Allen v. Allen (Lawyers Weekly No. 11-115-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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. ALLEN[1] 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 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 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.). […]