Lodigiani v. Paré

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22-P-459 Appeals Court
JAMES B. LODIGIANI & another1 vs. NINA PARÉ.
No. 22-P-459.
Hampden. March 10, 2023. – August 22, 2023.
Present: Wolohojian, Shin, & Hodgens, JJ.
Real Property, Partition, Life estate, Remainder interests.
Probate Court, Partition proceedings, Judicial discretion,
Attorney's fees. Practice, Civil, Attorney's fees. Waste.
Petition for partition filed in the Hampden Division of the
Probate and Family Court Department on February 22, 2019.
The case was heard by Claudine T. Wyner, J., and motions
for reconsideration and for attorney's fees and costs were
considered by her.
Karen M. Lodigiani for the petitioners.
Jessica R. Sofio for the respondent.
SHIN, J. This is the petitioners' appeal from a decree
entered in the Probate and Family Court ordering that the
proceeds from a partition and sale of the subject property
1 Anne A. Betramello, individually and as representative of
the estate of Leonard C. Lodigiani.
2
(property) be divided equally among the parties. Prior to the
partition, the parties, who are all siblings, owned remainder
interests in the property subject to the life estate of their
father, Leonard C. Lodigiani. While the life estate was still
in existence, the respondent-remainderman Nina Paré caused
damage to the property over the course of several years. The
petitioners-remaindermen James B. Lodigiani and Anne A.
Beltramello incurred costs to mitigate the damage, which they
then sought to recoup from Nina2 in the underlying partition
action.
The judge determined that James and Anne's claim for
contribution from Nina was beyond the scope of the partition
action, and so she could not consider it. This was because, the
judge reasoned, Leonard had the duty as life tenant to preserve
the property for the benefit of the remaindermen; thus, James
and Anne's exclusive remedy was to bring an action for waste
against Leonard's estate. We conclude that this was error
because Nina had her own duty as a remainderman not to impair
the rights and interests of her coremaindermen. It was
therefore within the judge's authority to consider whether to
account for the property damage caused by Nina when determining
how to equitably divide the proceeds from the partition sale.
2 As some of the parties share the same surname, we will
refer to all parties hereafter by their first names.
3
Further concluding that additional explanation from the judge is
needed as to her denial of the petitioners' motion for
attorney's fees and costs, we vacate the decree in part, and the
order denying the motion for attorney's fees and costs and
remand.
Background. We summarize the judge's factual findings,
supplemented by uncontested facts of record.3
On March 11, 2004, Leonard and his wife Helen deeded the
property to James, Anne, and Nina as joint tenants with rights
of survivorship, while reserving a life estate for themselves.
The deed provided that Leonard and Helen had "the exclusive
right to occupy the premises" during their lifetimes, along with
the obligation to pay "the cost of all insurance, maintenance,
fees, charges and expenses relating to the premises" and "all
taxes assessed or imposed with respect thereto, and all
principal and interest on any mortgages thereon."
Following execution of the deed, Leonard and Helen lived
together at the property with their fourth child John, who has
developmental disabilities. After Helen died in 2007, Leonard
continued to live at the property with John. In or about 2011,
3 Several documents referred to in the petitioners' brief
are not included in the record appendix, including the petition
itself and the deed. We stress that it is an appellant's duty
to produce an appendix containing all portions of the record
relevant to the issues raised on appeal. See Mass. R. A. P.
18 (a), as appearing in 481 Mass. 1637 (2019).
4
Nina moved into the property, where she assisted in caring for
both Leonard and John.
Nina, who has a history of hoarding, continued that
behavior while living at the property. In or about July 2012,
James began sending e-mail messages to Nina, urging her to clean
up and "not add to the mess." Despite his efforts, by 2014 the
property was in very poor condition. Late that year James
arranged and paid for a dumpster to be brought to the property
for the purpose of cleaning up the clutter and trash that Nina
had accumulated. Nina's behaviors persisted, however, leading
the town's health department to issue several violation notices
to Leonard in 2016 for violations of the State sanitary code.
In July 2017 James told Nina that she was no longer welcome
to stay at the property and needed to remove her belongings.
