SUSAN LYNN LAVENDAR BARAN v. WILLIAM N. FORD, SR., & Others.

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

23-P-786

SUSAN LYNN LAVENDAR BARAN1

vs.

WILLIAM N. FORD, SR., & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

William N. Ford, Sr., the Sterling Foundation, Inc., and

Reynold Greenleaf & Associates, LLC, (the defendants) appeal

from a Superior Court judgment in favor of Susan Lavendar Baran3

on her claim for declaratory judgment that sought to void a

revival of the Ann Wigmore Foundation (AWF), a Massachusetts

nonprofit organization operating in New Mexico, and to nullify

1Individually and as director of the Ann Wigmore
Foundation, Inc.

2The Sterling Foundation, Inc.; Reynold Greenleaf &
Associates, LLC; and the Secretary of the Commonwealth.

3In accordance with the pleadings and appellate briefs, we
refer to the plaintiff as Lavendar.
the subsequent merger of AWF with defendant Ford's nonprofit,

Sterling.4

On appeal, the defendants argue that the court lacked

subject matter jurisdiction because Lavendar did not have

standing. In addition, the defendants contend the trial judge

erred (1) by concluding that the defendants were not interested

parties under the revival statute, G. L. c. 156B, § 108, (2) by

concluding that the defendants made fraudulent

misrepresentations in their application for revival, and (3) by

excluding evidence of Lavendar's mismanagement of AWF. We

affirm.

Background. We summarize the facts as found by the trial

judge.5

4 Lavendar sued the defendants and the Secretary of the
Commonwealth in Suffolk Superior Court seeking a declaratory
judgment that the Secretary's approval of the defendants'
revival of AWF and subsequent merger with Sterling should be
deemed null and void, and in addition, Lavendar asserted claims
against the defendants for fraud, conversion, and civil
conspiracy. Sterling counterclaimed against Lavendar for
declaratory judgment, malicious abuse of process, conversion,
and "breach of contract and promissory estoppel." The judge
bifurcated the trial and addressed Lavendar's declaratory
judgment claim first. Only that claim is before us on appeal.
The parties, pursuant to Mass. R. Civ. P. 41 (a) (1) (ii), 365
Mass. 803 (1974), stipulated to the dismissal of all the
remaining claims and counterclaims without prejudice, including
those against the Secretary, who is not a party to this appeal.

5 On appeal, the defendants accept all the judge's factual
findings.

2
Dr. Ann Wigmore was a pioneer in the use of wheatgrass

juice and living foods to detoxify the human body, mind, and

spirit. She founded AWF, a Massachusetts nonprofit corporation,

to advance her mission. On Wigmore's death in 1994, the work of

AWF was carried on by its board of directors, which at that time

consisted of Shu Chan, Damian Andrews, and Joseph Petrelli.

Chan and Andrews decided to move AWF's operations from the

Boston area to New Mexico in 1995. The New Mexico Secretary of

State issued a certificate recognizing AWF as a foreign

nonprofit corporation, effective March 1995. AWF sold its

property in Boston and used the proceeds to acquire a twenty-one

acre parcel of improved land in San Fidel, New Mexico. By 2000,

AWF had "fallen into a state of disorganization."

Lavendar worked for Wigmore in the early 1990s. In August

2000, Lavender went to AWF's site in San Fidel to assist with

the operations. In September 2000, AWF's directors appointed

Lavendar to serve as manager of AWF with full authority to

reside at and take care of the property. By approximately late

2002, before resigning en masse, AWF's directors voted

unanimously to appoint Lavendar to be a director and to become

president of AWF. After taking the position, Lavendar failed to

file annual corporate reports for AWF. As a result, in 2012 the

Secretary of the Commonwealth revoked AWF's Massachusetts

corporate charter, and in 2018 the New Mexico Secretary of State

3
revoked AWF's certificate to operate as a foreign nonprofit

corporation. Lavendar was unaware of these occurrences.

In 2018, Lavendar, having decided to move AWF's operations

to Virginia, listed the San Fidel property for sale. Defendant

Ford, the president of R. Greenleaf Organics, Inc., arranged for

a meeting with Lavendar after he became interested in using

AWF's site as an addiction treatment and rehabilitation center

to be run by Sterling, another organization he presided over.

During this meeting, Lavendar provided background on AWF,

including information pertaining to how she, as the director of

AWF, had full authority to act on its behalf. Before this

meeting with Lavendar, Ford was unaware of and had no connection

to Wigmore, AWF, or AWF's mission or property.

After their meeting, Ford learned that while filings with

the Secretary of the Commonwealth listed Chan and Petrelli as

the directors of AWF, more recent filings with the New Mexico

Secretary listed Lavendar and Karen Hammer as AWF's directors.

