57 OLD ROAD TO NINE ACRE CORNER OPERATING CO., LLC v. RICHARD A. FRASCA, Personal Representative. ( 2024 )

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
23-P-370
57 OLD ROAD TO NINE ACRE CORNER OPERATING CO., LLC 1
vs.
RICHARD A. FRASCA, personal representative. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant Richard A. Frasca, as personal representative
of the estate of his mother Mary D. Frasca, appeals from the
February 13, 2023 denial of his motion to vacate a November 18,
2022 order of postjudgment real estate attachment by the
Superior Court. The attachment order sought to secure a
$104,051.22 judgment with real estate owned by the estate at 426
Hanover Street, Unit 4, in Boston. On appeal, the defendant
contends that the judge erred because the Superior Court had no
jurisdiction to issue the attachment order due to G. L. c. 230,
§ 7, which requires Probate Court permission to attach "on mesne
1 Doing business as Care One at Concord.
2 Of the estate of Mary D. Frasca.
process" the property of a deceased person. We need not resolve
the issue because the appeal is moot.
Discussion. "[L]itigation is considered moot when the
party who claimed to be aggrieved ceases to have a personal
stake in its outcome." Lynn v. Murrell, 489 Mass. 579, 582
(2022), quoting Blake v. Massachusetts Parole Bd., 369 Mass.
701, 703 (1976). See Lawyers' Comm. for Civ. Rights & Economic
Justice v. Court Adm'r of the Trial Court, 478 Mass. 1010, 1011
(2017) (single justice properly dismissed petition as moot "as
no further effective relief [could] be granted"). "Generally,
an issue is moot when the parties 'would no longer be personally
affected by the resulting decision.'" Harmon v. Commissioner of
Correction, 487 Mass. 470, 475 (2021), quoting Commonwealth v.
Walters, 479 Mass. 277, 280 (2018). "It is the general rule
that courts decide only actual controversies." Harmon, supra at
475, quoting Matter of Sturtz, 410 Mass. 58, 59 (1991).
Here, the defendant seeks a ruling on the validity of an
attachment order which was meant to secure the plaintiff's
judgment pending appeal. But the attachment order by itself had
no real effect; the record does not show, and the defendant does
not assert, that a writ of attachment was ever issued as a
result, let alone recorded. Moreover, even before the defendant
filed his notice of appeal concerning the attachment order, this
court had affirmed the judgment, see 21-P-0535, and the Superior
2
Court had issued a writ of execution on the judgment. 3 Because
the writ of execution could have been recorded at the Registry
of Deeds, thereby securing the judgment, the issuance and
recording of a writ of attachment was no longer necessary and
the validity of the attachment order became irrelevant. 4
When a case becomes moot on appeal, we vacate the order,
judgment, or decree appealed from with a notation that the decision
is not on the merits, in order to free the parties of collateral
estoppel consequences, should the same issues rearise in future
litigation between the parties. See Aquacultural Research Corp.
v. Austin, 88 Mass. App. Ct. 631, 635 (2015). We therefore vacate
3 Once the judgment and the execution issued, it appears
that a writ of attachment could no longer have issued "on mesne
process," and thus G. L. c. 230, § 7, no longer applied in any
event. See Still Assocs., Inc. v. Porter, 24 Mass. App. Ct. 26,
30 (1987) ("'mesne process' refers to process issued before
entry of final judgment"). See also Eno v. McGinn, 103 Mass.
App. Ct. 662, 665 n.9 (2024).
4 Indeed, the question of the validity of the attachment
order may have been a moot point even at the time that the order
issued. In another complaint brought by the plaintiff against
the defendant, the plaintiff alleged that the defendant
fraudulently diverted estate property to avoid settlement
obligations. See 57 Old Road to Nine Acre Corner Operating
Company, LLC vs. Richard Frasca, as Personal Representative of
the Estate of Mary D. Frasca, and Richard Frasca as Trustee of
the Mary D. Frasca 1993 Trust, Suffolk Superior Civil Action No.
2384CV02537C. In connection with that litigation, the plaintiff
obtained a pre-judgment attachment on the trust property in the
amount of $104,051.22. See Jarosz v. Palmer, 436 Mass. 526, 530
(2002) (court may take judicial notice of records in related
case).
3
the Superior Court's November 18, 2022, attachment order, not on
the merits but because it is moot.
So ordered.
By the Court (Sacks, Singh &
Walsh, JJ. 5),
Clerk
Entered: August 14, 2024.
5 The panelists are listed in order of seniority.
4