Allen v. Allen

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
13-P-605 Appeals Court
DEBORAH A. ALLEN1 vs. HAROLD J. ALLEN, JR.
No. 13-P-605.
Suffolk. February 12, 2014. - September 16, 2014.
Present: Trainor, Katzmann, & Hanlon, JJ.
Deed, Acknowledgement. Real Property, Deed, Conveyance, Record
title. Notice. Practice, Civil, Failure to make
objection, Motion to amend.
Civil action commenced in the Land Court Department on
January 19, 2010.
A motion to amend a counterclaim was heard by Gordon H.
Piper, J., the case was tried before him, and a motion to amend
the judgment or for a new trial was considered by him.
Helen G. Litsas for the defendant.
Amy M. McCallen for the plaintiff.
KATZMANN, J. This case concerns competing claims between
adult siblings for the ownership of the house formerly owned by
1
Individually, as trustee of the Allen Realty Trust, and as
executrix of the estate of Ethel M. Allen. In her brief, the
plaintiff avers that she has been succeeded by her sister Nancy
Oldro as executrix of the estate.
2
their now-deceased parents. Harold Allen, Jr., (Harold) traces
his ownership to a July, 2001, deed (July deed) from the
siblings' mother, Ethel Allen (Ethel). Harold's sister Deborah
Allen (Deborah) claims ownership by virtue of a November, 2001,
deed (November deed) from Ethel to the Allen Realty Trust
(Trust), of which Deborah was a cotrustee along with Ethel.
Deborah brought an action alleging that the July deed was
forged and claiming that the property was rightfully hers.2
Following a jury-waived trial, a judge of the Land Court
determined that, because the acknowledgment of the July deed was
defective, its recording did not give constructive notice to
Deborah of the conveyance and the deed was not enforceable
against her. This is an issue of first impression, not yet
addressed by our appellate courts.
On appeal, Harold argues (1) pursuant to exceptions
provided in the recording statute, his deed was not required to
be recorded, or, alternatively, the recording statute's safe
harbor provision protects his claim to the property; (2) the
judge's decision exceeded the scope of the pleadings;
(3) because of clearly erroneous findings, there was
2
The rights of other siblings, who, along with Deborah, are
beneficiaries of the Trust, are also affected by the
determination as to which deed is valid. Deborah's complaint
does not purport to divest the other siblings of their interest
in the property.
3
insufficient evidence to support the judgment; and (4) the judge
erred in denying Harold's motion to amend his counterclaim. We
affirm.
Background. We summarize the relevant facts as found by
the judge in his memorandum of decision and postjudgment order,
supplemented as necessary with undisputed facts from the record.
We reserve certain details for discussion with the specific
issues raised.
Deborah and Harold are two of the six children of Ethel and
Harold Allen, Sr. (Harold, Sr.). Harold, Sr., and Ethel owned a
house at 257 Marrett Road, in Lexington, and lived in that home
for many years. Over the course of their marriage, Harold, Sr.,
and Ethel created numerous estate plans, which consistently
excluded their two sons, Harold and Lawrence, because Harold,
Sr., and Ethel had provided for them through lifetime gifts.3
After Harold, Sr., died, Ethel continued this pattern.4
3
In 1987, Harold, Sr., transferred a one-third ownership
stake in the family home heating oil business, Sherwood Oil Co.,
Inc., to Harold and a one-third ownership stake in the business
to Lawrence.
4
Ethel's final will, executed on February 28, 2008, stated:
"I have intentionally and not as the result of any accident
or mistake, made no specific provision for my sons, LARRY
ALLEN and HAROLD J. ALLEN, Jr., and their issue, not for
lack of love or affection, but rather because my sons have
been provided for by my late Husband and myself."
4
The events at the center of this dispute occurred during
2001. In late April, 2001, Ethel began the process of moving
from her Lexington home to live with one of her daughters, Nancy
Oldro, in Nashua, New Hampshire. After evaluating conflicting
testimony, the judge concluded that Ethel had fully moved in by
mid-July, 2001.
