author: MILKEY, J.

text:
    Mildred J. KNEER, trustee, v. ZONING BOARD OF APPEALS OF NORFOLK & another.
    No. 17-P-851
    Appeals Court of Massachusetts, Suffolk..
    Argued March 7, 2018 Submitted July 11, 2018
    William D. Sack, Franklin, for the plaintiff.
    David K. McCay, Worcester, for the intervener.
    Present: Milkey, Blake, & Desmond, JJ.

      Of the Kneer Family Revocable Trust.

      Thomas A. Murray, intervener.

   MILKEY, J.

At the center of this case is an undeveloped parcel of land (parcel) in the town of Norfolk (town). Because the parcel measures only 7,650 square feet, it does not meet the minimum lot size requirement set forth in the town zoning by-law. The relevant town officials concluded that the parcel did not enjoy "grandfathered" status, because it was held in common ownership with adjacent lots when the town first adopted a minimum lot size requirement in 1953, and that therefore the lots had to be treated as one under the doctrine of merger. On cross motions for summary judgment, a judge of the Land Court rejected that position, ruling that the parcel was not rendered unbuildable based on its being held in common ownership with adjacent land in 1953.

Nevertheless, after trial, the judge ruled that the parcel was rendered unbuildable under the doctrine of merger based on a more recent event, namely, the acquisition of the parcel on September 14, 2012, by the Kneer Family Revocable Trust (trust). The sole beneficiary of the trust at that time was, and remains, the Kneer family matriarch, Mildred J. Kneer, who also serves as a cotrustee. As of the date that the trust purchased the parcel, the other cotrustee was Deirdre Mead, one of Kneer's three daughters. As the judge observed, in her capacity as cotrustee, Mead had significant control over the trust's assets, albeit subject to her fiduciary duties to the trust's beneficiary, her mother. When the trust purchased the parcel, Mead herself already owned adjacent property, where she long has lived. The judge ruled that the confluence of Mead's broad authority over the parcel as cotrustee and her ownership of the adjacent property in her own name effectively placed the two properties in common ownership. Based on this, he concluded that the properties must be treated as one for zoning purposes under the doctrine of merger, explaining his ruling in a carefully reasoned memorandum of decision. Kneer appealed. Thomas Murray, an abutter and the intervener, filed a cross appeal. Despite the cogency of the judge's explanation for his ruling, we conclude that he misapplied the relevant legal principles. We therefore vacate the judgment and remand this case for further proceedings.

Background. The recitation that follows is drawn from the judge's detailed findings of fact, none of which has been shown to be clearly erroneous. We supplement those findings slightly based on the agreed-to documentary evidence and other undisputed background evidence.

NPS, LLC v. Minihane, 451 Mass. 417, 418, 886 N.E.2d 670 (2008).

1. The adoption of the town zoning by-law. The town adopted its first zoning by-law in 1953. That by-law established a minimum lot size of 15,000 square feet (since increased to 43,500 square feet, or approximately one acre, at least in the applicable zoning district). At that time, the land in the neighborhood at issue already had been laid out as lots depicted in a Land Court plan that had been filed in the registry of deeds in 1945. Each of the current properties is comprised of two or more of the originally depicted lots. Thus, the parcel itself is made up of original lots 46 and 47, Mead's own land is made up of lots 44 and 45, and Murray's land is made up of lots 6, 12, and 13. At the time the 1953 by-law was adopted, the lots that now comprise the parcel were held in common with other adjacent lots, including lots 48 and 49. The parcel was severed from that common ownership in 1954.

The 1953 by-law included a grandfathering provision. We reserve for later discussion whether the specific terms of that provision protected the parcel as buildable even though it was held in common ownership with adjacent land when the by-law was adopted.

2. The Kneer family's ties to the Hunter Avenue neighborhood. Although Kneer herself lives elsewhere, all three of her daughters have had significant ties to the town's Hunter Avenue neighborhood. Mead has had the strongest ties; she and her then-husband first purchased property there in 1978, and she has lived at her current property, 11 Hunter Avenue, since 1988.

3. The formation of the trust. Meanwhile, in 2001, Kneer and her husband created the trust as an estate planning tool. The two of them were the trust's sole beneficiaries and cotrustees. They placed various personal assets into the trust, including their bank accounts and investment accounts.

4. The original acquisition of the parcel. The parcel is bordered on the east by 11 Hunter Avenue (owned by Mead) and on the west by 7 Hunter Avenue (owned by Murray). As of 2002, the town had acquired the parcel through a tax taking. Through a public auction, Mead's oldest son, Douglas, acquired title to the parcel on July 15, 2002. However, some nine months later, he transferred title to the person who had provided him with the purchase money, Richard W. Drisko. Drisko was Douglas's uncle by marriage (the husband of one of Kneer's other daughters).

5. The 2010 amendment to the trust. In 2010, Kneer's husband-who had been the trust's cobeneficiary and cotrustee-died. Kneer therefore amended the trust through a restatement dated May 24, 2010 (first restatement). Although Kneer remained the trust's sole beneficiary, Mead was added as a cotrustee. Further details of the trust's terms, as amended, are reserved for later discussion.

6. The trust's purchase of the parcel. In or before 2012, Drisko and his wife divorced. As a result, Kneer "wanted to help sever [her former son-in-law's] ties to the [parcel]." She also "considered that there might come a time when she would want to live near Ms. Mead" (her eldest daughter). Accordingly, on September 14, 2012, the trust-which had been formed more than a decade earlier-purchased the parcel from Drisko for $50,000. As a result, the parcel became held by Kneer and Mead as cotrustees.

7. Efforts to develop the parcel. At least by 2013, Mead began efforts to secure approval to build a small home on the parcel. This included applying for a septic system construction permit and a building permit. The permit applications were in the trust's name, and Kneer was the sole signatory on the documents. Mead did all the spadework in seeking the permits; for example, she was the one who prepared the applications and served as the point of contact for town officials.

8. Procedural history. On July 13, 2013, the town health agent granted the trust approval to install a septic system at the parcel, which was referred to as 9 Hunter Avenue. However, the town building inspector denied the trust's application for a building permit on April 8, 2014. Relying on an opinion letter from town counsel, the building inspector concluded that the parcel was subject to the applicable minimum lot size requirement and therefore was unbuildable. The opinion letter appears to rest on two independent grounds. The first is that the parcel was never subject to grandfathered protection because it was held in common ownership with other undersized lots when the town adopted its zoning by-law in 1953. The second is based on the application of merger doctrine to the trust's acquisition of the parcel in 2012. According to counsel, Mead's serving as cotrustee of the trust and simultaneously owning the adjacent property in her own name meant that the two properties must be considered as one for zoning purposes. The town zoning board of appeals (board) upheld the building commissioner's denial of a building permit based on his first stated ground, without reaching the second. Kneer appealed pursuant to G. L. c. 40A, § 17, and Murray was allowed to intervene as a defendant.

On summary judgment, the judge rejected the argument that the parcel was never subject to grandfathering protection. However, after a two-day trial, he upheld the denial of the building permit on the second ground, namely that, as of the date the trust acquired the parcel in 2012, it merged with Mead's adjacent property. Relying principally on Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689, 690, 542 N.E.2d 314 (1989), S.C., 406 Mass. 1008, 550 N.E.2d 1390 (1990) ( Serena ), the judge focused on whether-through her role as cotrustee-Mead obtained legal control over the parcel at the point the trust acquired it. The judge recognized that, in taking any actions with respect to the parcel (or, for that matter, with respect to any other assets of the trust), Mead was obligated to act consistent with her fiduciary duties to Kneer (who was cosettlor, cotrustee, and sole remaining beneficiary). He also recognized that, with or without cause, Kneer could at any time terminate Mead as cotrustee or even revoke the trust. At the same time, however, as the judge accurately observed, so long as the trust existed and Mead continued to serve as one of its cotrustees, her powers were broad. Most significantly, she could take action with respect to trust assets without first consulting with Kneer, and third parties were informed that they could rely on the actions of one cotrustee acting alone. According to the judge, this provided Mead sufficient control over the parcel that it must be considered as being held in common ownership with the adjacent land that she owned. Discussion. 1. The relationship between grandfathering and merger. It is uncontested that, under the town's current zoning by-law, the parcel does not meet current minimum lot size requirements. Indeed, the parcel became nonconforming when zoning initially was adopted in 1953. It follows that the parcel is unbuildable unless it enjoys grandfathering protection.

