V.J. v. N.J.(Lawyers Weekly No. 11-006-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-1648 Appeals Court V.J. vs. N.J. No. 15-P-1648. Plymouth. October 11, 2016. – January 30, 2017. Present: Meade, Milkey, & Kinder, JJ. Civil Harassment. Harassment Prevention. Constitutional Law, Freedom of speech and press. Civil action commenced in the Brockton Division of the District Court Department on September 25, 2015. The case was heard by Julie J. Bernard, J. Michael P. Friedman for the defendant. MEADE, J. The defendant, N.J. (defendant), appeals from the extension of a G. L. c. 258E civil harassment prevention order, which prohibited any contact between him and the plaintiff, V.J. (plaintiff). The parties are not related. The order at issue expired on October 7, 2016.[1] On appeal, the defendant claims that the judge did not find, and could not properly have found, that there were at least three separate incidents by which he intentionally placed the plaintiff in fear, intimidated her, or otherwise abused her. We affirm. Background. On September 25, 2015, pursuant to G. L. c. 258E, §§ 3 and 5, the plaintiff obtained an ex parte harassment prevention order against the defendant. The order was set to expire on October 9, 2015, and a hearing was set down for that date regarding an extension of the order. After an evidentiary hearing at which both parties testified, a judge of the Brockton Division of the District Court Department extended the harassment prevention order to October 7, 2016, and found the following facts, which are supplemented by the plaintiff’s affidavit in support of the harassment prevention order and her testimony, which the judge explicitly found to be credible. Beginning in 2011, the defendant, a passenger on a Massachusetts Bay Transportation Authority (MBTA) bus operated by the plaintiff, made numerous attempts to “court” her; all were rebuffed. These attempts made her feel uncomfortable and she feared the defendant. The plaintiff identified a pattern of harassment between 2012 and 2015, including an incident occurring on June 10, 2012, while she was on a break at an MBTA station, in which the defendant approached her from behind and grabbed her across her chest in a “bear hug,” in the manner of one intending to “abduct somebody.” The plaintiff “had to pry his arms from around [her].” This made her “very fearful” of the defendant.[2] Although she did not file a police […]
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Perry v. Nemira, et al. (Lawyers Weekly No. 11-007-17)
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 15-P-828 Appeals Court DON PERRY vs. ADA NEMIRA & another.[1] No. 15-P-828. Suffolk. October 5, 2016. – January 30, 2017. Present: Meade, Milkey, & Kinder, JJ. Easement. Real Property, Easement, Deed, Adverse possession. Way, Private. Civil action commenced in the Land Court Department on December 21, 2011. The case was heard by Alexander H. Sands, III, J. Andrew S. Lee (Kenneth D. Wacks & Michelle A. McHale also present) for the defendants. Don Perry, pro se. MEADE, J. The plaintiff, Don Perry, and the defendants, Tomas and Ada Nemira,[2] own partially abutting properties known as 9B Maple Lane and 12 Maple Lane, respectively, located in a densely developed residential area of Hull. When the Nemiras fenced off what they believed to be part of their property, controversy arose regarding the parties’ rights in and over three right of ways (ROW) abutting or in the vicinity of the parties’ properties and leading to the public way, formerly known as Center Hill Avenue. Perry commenced this action claiming that (i) the fence blocks his right of ways, (ii) he and his predecessors have incorporated a portion of what have been called ROW 1 and ROW 3 into his front yard, and any rights the Nemiras had in those portions of ROWs 1 and 3 have been extinguished by adverse possession, (iii) he has acquired a prescriptive easement to turn around and park on certain sections of the Nemira property, and (iv) certain boundary lines in the deed description to the Nemira property and on a site plan dated November 24, 2010, are wrong. Perry sought an order to restrain the Nemiras from maintaining a fence on any portion of the disputed ROWs or any portion of Perry’s property. For their part, the Nemiras denied that Perry has acquired any prescriptive rights to use their property or block ROWs 1 and 3. They also denied that their fence blocked Perry’s right of way, and in counterclaims, they contended that Perry has no vehicular right of way over ROW 3 or if he did, it has been extinguished by nonuse. Following a trial, preceded by a view, the judge drafted a careful and detailed decision determining the rights of the parties. The parties’ deeded rights over the ROWs became a […]
Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Weekly No. 10-020-17)
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 SJC-12075 SANDRO TURRA vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & another.[2] January 30, 2017. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. The plaintiff, Sandro Turra, commenced this action against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking a declaration that Deutsche Bank’s foreclosure of the mortgage on his home was invalid and seeking to quiet title to the property. A judge in the Superior Court allowed Deutsche Bank’s motion to dismiss the complaint, and Turra appealed.[3] The appeal raises a single issue: whether a foreclosing mortgagee’s failure to comply with G. L. c. 244, § 15A, by failing to send the postforeclosure notices required by the statute, renders the foreclosure void. We conclude, as did the trial court judge, that it does not, and we therefore affirm. Background. On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4] The lender was Homecomings Financial, LLC. On August 12, 2010, MERS assigned the mortgage to Deutsche Bank. Then, on November 8, 2010, Deutsche Bank, through its servicing agent GMAC Mortgage, LLC, notified Turra that he was in default under the terms of the mortgage. Deutsche Bank subsequently foreclosed on the home on January 15, 2013. In April, 2013, Deutsche Bank commenced a summary process action against Turra in the District Court. Turra then commenced this action in the Superior Court, where his motion to transfer the summary process action and consolidate it with this case was allowed. In response to Deutsche Bank’s motion to dismiss his complaint, Turra argued, among other things, that the foreclosure was void because Deutsche Bank failed to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011) (Ibanez). In particular, Turra argued that Deutsche Bank failed to comply with G. L. c. 244, § 15A, which provides that “a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify . . . the office of the assessor or collector of taxes of the municipality in which the premises are located and […]
Padmanabhan v. Centers for Medicare & Medicaid Services (Lawyers Weekly No. 10-019-17)
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 SJC-12181 BHARANIDHARAN PADMANABHAN vs. CENTERS FOR MEDICARE & MEDICAID SERVICES. January 24, 2017. Practice, Civil, Stay of proceedings, Moot case. Moot Question. The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. In October, 2014, the petitioner commenced an action in the Superior Court, naming as defendants the respondent and certain individuals associated with Cambridge Health Alliance, the city of Cambridge, the Executive Office of Health and Human Services, and others. As best as we can discern from the record before us, his complaint alleged claims of, among other things, Medicare or Medicaid fraud, which he became aware of during the course of his employment with some of the defendants; and retaliation by his employer when he spoke up about the perceived fraud. In March, 2015, the case was removed to the United States District Court for the District of Massachusetts. A judge in that court subsequently allowed a motion to dismiss certain Federal defendants and then remanded the case to the Superior Court. The petitioner appealed from both the allowance of the motion to dismiss and the remand order to the United States Court of Appeals for the First Circuit, and that appeal remains pending. Meanwhile, in the Superior Court, shortly after the remand order, the remaining defendants filed motions to dismiss, which, it appears, the petitioner opposed. The docket further indicates that on June 7, 2016, a status conference was scheduled for July 19, 2016. On July 11, 2016, the petitioner filed an “emergency motion to stay improper proceedings in State court” in the county court, which the single justice treated as a petition pursuant to G. L. c. 211, § 3. He argued that the State court lacked jurisdiction because his appeal from the remand order remained pending in the Federal court, and he asked this court to stay further proceedings in the Superior Court. He also asked the court to order that the status conference scheduled for July 19, 2016, be canceled. While his G. L. c. 211, § 3, petition was pending, the July 19, 2016, status conference proceeded as scheduled. A docket entry dated July 20, 2016, indicates that because the petitioner’s appeal to the First Circuit remained pending, the status conference would be continued to October […]
Bishay, et al. v. Clerk of the Superior Court on Norfolk County (Lawyers Weekly No. 10-018-17)