Harold traces his claim to a deed Ethel executed on July
23, 2001, conveying the house to Harold and to Ethel as joint
tenants with a right of survivorship. This deed is the subject
of the present dispute. Attorney Paul Maloy prepared the deed
and signed a certificate of acknowledgment, dated July 23, 2001,
which reads: "Then personally appeared the above named Ethel M.
Allen and acknowledged the foregoing instrument to be her free
act and deed, before me, [/s] Paul F. Maloy- Notary Public."
Maloy recorded the deed on August 10, 2001. We reserve further
details regarding the execution and acknowledgment of the deed
for the discussion below.
On November 30, 2001, Ethel established the Allen Realty
Trust and executed a deed conveying the Lexington property to
herself and to Deborah as cotrustees of the Trust, reserving a
life estate for herself. She specified that the property would
be sold upon her death and the proceeds divided among several of
5
her descendants, including Deborah.5 This deed was recorded on
February 8, 2002.
Only after Ethel died on December 20, 2009, did Harold
reveal the July 23, 2001, deed. Neither Deborah nor her sister
Nancy nor the attorney who prepared the November deed had
discovered the July conveyance.6 In January, 2010, Deborah
commenced the present action, disputing Harold's claim to the
property. After a trial that included forensic testimony
regarding the July deed, the judge found that Ethel's signature
on the July deed was authentic. But he determined that,
contrary to the certificate of acknowledgment on the deed, Ethel
never appeared before Attorney Maloy to acknowledge the deed.
The judge found that, instead, she had signed the deed in front
of Harold, who then brought it to Maloy for his signature.
Harold appeals from the judgment and from the denial of his
postjudgment motions.7
5
Once again, she did not include Harold or Lawrence as a
beneficiary.
6
The judge noted that the conveyances to Harold and the
trustees were both for nominal consideration, and observed,
"[T]here is nothing to suggest that the Trustees looked in the
Registry before taking their deed, or had any compelling reason
to do so, given the estate planning context of their acquisition
of title. A genuine third party purchaser for value, on the
other hand, would have been remiss in not consulting the record
before paying consideration."
7
Harold makes no separate argument with respect to the
denial of his postjudgment motions.
6
Standard of review. "In reviewing a matter wherein the
trial judge was the finder of fact, '[t]he findings of fact
. . . are accepted unless they are clearly erroneous[] [and]
[w]e review the judge's legal conclusions de novo.'" Crown v.
Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 224 (2014),
quoting from T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass.
562, 569 (2010) (citations omitted). See Mass.R.Civ.P. 52(a),
as amended, 423 Mass. 1402 (1996). "A finding is 'clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed."
Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct.
304, 309-310 (1981), quoting from United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948). Furthermore, "[i]n
applying the 'clearly erroneous' standard, rule 52(a) requires
that 'due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses.'" Demoulas
v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997). Thus,
"[s]o long as the judge's account is plausible in light of the
entire record, an appellate court should decline to reverse it."
Id. at 510. It is the appellant's burden to show that a finding
is clearly erroneous. Hanover Ins. Co. v. Treasurer & Receiver
Gen., 74 Mass. App. Ct. 725, 730 (2009).
7
Discussion. 1. The recording statute. a. Latent defect
in certificate of acknowledgment.8 "[O]rdinarily an
acknowledgment is not an essential part of a deed; but if it is
desired to record the deed in order to charge the world with
notice of the conveyance, then it is necessary that the deed be
acknowledged and that a certificate reciting this fact be
attached to the deed. Doubtless, that is the principal function
of a certificate of acknowledgment." McOuatt v. McOuatt, 320
Mass. 410, 413-414 (1946) (McOuatt). See G. L. c. 183, § 4, as
appearing in St. 1973, c. 205 ("A conveyance . . . shall not be
valid as against any person, except the grantor or lessor, his
heirs and devisees and persons having actual notice of it,
unless it . . . is recorded in the registry of deeds for the
county or district in which the land to which it relates lies");
Gordon v. Gordon, 8 Mass. App. Ct. 860, 862-863 (1979) ("[T]itle
to real estate may be transferred by a deed which has not been
acknowledged, and such deed is good against the grantor and his
heirs and those having actual notice").
