Bradley Birkenfeld v. Pamela Birkenfeld. ( 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-308
BRADLEY BIRKENFELD
vs.
PAMELA BIRKENFELD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ronald Birkenfeld died on Friday, December 25, 2020,
survived by his wife Pamela Birkenfeld and his son Bradley
Birkenfeld, among others. The following Monday, Bradley1 filed
suit in the Superior Court against Pamela (his stepmother),
claiming fraud and unjust enrichment (counts one and two) based
on a 2012 gift from Bradley to Pamela and Ronald, and tortious
interference with an expectancy (count three) based on Pamela's
alleged diversion of money from Ronald's estate. On Pamela's
motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974), a Superior Court judge (first judge) dismissed
counts one and two as time-barred. The first judge declined to
dismiss count three and allowed Bradley to file an amended
1 We will use first names to avoid confusion.
complaint on that count, which he did. Pamela then filed
another motion to dismiss, which was allowed by a second judge.
Bradley appeals from the judgments dismissing his claims. We
affirm.
Background. We accept the allegations of the complaint and
amended complaint as true for purposes of this appeal. See
Lanier v. President & Fellows of Harvard College, 490 Mass. 37,
43 (2022). We also draw facts from the uncontested documents
submitted with Pamela's first motion to dismiss, which were
relied on by the parties and the second judge. See id.In 2007 Ronald executed a last will leaving his residuary
estate to the Ronald Birkenfeld 2007 Revocable Trust (trust).
Also that year, Ronald created the trust by signing a trust
agreement, which provided for the establishment of two separate
subtrusts, "Trust A and Trust B," on Ronald's death. Trusts A
and B were funded with the trust's assets as set forth in the
trust agreement. Under the trust agreement, Pamela is entitled
during her lifetime to "all of the income of Trust A"; she also
may receive principal from Trust A and income and principal from
Trust B. When Pamela dies, any undistributed income in Trust A
pours into Pamela's estate, while any remaining principal in
Trust A and any remaining income and principal in Trust B are to
be distributed to Ronald's sons "in such amounts and proportions
as [Pamela] shall direct and appoint" in her will.
2
In 2012 Bradley received a substantial monetary award from
the Internal Revenue Service and made generous gifts to family
members, including $500,000 to Pamela and Ronald. Bradley
decided to give that amount because Pamela said she and Ronald
needed help paying off their mortgage. Bradley believed that
the money would be used for that purpose but learned in late
2019 that the mortgage was not paid off until 2018. As alleged
by Bradley, Pamela lied about needing money and spent the gift
on her stepchildren from a previous relationship; she also
exerted control over and exploited Ronald's finances.
Discussion. We review the allowance of a motion to dismiss
de novo to determine whether the factual allegations, taken as
true and drawing every reasonable inference in the plaintiff's
favor, plausibly suggest an entitlement to relief. See Lanier,
490 Mass. at 43.
1. Counts one and two. Pamela argued in her first motion
to dismiss that counts one and two were subject to the three-
year statute of limitations in G. L. c. 260, § 2A. Bradley
raised no argument to the contrary, and the first judge applied
that statute to both claims. To the extent Bradley now argues
that a different limitations period applies, the argument is
waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285
(2006).
3
Whether Bradley's claims are timely under G. L. c. 260,
§ 2A, turns on when they accrued. The common-law discovery rule
provides "that a cause of action accrues for purposes of the
statute of limitations on the happening of an event likely to
put the plaintiff on notice of facts giving rise to the cause of
action." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501,
520 (1997). The "inquiry focuses on which was the first event
reasonably likely to put the plaintiff on notice that the
defendant's conduct had caused him injury." Szymanski v. Boston
Mut. Life Ins. Co., 56 Mass. App. Ct. 367, 371 (2002). Here,
for Bradley's claims (filed in 2020) to be timely, we would have
to conclude that they did not accrue until 2017. But Bradley
could have discovered the facts underlying the claims -- that
Pamela did not pay off the mortgage promptly after receiving
Bradley's gift in 2012 -- through a public records search at any
time after he made the gift. We agree with the first judge that
a reasonably prudent plaintiff would have made inquiry well
before 2017 and that Bradley's claims are therefore time-
barred. See AA&D Masonry, LLC v. South St. Business Park, LLC,
93 Mass. App. Ct. 693, 699-700 (2018) (discovery rule did not
protect complaint from dismissal where plaintiff delayed for
unreasonable time in obtaining publicly available information
that would have put plaintiff on notice of the alleged fraud).