By statute, owners of existing lots generally are protected against newly adopted minimum lot size requirements. See G. L. c. 40A, § 6. However, protection offered by grandfathering must be considered in conjunction with the doctrine of merger. That doctrine aptly has been summarized as follows: "[A]djacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities." Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 238, 744 N.E.2d 1126 (2001), quoting from Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522, 510 N.E.2d 309 (1987). Although merger has its roots in the common law, "[t]he statutory 'grandfather' provision contained in G. L. c. 40A, § 6, incorporates this doctrine by providing protection from increases in lot area and frontage requirements only to nonconforming lots that are not held in common ownership with any adjoining land." Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266, 269, 897 N.E.2d 607 (2008). Thus, the statute itself does not protect undersized lots from merger. However, a town may adopt more generous grandfathering protection if it does so explicitly. Marinelli v. Board of Appeals of Stoughton, 65 Mass. App. Ct. 902, 903, 840 N.E.2d 61 (2005).

The town's zoning by-law now offers grandfathering protection that is coextensive with that offered by G. L. c. 40A, § 6. Therefore, it is undisputed that the parcel currently is not protected from merger, and that it therefore is no longer buildable if it merged with Mead's adjacent property. Before turning to that question, we first examine the subject of Murray's cross appeal, that is, whether the parcel ever enjoyed grandfathered protection when the town adopted zoning in 1953, or whether instead, as the board concluded, merger applied at that time.

2. Alleged merger in 1953. The section of the 1953 by-law that established minimum lot size and frontage requirements included a grandfathering provision that stated as follows: "Lots shown on any plan duly recorded by deed or plan at the time this [by-law] is adopted may be used." We agree with the judge that this language plainly intended to offer grandfathering protection to then-existing lots so long as at that time the lots were shown on a plan that had been recorded. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474-475, 961 N.E.2d 1055 (2012), and cases cited (while deference is due to reasonable interpretations of by-law by relevant local officials, meaning of by-law is ultimately question of law for courts). It is uncontested that lots 46 and 47 (of which the parcel is comprised) were depicted on a plan that was recorded eight years prior to the adoption of the 1953 by-law. Accordingly, these lots did not lose their grandfathered protection simply because they were held in common ownership with other adjoining lots in 1953. See Marinelli, 65 Mass. App. Ct. at 903, 840 N.E.2d 61. Lots 46 and 47 then were severed from common ownership with other adjacent lots in 1954 prior to the town's tightening of its grandfathering provision. The judge correctly determined that the parcel did not lose grandfathering protection upon the initial adoption of the zoning by-law.

3. Alleged merger in 2012. The key inquiry is whether, as a result of the trust's acquisition of the parcel in 2012, it became held in common ownership with Mead's adjacent property at 11 Hunter Avenue. As the judge observed, the case law recognizes that lots can be deemed to be held in common ownership under the doctrine of merger even if they nominally are owned by different entities. We turn next to examining representative cases that illustrate this principle.

In Serena, 27 Mass. App. Ct. at 690, 542 N.E.2d 314, S.C., 406 Mass. 1008, 550 N.E.2d 1390, the case on which the judge primarily relied in his memorandum of decision, a married couple wanted to subdivide property they owned into two buildable lots. To avoid the effects of an anticipated change to the zoning by-law, they transferred one lot to themselves as tenants by the entirety and the other to themselves as trustees of a realty trust of which they were the sole beneficiaries. Serena, 406 Mass. at 1009, 550 N.E.2d 1390. The Land Court judge there had "concluded that the Serenas were entitled only to one building permit for the combined lots because the Serenas could use the two lots 'as one if they so chose.' " Ibid. In a three-paragraph rescript opinion, the Supreme Judicial Court affirmed the Land Court judgment. Ibid. Despite the brevity of the opinion, it is plain that the court endorsed the principle that "a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity." Ibid., quoting from Serena, 27 Mass. App. Ct. at 690, 542 N.E.2d 314 (Appeals Court decision in same case for which further appellate review was granted). Because the property owners in Serena owned one lot as cotrustees of a realty trust of which they were the sole beneficiaries, and owned the adjoining lot personally as tenants by the entireties, they together retained full legal and beneficial ownership of the two lots and were free to use the lots "as one if they so chose." Ibid. Serena thus presented a markedly straightforward case for looking beyond the nominal form of the ownership interests and treating contiguous parcels as being held in common ownership.

A second illustrative example is DiStefano v. Stoughton, 36 Mass. App. Ct. 642, 634 N.E.2d 584 (1994), another case in which an owner unsuccessfully tried to avoid merger by placing some of its property into nominally different ownership. DiStefano involved a forty-lot tract of land that had been owned by a close corporation of which a particular individual was the sole officer and director. Id. at 643, 645, 634 N.E.2d 584. In anticipation of a zoning amendment that would reduce the number of buildable lots, the individual had his company transfer ownership of some of the lots to himself individually, some to his wife, and some to himself as trustee of a realty trust. Id. at 644, 634 N.E.2d 584. This left the property divided in a "checkerboard" pattern, in which "no two [adjoining] lots were held in common" by the same nominal owner. Id. at 643, 634 N.E.2d 584. The Land Court judge in that case found that the same individual retained full control of all of the lots notwithstanding that they nominally became held by four different owners. Ibid. We upheld the judge's ruling that merger applied under these circumstances, pronouncing that "[w]e may disregard the shell of purportedly discrete legal persons engaged in business when there is active and pervasive control of those legal persons by the same controlling person and there is a confusing intermingling of activity among the purportedly separate legal persons while engaging in a common enterprise." Id. at 645, 634 N.E.2d 584, citing My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 620-621, 233 N.E.2d 748 (1968) (then, as now, the leading case on piercing the corporate veil). In this manner, we equated disregarding nominally different ownership for purposes of applying the doctrine of merger with "veil piercing."

In these and similar cases, the same person who possessed the power to control the contiguous lots retained the ability to use them as he desired, including to "use[ ] his adjoining land to avoid or diminish the nonconformity." Serena, 406 Mass. at 1009, 550 N.E.2d 1390, quoting from Serena, 27 Mass. App. Ct at 690, 542 N.E.2d 314. Our willingness to look beyond who nominally held legal title to the lots must be seen in this light.

We turn now from the case law to the case before us. Critically, the judge did not rule that the existence of the trust should be disregarded, with Mead herself deemed the real owner of the parcel. To the contrary, the judge relied on the existence of the trust, resting his decision solely on the breadth of Mead's authority as cotrustee. Because Mead possessed broad authority to take actions with respect to trust assets without needing to seek Kneer's prior approval, the judge ruled that this effectively gave her "legal control" of the parcel. In turn, the judge reasoned, the breadth of this authority was sufficient, by itself, to place the parcel in common ownership with the adjacent property that Mead owned individually.