The certificate of acknowledgment "furnishes formal proof
of the authenticity of the execution of the instrument when
presented for recording." Id. at 862, citing McOuatt, 320 Mass.
8
On appeal, Harold argues that the judge's consideration of
this issue exceeded the scope of the pleadings. See part 2,
infra. Because we determine that the issue was fairly
litigated, we first consider the issue on the merits.
8
at 413-414. "The certificate of acknowledgment is of
evidentiary character, and the taking of the acknowledgment has
always been regarded in this Commonwealth as a ministerial and
not as a judicial act and the recitals contained in the
certificate may be contradicted." McOuatt, supra at 413.
In McOuatt, the Supreme Judicial Court held that where an
acknowledgment had not actually occurred, a facially correct
certificate of acknowledgment failed to satisfy the statutory
requirement that in order for a deed conveying property between
spouses to be valid, it must be acknowledged and recorded.9
McOuatt, supra at 415-416 (applying the then-existing version of
G. L. c. 209, § 3). Here, as in McOuatt, the deed included a
facially correct certificate of acknowledgment, with the
required signature and recitals, and was recorded. Also, as in
McOuatt, the judge here concluded that the acknowledgment never
actually occurred.
Notwithstanding the facially correct certificate of
acknowledgment, because the July deed was never actually
acknowledged, it was not entitled to be recorded. See G. L.
c. 183, § 29 ("No deed shall be recorded unless a certificate of
its acknowledgment or of the proof of its due execution, made as
9
Because the conveyance was void on these grounds, that
court did not reach the question we face today regarding
constructive notice to subsequent grantees.
9
hereinafter provided, is endorsed upon or annexed to it");10 Dole
v. Thurlow, 12 Met. 157, 163 (1846) ("[A]s a prerequisite to
recording, acknowledgment, or proof by one or more subscribing
witnesses, was necessary. Actual recording, without one of
these prerequisites, would not give effect to the deed").
An improvidently recorded deed cannot give constructive
notice of the conveyance. See Graves v. Graves, 6 Gray 391,
392-393 (1856) (where assignment was recorded notwithstanding
fact that it had not been acknowledged, court held that the
assignment was improvidently recorded, the recorded document did
"not operate as constructive notice of the execution of the
assignment . . . as against [a] . . . creditor . . .; and
therefore the title of the . . . creditor, though subsequent in
time, takes precedence").
As in McOuatt, the facially correct certificate of
acknowledgment does not remedy the absence of a proper
acknowledgment. See McOuatt, supra at 413, 415. Indeed, as the
judge here observed, to determine otherwise would reward a
grantee who records a deed that falsely purports to be
acknowledged. And, pursuant to Graves, an improvidently
recorded deed cannot provide constructive notice to subsequent
grantees. We therefore conclude that the latent defect in the
10
Harold makes no argument that the July deed was recorded
with a certificate proving its due execution.
10
certificate of acknowledgment of the July deed prevented it from
giving constructive notice to Deborah of the prior conveyance.
Harold argues that, even if the July deed was not properly
acknowledged, that defect does not affect his claim to the
property. He argues, first, that he was not required to record
the July deed in order for it to provide superior title, and,
second, that the recording statute's safe harbor provision
protects his right to the property given the time that elapsed
between the recording of the July deed and the action on appeal
here. We disagree with both contentions.
b. Requirement to record deed. As we have noted, the
recording statute provides:
"A conveyance . . . shall not be valid as against any
person, except the grantor or lessor, his heirs and
devisees and persons having actual notice of it, unless it
. . . is recorded in the registry of deeds for the county
or district in which the land to which it relates lies."
G. L. c. 183, § 4. Harold argues that proper recording is not
required for the July deed to be valid against Deborah because
she qualifies both as the grantor's heir and as the grantor's
devisee. But Deborah's status as Ethel's heir (as her daughter)
and devisee (as a named beneficiary of other property under
Ethel's will) does not determine whether the requirement to
record applies to this transaction. Deborah did not receive the
disputed property by virtue of either of these statuses; she
received it through an inter vivos transfer. Harold does not
11
point to any authority establishing that a grantee's status as
an heir or devisee, with respect to unrelated property,
eliminates the protections of the recording statute for that
grantee. We conclude that it does not.