When Nina did not oblige, James told her in early 2018 that he
and Anne "as majority owners of the house" needed to prepare the
property for sale and that Nina needed to leave. In May 2018
Leonard moved himself and John out of the property.
In or about December 2018, Leonard obtained a no-trespass
order against Nina. Thereafter, James, Anne, and their families
worked to clean up the property. The clean-up process took
approximately one year and required a series of dumpsters at a
cost of over $6,000, which James paid.
5
Meanwhile, in February 2019, James, Anne, and Leonard filed
a joint petition for partition, naming Nina as respondent. The
petition requested that Leonard be allowed to surrender his life
estate and that the property be sold and the proceeds
distributed in proportions that included compensating the
petitioners for the costs they incurred to mitigate the damage
caused by Nina. The judge issued an interlocutory decree
ordering partition by sale and appointed a commissioner, who
closed the sale of the property on January 27, 2020.4 Leonard
died the next day.5
The case proceeded to a bench trial on the issue of how the
sale proceeds should be divided among the parties. From the
evidence the judge found it "clear that [Nina] was the cause of
the waste, trash accumulation and debris in and around the
property." The judge further found that James and Anne
"incurred significant expense and spent considerable time to
essentially clean up their sister's mess." Nonetheless, the
judge concluded that Leonard, not Nina, was the appropriate
person from whom to seek reimbursement because Leonard, as the
4 The commissioner's report is not included in the appendix,
and there is no other document in the appendix showing the
amount of proceeds received from the sale.
5 Anne was later substituted for Leonard as personal
representative of his estate.
6
life tenant, had the exclusive right to possession at all
relevant times, and so was "the sole person [with] the duty to
preserve and protect the property for the benefit of the
parties." Based on this reasoning, the judge concluded that
James and Anne's claim for contribution was beyond the scope of
the partition action and instead had to be raised through an
action for waste against Leonard's estate.
The petitioners moved for reconsideration under Mass. R.
Civ. P. 59 (e), 365 Mass. 827 (1974), and separately moved for
attorney's fees and costs under G. L. c. 241, § 22. The judge
summarily denied both motions. She then issued a final decree
ordering that the sale proceeds be divided equally among the
parties, after deducting the commissioner's expenses and
charges.
Discussion. 1. Equitable division. The overall objective
of a judge in a partition proceeding is to make a "just and
equitable" division "according to the respective rights of the
parties." Batchelder v. Munroe, 335 Mass. 216, 218 (1957). See
Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007)
("purpose of partition proceedings is to balance the rights and
equities of the parties concerning the property at issue").
Although there is a "presumption that partitioned property
should be equally divided," the presumption can be rebutted if a
party "show[s] that his [or her] beneficial interest is
7
different from that indicated by the record title" (quotation
and citation omitted). Canepari v. Pascale, 78 Mass. App. Ct.
840, 844 (2011). A judge making a division therefore has the
discretion to depart from the presumption if warranted by the
circumstances bearing on the equities and the parties' rights,
including any prior financial contributions made by a party to
preserve the common estate. See Sanborn v. Johns, 19 Mass. App.
Ct. 721, 724 (1985); Stylianopoulos v. Stylianopoulos, 17 Mass.
App. Ct. 64, 69-70 (1983).
It is evident from the judge's decision here, however, that
she believed she lacked the discretion to credit James and Anne
for the costs they incurred in cleaning up the property, even
though Nina was the cause of its poor condition. The judge took
this view based on a conclusion of law: that a remainderman
like Nina cannot be held responsible for any property damage
that occurred during a prior life tenancy because it is the life
tenant who has the right to possession and the corresponding
duty to preserve the property for the remaindermen. From this
premise the judge further concluded that the party responsible
for the damage was Leonard -- who, the judge found, could have
obtained a no-trespass order against Nina sooner than he did --
and so the exclusive vehicle through which James and Anne could
seek to recoup their costs was an action for waste against
Leonard's estate.