The error in the judge's reasoning is that it passes over the fact that Mead's powers over the parcel necessarily were subject to her fiduciary obligations. See Old Colony Trust Co. v. Silliman, 352 Mass. 6, 10, 223 N.E.2d 504 (1967) ("[E]ven very broad discretionary powers [of a trustee] are to be exercised in accordance with fiduciary standards and with reasonable regard for usual fiduciary principles"). As a trustee, Mead's "first duty [was] the protection of the trust estate," and she could not allow any of her own interests to interfere with those of Kneer, the trust's beneficiary. Johnson v. Witkowski, 30 Mass. App. Ct. 697, 706, 573 N.E.2d 513 (1991). The judge acknowledged that limitation but ultimately found it to be of no moment. We disagree. Mead was not in a position in which she lawfully could have appropriated the parcel as her own; indeed, such conduct would have amounted to an obvious breach of her fiduciary responsibilities. Ibid. Accordingly, despite the breadth of the authority that Mead possessed as cotrustee, she still could not lawfully use the parcel to lessen the nonconformity of her own property with the minimum lot size requirement. It follows that Mead's status as cotrustee of the trust that owned the parcel did not, by itself, render the two properties as being held in common ownership. See Serena, 406 Mass. at 1009, 550 N.E.2d 1390.

None of this is to say that the existence of Mead's fiduciary duties to Kneer necessarily insulated Mead-or the trust-from a claim of veil piercing. Nor do we mean to suggest that the judge could not have considered whether the trust was used as a means of masking an arrangement in which, in reality, it was Mead, not Kneer, who held "the master hand." DiStefano, 36 Mass. App. Ct. at 645, 634 N.E.2d 584. Thus, it may be that the judge was correct to conclude that the parcel and Mead's property should be viewed as a single lot based on grounds different from those on which he relied. We turn next to whether the veil piercing issues can be resolved, as a matter of law, in favor of either party.

There are some established facts that cut in favor of veil piercing and merger. For example, the judge found that Mead "in fact has exercised control over the ... [p]arcel," and he rejected Kneer's claim that Mead was leading the effort to develop it "simply to help her mother." At the same time, however, the judge expressly found that in taking her actions with respect to the property, "Mead was acting in her capacity as [co]trustee." Thus, the mere fact that Mead exercised control over the parcel does not mean that she strayed from her role as a cotrustee faithfully serving Kneer's interests. In addition, there are some established facts that cut against disregarding the difference in the nominal owners. For example, the formation of the trust preceded the purchase of the parcel by more than ten years, and there was no evidence that Mead's addition as cotrustee after her father died was done in anticipation of the trust's eventual purchase of the parcel. Moreover, it is uncontested that in seeking to develop the parcel, Kneer was the one in whose name the permits were sought, establishing that trust formalities were, at least to some extent, observed.

In the end, we conclude that whether the board could disregard the separate ownership here and treat the parcel and Mead's property as one cannot be resolved as a matter of law based on the current findings. It is evident that the trial judge saw little need to address head on whether Mead should be treated as the real owner of the parcel, because he believed the merger issue could and should be resolved on the face of the trust documents. Where, as here, the judge made findings based on an incorrect view of the law but still could be correct for a different reason, "fairness requires a remand to allow the parties and the judge to focus on [the key legal issue we have identified]." Julius Tofias & Co. v. John B. Stetson Co., 19 Mass. App. Ct. 392, 398, 474 N.E.2d 1162 (1985).

Conclusion. In sum, we conclude that the parcel was not rendered unbuildable pursuant to the doctrine of merger as a result of the adoption of the zoning by-law in 1953. We further conclude that the judge erred in ruling-based merely on the breadth of Mead's authority as cotrustee-that merger occurred when the trust purchased the parcel in 2012. Nevertheless, it is possible on this record that facts could be found that would support merger on other grounds. Accordingly, we vacate the judgment and remand the case for further proceedings consistent with this opinion.

So ordered.

      This was confirmed by certificates of trust dated September 28, 2012, and January 21, 2016. In those documents, Mead certified under the pains and penalties of perjury that each trustee has "authority to act with respect to the real estate owned by [the] trust by the execution of any one trustee acting alone."

      In 2015, after the controversy over potential merger had arisen, the trust was amended a second time. The terms of the trust's second restatement sought to protect the parcel against merger in the event of Kneer's death, e.g., by stating that Mead is not to serve as a trustee in that eventuality and that the parcel is to be placed in trust at that time for Mead unless doing so would "cause the property to merge with [11 Hunter Avenue]." Having determined that merger already occurred in 2012, the judge ruled that the second amendment was irrelevant. See Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 736, 716 N.E.2d 135 (1999) (once merger occurs, it cannot be undone).

      As the judge observed, exactly when the town tightened the grandfathering provision is not clear on the current record, because the parties submitted only the original zoning by-law and the version in effect in 2013. However, all parties appear to have accepted that the original grandfathering provision remained in place as of 1954, the year the lots making up the parcel became severed from surrounding property.

      It is undisputed that, as a result of the town's tightening of its grandfathering provision, lots 46 and 47-the constituent parts of the parcel-have lost their independent status and have merged for zoning purposes. This is a separate question from whether the parcel as a whole merged with adjoining property.

      The judge extensively cited to, and quoted from, our opinion in Serena, and the parties treat the Supreme Judicial Court's opinion in that case as affirming our decision. We take this opportunity to note that-unlike in the Federal court system, see 28 U.S.C. § 1254 (2012)-when the Supreme Judicial Court grants further appellate review, it does not affirm or reverse the Appeals Court's opinion; rather, it sits in review of the trial court's judgment. As a result, a Supreme Judicial Court opinion issued in a case in which further appellate review was granted generally supersedes the opinion issued by this court. Of course, the Supreme Judicial Court is free to adopt our reasoning by reference. See, e.g., Renaud v. Commonwealth, 471 Mass. 315, 319 n.6, 28 N.E.3d 478 (2015) ; Commonwealth v. Brown, 479 Mass. 600, 607, 97 N.E.3d 349 (2018). In addition, when a case taken on further appellate review ends in a tie vote in the Supreme Judicial Court, the Appeals Court opinion is resurrected "unless a majority of the participating justices [of the Supreme Judicial Court] decides otherwise." Mass.R.A.P. 24.1, 416 Mass. 1601 (1994).

      In fact, in a realty trust, also known as a nominee trust, the powers of trustees are extremely limited; essentially, they serve as agents of the beneficiaries. See Bellemare v. Clermont, 69 Mass. App. Ct. 566, 571, 870 N.E.2d 624 (2007), and cases cited.

      Put differently, because Mead's treatment of the parcel as her own would have-by operation of merger-destroyed the ability to develop the parcel (thereby depriving the trust of much of the $50,000 it paid for the parcel), taking such actions would directly conflict with her fiduciary duties as cotrustee.

      We additionally note that the judge was skeptical that Kneer herself ever planned to move to the parcel. The import of this issue is not immediately apparent since, needless to say, one can own property without intending to move there.

      Of course, it may well be that Kneer has been allowing the parcel to be used in a manner that ultimately will benefit Mead (or, perhaps, Mead's son, Douglas). But that equally could be true if Kneer had purchased the parcel in her own name. That Mead may obtain such benefits now or upon Kneer's death does not by itself mean that she thereby should be deemed the current owner of the property for zoning purposes.

      The judge stated that he "consider[ed] neither ... Kneer's testimony regarding her intent to maintain control over the trust's property, nor the testimony of her attorney, ... who drafted the trust documents and provided de bene testimony at trial about his and ... Kneer's intent with respect to the trust's provisions." Nevertheless, the judge went on to state that "[e]ven if [he] did consider that testimony, however, [he did] not believe that ... Kneer truly intended to have sole control over the trust's property." He explained that "[i]f that was her real intention, she would not have added ... Mead as a trustee, or she would at least have made sure that the trust included explicit provisions limiting ... Mead's authority." However, as explained supra, the fact that the trust documents gave Mead broad authority over the trust property (on which third parties were entitled to rely) does not mean that Mead thereby was free to use the property as her own.