"We interpret a statute according to 'all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.'" Johnson v. Kindred Healthcare, Inc., 466
Mass. 779, 783 (2014), quoting from Board of Educ. v. Assessor
of Worcester, 368 Mass. 511, 513 (1975). The purpose of the
recording statute is "to allow persons without actual knowledge
to the contrary to rely upon registry records." Moore v.
Gerrity Co., 62 Mass. App. Ct. 522, 526 (2004). The
enforceability of unrecorded deeds against the grantors, as well
their heirs and devisees, is closely linked with the rationale
for enforcing unrecorded deeds against those with actual
knowledge -- preventing fraud. See Killam v. March, 316 Mass.
646, 650 (1944), quoting from Lawrence v. Stratton, 6 Cush. 163,
167 (1850) ("a party with such notice could not take a deed
without fraud"). Interpreting the statute as Harold suggests
would undermine the purpose of the statute, removing protection
for grantees like Deborah who were uninvolved with the original
12
conveyance and had no knowledge of it. That result cannot be
what the Legislature intended in establishing the recording
system. See Ward v. Ward, 70 Mass. App. Ct. 366, 370 n.7 (2007)
(tracing the purpose of the recording act to its creation in
1640).
Harold also argues that proper recording is not required
for the July deed to be valid against Deborah because she had
actual notice of the prior conveyance. This argument also
fails. The burden of showing actual notice is on Harold.
Tramontozzi v. D'Amicis, 344 Mass. 514, 517 (1962). Actual
notice is to be "construed with considerable strictness [and
mere] [k]nowledge of facts which would ordinarily put a party
upon inquiry is not enough." Ibid., quoting from McCarthy v.
Lane, 301 Mass. 125, 128 (1938). Deborah did not know of the
prior conveyance at the time the November deed was executed.
Nor did she or any of her siblings who were beneficiaries of the
Trust know of the prior conveyance to Harold at any point before
Harold revealed its existence after Ethel's death, eight years
later. Harold's argument that Deborah had knowledge by virtue
of Ethel's knowledge is unavailing. The question we face is not
whether the conveyance to Harold is valid against Ethel, but,
13
rather, its validity against Deborah. Harold has not carried
his burden of showing that Deborah had actual notice.11
c. Safe harbor. Harold argues that even if he was
required to record the July deed, as we have concluded, he is
protected by the safe harbor of G. L. c. 184, § 24, under which
a defective acknowledgment cannot be challenged after ten years.
See Howson v. Crombie St. Congregational Church, 412 Mass. 526,
529 (1992) (recorded deed with defective acknowledgment cured
within ten years if not challenged within that time). General
Laws c. 184, § 24, inserted by St. 1956, c. 348, § 1, provides:
"When any owner of land . . . signs an instrument in
writing conveying or purporting to convey his land or
interest . . . and the instrument, whether or not entitled
to record, is recorded . . . and a period of ten years
elapses after the instrument is accepted for record, and
the instrument or the record thereof because of defect,
irregularity or omission fails to comply in any respect
with any requirement of law relating to seals, corporate or
individual, to the validity of acknowledgment, to
certificate of acknowledgment . . . such instrument and the
record thereof shall notwithstanding any or all of such
11
In his reply brief, Harold further argues that Deborah
had actual notice because Ethel's knowledge of her prior
conveyance to Harold should be attributed to Deborah given that
Ethel also conveyed the property to herself and to Deborah as
cotrustees. "Any issue raised for the first time in an
appellant's reply brief comes too late, and we do not consider
it." Pasquale v. Casale, 72 Mass. App. Ct. 729, 738 (2008),
quoting from Assessors of Boston v. Ogden Suffolk Downs, Inc.,
398 Mass. 604, 608 n.3 (1986). Even if we considered this
argument, it would fail. Even if the knowledge of one cotrustee
can be attributed to other cotrustees in certain circumstances,
we would not do so here, where the disputed knowledge pertains
to an event that occurred before the cotrustee relationship
began.