8
We think the judge viewed the scope of her discretion too
narrowly. It is true, as a general matter, that a life tenant
has the "duty to preserve the estate for the benefit of the
remaindermen" and can be held liable to the remaindermen in an
action for waste for property damage occurring during the
tenancy. Matteson v. Walsh, 79 Mass. App. Ct. 402, 406 (2011).
See Fay v. Brewer, 20 Pick. 203, 204 (1825). The Legislature
long ago enacted G. L. c. 242, § 1, which provides that "[i]f a
tenant in dower, by the curtesy, for life or for years commits
or suffers waste on the land so held, the person having the next
immediate estate of inheritance may have an action of waste
against such tenant to recover the place wasted and the amount
of the damage." Persons "holding vested remainders after . . .
[a] life estate" are among those persons "having the next
immediate estate of inheritance" under G. L. c. 242, § 1.
Thayer v. Shorey, 287 Mass. 76, 79 (1934). See G. L. c. 242,
§ 2 ("A person having . . . a remainder or reversion in fee
simple or fee tail after an intervening life estate . . . may
have an action of tort in the nature of waste to recover the
amount of the damage against the tenants named in the preceding
section"). An action for waste can also be brought against a
tenant's estate "for waste committed or suffered in the tenant's
lifetime." G. L. c. 242, § 3.
9
The concept of waste embodies the principle that a tenant
has the "obligation to treat the premises in such manner that no
harm be done to them and that the estate may revert to those
having an underlying interest undeteriorated by any wilful or
negligent act." Delano v. Smith, 206 Mass. 365, 370 (1910).
Waste is defined as "an unreasonable or improper use, abuse,
mismanagement, or omission of duty touching real estate by one
rightfully in possession which results in its substantial
injury." Id. It can take two forms -- voluntary, resulting
from the tenant's intentional conduct, and permissive, resulting
from neglect or omission. See Gade v. National Creamery Co.,
324 Mass. 515, 516-517 (1949); Chalmers v. Smith, 152 Mass. 561,
564 (1891); Matteson, 79 Mass. App. Ct. at 406-407.
While there are few cases in Massachusetts addressing when
a life tenant can be held liable to a remainderman for acts
committed by others, we need not reach that question, nor need
we decide specifically whether the judge was correct to conclude
that Leonard's delay in obtaining a no-trespass order against
Nina would be actionable as permissive waste against his estate.
The only question we must decide is whether the judge, when
apportioning the proceeds from the partition sale, had the
discretion to take into account damage to the property caused by
Nina while the life tenancy was in existence. We conclude that
she did. Our conclusion is buttressed by long recognized
10
exceptions to the general principle that a life tenant is
responsible to a remainderman for injuries to the estate; these
include exceptions for injuries caused by "the acts of God," by
"public enemies," and, as pertinent here, by "the reversioner
himself."6 Willey v. Laraway, 64 Vt. 559, 561 (1892). Accord
Rogers v. Atlantic, G. & P. Co., 213 N.Y. 246, 249 (1915). This
last exception reflects the commonsense notion that remaindermen
(or reversioners) who injure the premises by their own acts
cannot then hold the life tenant liable for the damage.
Because Nina is therefore responsible for the damage to the
property that she herself caused, we see no bar to James and
Anne's asserting a claim to account for that damage in a
partition action. Although the parties did not have possessory
interests while Leonard was still living, they had vested future
ownership interests arising from a common source of title. See
Thayer, 287 Mass. at 78-79. Nina had the duty as a remainderman
6 Although some of the cases we cite involve reversionary
interests, the rationale of those cases applies equally to
remainder interests. Both types of interests are future
interests in property that arise after termination of the prior
estate, but differ as to who is receiving the interest. In
particular, a reversion is "a future interest in land arising by
operation of law whenever an estate owner grants to another a
particular estate, such as a life estate or a term of years, but
does not dispose of the entire interest" and "occurs
automatically upon termination of the prior estate, as when a
life tenant dies." Black's Law Dictionary 1578 (11th ed. 2019).
A remainder is "[a] future interest arising in a third person
. . . who is intended to take after the natural termination of
the preceding estate." Id. at 1545.