Ford also discovered that AWF's corporate status had lapsed in

both States. As stipulated by Ford during trial, he was also

aware that the "AWF foundation [sic] owned the property and that

Lavendar was selling on behalf of AWF."

During a tour of the property on November 12, 2018, Ford

suggested to Lavendar that they "marry" the two nonprofit

entities, AWF and Sterling. Lavendar did not agree, and she

4
expressed no interest in working with Ford or for Sterling.

Despite this, on November 13, 2018, Ford, on Sterling's behalf

and unbeknownst to Lavendar, prepared and electronically filed

an application for revival with the Secretary of the

Commonwealth.6 The Secretary approved Ford's application the

following day, November 14. Notably, Ford made no attempt to

locate and communicate with either Chan or Petrelli before

filing the revival application, despite asserting in the

application that he did so.

On November 28, 2018, Ford visited Lavendar at the AWF

property in San Fidel and failed to inform her that he had

revived AWF. Ford again tried to get Lavendar to agree to merge

AWF into Sterling; once again, Lavendar declined. On November

29, 2018, Ford sent an e-mail message to Lavendar that

reiterated his plan to merge AWF with Sterling, and offered

Lavendar a seat on Sterling's board and to stay on as a property

manager once the merger was complete.

On December 3, 2018, Ford filed an annual report for AWF

with the Secretary of the Commonwealth. He listed five

6 Ford made the following representations in this
application: (1) Sterling and AWF are parallel in their
missions and values; (2) AWF "has effectively been defunct" for
some time; (3) Ford had been unable "to locate anyone with
direct authority to revive the corporation," despite having
"tried very hard" to do so; (4) Ford was making a request for a
six-month revival of AWF for the purpose of merging AWF with
Sterling.

5
directors of AWF, naming himself president, Jessica Hatfield as

treasurer, Hammer as clerk, Chris Romero as vice president, and

Lavendar as the fifth director. On December 18, he sent an e-

mail message to these new directors to inform them that the next

board meeting would occur on December 27. The next day,

December 19, Lavendar responded to Ford's e-mail message by

demanding Ford "[s]top all activity with the Takeover" of AWF

business and property. After reading Lavendar's e-mail message

demanding he desist in his takeover of AWF, Ford quickly

organized a board meeting, which only he, Hatfield, and Romero

attended. At this meeting on or about December 19, the board

members voted to remove Lavendar and Hammer as directors.

On December 20, Ford filed a certificate of change of

directors for AWF with the Secretary. On December 27, 2018,

Ford, Hatfield, Romero, and two newly-appointed directors all

voted to approve AWF's merger with Sterling. Ford immediately

filed AWF's articles of merger with the Secretary. Once the

Secretary approved the merger, Ford successfully obtained

Lavendar's eviction from AWF's property in San Fidel.

Procedural history. On December 21, 2018, prior to the

merger and eviction, Lavendar filed a civil complaint and sought

an injunction against Ford in a New Mexico court, seeking to

prevent Ford from gaining control of AWF and its property. Once

the New Mexico court ruled it was without jurisdiction, Lavendar

6
resorted to pursuing her claims in Federal court in the District

of Massachusetts. However, Lavendar's suit was dismissed for

lack of jurisdiction in Federal District Court. See Ann Wigmore

Found., Inc. vs. Sterling Found., Inc., U.S. Dist. Ct., No.

1:20-cv-11150-IT (D. Mass. May 11, 2021). Lavendar then sought

declaratory relief in the Superior Court which led to this

appeal.

Discussion. 1. Standing. The defendants argue that

Lavendar lacks standing to challenge their revival of AWF.

Because standing in this case presents a question of law, our

review is de novo. Doucet v. FCA US LLC, 492 Mass. 204, 207

(2023).

"The notion of standing is an 'elastic concept []' whose

meaning depends on the particular parties at issue, and

'standing requirements should be liberally construed' in

declaratory judgment proceedings" (citations omitted). Service

Employees Int'l Union, Local 509 v. Department of Mental Health,

469 Mass. 323, 329 (2014), S.C., 476 Mass. 51 (2016). A party

has standing to seek declaratory relief "when it can allege an

injury within the area of concern of the statute or regulatory

scheme under which the injurious action has occurred" (citation

omitted). Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591,

607 (2017).

7
"Whether a plaintiff's injury falls within the so-called
'zone of interests' of a statute or regulatory scheme
depends upon a number of factors, including '[1] the
language of the statute in issue; [2] the Legislature's
intent and purpose in enacting the statute; [3] the nature
of the administrative scheme; [4] decisions on standing;
[5] any adverse effects that might occur, if standing is
recognized; and [6] the availability of other, more
definite, remedies to the plaintiffs.'"

Id., quoting Enos v. Secretary of Envtl. Affairs, 432 Mass. 132,

135–136 (2000).