14
defects, irregularities and omissions, be effective for all
purposes to the same extent as though the instrument and
the record thereof had originally not been subject to the
defect, irregularity or omission, unless within said period
of ten years a proceeding is commenced on account of the
defect, irregularity or omission, and notice thereof is
duly recorded in said registry of deeds and indexed and
noted on the margin thereof under the name of the signer of
the instrument and, in the event of such proceeding, unless
relief is thereby in due course granted."
(Emphasis added.) This proceeding was commenced in January,
2010, within ten years of the recording of the July deed on
August 10, 2001. Nonetheless, Harold contends he can take
advantage of the safe harbor provision.
First, Harold argues that while this proceeding was
commenced within ten years, it was not "commenced on account of
the defect, irregularity or omission." He argues that the
proceeding was brought with respect to the alleged forgery of
the July deed and that that defect does not encompass the
fatally defective acknowledgment. We disagree. Even if we
agreed with Harold's narrow reading of the phrase "on account of
the defect, irregularity or omission," his argument fails. This
argument is foreclosed by our conclusion infra, see part 2, that
the issue of the defective acknowledgment was tried by implied
consent.
Second, Harold argues that the safe harbor statute requires
that relief be granted within the ten-year period. Once again,
we disagree. Even if a proceeding is properly commenced within
15
ten years, the statute allows a defect to be cured "unless
relief is thereby in due course granted." The language of the
statute indicates that only the commencement of a proceeding
must be within ten years; the relief granted as a result of a
successful proceeding need only be granted "in due course." The
purpose of this last clause is plain: while a timely but
ultimately unsuccessful proceeding may forestall the application
of the safe harbor, it cannot foreclose it. Here, as the
statute requires, a proceeding "on account of the defect" was
commenced within ten years,12 and relief was in due course
granted. Thus, the safe harbor provision does not apply and the
defective acknowledgment was not cured.
2. Scope of the pleadings. Harold argues that the judge
improperly rendered a decision that exceeded the scope of the
pleadings in concluding that a defective acknowledgment gave
Deborah superior title to the property. We disagree.
"When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings."
Mass.R.Civ.P. 15(b), 365 Mass. 761 (1974). See National Med.
Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984)
12
We note in passing that the trial "on account of the
defect" was held in May, 2011, also less than ten years after
the August, 2001, recording of the July deed.
16
(issue tried by express or implied consent of parties treated as
raised in pleadings "without regard to whether the pleadings are
amended to conform to the evidence").13 "To find implied consent
where the pleadings are not amended, it must '[a]t least . . .
appear that the parties understood [that] the evidence [was]
aimed at the unpleaded issue.'" Harrington-McGill v. Old Mother
Hubbard Dog Food Co., 22 Mass. App. Ct. 966, 968 (1986), quoting
from MBI Motor Co. v. Lotus/East, Inc., 506 F.2d 709, 711 (6th
Cir. 1974).
The record here shows that, to the extent not raised by the
pleadings, the issue of the acknowledgment was tried by implied
consent. In the complaint, Deborah alleged that Harold had
"illegally converted the property for his own use" and that he
had "by fraud and forgery attempted to take the property." This
is not a case where "[s]erious problems [were] created [because
the] judge base[d his] decision on an issue that [was] not
before the court." Messina v. Scheft, 20 Mass. App. Ct. 945,
946 (1985). Harold was not "effectively foreclosed from
presenting any evidence on the very issue that [was] dispositive
of the case." Ibid. In fact, the propriety of the
acknowledgment first emerged during the direct examination of
Attorney Maloy, a witness called by Harold. On direct
13
Nonetheless, it would be better practice to move to amend
the pleadings to conform to the evidence.
17
examination, Maloy testified that he did not recollect Ethel's
signing the deed on July 23, 2001, the date on which he
notarized the deed. He also testified it was possible that
Ethel might have signed the deed on a date other than July 23.
On cross-examination, Deborah pursued this inquiry further.
