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16-P-1314 Appeals Court
ELAINE PASSERO vs. PAULA LIA FITZSIMMONS, trustee,1 & another.2
No. 16-P-1314.
Essex. May 3, 2017. - August 17, 2017.
Present: Massing, Shin, & Ditkoff, JJ.
Trust, Breach of trust, Trustee's discretion, Exemption of
trustee from liability, Removal of trustee, Trustee's
compensation, Beneficiary, Distribution. Damages, Breach
of fiduciary duty. Probate Court, Removal of fiduciary,
Fiduciary's fees, Judicial discretion. Practice, Civil,
Bias of judge, Waiver. Waiver.
Civil action commenced in the Essex Division of the Probate
and Family Court Department on August 23, 2013.
The case was heard by Peter C. DiGangi, J.
George P. Lordan, Jr., (Anthony S. Porcello & Dennis P.
Derrick also present) for the defendants.
Stefan L. Jouret (Rebecca Royer also present) for the
plaintiff.
1
Of the Ralph DeMarco Revocable Trust.
2
Madeline J. Lia, as trustee of the Ralph DeMarco Revocable
Trust.
2
SHIN, J. This case involves a dispute over the
administration of a share of a trust established for the benefit
of the plaintiff and two of her three children. The plaintiff
brought suit against the defendant trustees, claiming, among
other things, that they committed a breach of trust by paying
for fifteen years of storage fees out of trust assets. A judge
of the Probate and Family Court agreed, ordered the defendants
to repay the storage fees and other unaccounted-for sums to the
trust, and removed the defendants as trustees. We discern no
error in these determinations and reject the various challenges
that the defendants raise on appeal.
Nevertheless, we conclude that remand is required for two
reasons. First, the judge should not have appointed the
plaintiff's children as successor trustees because they are
themselves beneficiaries of the trust. As such, they are
interested parties and are barred by the trust document from
exercising certain powers, including distributions. Second, the
judge was without authority to order the successor trustees to
make monthly distributions to the plaintiff in a specified
amount. We therefore vacate the judgment as to the appointment
of the successor trustees and the distribution of the trust's
assets and remand for appointment of a disinterested successor
trustee, who shall have the discretion to make distributions in
3
accordance with the trust instrument. We affirm the judgment in
all other respects.
Background. We summarize the detailed findings of fact
made by the judge, reserving some facts for later discussion.
The settlor -- who is the father of the plaintiff and of
defendant Madeline Lia, and the grandfather of defendant Paula
Fitzsimmons (who is Lia's daughter) -- executed a declaration of
trust in February of 1999. The trust provides for division of
the settlor's estate into four equal shares upon his death. One
share was to be held in a discretionary trust for the benefit of
the plaintiff and two of her three children, Paul Passero and
Alicia Passero,3 with any balance remaining upon the plaintiff's
death to be distributed to Paul and Alicia in equal shares.4 The
3
Because Paul and Alicia share the same last name, we will
refer to them by their first names.
4
In particular, article 4.2.2 of the trust document,
entitled "Elaine's Trust," states:
"The [t]rustees shall hold, manage, invest, and reinvest
one share as a separate trust for the benefit of the
[s]ettlor's daughter, Elaine R. Passero and shall use any
part or all of the net income and principal for the benefit
of Elaine and her children, Paul Passero and Alicia Passero
by making payments to or applying the same for any one or
more of them at such time or times and in such amounts,
proportions, and manner as the [t]rustees shall in their
discretion deem advisable, with full power to accumulate
any income not so paid or applied and to hold the same for
future use or to add the same in whole or in part to
principal until Elaine's death. At such time, the
[t]rustees shall distribute all the property then remaining
in Elaine's trust, free of all trusts, to Paul Passero and
4
remaining three shares were to be distributed to the other
beneficiaries "free of all trusts."
