GRAEME D. FISHER v. CAMERON A. FISHER & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-59

GRAEME D. FISHER

vs.

CAMERON A. FISHER & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action was brought by Graeme Fisher (Graeme) against

his brother, Cameron Fisher (Cameron), in Cameron's capacity as

representative of the estate of their father, Donald Fisher

(Donald), pursuant to G. L. c. 230, § 5. That statute provides

that an heir, legatee, or creditor having an interest in the

enforcement of a claim "in favor of the estate" may bring a

civil action to enforce that claim where the executor or

administrator "refuses to bring such action at the request of an

heir, legatee or creditor." The case was dismissed on the

grounds that Graeme "failed to state a claim upon which relief

[could] be granted" and that his claim was subject to the

"doctrine of collateral estoppel." Graeme now appeals.

1 Stuart W. Rapp, as personal representative of the estate of
Donald C. Fisher.
"We review the allowance of a motion to dismiss de novo,

accepting as true all well-pleaded facts alleged in the

complaint." Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass.

612, 614 (2019), citing Calixto v. Coughlin, 481 Mass. 157, 158,

(2018).

Cameron argues that the dismissal of the complaint in this

matter should be affirmed because Graeme is collaterally

estopped from bringing this action. He does so on the basis

that Graeme, who along with Cameron was a co-personal

representative of the estate of their mother, Ardell Fisher

(Ardell), previously brought an action in the Land Court against

Cameron in his capacity as co-personal representative of their

mother's estate. That action, though substantially narrower

than this, alleged at least one of the same things that is

alleged here, that the transfer of certain property by Donald

and Ardell to Cameron for nominal consideration in 2003 was a

result of undue influence by Cameron.

The Land Court in that previous action granted summary

judgment in favor of Cameron. On appeal, a different panel of

this court concluded that Graeme lacked "standing" to have

brought the Land Court action. First, the panel concluded that

even if Ardell had retained an interest in the property at issue

during her lifetime, that right would have automatically

transferred by operation of law to Donald at the time of her

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death, "thus, after Ardell's death any claim to the property was

held exclusively by Donald, or his estate after his death."

Second, the panel concluded that, as only one of the two

co-personal representatives of Ardell's estate, Graeme bringing

the Land Court action without Cameron's consent or delegation to

act on his behalf was expressly prohibited by statute and by the

language contained in Ardell's will. The panel concluded that

"[b]ecause Graeme did not have standing to bring this action in

the Land Court, the judge lacked subject matter jurisdiction

over it."

The panel's opinion also addressed the merits of Graeme's

claim. But as the parties both note, following the issuance of

the panel's memorandum and order pursuant to Rule 23.0 of the

Rules of the Appeals Court, as appearing in 97 Mass. App. Ct.

1017 (2020), in response to a motion for reconsideration filed

by Graeme, we clarified the meaning of that further discussion

in our memorandum and order of the merits of the claim brought

in the Land Court, adding as a preface to our discussion the

clause, "Even if Graeme had standing, we would still affirm."

This emendation made clear that the discussion of the merits in

the prior decision was dictum.

In his primary argument before us, Cameron says that the

dismissal of the complaint in this matter should be affirmed

because Graeme is barred from bringing this action due to claim

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preclusion. Claim preclusion may properly be invoked only where

there is (1) an "identity or privity of the parties to the

present and prior actions, (2) identity of the cause of action,

and (3) [a] prior final judgment on the merits" (citation

omitted). Laramie v Phillip Morris USA Inc., 488 Mass. 399, 405

(2021).

Cameron argues that prong one is satisfied because Graeme,

as co-personal representative of his mother's estate, the

capacity in which he brought the previous suit, is in privity

with Graeme, suing under the statute for the benefit of his

father's estate, the capacity in which he brought the current

suit.

Determining the scope of privity is sometimes not a simple

matter. See, e.g., Daigle v. Portsmouth, 129 N.H. 561, 573

(1987) (Souter, J.) ("'[A] judgment against a government does

not bind its officials in subsequent litigation that asserts a

personal liability against officials. And . . . an official who

has litigated in his official capacity is not precluded from

relitigation in his personal capacity.' 18 C. Wright and A.

Miller, Federal Practice and Procedure § 4458 [1981]").

However, in this case, it is clear that Graeme, suing as a co-

personal representative of his mother's estate, is not the same

party, or its privy, as Graeme, suing on behalf of his father's

estate. Cameron also says that, despite his suing in different

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capacities, Graeme is the same party in both suits, but that is

incorrect on its face. The Supreme Judicial Court long ago

held, "A verdict against a man suing in one capacity will not

estop him when he sues in another distinct capacity and, in

fact, as a different person in law." McCarthy v. William H.