      Nothing in this opinion should be read as expressing a view on how that issue should be resolved.


source: Caselaw Access Project

author: SINGH, J.

license: Public Domain

text:
    Thomas M. BONAPARTE v. Michela DEVOTI.
    No. 17-P-399.
    Appeals Court of Massachusetts, Barnstable..
    Argued January 9, 2018. Decided July 20, 2018.
    Michael J. Traft, for the wife.
    Michael Fray Suarez, for the husband.
    Present: Trainor, Hanlon, & Singh, JJ.
   SINGH, J.

Michela Devoti, the former wife (wife) of Thomas M. Bonaparte (husband), appeals from a divorce judgment entered in the Probate and Family Court. She also appeals from the order denying her motion for new trial. Her primary contention on appeal is that her motion to testify by telephone or video should have been allowed when she was unable to personally appear at trial due to immigration issues. We agree and, with the exception of the portion of the judgment granting the divorce, we vacate the judgment and remand for further proceedings consistent with this opinion.

Background. The parties were married in Italy on October 2, 2005. At that time, the husband resided in New Jersey, and the wife, an Italian citizen, resided in Piacenza, Italy. In January of 2006, the wife gave birth to the parties' child in Italy. The parties agreed to continue living apart; however, the husband traveled to Italy periodically to visit the wife and the child.

In the summer of 2006, the wife and the child visited the husband in New Jersey, at which time the parties discussed the possibility of relocating to Cape Cod. In March of 2009, the parties purchased a home located in Sandwich (marital home). One year later, in March of 2010, the wife and the child moved into the marital home with the husband. Shortly thereafter, the husband was laid off by his employer and he struggled to find work.

In 2011, the wife and child returned to Italy, after which time the husband was responsible for the expenses related to the marital home. The wife was responsible for her own and the child's living expenses, and received little, if any, financial support from the husband until March of 2015, when the husband began sending the wife $100 to $150 per week.

In May of 2015, the husband filed a complaint for divorce in the Probate and Family Court. Following a pretrial conference on December 9, 2015, a judge of the Probate and Family Court (pretrial judge) issued an order identifying the contested issues for trial as "child support" and "an equitable division of assets, specifically the former marital home." The trial was scheduled for May 3, 2016. Nine days prior to the trial, the wife filed a motion seeking permission to testify by telephone or video. The wife asserted she was unable to re-enter the United States until her green card status was "regularized," and travel to this country was further complicated by the expiration of the child's Italian passport, which could not be renewed until the husband signed "the appropriate papers with the Italian Consulate." The pretrial judge denied the wife's motion without explanation on April 26, 2016.

On May 3, 2016, the wife's counsel, the husband, and the husband's counsel appeared before a different judge (trial judge) for the first day of trial. At the start of trial, the wife's counsel renewed the wife's request to testify by telephone or video, submitting a supporting affidavit. The wife's counsel stated that, during a recent trip to the United States in December of 2015, Federal immigration officials detained the wife for several hours and warned her that, due to an irregularity with her green card status, she would not be permitted re-entry unless she surrendered her green card or obtained a travel document. The wife's counsel further stated that, upon returning to Italy, the wife immediately began the process of obtaining the required travel document; however, it was presently "stuck in the system." The trial judge denied the wife's request, observing that the wife had not sought a continuance of the trial. Each party's counsel presented opening statements, and the husband testified. A second day of trial was held on May 18, 2016, after which the parties submitted proposed judgments.

A divorce judgment closely resembling the husband's proposed judgment entered on June 29, 2016. The divorce judgment provided, in relevant part, that (1) the wife shall retain ownership of her real property located in Italy; (2) the husband shall retain the marital home and reimburse the wife $50,000 for "her interest in the [marital] home, after taking into consideration her sole interest" in the Italian properties and the husband's expenditures related to the marital home; and (3) the husband shall pay child support in the amount of $240 per week. The trial judge declined the wife's request to deviate upward from the presumptive Child Support Guidelines (2013) (Guidelines) amount of $340 per week, instead deviating downward in consideration of the travel expenses (approximately $96 per week) the husband would incur to visit with the child. The trial judge further declined the wife's request for restitution for the husband's failure to support the child while the parties lived apart. On July 13, 2016, the wife filed a motion for new trial and relief from judgment pursuant to Mass. R. Dom. Rel. P. 59 and 60, which was denied on July 21, 2016. The present appeal by the wife followed.

Discussion. The wife claims the denial of her motion to testify by electronic means was an abuse of discretion and deprived her of due process.

"Due process requires, at minimum, an opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 187, 929 N.E.2d 272 (2010), quoting from Adoption of Simone, 427 Mass. 34, 39, 691 N.E.2d 538 (1998). The decision whether to allow a party's request to testify by electronic means is a matter within the judge's discretion. See Mass. R. Dom. Rel. P. 43(a) ("In all trials the testimony of witnesses shall be taken orally in open court, or such other place as the judge may in his discretion determine, unless otherwise provided by these rules"). See also Adoption of Edmund, 50 Mass. App. Ct. 526, 530, 739 N.E.2d 274 (2000) ("[T]he precise method of participation should generally be left to the discretion of the trial judge"); Adoption of Thea, 78 Mass. App. Ct. 818, 826, 942 N.E.2d 190 (2011) (allowing telephonic testimony is within the judge's discretion). "The responsibility for devising a mechanism for meaningful participation, once requested, rests with the judge." Adoption of Whitney, 53 Mass. App. Ct. 832, 836, 763 N.E.2d 74 (2002).

Here, the wife sought to participate in the divorce trial by way of telephonic or audiovisual testimony, as her presence was precluded by her immigration status. In denying the wife's request, the trial judge found the wife "had three months to arrange for an audio visual deposition [pursuant to Mass. R. Dom. Rel. P. 30A(k) ]" but instead "waited until the last minute" by filing her motion only nine days before the trial. The judge found "[t]here [wa]s no reasonable way [the] [h]usband could have arranged for, or prepared for an audio visual or telephone hearing in that short period of time." It is apparent the judge viewed the wife's motion to testify by electronic means as untimely, despite that there is no specific time frame for filing such a motion, under rule 30A(k) or otherwise. See Mass. R. Dom. Rel. P. 30A(k)(1)

(requiring only "notice and an opportunity to be heard"). See also Roche v. Massachusetts Bay Transp. Authy., 400 Mass. 217, 221, 508 N.E.2d 614 (1987) (deeming a motion filed seven days prior to trial as having provided "proper notice" for purposes of rule 30A [k] ).

In focusing on audiovisual depositions pursuant to rule 30A, the judge appeared to overlook other available options to facilitate the wife's participation in the trial, including live testimony via telephone or video, as requested by the wife. See Adoption of Whitney, 53 Mass. App. Ct. at 836, 763 N.E.2d 74 ("In some cases," a party's participation "may best occur through video or telephone conferencing during trial; in yet others, through appropriate documentary submissions, deposition testimony, or other reasonable means").

Moreover, the judge did not appear to consider other relevant factors. The judge's findings reflect no consideration of the wife's interest in being able to testify, or the prejudice to the wife resulting in her inability to do so. See Valley Bank & Trust Co. v. Marrewa, 354 Mass. 403, 405, 237 N.E.2d 677 (1968) ("Every party has a right to testify in his own behalf").

Likewise, there is no indication that the judge, in declining the wife's request to testify by electronic means, considered the potential impact on the child's interests. The judge's findings contain minimal discussion of the child's needs, despite those needs being a mandatory factor for the judge to consider under G. L. c. 208, § 34. The wife sought to introduce, through testimony, evidence regarding the child's needs, including the various expenses she regularly incurs in connection with the child's developmental and learning disabilities.