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 SJC-12153 BAHIG BISHAY & others[1] vs. CLERK OF THE SUPERIOR COURT IN NORFOLK COUNTY. January 23, 2017. Mandamus. Clerk of Court. Judgment, Implementing settlement agreement. Practice, Civil, Action in nature of mandamus, Entry of judgment. Bahig Bishay commenced an action in the Superior Court, bringing various claims against National Investigations, Inc., and its principals, Glenn Gillis and Garry Gillis (collectively, National); Harvard 45 Associates, LLC, and its principals, Harold Brown and Enrique Darer (collectively, Harvard); and Allied Finance Adjusters Conference, Inc. (Allied), arising from Bishay’s eviction from his home. More particularly, Bishay sought damages on various theories for the removal and storage of his personal property in the course of the eviction. Allied’s motion to dismiss the claims against it was allowed, as was Harvard’s motion for summary judgment as to both the claims against it and a counterclaim it asserted against Bishay. Bishay and National thereafter reported that they settled their dispute, and they moved for entry of final judgment. Harvard and Allied opposed the motion, and a judge in the Superior Court denied it. Bishay again moved for entry of final judgment. Harvard and Allied opposed that motion, and a different judge denied it. Bishay and National (collectively, petitioners) jointly filed a petition in the county court seeking relief in the nature of mandamus pursuant to G. L. c. 211, § 3, and G. L. c. 249, § 4, specifically requesting that the clerk of the Superior Court be ordered to enter final judgment as the petitioners proposed. Harvard moved to intervene and filed an opposition, joined by Allied, in which it argued that the proposed judgment was collusive and fictitious, adverse to the interests of Harvard and Allied, and contrary to the prior ruling on summary judgment.[2] A single justice of this court denied relief without a hearing. The petitioners appeal. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires the petitioners to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”[3] The petitioners have not done so. They argue that requiring them to proceed to a jury trial would be wasteful in these circumstances, as they have in fact resolved their dispute.[4] […]
Commonwealth v. Pinto (Lawyers Weekly No. 10-017-17)
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 SJC-12134 COMMONWEALTH vs. BRUNO PINTO. Suffolk. November 9, 2016. – January 23, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Firearms. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion. Search and Seizure, Motor vehicle, Reasonable suspicion, Threshold police inquiry. Threshold Police Inquiry. Complaints received and sworn to in the Central Division of the Boston Municipal Court Department on April 25, 2013, and June 6, 2013. A pretrial motion to suppress evidence was heard by Eleanor C. Sinnott, J., and the cases were tried before her. The Supreme Judicial Court granted an application for direct appellate review. Rebecca Kiley, Committee for Public Counsel Services, for the defendant. Amanda Teo, Assistant District Attorney, for the Commonwealth. LOWY, J. A jury convicted the defendant, Bruno Pinto, on two counts of unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n), and one count of possession of a firearm without a license, G. L. c. 269, § 10 (a).[1],[2] The defendant’s sole argument on appeal is that the search of his vehicle was illegal because the Commonwealth failed to demonstrate the police had reasonable suspicion to conduct an investigatory stop. We agree, and therefore, we reverse the convictions and the order denying the motion to suppress the fruits of that search. Background. We summarize the facts found by the motion judge, supplemented by uncontested testimony from the suppression hearing. Commonwealth v. Johnson, 461 Mass. 44, 45-46 (2011). The stop. While on uniformed patrol in the South Boston section of Boston, Officers Kluziak and Fonseca of the Boston police department received a radio broadcast informing them to be on the lookout for a white Infiniti motor vehicle with Massachusetts license plate number “FF720.”[3] According to the broadcast, someone connected with the vehicle was wanted for an alleged domestic assault and battery. The broadcast also advised that the person might be in possession of two firearms and might be heading towards his mother’s house on Orton Marotta Way. Approximately two hours after the broadcast, the officers encountered a white Infiniti with license plate number “FF720” in the area of Orton Marotta Way and stopped it on St. Casimir Street. Kluziak ordered both individuals in the vehicle to place their hands in view for safety reasons. Both the defendant, who […]
Commonwealth v. Bryan (Lawyers Weekly No. 10-016-17)