Wood Lumber Co., 219 Mass. 566, 570 (1914). Likewise, the

Restatement (Second) of Judgment § 36(2) (1982) takes the

position that "[a] party appearing in an action in one capacity,

individual or representative, is not thereby bound by or

entitled to the benefits of the rules of res judicata in a

subsequent action in which he appears in another capacity."

Prong one therefore is not satisfied and claim preclusion does

not bar this action.

Cameron secondarily argues that dismissal was proper based

on "undisputed facts found by the Land Court" and because

"[e]ven if the Land Court decision is not preclusive, the

underlying policy of collateral estoppel applies." He refers

repeatedly, as well, to the summary judgment record in the Land

Court action to support the assertion that dismissal of the

complaint was proper.

These are primarily arguments the gravamen of which is that

the suit is precluded under the doctrine of issue preclusion.

"Issue preclusion applies when (1) the issue sought to be

precluded in the later action is the same as that involved in

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the earlier action; (2) the issue was actually litigated; (3)

the issue was determined by a valid and binding final judgment;

and (4) the determination of the issue was essential to the

judgment" (quotation and citation omitted). Alicea v.

Commonwealth, 466 Mass. 228, 236 (2013). Even if the other

three elements were met, which we need not decide, no

determination of any issue presented in this action was

essential to the judgment in the other action, which was

ultimately based on a lack of standing to sue.

Beyond that, Cameron's argument is that a complaint may be

dismissed on the basis of the summary judgment record in another

case, which is not correct. "Even were we to accept the idea

that Mass. R. Civ. P. 12 (b) (6) permits consideration of

matters outside the four corners of the complaint provided they

are susceptible to judicial notice, . . . [m]atters are

judicially noticed only when they are indisputably true. . . .

[A]lthough we make take judicial notice of the docket entries

and papers filed in separate cases, we may not take judicial

notice of facts or evidence brought out in those separate

actions." Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC,

84 Mass. App. Ct. 75, 91 (2013), quoting Nantucket v. Beinecke,

379 Mass 345, 352 (1979), and Home Depot v. Kardas, 81 Mass.

App. Ct. 27, 28 (2011).

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Finally, and in the alternative, Cameron argues that the

claims should be dismissed as they are barred by the statute of

limitations.2 Because this involves some complex and potentially

novel legal questions, including possible questions about the

timing of various different unlawful acts described in the

complaint, the application of the discovery rule –- including,

perhaps, the date when discovery by the personal representative

was possible and/or the date when discovery by Graeme in his

capacity as heir or legatee with the power to sue for the

benefit of the estate under the statue occurred -– and the

relevance of G. L. c. 230, § 5, to the calculation of the

statute of limitations, we conclude the prudent course is to

allow this argument to be more fully developed and considered by

the motion judge in the first instance.3

2 He also argues that the suit should be barred on the ground of
laches, but his argument that Graeme, who did not have authority
to bring an action on behalf of Donald's estate until the
personal representative declined to act, should somehow have
brought this action during his parents' lifetimes, is without
merit.
3 In her order, the judge also denied Graeme's "Motion to

Reinstate Claim for Breach of Fiduciary Duty." The presence or
absence of a fiduciary duty is of course a question of fact.
Although the motion judge properly examined the complaint in
denying the motion to reinstate, the original dismissal of the
claim was "[b]ased upon the facts and allegations included
within the underlying Complaint, and due to the findings made by
the Land Court with respect to the same claim previously
asserted by the plaintiff" (emphasis added). We express no
opinion whether the factual allegations contained in the
materials properly considered on a motion to dismiss suffice to

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So much of the judgment that dismissed the complaint is

vacated. In light of our conclusion that Graeme's appeal has

merit, the remainder of the judgment awarding fees to Cameron is

also vacated, and Cameron's request for appellate attorney's

fees is denied. Finally, the order denying the motion to

reinstate claim for breach of fiduciary duty is vacated, and the

case is remanded for further proceedings consistent with this

opinion.

So ordered.

By the Court (Rubin,
Englander & Hand, JJ.4),

Clerk

Entered: March 15, 2023.

state a claim for breach of fiduciary duty. Since the case must
in any event be remanded, we think the prudent course would be
to allow the judge on remand to address the question in the
first instance.
4 The panelists are listed in order of seniority.

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