Given that the husband had only visited with the child a "few times" since 2011, and that the wife is responsible for the overwhelming majority of the child's care, it is inconceivable that the wife's testimony on these matters would have no effect on the judge's findings. See Adoption of Whitney, 53 Mass. App. Ct. at 838, 763 N.E.2d 74. Instead, the judge focused solely on the inconvenience to the husband caused by the wife's "last minute" motion.

Even if the wife's motion had been late under a specific procedural rule, which we do not suggest, "domestic relations matters have been viewed in certain circumstances as standing on a different footing than other civil matters." Houston v. Houston, 64 Mass. App. Ct. 529, 535 n.10, 834 N.E.2d 297 (2005). In cases involving children, a judge's action to ameliorate the harsh effects of a procedural rule "may be necessary to protect the child's best interests and to prevent manifest injustice." Id. at 536, 834 N.E.2d 297 ("As we have stated, an ameliorating influence may be essential to avoid a result where form triumphs over substance").

Here, the risk that the child may be receiving less support than necessary due to the wife's inability to testify is too great to ignore. In light of the judge's failure to consider the interests of the wife and the child, we conclude the denial of the wife's request to testify by electronic means was an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) ("[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives").

As the absence of testimony from the wife affects not only the amount of child support, but also the property division, those issues must be remanded for a new trial, and we need not decide the arguments raised by the wife in connection with the same.

Conclusion. The order denying the motion for new trial is reversed. The portion of the divorce judgment granting the divorce is affirmed. In all other respects, the divorce judgment is vacated, and the matter is remanded for further proceedings consistent with this opinion. A temporary child support order shall enter to be in effect during the pendency of the remand.

So ordered.

      At trial, the wife's counsel represented that child support should be based on the Guidelines.

      The wife also claims error in light of a 2016 amendment to the Uniform Interstate Family Support Act (UIFSA), G. L. c. 209D, which provides that a judge "shall permit a party or witness residing outside the commonwealth to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means ...." G. L. c. 209D, § 3-316(f), inserted by St. 2016, c. 53, § 1 (emphasis supplied). The wife argues she was entitled to testify by electronic means because the 2016 amendment went into effect before she filed her motion in April of 2016. However, even if UIFSA applies to this case, it appears the 2016 amendment was not in "effect" for purposes of this case, as the underlying divorce proceedings were commenced in 2015, and the 2016 amendment only applies to proceedings "commenced on or after" March 31, 2016. See St. 2016, c. 53, §§ 2-3.

      "Upon motion with notice and an opportunity to be heard, ... the court may order, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, that all or part of the testimony, and such other evidence as may be appropriate, may be presented at trial by audiovisual means." Mass. R. Dom. Rel. P. 30A(k)(1) (identical to Mass. R. Civ. P. 30A [k][1], as appearing in 393 Mass. 1238 [1985] ).

      See Mass. R. Dom. Rel. P. 30(b) (requiring seven days' notice prior to the taking of a deposition).

      Indeed, the judge deviated downward from the presumptive Guidelines by simply deducting the husband's travel costs from child support, thereby causing the wife to absorb the entirety of this expense. While a parent's extraordinary travel expense is one factor a court may consider, it appears that the judge did not consider any of the other factors which, in the circumstances of this case, would have warranted an upward deviation. See Guidelines § IV (2013) (factors include [1] a child with special needs, [2] a child with extraordinary medical or other expenses, [3] a parent with extraordinary travel expense, [4] a parent absorbing child care cost disproportionate to income, and [5] a parent providing less than one-third of the parenting time).


text:
    Brian S. HICKEY & another v. CONSERVATION COMMISSION OF DENNIS & others.
    No. 17-P-1292
    Appeals Court of Massachusetts, Barnstable..
    Argued May 3, 2018 Decided July 27, 2018
    Margaret P. Stolfa, Boston, for the plaintiffs.
    Justin Perrotta, for Pathways Association, Inc.
    Present: Milkey, Hanlon, & Singh, JJ.

      Mary P. Hickey.

      Town of Dennis and Pathways Association, Inc.

   MILKEY, J.

On March 3, 2016, the conservation commission of Dennis (commission) issued an approval pursuant to the local wetlands by-law (by-law) for a walkway and stairs (walkway) proposed by Pathways Association, Inc. (Pathways). The walkway is designed to allow certain inland owners to use their easements to access Cape Cod Bay. Brian and Mary Hickey (the Hickeys), who own property that abuts the site of the proposed walkway, brought an action in the nature of certiorari challenging the commission's approval. See G. L. c. 249, § 4. On the Hickeys' motion for judgment on the pleadings, a Superior Court judge ruled that they lacked standing to maintain this action, and judgment entered affirming the commission's decision. We affirm.

Background. This case involves a twenty-foot wide access way (Hickey Way) that runs from Shore Drive to Cape Cod Bay in Dennis. Hickey Way was the subject of earlier litigation. See Hickey v. Pathways Assn., Inc., 472 Mass. 735, 37 N.E.3d 1003 (2015) ( Hickey I ). Together with the couple that owned the property on the other side of Hickey Way, the Hickeys brought a Land Court action seeking to establish that each couple owned to the center line of the way, and that various owners of nearby inland lots had no rights to use it. Id. at 738, 37 N.E.3d 1003. The Hickeys named Pathways -- the incorporated association representing the inland owners in their quest to use Hickey Way -- as the lead defendant in that action. The Supreme Judicial Court eventually ruled in favor of Pathways and the inland owners. Id. at 738-739, 37 N.E.3d 1003. The court specifically held that the underlying fee interest in Hickey Way was not held by the Hickeys and their coplaintiffs, but instead had been retained by the original developers of the tract that included all of the respective properties (thereafter devolving to the original developers' heirs). Id. at 743, 37 N.E.3d 1003. The court also held that the inland owners hold easements in Hickey Way allowing them to use it for access. Ibid.

The area through which Hickey Way runs includes a steep, armored coastal bank that lies parallel to the water. Because of this topography, the inland owners cannot make use of their access rights in Hickey Way unless some version of the walkway is built there. On the heels of its victory in Hickey I, Pathways sought to build such a structure over Hickey Way, and it filed a permit application -- known as a notice of intent -- to do so. On their own, and through their counsel and wetlands consultant, the Hickeys submitted comments in opposition to the proposal. In particular, the Hickeys opposed the width of the proposed walkway and the fact that the proposal included landings (measuring eight by ten feet each), on which people could congregate or store items. The Hickeys were concerned that people congregating in the landing areas would disrupt their enjoyment of their nearby home. They were also concerned that people who used the walkway to reach the intertidal beach area at the bottom of the stairs inevitably would stray onto their portion of the beach and use it for general beach purposes.

The commission unanimously approved the project by issuing an order of conditions pursuant to both G. L. c. 131, § 40 (the Wetlands Protection Act), and the by-law. The Hickeys filed the current certiorari action challenging the approval issued under the by-law, and they simultaneously filed an administrative appeal with the Department of Environmental Protection (DEP) pursuant to the Wetlands Protection Act. In the latter appeal, the DEP issued a superseding order of conditions that approved a somewhat smaller version of the walkway. Unsatisfied with this partial victory, the Hickeys filed a further administrative appeal at the DEP. However, before that appeal was heard, the DEP stayed the matter until resolution of the Hickeys' certiorari action (then pending in the Superior Court, now before us). After the commission assembled the record that had been before it, the Hickeys filed a motion for judgment on the pleadings, to which Pathways filed an opposition. Without addressing the underlying merits, the judge ruled that the Hickeys lacked standing to maintain this action.

Discussion. To demonstrate standing to bring a certiorari action to challenge the wetlands approval issued by the commission, the Hickeys must "make[ ] a requisite showing of a reasonable likelihood that [they have] suffered injury to a protected legal right."