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 SJC-12140 COMMONWEALTH vs. ATUNBI BRYAN. Suffolk. November 7, 2016. – January 20, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Practice, Criminal, Mistrial. Supreme Judicial Court, Superintendence of inferior courts. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 26, 2016. The case was heard by Duffly, J. Nicholas Brandt, Assistant District Attorney (Gregory D. Henning, Assistant District Attorney, also present) for the Commonwealth. Paul J. Davenport for the defendant. Gaziano, J. The defendant was one of three occupants of a van that was stopped by a Boston police officer for a traffic violation (driving without headlights) in the early morning hours of April 12, 2014. Police officers issued an exit order, as a safety precaution, based on certain facts that unfolded during the motor vehicle stop. When the defendant, the rear seat passenger, got up to get out of the van, a police officer observed a handgun underneath his right thigh. At trial, the judge issued an explicit order precluding defense counsel from introducing evidence that the front seat passenger in the van previously had been convicted of unlawful possession of a firearm.[1] Defense counsel elicited this testimony anyway. The judge declared a mistrial, over the defendant’s repeated objection. The defendant subsequently moved to dismiss the charges on double jeopardy grounds, contending that there had been no manifest necessity to declare a mistrial, and that the judge erred in not pursuing a less severe option to cure the introduction of the precluded testimony, such as a curative instruction. A different Superior Court judge denied the motion, and the defendant filed a petition pursuant to G. L. c. 211, § 3, in the county court. The single justice determined that the trial judge had erred in concluding that there was a manifest necessity to declare a mistrial. The Commonwealth appealed to this court from the single justice’s allowance of the defendant’s petition. Because a determination that a mistrial was manifestly necessary is committed to the sound discretion of the trial judge, a reviewing court examines such a decision only for abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “We do not disturb the judge’s ruling ‘simply because [we] might have reached a different […]
Commonwealth v. Edwards (Lawyers Weekly No. 10-015-17)
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 SJC-11989 COMMONWEALTH vs. JOSHUA EDWARDS. Suffolk. September 6, 2016. – January 20, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion. Search and Seizure, Motor vehicle, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Firearms. Alcoholic Liquors, Possession of opened bottle. Beverage Containers. Indictments found and returned in the Superior Court Department on April 23, 2013. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J. An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Greg L. Johnson for the defendant. Matthew T. Sears, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. The defendant, Joshua Edwards, has been indicted for multiple offenses, including firearms offenses, with which he was initially charged following the seizure and search of a motor vehicle he had been driving. Before trial, he moved to suppress evidence seized during the search of the vehicle, invoking the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. After an evidentiary hearing, a Superior Court judge allowed the defendant’s motion. A single justice of this court allowed the Commonwealth leave to pursue an interlocutory appeal and reported the case to the Appeals Court. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed in an unpublished memorandum and order issued pursuant to its rule 1:28. Commonwealth v. Edwards, 87 Mass. App. Ct. 1133 (2015). We granted the defendant’s application for further appellate review. Recognizing that this is an exceedingly close case, we conclude that the stop was predicated on reasonable suspicion of criminal activity and therefore reverse the motion judge’s order allowing the motion to suppress. Factual background. One witness, Boston police Officer David Lanteigne, testified at the hearing on the motion to suppress. In addition, a number of photographs, documents, and police radio transmissions, as well as a recording of a 911 call, were received in evidence. In reviewing […]
Morgan v. Massachusetts Homeland Insurance Company (Lawyers Weekly No. 11-005-17)