The parties agree that G. L. c. 156B, § 108, governs the

revival of AWF after its corporate charter was revoked.7 Under

this statute, only an "interested party" may apply to have a

corporation revived. G. L. c. 156B, § 108. As the former

director of AWF, Lavendar qualifies as an interested party. See

Barker-Chadsey Co. v. W.C. Fuller, Co., 16 Mass. App. Ct. 1, 5-6

7 General Laws c. 156B, § 108, provides, in pertinent part,
that:
"If the state secretary finds that the existence of a
corporation has terminated in any manner and that such
corporation ought to be revived for all purposes or for any
specified purpose or purposes with or without limitation of
time, he may, upon application by an interested party, file
in his office a certificate in such form as he may
prescribe reviving such corporation. The state secretary
may subject the revival of such corporation to such terms
and conditions . . . as in his judgment the public interest
may require. Upon the filing of a certificate reviving a
corporation for all purposes, said corporation shall stand
revived with the same powers, duties and obligations as if
it had not been dissolved, except as otherwise provided in
said certificate; and all acts and proceedings of its
officers, directors and stockholders, acting or purporting
to act as such, which would have been legal and valid but
for such dissolution, shall, except as aforesaid, stand
ratified and confirmed."

8
(1983) (officers or directors of corporation that has been

dissolved or whose charter has been revoked may apply to

Secretary for revival). As a consequence of the defendants'

revival of AWF, Lavendar suffered injury. She lost her position

as the director of AWF, her employment, and her home. This

adequately alleged a harm caused directly by Ford's revival

application; in addition, Lavendar anticipated a benefit -- a

restored position with AWF -- should the contested revival be

resolved in her favor. See New England Div. of the Am. Cancer

Soc'y v. Commissioner of Admin., 437 Mass. 172, 177 (2002)

citing Mitchell v. Secretary of Admin., 413 Mass. 330, 333 n.7

(1992) (organizations that stand to benefit from increased

expenditures have standing to challenge improper transfer from

Highway Fund). Accordingly, Lavendar's circumstances as a

director of AWF who was injured by the defendants' revival

placed her "within the zone of interests" set forth by G. L.

c. 156B, § 108. Revere, 476 Mass. at 607.

As for the defendants' claim that Lavendar failed to

exhaust all administrative remedies, we recognize that "[a]s a

general rule, we require parties to exhaust their administrative

remedies prior to seeking judicial relief." Luchini v.

Commissioner of Revenue, 436 Mass. 403, 404-405 (2002).

Specifically, the defendants, relying on G. L. c. 180, § 3A,

argue that Lavendar "could have sought to correct the filings

9
with the Secretary."8 But a longstanding exception to this rule

excuses compliance when it would be inadequate or futile.

Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975).

The circumstances in this case reveal no clear administrative

remedial path and demonstrate that any attempt to pursue one

would have been futile. See O'Neill v. City Manager of

Cambridge, 428 Mass. 257, 260 (1998) ("[E]xhaustion cannot be

required where no administrative remedy exists"). First, the

Secretary,9 a named defendant in the underlying action, asserted

in his first affirmative defense that his office required a

court order to unwind and void the defendants' application for

revival.10 The Secretary made no challenge to Lavendar's

standing.

8 While the defendants cite to no authority mandating this
approach, we note that Lavendar, on December 7, 2018, did
attempt to revoke Ford's application for revival by asserting it
was fraudulent; the Secretary rejected her filing.

9 The Secretary did not participate in the trial.

10The Secretary's first affirmative defense stated as
follows:
"The Complaint fails to state a claim upon which relief can
be granted for one portion of the relief requested in
Prayer for Relief (A). Specifically, Prayer for Relief (A)
requests several specific judgments and orders, including a
judgment declaring 'the 2018 revival of AWF and the
subsequent merger of AWF and Sterling . . . void and of no
legal effect,' as well as a separate order directing 'the
Secretary of the Commonwealth of Massachusetts to take all
necessary steps to unwind and void the Application for
Revival and the Application for Merger.' . . . The