Higby/Fulton Vineyard, LLC v. Board of Health of Tisbury, 70 Mass. App. Ct. 848, 850, 877 N.E.2d 955 (2007). Unlike in the zoning context, the Hickeys do not enjoy presumptive standing based on their status as abutters. Ibid.

When their standing was challenged, the Hickeys did not submit affidavits seeking to establish how they would be adversely affected by the proposed walkway. Instead, they relied on the comments that they, their attorney, and their wetlands consultant had submitted to the commission as part of the administrative process. As the judge accurately pointed out, "the heart of the [Hickeys'] opposition to the proposed [walkway] is their fear that it will increase recreational activity within the private way, potentially spilling over onto the [Hickeys'] private property, which the [Hickeys] find offensive or injurious." These concerns do not fall within the wetlands-related interests protected by the by-law, and therefore cannot form the basis of standing to challenge a decision made under it. See Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 135, 731 N.E.2d 525 (2000), quoting from Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293, 367 N.E.2d 796 (1977) (to establish standing to challenge governmental action, alleged injury must fall "within the area of concern of the statute or regulatory scheme").

To the extent that the Hickeys' comments addressed wetlands issues at all, they essentially argued that Pathways had not met its burden of proof with regard to such issues, rather than trying to demonstrate affirmatively what specific harms the walkway would cause. We agree with the judge that the Hickeys' factual assertions about such harm were raised "in a conclusory fashion, and [were unsupported by] expert evidence, technical analysis, or particular facts in the record that establish [the purported risks]." On this record, we conclude that the Hickeys have not "put forward evidence to show actual, substantial injury" to the interests protected by the by-law, and their claims are of a "speculative nature" insufficient to support standing. Higby/Fulton Vineyard, LLC, 70 Mass. App. Ct. at 851-852, 877 N.E.2d 955.

The Hickeys additionally argue that they have automatic standing based on the uncontested fact they too hold an access easement in Hickey Way. Specifically, the Hickeys argue that because Pathways's "standing" to seek approval to build the walkway rests on its representing those who own an access easement in Hickey Way, it necessarily must follow that their own interest in the way provides them standing to challenge the commission's approval of Pathways's proposal. Any superficial appeal of such an "equivalency" argument vanishes under scrutiny.

As the incorporated association representing inland owners who hold easements allowing them to use Hickey Way for access, Pathways is a proper party to seek approval to build a walkway in order that such access rights can be used. See Hickey I, 472 Mass. at 741, 37 N.E.3d 1003 (observing that Land Court judgment that in pertinent part was being affirmed "explicitly permitted [the inland owners] whom [the judge] concluded had access rights over [Hickey Way] to repair or rebuild the [walkway structure that had been there] and to make use of [Hickey Way]"). The Hickeys' own access easement in Hickey Way may provide them a basis for arguing -- in a proper forum -- that the inland owners' use of Hickey Way will overburden or otherwise interfere with their own right to use Hickey Way. See id. at 753, 37 N.E.3d 1003 (recognizing that Hickeys, "as easement holders, have an interest in preventing use of the way by those without rights of access"). It does not, however, provide the Hickeys a basis for arguing that the commission's approval of the project pursuant to the by-law will cause them harm of the type that the by-law was intended to protect. Cf. Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 574-575, 52 N.E.3d 151 (2016) (plaintiff who held easement in site of proposed development lacked standing to bring zoning challenge).

In sum, we agree with the judge that the Hickeys failed to demonstrate their standing to bring this action in the nature of certiorari, and we therefore affirm the judgment.

So ordered.

      The Hickeys and other shoreland owners have similar structures on their own properties, and there used to be a similar structure on Hickey Way (before it was taken down after it apparently had fallen into disrepair).

      The ownership of the tidal flats in front of the Hickeys' home and the scope of the inland owners' rights to use that area are addressed in a separate appeal decided today. See Loiselle v. Hickey, 93 Mass. App. Ct. 644, --- N.E.3d ----, 2018 WL 3596100 (2018).

      If the superseding order of conditions issued by the DEP stands, Pathways will not be able to build the specific project that it originally had proposed. Prior to oral argument, we issued an order directing the parties to be prepared to address whether the issuance of the superseding order of conditions rendered the current appeal moot. The Hickeys acknowledged that the DEP still could approve the walkway project as originally proposed once the stay of the further administrative appeal is dissolved. Both parties agree that the appeal before us is not moot.

      The Hickeys did submit with their motion for judgment on the pleadings an affidavit from their wetlands consultant (a copy of which we obtained on our own initiative from the Superior Court). However, that affidavit did not purport to establish how they would be harmed by the proposed walkway.

      The Hickeys assert that the project will have negative visual consequences for them, and that protection of aesthetic interests falls within the scope of the by-law. Assuming arguendo that aesthetic interests could supply standing to challenge approvals issued under the by-law, the Hickeys have not demonstrated such harms beyond "unsubstantiated claims and personal opinions." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121, 944 N.E.2d 163 (2011) (upholding finding that plaintiffs had not demonstrated standing based on impaired visual interests even though relevant zoning by-law protected aesthetic interests and plaintiffs, as abutters, enjoyed presumptive standing).

      In Hickey I, the court observed that the original deed out to the Hickeys' predecessor in title "explicitly conveyed" an easement in Hickey Way. 472 Mass. at 753, 37 N.E.3d 1003.

      Pathways made some efforts to demonstrate that a particular individual who may be a coowner of the fee interest in Hickey Way (as an heir to the original developers who had retained that interest) had granted the inland owners permission to build the proposed walkway. However, the identity of the heirs to the original developers has never been adjudicated, and for purposes of this appeal, we assume that Pathways's claim to being a proper party to propose the walkway does not depend on its having acquired permission from the owner of the underlying fee in Hickey Way.

      In fact, in separate Land Court litigation that is currently stayed, the Hickeys are seeking to limit the inland owners' use of Hickey Way. Hickey vs. Pathways Association, Inc., Land Court No. 16 MISC 000123.


author: DIANE V. GRENDELL, J.

text:
    Dennis WATKINS, Trumbull County Prosecuting Attorney, Plaintiff-Appellee, v. Alfonsia PERRY, Defendant-Appellant.
    NO. 2017-T-0031
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided December 29, 2017
    Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
    Alfonsia Perry, pro se, PID# A300-444, Richland Correctional Institution, P.O. Box 8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).
   DIANE V. GRENDELL, J.

{¶ 1} Defendant-appellant, Alfonsia Perry, appeals the trial court's determination that he is a vexatious litigator pursuant to R.C. 2323.52. The issues before this court are whether, for the purposes of applying the statute of limitations, postconviction proceedings constitute civil actions; whether a trial court errs by sua sponte ruling on a counterclaim challenging the constitutionality of a statute when granting summary judgment in favor of the plaintiff where the statute's constitutionality would have constituted a defense to the plaintiff's claim; and whether a trial court may consider a party's postconviction filings to support a determination that he is a vexatious litigator. For the following reasons, we affirm the judgment of the court below.

{¶ 2} On November 29, 2016, Dennis Watkins, the Trumbull County Prosecuting Attorney, filed a Complaint to Designate Defendant as Vexatious Litigator against Alfonsia Perry.

{¶ 3} On December 20, 2016, Perry filed a Motion to Dismiss Complaint pursuant to Civil Rule 12(B)(6), based on the statute of limitations and the claim that the "litigation identified in the complaint to declare the Defendant a vexatious litigator is not reviewable by the plain language of the statute." Watkins responded on December 22, 2016.

{¶ 4} On January 5, 2017, the trial court denied Perry's Motion to Dismiss.

{¶ 5} On January 31, 2017, Watkins filed a Motion for Summary Judgment.