4
On appeal Bradley appears to switch course, abandoning any
reliance on the common-law discovery rule. Instead, he argues
that the first judge should have applied the statutory discovery
rule found in G. L. c. 260, § 12, which tolls a statute of
limitations where there has been "[f]raudulent concealment."
Bradley did not raise this argument to the first judge, however,
and has thus waived it.2 See Carey, 446 Mass. at 285. Moreover,
even absent waiver, the statutory discovery rule would not save
Bradley's claims. To invoke the rule, Bradley needed to
specifically allege that Pamela "concealed the existence of a
cause of action through some affirmative act done with intent to
deceive." Magliacane v. Gardner, 483 Mass. 842, 852 (2020),
quoting White v. Peabody Constr. Co., 386 Mass. 121, 133 (1982).
Even read generously, the complaint does not plausibly allege
that Pamela committed an "affirmative act" of concealment.
2. Count three. To prevail on a claim of tortious
interference with an expectancy, "a plaintiff must show that a
defendant intentionally interfered through unlawful means with
the plaintiff's legally protected interest by acting on the
would-be donor continuously 'until the time the expectancy would
2 We disagree with Bradley's assertion that he raised the
statutory discovery rule in his opposition to Pamela's first
motion to dismiss. The opposition does not cite the statute,
and the analysis is framed in terms of whether Bradley complied
with his duty of inquiry under the common-law rule.
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have been realized.'" Sacks v. Dissinger, 488 Mass. 780, 786
(2021), quoting Labonte v. Giordano, 426 Mass. 319, 321 (1997).
Bradley's claim is that Pamela interfered with his "legally
protected interest in the principal of Trust A and the principal
and undistributed income of Trust B" by diverting assets from
Ronald's estate. But Bradley fails to grapple with the language
of the trust agreement, which establishes that Pamela is the
only beneficiary of the trust during her lifetime; that the
trustees must distribute all of the income from Trust A and may
distribute, "in their uncontrolled discretion," the principal
from Trust A and the income and principal from Trust B to Pamela
during her lifetime; and that Pamela has the discretion to
designate in her will who among Ronald's sons will receive any
remaining income and principal upon her death. Based on the
plain language of the trust agreement, the second judge was
correct to conclude that "[i]t is only after Pamela's death that
[Bradley] could receive a portion of the principal of Trust A
and the principal and undistributed income of Trust B, and only
if Pamela directs such a distribution to [Bradley] in her will."
See Ferri v. Powell-Ferri, 476 Mass. 651, 654 (2017) ("where the
language of a trust is clear, we look only to that plain
language").
Bradley offers no other interpretation of the trust
agreement, and he does not dispute that, according to the terms
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of Ronald's will, the residue of Ronald's estate poured over
into the trust. Nor does Bradley allege that either Ronald's
will or the trust agreement was the product of undue influence
that Pamela exercised over Ronald. Therefore, even assuming as
true that Pamela diverted assets from Ronald's estate, Bradley
has not plausibly alleged that he had a "legally protected
interest" in the estate with which Pamela interfered. Sacks,
488 Mass. at 786. Because Bradley can only receive income and
principal from the trust (if any remains) upon Pamela's death
and at her discretion, he has no viable claim that he had an
expectancy in Ronald's estate that he would have realized but
for Pamela's interference. Cf. Labonte, 426 Mass. at 321("cause of action cannot arise for tortious interference with
the expectancy of receiving a legacy until the donor's death,
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because any such expectancy would only be realized at that
time").3
Judgments affirmed.
By the Court (Henry, Shin &
Hodgens, JJ.4),
Clerk
Entered: April 28, 2023.
3 Bradley also contends that the second judge erred by not
considering "newly discovered" facts that Bradley referred to
during the motion hearing. But as Bradley did not amend, or
even move to amend, his complaint based on those purported new
facts, the second judge correctly determined that she was
confined to the allegations of the operative complaint.
4 The panelists are listed in order of seniority.
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