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 16-P-216 Appeals Court ANTHONY G. MORGAN vs. MASSACHUSETTS HOMELAND INSURANCE COMPANY. No. 16-P-216. Hampden. November 9, 2016. – January 20, 2017. Present: Kafker, C.J., Kinder, & Lemire, JJ. Consumer Protection Act, Class action, Insurance. Practice, Civil, Class action, Consumer protection case. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Settlement of claim, Regulation, Amount of recovery for loss. Words, “Actual cash value,” “Retail book value.” Civil action commenced in the Superior Court Department on March 8, 2012. Motions for class certification and for summary judgment were heard by Edward J. McDonough, Jr., J.; and the case was heard by Bertha D. Josephson, J. Brett J. Vottero (Eric D. Applebaum also present) for the plaintiff. Michael S. Batson (Michael C. Kinton also present) for the defendant. KAFKER, C.J. The plaintiff, Anthony G. Morgan, brought this civil action against the defendant, Massachusetts Homeland Insurance Company (Homeland or insurer), alleging that Homeland engaged in unfair or deceptive claim settlement practices in violation of G. L. c. 176D, § 3(9), and G. L. c. 93A, in the course of settling his total loss auto insurance claim.[1] See G. L. c. 93A, §§ 2, 9. Even though the claim was settled within two months of the accident, with the plaintiff’s acceptance of the insurer’s offer, the plaintiff claimed that the insurer violated c. 176D and c. 93A because it did not take into account the “retail book value” of his vehicle, as required by 211 Code Mass. Regs. § 133.05(1)(a) (2003). The plaintiff also filed a motion to certify a class action pursuant to G. L. c. 93A, § 9(2). A judge of the Superior Court (motion judge) denied class certification and entered a summary judgment on that count of the complaint. After a jury-waived trial on the plaintiff’s individual c. 93A claim, the trial judge (who was not the motion judge) found that, although Homeland had violated c. 93A, the plaintiff was not injured by the violation, and entered judgment for Homeland on that count of the complaint. On appeal, the plaintiff argues that the judges erred by (1) denying his motion for class certification; and (2) concluding that he was not injured by Homeland’s c. 93A violation. Homeland cross-appeals, challenging the trial judge’s ruling that it violated c. 93A. We conclude that the motion for class certification was properly denied, and […]
Hanna v. Williams, et al. (Lawyers Weekly No. 12-181-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 1684CV0722 BLS 1 Lead Case STEPHEN HANNA, as personal representative of the ESTATE OF NATHALIE ROTHBLATT vs. MATTHEW WILLIAMS, RBC CAPITAL MARKETS, LLC, BRADLEY COOK, MICHAEL STARR and TAYLOR GANSON & PERRIN LLP Consolidated With: SUPERIOR COURT CIVIL ACTION No. 1684CV0724 BLS 1 ELLIOT BERKOWITZ, STEVEN BERKOWITZ and ESTHER BERKOWITZ vs. MATTHEW WILLIAMS, RBC CAPITAL MARKETS, LLC, BRADLEY COOK, MICHAEL STARR and TAYLOR GANSON & PERRIN LLP MEMORANDUM AND ORDER ON MOTIONS TO DISMISS (Corrected Version) Alleged misconduct by lawyers and a financial advisor to cause a 91-year old, infirm woman to execute a new will six days before she died resulted in disputes over the distribution of her $ 12 million estate. The disputes among the possible heirs were, ultimately, settled by a compromise agreement. The probate court approved that agreement by a Decree and Order of Compromise. Now three of the heirs, who were parties to the compromise agreement, sue the lawyers and the financial advisor for intentionally and tortiously interfering with their expected 1 inheritance (Civil Action No. 2016 – 0724). The three heirs claim they would have received a much larger inheritance than what they obtained through the compromise agreement but for the conduct of defendants. Also, the personal representative of the estate sues the same defendants to recover the legal fees paid by the estate on behalf of all the heirs, incurred as a result of the litigation, allegedly caused by defendants’ conduct, over the distribution of the estate (Civil Action No. 2016 – 0722). Defendants move to dismiss all claims contending that (a) this court lacks subject matter jurisdiction over plaintiffs’ claims as a result of the proceedings in the probate court, and (b) the complaints fail to state a claim upon which relief may be granted.1 BACKGROUND The following facts are taken from the complaints. For the purposes of these motions, the factual allegations, and reasonable inferences therefrom, are taken as true. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Events Surrounding Execution of Will and Trust In 2013, Nathalie Rothblatt was a 91 year-old widow. On March 7, 2013, Rothblatt fell and broke her hip. She was taken to Beverly Hospital. At that time she suffered various other ailments such as chronic congestive heart failure, kidney failure and low blood pressure. She suffered from severe pain from the broken hip, as well as dizziness and difficulty concentrating. She was placed on medication including morphine and dopamine that affected her cognition. During her hospitalization she suffered bouts of disorientation, delusions, and confusion. She did 1 The financial advisory defendants also move to compel arbitration. See Part C of this memorandum. […]