{¶ 6} On February 13, 2017, Perry, with leave of court, filed an Answer and Counterclaim. In the counterclaim, Perry asserted that the Ohio Vexatious Litigator Statute, as amended by Senate Bill 168, is unconstitutional. Watkins replied to the counterclaim on February 22, 2017.

{¶ 7} On February 24, 2017, Perry filed his Opposition against the Plaintiff's Motion for Summary Judgment.

{¶ 8} On March 14, 2017, the trial court granted summary judgment in Watkins' favor, determining that it was "abundantly clear" that "Defendant exceeds any and all definitions of a vexatious litigator." The court summarized the litigation underlying its decision as follows:

Defendant was indicted by the January 1994 Term of the Trumbull County Grand Jury on one count of Aggravated Murder pursuant to R.C. 2903.01, for the beating death of his live-in girlfriend, Jeanette Purdue, in Case Number 1994-CR-0042. On November 7, 1994, Perry was convicted of Aggravated Murder and was sentenced to life imprisonment. Defendant filed his direct appeal through licensed counsel with the Eleventh District Court of Appeals on December 6, 1994. The Eleventh District Court of Appeals affirmed the Defendant's conviction and sentence. State v. Perry (Aug. 29, 1997), 11th Dist. No. 1994-T-5165, 1997 WL 590789. The Ohio Supreme Court declined jurisdiction in State v. Perry , 80 Ohio St.3d 1467, 687 N.E.2d 296 (1997).
After the disposition of his direct appeal, Defendant has filed a number of post-conviction motions in this Court resulting in several related appeals before the Eleventh District Court of Appeals. For two of those appeals, Defendant was represented by counsel. State v. Perry , 11th Dist. No. 1995-T-5315, 1997 WL 269202 [;] State v. Perry , 11th Dist. No. 1996-T-5597, 1997 WL 772942. All subsequent appeals were handled pro se by Defendant. Notwithstanding the amount of his post-judgment litigation, Defendant has not obtained any modification of his conviction or sentence, nor has any of his ancillary litigation been successful. State v. Perry , 11th Dist. No. 2008-T-0127, 2009-Ohio-1320 [2009 WL 738024] [;] State v. Perry , 11th Dist. No. 2009-T-0090, 2010-Ohio-713 [2010 WL 702288], ¶ 17 [;] State v. Perry , 11th Dist. No. 2010-T-0014, 2010-Ohio-2956 [2010 WL 2557737], ¶ 13 [;] Perry v. McKay , 11th Dist. No. 2009-T-0023, 2009-Ohio-5767 [2009 WL 3526228] [;] State v. Perry , 11th Dist. No. 2014-T-0095, 2015-Ohio-2899 [2015 WL 4397407], ¶ 15 [;]
State v. Perry , 11th Dist. No. 2016-T-0005, 2016-Ohio-7446 [2016 WL 6166735]. Defendant currently has another related case pending before the Eleventh District Court of Appeals in Case No. 2016-T-0098.
In summary, Defendant has filed a copious amount of documents in this Court and in the Eleventh District Court of Appeals. The number of filings for his case alone exceeds seventy (70) documents. (T.d. 48, 52, 53, 56, 60, 61, 63, 66, 67, 69, 71, 74, 78, 80, 84, 86, 88, 90, 91, 92; State v. Perry , 11th Dist. No. 2008-T-0127 [2009 WL 738024] ; Perry v. McKay , 11th Dist. No. 2009-T-0023 [2009 WL 3526228] ; State v. Perry , 11th Dist. No. 2009-T-0090 [2010 WL 702288] ; State v. Perry , 11th Dist. No. 2010-T-0014 [2010 WL 2557737] ; State v. Perry , 11th Dist. No. 2014-T-0095 [2015 WL 4397407] ; State v. Perry , 11th Dist. No. 2016-T-0005 [2016 WL 6166735] ; State v. Perry , 11th Dist. No. 2016-T-0098 [2017 WL 1496458] ).

{¶ 9} The court further determined that R.C. 2323.52 is constitutional and applicable to Perry inasmuch as "Defendant's numerous filings constitute petitions for post-conviction relief which are civil in nature thereby evoking civil rules and sanctions."

{¶ 10} On April 6, 2017, Perry, with leave of court, filed a Notice of Appeal. On appeal, Perry raises the following assignments of error:

{¶ 11} "[1.] The trial court erred when it denied Perry's motion to dismiss the complaint pursuant to Civ.R. 12(B)(6)."

{¶ 12} "[2.] The trial court committed prejudicial error and denied Perry his due process right[s] when the court failed to notify Perry it intends to sua sponte address his counter claim when addressing Watkins['] motion for summary judgment in the absence of a pending motion."

{¶ 13} "[3.] The trial court erred when it granted Watkins['] motion for summary judgment pursuant to Civ.R. 56."

{¶ 14} In the first assignment of error, Perry contends the trial court erred in denying his Motion to Dismiss based on the statute of limitations defense.

{¶ 15} "A motion to dismiss based upon a statute of limitations may be granted when the complaint shows conclusively on its face that the action is time-barred." Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11 ; O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus ("[i]n order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted ( Civ.R. 12(B)(6) ), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery").

{¶ 16} An order granting a motion to dismiss for failure to state a claim upon which relief may be granted is "subject to de novo review." Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

{¶ 17} "[A] prosecuting attorney * * * who has defended against habitual and persistent vexatious conduct in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court may commence a civil action in a court of common pleas with jurisdiction over the person who allegedly engaged in the habitual and persistent vexatious conduct to have that person declared a vexatious litigator." R.C. 2323.52(B). "The * * * prosecuting attorney * * * may commence this civil action while the civil action or actions in which the habitual and persistent vexatious conduct occurred are still pending or within one year after the termination of the civil action or actions in which the habitual and persistent vexatious conduct occurred." Id.

{¶ 18} In rejecting Perry's contention that "the only civil action or appeal from a civil action was filed by Perry in 2009 [referencing Perry v. McKay , 11th Dist. Trumbull No. 2009-T-0023, 2009 WL 3526228 ]," and, therefore, "there should be no dispute the complaint was filed past the one year statute of limitations," the trial court noted that it was "well-settled law" that a postconviction proceeding is considered a collateral civil attack on a criminal conviction, rather than an appeal therefrom. State v. Calhoun , 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999) ("a postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment").

{¶ 19} Perry counters that a postconviction motion cannot be converted, or construed as, a civil action. Martin v. Wayne Cty. Natl. Bank Trust , 9th Dist. Wayne No. 03CA0079, 2004-Ohio-4194, 2004 WL 1778822, ¶ 12 ("[a] motion is not a pleading" and "in the context of this case, a party cannot initiate an action by filing a motion"). "Since no civil action was filed, the collateral 'civil' attack in Perry's criminal case could not be used to extend the statute of limitations." Appellant's brief at 5-6.

{¶ 20} Perry's argument is deficient in several respects.

{¶ 21} As an initial matter, postconviction proceedings are not initiated by motion, but, rather, by petition. R.C. 2953.21(A)(1)(a) ("[a]ny person who has been convicted of a criminal offense * * * may file a petition in the court that imposed sentence * * * asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief").

{¶ 22} Moreover, "[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21." State v. Reynolds , 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus.

{¶ 23} On September 28, 2015, Perry filed a Motion for Re-Sentencing based on Void Judgment which was so construed as a petition for postconviction relief. See Perry , 2016-Ohio-7446, 2016 WL 6166735, ¶ 3-4. The appeal of the trial court's denial of Perry's motion/petition was decided on October 24, 2016, thereby terminating the action. A little over a month later, on November 29, 2016, Watkins timely filed the Complaint to Designate Defendant as Vexatious Litigator.

