law to Donald at the time of her
2
death, "thus, after Ardell's death any claim to the property was
held exclusively by Donald, or his estate after his death."
Second, the panel concluded that, as only one of the two
co-personal representatives of Ardell's estate, Graeme bringing
the Land Court action without Cameron's consent or delegation to
act on his behalf was expressly prohibited by statute and by the
language contained in Ardell's will. The panel concluded that
"[b]ecause Graeme did not have standing to bring this action in
the Land Court, the judge lacked subject matter jurisdiction
over it."
The panel's opinion also addressed the merits of Graeme's
claim. But as the parties both note, following the issuance of
the panel's memorandum and order pursuant to Rule 23.0 of the
Rules of the Appeals Court, as appearing in 97 Mass. App. Ct.
1017 (2020), in response to a motion for reconsideration filed
by Graeme, we clarified the meaning of that further discussion
in our memorandum and order of the merits of the claim brought
in the Land Court, adding as a preface to our discussion the
clause, "Even if Graeme had standing, we would still affirm."
This emendation made clear that the discussion of the merits in
the prior decision was dictum.
In his primary argument before us, Cameron says that the
dismissal of the complaint in this matter should be affirmed
because Graeme is barred from bringing this action due to claim
3
preclusion. Claim preclusion may properly be invoked only where
there is (1) an "identity or privity of the parties to the
present and prior actions, (2) identity of the cause of action,
and (3) [a] prior final judgment on the merits" (citation
omitted). Laramie v Phillip Morris USA Inc., 488 Mass. 399, 405
(2021).
Cameron argues that prong one is satisfied because Graeme,
as co-personal representative of his mother's estate, the
capacity in which he brought the previous suit, is in privity
with Graeme, suing under the statute for the benefit of his
father's estate, the capacity in which he brought the current
suit.
Determining the scope of privity is sometimes not a simple
matter. See, e.g., Daigle v. Portsmouth, 129 N.H. 561, 573
(1987) (Souter, J.) ("'[A] judgment against a government does
not bind its officials in subsequent litigation that asserts a
personal liability against officials. And . . . an official who
has litigated in his official capacity is not precluded from
relitigation in his personal capacity.' 18 C. Wright and A.
Miller, Federal Practice and Procedure § 4458 [1981]").
However, in this case, it is clear that Graeme, suing as a co-
personal representative of his mother's estate, is not the same
party, or its privy, as Graeme, suing on behalf of his father's
estate. Cameron also says that, despite his suing in different
4
capacities, Graeme is the same party in both suits, but that is
incorrect on its face. The Supreme Judicial Court long ago
held, "A verdict against a man suing in one capacity will not
estop him when he sues in another distinct capacity and, in
fact, as a different person in law." McCarthy v. William H.
Wood Lumber Co., 219 Mass. 566, 570 (1914). Likewise, the
Restatement (Second) of Judgment § 36(2) (1982) takes the
position that "[a] party appearing in an action in one capacity,
individual or representative, is not thereby bound by or
entitled to the benefits of the rules of res judicata in a
subsequent action in which he appears in another capacity."
Prong one therefore is not satisfied and claim preclusion does
not bar this action.
Cameron secondarily argues that dismissal was proper based
on "undisputed facts found by the Land Court" and because
"[e]ven if the Land Court decision is not preclusive, the
underlying policy of collateral estoppel applies." He refers
repeatedly, as well, to the summary judgment record in the Land
Court action to support the assertion that dismissal of the
complaint was proper.
These are primarily arguments the gravamen of which is that
the suit is precluded under the doctrine of issue preclusion.
"Issue preclusion applies when (1) the issue sought to be
precluded in the later action is the same as that involved in
5
the earlier action; (2) the issue was actually litigated; (3)
the issue was determined by a valid and binding final judgment;
and (4) the determination of the issue was essential to the
judgment" (quotation and citation omitted). Alicea v.
Commonwealth, 466 Mass. 228, 236 (2013). Even if the other
three elements were met, which we need not decide, no
determination of any issue presented in this action was
essential to the judgment in the other action, which was
ultimately based on a lack of standing to sue.
Beyond that, Cameron's argument is that a complaint may be
dismissed on the basis of the summary judgment record in another
case, which is not correct. "Even were we to accept the idea
that Mass. R. Civ. P. 12 (b) (6) permits consideration of
matters outside the four corners of the complaint provided they
are susceptible to judicial notice, . . . [m]atters are
judicially noticed only when they are indisputably true. . . .
[A]lthough we make take judicial notice of the docket entries
and papers filed in separate cases, we may not take judicial
notice of facts or evidence brought out in those separate
actions." Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC,
84 Mass. App. Ct. 75, 91 (2013), quoting Nantucket v. Beinecke,
379 Mass 345, 352 (1979), and Home Depot v. Kardas, 81 Mass.
App. Ct. 27, 28 (2011).
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Finally, and in the alternative, Cameron argues that the
claims should be dismissed as they are barred by the statute of
limitations.2 Because this involves some complex and potentially
novel legal questions, including possible questions about the
timing of various different unlawful acts described in the
complaint, the application of the discovery rule –- including,
perhaps, the date when discovery by the personal representative
was possible and/or the date when discovery by Graeme in his
capacity as heir or legatee with the power to sue for the
benefit of the estate under the statue occurred -– and the
relevance of G. L. c. 230, § 5, to the calculation of the
statute of limitations, we conclude the prudent course is to
allow this argument to be more fully developed and considered by
the motion judge in the first instance.3
2 He also argues that the suit should be barred on the ground of
laches, but his argument that Graeme, who did not have authority
to bring an action on behalf of Donald's estate until the
personal representative declined to act, should somehow have
brought this action during his parents' lifetimes, is without
merit.
3 In her order, the judge also denied Graeme's "Motion to
Reinstate Claim for Breach of Fiduciary Duty." The presence or
absence of a fiduciary duty is of course a question of fact.
Although the motion judge properly examined the complaint in
denying the motion to reinstate, the original dismissal of the
claim was "[b]ased upon the facts and allegations included
within the underlying Complaint, and due to the findings made by
the Land Court with respect to the same claim previously
asserted by the plaintiff" (emphasis added). We express no
opinion whether the factual allegations contained in the
materials properly considered on a motion to dismiss suffice to
7
So much of the judgment that dismissed the complaint is
vacated. In light of our conclusion that Graeme's appeal has
merit, the remainder of the judgment awarding fees to Cameron is
also vacated, and Cameron's request for appellate attorney's
fees is denied. Finally, the order denying the motion to
reinstate claim for breach of fiduciary duty is vacated, and the
case is remanded for further proceedings consistent with this
opinion.
So ordered.
By the Court (Rubin,
Englander & Hand, JJ.4),
Clerk
Entered: March 15, 2023.
state a claim for breach of fiduciary duty. Since the case must
in any event be remanded, we think the prudent course would be
to allow the judge on remand to address the question in the
first instance.
4 The panelists are listed in order of seniority.
8