11
not to impair the ownership interests of her coremaindermen
James and Anne. See Wilson v. Linder, 21 Idaho 576, 584 (1912)
("joint remaindermen in expectancy" have "duty and obligation of
protecting the common title the same as if they were
cotenants"); Givens v. Givens, 387 S.W.2d 851, 853 (Ky. Ct. App.
1965) ("As in the case of joint tenants or tenants in common,
public policy dictates that a remainderman shall not impair the
title or interests of his coremaindermen"); Ransom v. Bebernitz,
172 Vt. 423, 432 (2001) ("co-remaindermen have a fiduciary
relationship to each other that no one of them may impair the
rights or interests of his co-remaindermen"). The judge thus
had the discretion to consider James and Anne's claim for
contribution from Nina in deciding what would be a just and
equitable division of the proceeds from the partition sale. See
Lowe v. Adams, 77 N.M. 111, 117 (1966) ("in every jurisdiction
where the action for partition has been considered as one
calling for equitable interposition and relief, it has been
uniformly held that an improving cotenant, who has in good faith
enhanced the value of the common remainder estate, should be
reimbursed for the value of such improvements upon a sale in
partition, and the fact that such improvements were made by a
tenant in common in reversion, during the previous life estate,
12
is not a bar to such contribution by the coremaindermen upon the
death of the life tenant").7
We express no view on whether James and Anne are entitled
to contribution. Although Nina argues that the judge could have
in her discretion divided the sale proceeds equally, even taking
into account the clean-up costs incurred by James and Anne, that
issue is not properly before us. It must be decided by the
judge on remand.
2. Attorney's fees and costs. As mentioned, the
petitioners brought their motion for attorney's fees and costs
pursuant to G. L. c. 241, § 22, which states in relevant part:
"The reasonable expenses and charges of partition
proceedings, including examination of title and preparation
of plan ordered by the court under section seventeen, and
the fees of counsel, of the commissioners, and of all
agents, guardians and other persons appointed to represent
interests in accordance with section nine, shall be
determined by the court, and in case of sale paid by the
commissioners out of the proceeds. . . ."
This statute "furnishes an exception to the general American
rule that each party to litigation is responsible for its own
expenses." Aiello v. Aiello, 63 Mass. App. Ct. 914, 915 (2005).
See Gonzalez, 68 Mass. App. Ct. at 788-789. Its purpose "is to
7 See also Smith v. Smith, 133 Ga. 170, 174 (1909)
(improvements made by remainderman during life estate "would be
taken into consideration in making the partition . . . after the
termination of the life-estate"); Dalgarno v. Baum, 182 Va. 806,
808 (1944) ("in a suit for partition instituted after the death
of the life tenant," remainderman entitled to compensation from
coremaindermen for improvements made during life estate).
13
apportion the expenses incurred to achieve the common benefit
from partition of shared property among the parties receiving
that benefit." Aiello, supra at 916.
Here, we are unable to determine whether the judge acted
within her discretion in denying the petitioners' motion because
she did not give reasons for her decision. We must therefore
vacate the order and remand the issue for further consideration.
For purposes of remand, we note that, contrary to the suggestion
in the petitioners' motion and their brief, G. L. c. 241, § 22,
does not automatically entitle them to contribution toward all
of their fees and costs; the statute applies only to those
expenses incurred to achieve a common benefit for the parties.
See Gonzalez, 68 Mass. App. Ct. at 789. Some of the expenses
sought by the petitioners related to tasks such as preparing the
petition, but a large portion related to trial preparation, the
trial itself, and posttrial motions. The question of which of
these expenses achieved a common benefit for the parties is for
the judge to decide in the first instance on remand. See
Aiello, 63 Mass. App. Ct. at 916.
Conclusion. So much of the decree as relates to the
distribution of the sale proceeds among the parties is vacated;
the decree is otherwise affirmed. The order denying the
petitioners' motion for attorney's fees and costs is also
vacated. The matter is remanded for further proceedings
14
consistent with this opinion. Nina's request for appellate
attorney's fees and costs is denied.
So ordered.