{¶ 24} Finally, we note that Perry's argument equates an "action" as used in R.C. 2323.52 with the "civil action * * * commenced by filing a complaint with the court" as provided for in Civil Rule 3(A). Such an interpretation is overly narrow and contrary to the purpose of the statute. Broadly defined, a civil action is simply a "civil * * * judicial proceeding." Black's Law Dictionary 31 (8th Ed.2004). "More accurately, it is defined to be any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree." Id. , quoting 1 Morris M. Estee, Estee's Pleadings, Practice, and Forms § 3, at 1 (Carter P. Pomeroy ed., 3d ed.1885).

{¶ 25} This broader understanding of an "action" comports with the statute's purpose which is not only "to prevent abuse of the system by those persons who persistently and habitually file lawsuits without reasonable grounds," but also to prevent abuse by those who "otherwise engage in frivolous conduct in the trial courts of this state." (Citation omitted.) Mayer v. Bristow , 91 Ohio St.3d 3, 13, 740 N.E.2d 656 (2000). Such conduct may be initiated through a multitude of post-judgment filings, such as proceedings for postconviction relief, relief from judgment, and the modification of custody/support decrees. See Roo v. Sain , 10th Dist. Franklin No. 04AP-881, 2005-Ohio-2436, 2005 WL 1177940, ¶ 13 ("[i]nterpreting the one-year statute of limitations in R.C. 2323.52(B) as running from the final judgment rendered by the trial court would unduly impair the effectiveness of the vexatious litigator statute by either forcing parties to bring a premature vexatious litigator action in anticipation of subsequent frivolous conduct during appeals or post-judgment proceedings, or losing the right to seek the protection of the statute because of the length of time elapsed between the trial court's judgment and subsequent frivolous conduct upon appeal or in filing Civ.R. 60(B) motions in the trial court").

{¶ 26} The first assignment of error is without merit.

{¶ 27} In the second assignment of error, Perry contends that the trial court erred by issuing a ruling, sua sponte, on the counterclaim when the constitutionality of the vexatious litigator statute was not raised in the motion for summary judgment. Perry cites to the Ohio Supreme Court's decision in Marshall v. Aaron , 15 Ohio St.3d 48, 472 N.E.2d 335 (1984), for the proposition that, "[w]here no motion has been filed, and necessarily no evidence attached thereto, no conclusion, favorable or adverse, is properly available upon which to base an order for summary judgment." Id. at 50, 472 N.E.2d 335 ; Gibbs v. Ohio Adult Parole Auth. , 4th Dist. Ross No. 01CA2622, 2002-Ohio-2311, 2002 WL 1003690, ¶ 11 ("there is no authority for the sua sponte entry of summary judgment in the absence of a pending motion").

{¶ 28} We find no reversible error. In contrast to the Marshall and Gibbs cases, there was a motion for summary judgment filed in the present case. In that motion, the constitutionality of R.C. 2323.52 was asserted. If the constitutional infirmity of the statute precluded the entry of judgment in Watkins' favor, it was necessary for Perry to raise such arguments before the trial court. Perry had the opportunity and the obligation to present his arguments regarding the statute's constitutionality in his Opposition to Watkins' Motion for Summary Judgment.

{¶ 29} Perry counters that Watkins' Motion was filed prior to the filing of his Counterclaim raising the issue of the statute's constitutionality and, therefore, "the short statement [asserting the statute's constitutionality] could not have challenged the counter claim since it did not exist when Watkins filed his motion for summary judgment." Appellant's brief at 8. Regardless of whether Perry's Counterclaim had been filed, the constitutionality issue was before the court by virtue of Watkins' Motion for Summary Judgment.

{¶ 30} Perry further indicates that the basis of his constitutional challenge is unrelated to the claim that he is a vexatious litigator. Perry's constitutional challenge focuses on division (G) of the statute which provides that "no appeal by the person who [has been declared a vexatious litigator] shall lie from a decision of the court of common pleas or court of appeals * * * that denies that person leave for the institution or continuance of, or the making of an application in, legal proceedings in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court." R.C. 2323.52(G). The Counterclaim maintains that division (G) "is unconstitutional as written when applied to an appeal of right from a criminal case and civil action subsequent to a final order being issued by an inferior court."

{¶ 31} In the context of the present case, however, Perry has no standing to raise such an argument in that he has not been denied the right to appeal the determination that he is a vexatious litigator. It is well established that "[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights." Cty. Court of Ulster Cty. v. Allen , 442 U.S. 140, 154-155, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). The general rule is that, "if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations." Id. at 155, 99 S.Ct. 2213 ; Mastro v. Glavan , 11th Dist. Ashtabula No. 2010-A-0044, 2011-Ohio-3628, 2011 WL 2982412, ¶ 48.

{¶ 32} The second assignment of error is without merit.

{¶ 33} In the third and final assignment of error, Perry contends that he cannot be found a vexatious litigator based on conduct in his criminal case. "Applying the rules of grammar and common usage in O.R.C. § 2323.52, the vexatious litigator statute's plain and unambiguous language expressly addresses the commencement of civil actions to find Perry a vexatious litigator." Appellant's brief at 11. While conceding that postconviction proceedings may constitute collateral civil attacks on a criminal conviction, Perry maintains they do not constitute civil actions so as to come under the censure of the statute: "the trial court was not permitted to convert any collateral 'civil' attack motion/petition and appeal from a final order in [Perry's] criminal case as a civil action to label or declare Perry a vexatious litigator." Appellant's brief at 12-13. Perry misconstrues the statute.

{¶ 34} Perry may be found a "vexatious litigator" if it is shown that he has "habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions * * *." R.C. 2323.52(A)(3). The sort of "conduct" which may support a vexatious litigator determination is not limited to the filing of a civil action, but encompasses "the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action." R.C. 2323.51(A)(1)(a). As demonstrated under the first assignment of error, a postconviction proceeding does constitute a civil action, although not initiated by the filing of a complaint pursuant to Civil Rule 3(A).

See Watkins v. Pough , 11th Dist. Trumbull No. 2016-T-0100, 2017-Ohio-7026, 2017 WL 3226047, ¶ 41 ("[w]hile it is accurate that the initial filings prior to conviction and the direct appeal in the underlying criminal matter are not considered for the purposes of making a vexatious litigator finding, the subsequent motions, appeals, and original actions were generally of a civil nature").

{¶ 35} We further emphasize that the trial court was not limited to considering Perry's conduct in any particular proceeding. The statute speaks in terms of "civil action or actions," thus "permit[ting] a court to examine other actions that a person has participated in to determine if that person is a vexatious litigator." (Citation omitted.) Prime Equip. Group, Inc. v. Schmidt , 2016-Ohio-3472, 66 N.E.3d 305, ¶ 19 (10th Dist.).

{¶ 36} The third assignment of error is without merit.

{¶ 37} For the foregoing reasons, the Judgment of the Trumbull County Court of Common Pleas, finding Perry to be a vexatious litigator, is affirmed. Costs to be taxed against appellant.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O'TOOLE, J., dissents.

      On April 24, 2017, this court decided State v. Perry , 11th Dist. Trumbull No. 2016-T-0098, 2017-Ohio-1515 [2017 WL 1496458], affirming the trial court's denial of Perry's Motion for Resentencing Based on Void Judgment.

      We note that Perry raised the statute of limitations as an affirmative defense in his Answer and in his Opposition to Summary Judgment. In the context of a motion to dismiss, consideration of the limitations defense is limited to the complaint while, in the context of a motion for summary judgment, evidence outside the complaint may be considered. Savoy v. Univ. of Akron , 10th Dist. Franklin No. 11AP-183, 2012-Ohio-1962, 2012 WL 3085515, ¶ 6. In the present case, there was no evidence outside of the Complaint bearing on the issue and, whether considered in the context of a motion to dismiss or a motion for summary judgment, the standard of review is de novo.