After the settlor died in April of 2001, the defendants
began administering the trust. By October of 2008, three-
quarters of the trust assets had been distributed to the other
beneficiaries, leaving the plaintiff (and Paul and Alicia) as
the sole remaining beneficiaries. The defendants made no
distributions to the plaintiff or her children until the judge
ordered them, in May of 2016, to give the plaintiff a $25,000
advance so that she could pay her medical bills and obtain
housing.
The primary issue at trial concerned the defendants'
decision to pay storage fees out of the plaintiff's beneficial
interest in the trust. Shortly after the settlor's death, the
defendants identified items of the plaintiff's personal property
that she had left in the settlor's home, and items of the
settlor's personal property that he had allocated to the
plaintiff in his will, and arranged for these items to be moved
to a storage facility in Massachusetts. Subsequently, in 2003,
the trust's attorney, Robert Madruga, sent the plaintiff a
series of letters informing her that the property was in
storage, that she needed to make arrangements to have it shipped
Alicia Passero in equal shares. In no event and under no
circumstances shall the [t]rustees make any distributions
to Mark P. Passero [the plaintiff's other child]."
5
to her, and that the trust would not pay the storage fees "for
much longer." In response to at least one of those letters, the
plaintiff, who lived in California, asked Madruga for the
location of the storage facility. Acting on the defendants'
instructions, Madruga refused to give her that information.
The plaintiff received no further communications about the
property until June of 2008. At that time Madruga sent her
another letter in which he stated that she could not "cherry
pick" the items, but had to accept all of them together, and
refused again to provide the location of the storage facility.
Madruga sent two more letters to the same effect in March and
April of 2009. Thereafter, the plaintiff heard nothing more
about the property until she filed this case in 2013.
In total, the defendants paid the storage fees for a period
of fifteen years, expending over $50,000 out of the plaintiff's
share in the trust. They also used trust assets to pay for
trustee's and attorney's fees and litigation expenses. As a
result, by December of 2013, the plaintiff's beneficial interest
had been reduced to $463,719 from an opening balance of
$542,042, even though the defendants had never made a
distribution to her. Her interest had been further reduced to
approximately $250,000 by June of 2016 because the defendants
continued to pay the storage fees, as well as litigation
6
expenses and trustee's and attorney's fees, while the case was
ongoing.5
At the same time they were paying the storage fees, the
defendants failed to provide the plaintiff or her children with
accounts of the trust. Although the defendants prepared annual
accounts from 2001 to 2008, they gave the plaintiff only the
first two6 and then ceased preparing accounts until late 2014,
when they were required to do so by court order. In contrast,
the defendants provided the other beneficiaries with each annual
account from 2001 to 2008.
Discussion. 1. Breach of trust. Under the Massachusetts
Uniform Trust Code (code),7 a trustee has a duty "to administer
5
Before trial started, the parties viewed the stored
property pursuant to court order. Ultimately, the plaintiff
chose about a third to keep, and the parties signed a
stipulation, which the trial judge approved and incorporated
into an order, agreeing that the plaintiff would pay to have the
property shipped to her. The judge also ordered that the
defendants bear their own attorney's fees and litigation costs
with respect to claims on which the plaintiff prevailed.
6
Fitzsimmons testified that she gave the accounts for 2003
to 2008 to the plaintiff's nephew, Philip DiNapoli. According
to the plaintiff, however, she did not receive any of those
accounts until DiNapoli gave them to her in 2014. The judge
credited the plaintiff's testimony.
7
The code was passed as an emergency act on July 8, 2012,
effective the same date, and applies to "all trusts created
before, on or after the effective date" and to "all judicial
proceedings concerning trusts commenced on or after the
effective date." St. 2012, c. 140, § 66. There is no dispute
that the code governs this case, which was commenced in August
of 2013.