The question whether Ethel signed the deed, particularly in
the fashion that Harold maintained at trial, was inextricably
intertwined with the question whether it was properly
acknowledged. Substantial evidence was admitted regarding
Ethel's whereabouts on July 23 with respect to whether she could
have signed the deed in Massachusetts on that day. The failure
to object to this evidence suggests consent. See Republic
Floors of New England, Inc. v. Weston Racquet Club, Inc., 25
Mass. App. Ct. 479, 487-488 (1988). The issue of the
acknowledgment was litigated at trial. Indeed, Deborah's
proposed findings of fact indicate her awareness that the
acknowledgment was at issue. Her proposed finding no. 37
states:
"Ethel Allen was never in the presence of attorney Maloy on
July 23, 2001. I do not credit attorney Maloy's testimony
that she executed the deed in his presence. He is a friend
and business partner of Harold, Jr. Ethel and Harold, Sr.
terminated his representation of them in 1993. The
handwritten note attorney Maloy says was delivered to him
by Ethel is undated and has attached to it a mortgage, even
though the note itself refers to a deed. He could not
specifically remember the execution, and suggested that
Ethel may have signed it some other day than the date set
18
forth in his purported acknowledgement. Ethel could not
have signed the deed on July 23, 2001."
(Emphasis added.) Just as Deborah knew that the acknowledgment
was at issue, so should Harold have been aware that it was at
issue. We conclude that the question of the acknowledgment was
tried by consent and was properly before the judge.
3. Evidentiary support. During a four-day trial, the
judge heard testimony from ten fact witnesses and three expert
witnesses. Harold contends that the ensuing judgment was
unsupported by the evidence because several of the judge's
findings were erroneous. Reviewing the findings under the
clearly erroneous standard, Cahaly v. Benistar Property Exch.
Trust Co., 85 Mass. App. Ct. 418, 424 (2014), we discern no
reversible error.
Harold's argument centers on finding of fact no. 58,
reproduced in full here, given its importance to this dispute:
"While the analysis of the handwriting convinces me that
Ethel Allen's signature on the July 23, 2001 Deed is
authentic, I am convinced that she did not sign the Deed in
the presence of Attorney Maloy on July 23, 2001. Attorney
Maloy's testimony admits the possibility that the Deed was
not signed in front of him, and that the Deed was not
signed on July 23, 2001, despite its date and certificate
of acknowledgment. Attorney Maloy had a long time personal
and business relationship with Harold, Jr. I am convinced
and find that Ethel signed the Deed in front of Harold,
Jr., without Attorney Maloy being present, and Harold, Jr.
brought the signed Deed to his attorney, represented that
Ethel had signed the Deed, and asked for Attorney Maloy to
notarize the acknowledgment, which he then did. I find
that the certificate of acknowledgment, which recites that
Ethel appeared personally before Attorney Maloy in his
19
capacity as notary public, and that she acknowledged in his
presence the Deed as her free act, was inaccurate. She did
not appear personally before him at any time to acknowledge
the Deed, and the certifications on this point are false."
The judge heard substantial testimony with respect to the
signing and purported acknowledgment of the deed. The judge
determined that Maloy's testimony about the signing and
acknowledgment, described above, was an "equivocal, unsatisfying
account of what happened." The judge also heard testimony with
respect to Ethel's whereabouts in the days surrounding the
purported signature and acknowledgment -- shedding light on
whether she could have signed the deed and acknowledged it to
Maloy in Arlington, Massachusetts, as Harold claims. The judge
explicitly discredited testimony of one of Ethel's daughters,
Sandra Madigan, and of Harold's mother-in-law that placed Ethel
as living in the disputed property at the time of the purported
acknowledgment. The judge instead credited testimony of other
family members that placed Ethel as living with her daughter
Nancy in Nashua, New Hampshire, at that time, including
testimony that Ethel slept in Nashua during the nights
surrounding the disputed signing and that she spent the day of
the purported signing in New Hampshire.
"[T]he judge's assessment of the quality of the testimony
is entitled to our considerable respect because 'it is the trial
judge who, by virtue of his firsthand view of the presentation
20
of evidence, is in the best position to judge the weight and
credibility of the evidence.'" Edinburg v. Edinburg, 22 Mass.