7
the trust as a prudent person would, considering the purposes,
terms and other circumstances of the trust. In satisfying this
standard, the trustee shall exercise reasonable care, skill and
caution." G. L. c. 203E, § 804. A trustee must at all times
"administer the trust solely in the interests of the
beneficiaries." Id. § 802(a). "A violation by a trustee of a
duty the trustee owes to a beneficiary shall be a breach of
trust." Id. § 1001(a).
The judge concluded that the defendants failed to act
prudently, and thereby committed a breach of trust, by using the
plaintiff's share of the trust to pay for fifteen years of
storage fees. We discern no clear error in this ruling. See
Woodward Sch. for Girls, Inc. v. Quincy, 469 Mass. 151, 159, 167
(2014) (reviewing for clear error judge's finding that trustee
breached fiduciary duty). As the judge determined, despite
telling the plaintiff in 2003 that the trust would not pay for
the storage fees "for much longer," the defendants continued to
pay them for many more years without the plaintiff's
authorization. At the same time, the defendants failed to
provide the plaintiff with accounts of the trust and failed to
communicate with her for nearly five years between 2003 and
2008, and again for four years between 2009 and 2013. In
addition, when the plaintiff requested information about the
storage facility, the defendants refused to give her that
8
information. Through their actions the defendants depleted the
plaintiff's beneficial interest "by at least ten percent." This
evidence was sufficient for the judge to find that the
defendants "imprudently wasted [t]rust assets," in violation of
their duty under G. L. c. 203E, § 804. Cf. Woodward Sch. for
Girls, 469 Mass. at 167 (judge did not clearly err in finding
breach of fiduciary duty where trustee "failed to invest with
the long-term needs and best interests of the income beneficiary
in mind").
In reaching his decision, the judge did not, as the
defendants argue, "reform" the trust document "[b]y nullifying
the [t]rustees' discretionary power to manage the [t]rust." The
judge acknowledged that the defendants had discretion over how
to administer the plaintiff's share of the trust. But as the
defendants concede, their discretion was not boundless. "[E]ven
very broad discretionary powers" conferred by a trust instrument
"are to be exercised in accordance with fiduciary standards and
with reasonable regard for usual fiduciary principles." Old
Colony Trust Co. v. Sillman, 352 Mass. 6, 10 (1967). See Fine
v. Cohen, 35 Mass. App. Ct. 610, 617 (1993) ("Even when there
are broad discretionary powers, a trustee may not exercise his
or her discretion so as to shift beneficial interests in the
trust"). As the code specifically provides, "[n]otwithstanding
the broad discretion granted to a trustee in the terms of the
9
trust, including the use of such terms as 'absolute,' 'sole' or
'uncontrolled,' the trustee shall exercise a discretionary power
in good faith and in accordance with the terms and purposes of
the trust and the interests of the beneficiaries." G. L.
c. 203E, § 814(a). The judge properly found, based on the
evidence presented, that the defendants did not adhere to usual
fiduciary principles or act in the plaintiff's interests.
Contrary to the defendants' assertions, this factual
determination did not constitute a reformation of the trust.
We also reject the defendants' reliance on the exculpatory
clause of the trust document, which states: "Unless due to his
own wilful default or gross negligence, no [t]rustee shall be
liable for his acts or omissions or those of any co-[t]rustee or
prior [t]rustee." The code renders a trustee exculpatory clause
"unenforceable to the extent that it . . . relieves the trustee
of liability for breach of trust committed in bad faith or with
reckless indifference to the purposes of the trust or the
interests of the beneficiaries." Id. § 1008(a)(1).8 In
addition, the case law has long defined the phrase "wilful
default" to include acts committed "with reckless indifference
to the interest of the beneficiary." New England Trust Co. v.
Paine, 317 Mass. 542, 548, 550 (1945). Here, the judge
8
An exculpatory clause is also unenforceable if it "was
inserted as the result of an abuse by the trustee of a fiduciary
or confidential relationship to the settlor." Id. § 1008(a)(2).