App. Ct. 199, 203 (1986), quoting from New England Canteen
Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977).14 Based on the
evidence presented, the judge concluded that Ethel had not
acknowledged the deed in front of Maloy. "The judge's advantage
in weighing the testimony is particularly evident in a case
involving conflicting testimony, 'one in which widely differing
inferences could be drawn from the evidence,' and the drawing of
inferences cannot be separated from the evaluation of the
testimony itself." Demoulas v. Demoulas Super Mkts., Inc., 424
Mass. at 510, quoting from Goddard v. Dupree, 322 Mass. 247, 248
(1948). "[W]here there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous." Edinburg v. Edinburg, 22 Mass. App. Ct. at 203,
14
Harold also contests the judge's finding, in finding of
fact no. 57, that "[n]obody testified that they saw Ethel Allen
in Massachusetts on . . . July 23, 2001," arguing that Maloy had
testified that Ethel was in Arlington that day. But reading the
entirety of finding of fact 57 in context, we read it to mean
that no one other than Maloy testified to having seen Ethel in
Massachusetts on July 23. Nor did anyone testify to taking
actions that could have enabled her to be at the location of the
purported signing, in Arlington, on that day. (Ethel did not
drive at that time.) Even Maloy's testimony on that point was,
at best, "equivocal." Even assuming this finding was strictly
speaking erroneous because of Maloy's testimony, it is of no
moment. The judge did not attribute much weight or credibility
to Maloy's testimony in the first place. Had the judge amended
this finding as Harold suggests, it would have no impact on the
result.
21
quoting from Anderson v. Bessemer City, 470 U.S. 564, 573-574
(1985). The finding that the deed was not properly acknowledged
was not clearly erroneous.
After considering the conflicting evidence regarding the
signing and acknowledgment, as well as the background
relationships among the family members and others,15 the judge
found that Ethel had signed the deed in front of Harold and that
he brought the deed to Maloy for notarization. We acknowledge
that the evidence supporting this conclusion is less firm than
that supporting the more fundamental conclusion that Ethel did
not sign or acknowledge the July deed before Maloy.
Nonetheless, the evidence in the record with respect to both
Harold's close relationship with Maloy and Ethel's whereabouts
in the days surrounding the purported signing and acknowledgment
supports the judge's finding as to how the signing and
notarization unfolded. See Klairmont v. Gainsboro Restaurant,
Inc., 465 Mass. 165, 188 (2013) (finding was not clear error
where it was supported by ample circumstantial evidence).
Moreover, even if we were to conclude that the judge's finding
as to how Maloy ultimately notarized the document was clear
error because it was speculative, it would not be cause for us
15
Maloy performed legal work for Harold, Sr., and Ethel
prior to 1993 but did little work for them between 1993 and
2001. He remained a friend of the family and a joint venturer
with Harold in several real estate projects.
22
to disturb the judgment. Because we have concluded that the
finding that Ethel did not sign or acknowledge the deed before
Maloy was not clear error, whether Ethel signed it before
Harold, as the judge found, is immaterial. Because Harold has
not demonstrated that any of the findings that support the
judgment are clearly erroneous, we reject his argument that the
judgment is not supported by the evidence.
4. Amendment of counterclaim. Notwithstanding Harold's
argument to the contrary, the judge did not abuse his discretion
in denying Harold's motion to amend his counterclaim -- in order
to add an undue influence claim regarding the November deed --
without prejudice to raising the claim in a separate action.16
The judge's concerns that the motion was excessively late with
respect to the impending trial and that the proposed
counterclaim entailed unrelated questions of fact were
reasonable. See Audubon Hill S. Condominium Assn. v. Community
Assn. Underwriters of America, Inc., 82 Mass. App. Ct. 461, 471-
472 (2012).17
Judgment affirmed.
16
We note that Harold has commenced such an action in the
Land Court.
17
To the extent we do not address other contentions made by
Harold, they "have not been overlooked. We find nothing in them
that requires discussion." Department of Rev. v. Ryan R., 62
Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
23
Order denying
postjudgment motions
affirmed.