10
expressly found that the defendants' "breach of trust was
committed with reckless indifference to the interests of the
beneficiaries." As there was ample evidence to support this
finding, we agree with the judge that the exculpatory clause
does not shield the defendants from liability.
Last, none of the miscellaneous factual challenges raised
by the defendants demonstrates clear error. The defendants
claim that the plaintiff authorized them to store the property,
but the judge was entitled to credit the plaintiff's testimony
to the contrary. See Demoulas v. Demoulas Super Markets, 424
Mass. 501, 510 (1997), quoting from Gallagher v. Taylor, 26
Mass. App. Ct. 876, 881 (1989) ("Where there are two permissible
views of the evidence, the factfinder's choice between them
cannot be clearly erroneous"). Nor was it clear error for the
judge to find that the defendants failed to give the plaintiff
the annual accounts for 2003 to 2008. As mentioned, the judge
credited the plaintiff's testimony that she did not receive the
accounts until DiNapoli gave them to her in 2014. Although the
defendants argue that they should have been allowed to call
DiNapoli to testify as a rebuttal witness, there is no
indication in the record that they asked for that opportunity at
trial. Having failed to ask, they cannot now complain of error
11
on appeal. See Care & Protection of Leo, 38 Mass. App. Ct. 237,
243 (1995).9
2. Removal of defendants as trustees. The defendants also
argue that the evidence did not justify the judge's decision to
remove them as trustees. Under the code a judge may remove a
trustee where "because of unfitness, unwillingness or persistent
failure of the trustee to administer the trust effectively, the
[judge] determines that removal of the trustee best serves the
interests of the beneficiaries." G. L. c. 203E, § 706(b)(3).10
We review a removal of a trustee only "to determine whether the
judge's findings are clearly erroneous . . . or whether there
has been an abuse of discretion." Matter of the Trusts Under
the Will of Crabtree, 449 Mass. 128, 136 (2007).
9
The defendants further contend that the judge erred by
faulting them for not making distributions to the plaintiff,
given that she never asked for one. We need not reach this
argument -- or the plaintiff's counterargument that the
defendants had an affirmative obligation under the code to
inquire into her needs and finances -- because the judge did not
rely on the defendants' failure to make distributions as a basis
for his finding of breach of trust.
10
The code also authorizes removal if "the trustee has
committed a serious breach of trust"; "there is a lack of
cooperation among co-trustees that substantially impairs the
administration of the trust"; or "there has been a substantial
change of circumstances or removal is requested by all of the
qualified beneficiaries, the court finds that removal of the
trustee best serves the interests of all of the beneficiaries
and is not inconsistent with a material purpose of the trust and
a suitable co-trustee or successor trustee is available." G. L.
c. 203E, §§ 706(b)(1), (b)(2), and (b)(4).
12
The judge appropriately concluded that removal was
warranted in this case because the defendants "persistently
failed to administer the [t]rust effectively by expending
[t]rust funds on storage fees," rendering "their removal . . .
in the best interests of [the plaintiff]." As discussed above,
the judge's findings are not clearly erroneous, and we discern
no abuse of discretion in his conclusion that removal would best
serve the plaintiff's interests. The evidence supports his
determination that the defendants' "actions, including their
failure to provide [the plaintiff] with the accounts despite
providing them to [the other] beneficiaries and their
unreasonable refusal to provide [the plaintiff] with the address
of the storage facility, demonstrate their hostility towards
her." See Shear v. Gabovitch, 43 Mass. App. Ct. 650, 689 (1997)
("It is appropriate to remove a trustee when hostile feelings
threaten to interfere with the administration of the trust");
G. L. c. 203E, § 803 ("If a trust has [two] or more
beneficiaries, the trustee shall act impartially in investing,
managing and distributing the trust property, giving due regard
to the beneficiaries' respective interests"). Furthermore, the
judge heard Fitzsimmons testify and found, based on her "tone
and demeanor," that she harbored "animus" towards the plaintiff.
Although the defendants contest that finding, assessing the
credibility of the witnesses was squarely within the purview of
13
the judge. See E.C.O. v. Compton, 464 Mass. 558, 562 (2013);
Castricone v. Mical, 74 Mass. App. Ct. 591, 600 (2009).
3. Disallowance of trustee fees. The judge did not
clearly err in disallowing a portion of the trustee fees claimed
by the defendants. The judge allowed all of Fitzsimmons's fees,
totaling $56,293, and $7,000 in fees paid to Lia in 2003. But
given the lack of evidence that Lia had any involvement in
administering the trust after 2008, the judge found that she did
not earn her claimed fees of $3,715 in 2010 and ordered her to
repay that amount to the trust. The defendants challenge the
disallowance on the sole basis that they were not given the
opportunity to call Lia to testify. Once again, however, the
record does not reflect that they made any such request at
trial. Their argument is therefore waived. See Care &
Protection of Leo, 38 Mass. App. Ct. at 243.
4. Alleged bias of judge. The defendants' final
contention is that the judge was biased against them, as
demonstrated by his "unbending disbelief of their proof and his
carte blanche adoption of [the plaintiff's] evidence." Putting
aside that the defendants did not raise this issue below,
"judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion." Liteky v. United States, 510
U.S. 540, 555 (1994). See Erickson v. Commonwealth, 462 Mass.
1006, 1007 (2012). They can form a valid basis only "in the
14
rarest circumstances" where they "reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible."
Liteky, 510 U.S. at 555. Accord Demoulas, 424 Mass. at 524–526;
Commonwealth v. Williams, 456 Mass. 857, 874 (2010). Nothing in
the record supports the defendants' allegation that the judge
harbored such deep-seated favoritism or antagonism. Indeed, the
judge ruled in the defendants' favor on several issues,
including on the plaintiff's claim that they failed to invest
the trust assets prudently and on the majority of the
defendants' request for allowance of their trustee fees. In
short, we see no evidence that the judge was biased or that he
was "influenced by any considerations other than the law."
Erickson, 462 Mass. at 1007, quoting from Commonwealth v. Daye,
435 Mass. 463, 470 n.4 (2001).
5. Appointment of successor trustees. While we uphold the
judge's findings of fact and rationale, we conclude that he
erred by appointing Paul and Alicia as successor trustees and by
ordering them to "make monthly distributions from the [t]rust
assets to [the plaintiff] in the amount of $4,000[] per month."
The trust document provides that certain powers are "exercisable
by disinterested trustees only," including "mak[ing] any
distribution or separation into shares." An "interested
trustee" is defined to include a trustee "who is then eligible
15
. . . to receive income or principal from the trust." Paul and
Alicia fall within this definition because article 4.2.2
authorizes the trustees to "use any part or all of the net
income and principal" for the benefit of the plaintiff, Paul,
and Alicia "by making payments to . . . one or more of them at
such time and times and in such amounts, proportions, and manner
as the [t]rustees shall in their discretion deem advisable."
Thus, because they are not "disinterested," Paul and Alicia lack
powers essential to administering the trust, and so the judge
should not have appointed them as successor trustees.
In addition, the judge should not have ordered the
successor trustees to make distributions to the plaintiff.
Article 4.2.2 gives the trustees the power to make distributions
in their discretion, which encompasses the "full power to
accumulate any income . . . and to hold the same for future use
or to add the same in whole or in part to principal until [the
plaintiff's] death." By requiring distributions, the judge
modified the terms of the trust when no request for modification
was before him, and without following the procedures for
modification set out in the code. See G. L. c. 203E, §§ 410–
415. Accordingly, we vacate the judgment as to the appointment
of the successor trustees and the order requiring distributions,
and remand for appointment of an independent trustee, who shall
have the discretion to make distributions in accordance with
16
article 4.2.2 of the trust instrument. In all other respects
the judgment is affirmed.
So ordered.