10
Next, the defendants' exhaustion claim is based on the

false premise that Lavendar sought to "dissolve" AWF. The judge

made no such finding. To the contrary, the judge found that

Lavender, in 2018, attempted to move AWF to Virginia, thus

prompting the listing of the property in San Fidel for sale,

eventually leading to Ford's involvement. In addition, the

parties stipulated that Lavendar had sought to revive, not

dissolve, AWF's nonprofit status by attempting to file documents

with the office of the Secretary of State of New Mexico. The

Secretary of State of New Mexico rejected Lavendar's revival

filings. Thus, we reject the defendants' contentions that

Lavender either acted to dissolve AWF or was required to pursue

a strategy of dissolution pursuant to G. L. c. 156B, § 100, and

G. L. c. 180, § 11A, before bringing suit.

Finally, the fact that the Secretary approved Ford's

request for revival of AWF and merger with Sterling does not

deprive Lavender of standing. As the Supreme Judicial Court

Complaint fails to state a claim for the latter order (an
order directing the Secretary 'to take all necessary steps
to unwind and void the Application for Revival and the
Application for Merger') because the Secretary lacks legal
power and authority to 'unwind' or 'void' public filings
maintained by the Corporations Division. Instead, the
Secretary's legal authority authorizes the Corporations
Division, upon the entrance of a judgment and order of a
court declaring that specified filings in the public
records are void and of no legal effect, to maintain a
notation of that judgment and order in the public records
of the affected corporation." (Emphasis added.)

11
stated in Russell Box Co. v. Commissioner of Corps. & Taxation,

325 Mass. 536, 541 (1950), "the granting of the certificate [of

revival by the Secretary] was not in itself a determination of

any rights or duties. It was preliminary only to necessary

action in the courts. It merely made it possible for rights and

duties to be considered in the proper forum."

2. The defendants' statuses as interested parties. The

issue whether the trial court erred in ruling that the

defendants were not interested parties under G. L. c. 156B,

§ 108, is a mixed question of law and fact. The defendants do

not contest the judge's factual findings, and we review the

judge's legal conclusions de novo. See H1 Lincoln, Inc. v.

South Washington St., LLC, 489 Mass. 1, 13 (2022).

Although the Supreme Judicial Court has broadly defined an

interested party pursuant to § 108 as a party "who is interested

in having the corporation revived," Russell Box Co., 325 Mass.

at 540, the case law illustrates that a party does not

automatically gain interested party status merely by filing a

revival application and expressing any interest. Instead, an

"interested party" must have some preexisting connection in the

dormant corporation at the time revival is sought. See e.g.,

Harpoot Assyrian United Ass'n of Am. v. Assyrian Nat'l Union,

Inc., 296 Mass. 224, 229 (1936) (former members of dissolved

association were interested parties); In re Acushnet River & New

12
Bedford Harbor: Proceedings re Alleged PCB Pollution, 675 F.

Supp. 22, 41 (D. Mass. 1987) (parties who sought to enforce

claimed indemnification rights were interested parties under

§ 108). For example, in evaluating whether a party may seek to

revive a corporation, courts have concluded interested parties

include a corporate officer who was simply ignorant of the fact

of dissolution. See Barker-Chadsey Co., 16 Mass. App. Ct. at 5.

Additionally, an entity or individual who has a pending claim

against the dissolved corporation is an interested party.

Russell Box Co., 325 Mass. at 540.

The defendants have not identified, nor have we found, a

case in which the court has found that a party who had no prior

relationship with a revoked corporation qualified as an

interested party pursuant to § 108. The defendants' claim that

their interests are materially indistinguishable from the

interested parties in Harpoot, 296 Mass. at 229, is misplaced.

In Harpoot, supra, the Supreme Judicial Court concluded that

former members of a fraternal organization qualified as

interested parties in filing for revival. By contrast, in the

case here, it is undisputed the defendants had no business with,

nor even awareness of, AWF before Lavendar offered AWF's

property for sale.

Considering the defendants' lack of connection with AWF as

well as AWF's status at the time the defendants sought revival,

13
we agree with the judge's legal conclusion that "if the

Secretary had known that AWF was not defunct and that it had at

least one duly-appointed Director who was residing at and

attempting to manage AWF's property, the Secretary could not

reasonably have found that Ford was an 'interested party' with a

legal right to revive and take control of AWF."

The defendants, citing Russell Box Co., 325 Mass. at 541,

also argue that the Superior Court was without jurisdiction to

review the Secretary's decision finding that Ford was an

interested party, and that the Superior Court erred by

substituting its own judgment for that of the Secretary in

determining the defendants were not interested parties.11 See

id. ("Generally speaking, it is for the commissioner and not

for the court to decide whether on the facts presented to him a

certificate ought to issue"). However, as noted above, granting

a certificate of revival is merely a preliminary step that must

be taken before rights and duties can be considered, or

challenged, in court. Id. Otherwise stated, the Secretary's

approval of the defendants' revival application for AWF cannot

deprive Lavendar of a judicial forum to challenge that action.

We note that the court in Russell Box Co., 325 Mass. at
11

539-541, did not unconditionally defer to the commissioner's
interested-party finding, but instead, determined the petitioner
was an interested party only after reviewing that party's basis
for seeking revival.

14
Considering the Secretary's position that a court order was

necessary to revoke a revival, the defendants' position -- that

the Superior Court is without jurisdiction -- would leave no

recourse to a party aggrieved by revival. Thus, we conclude

that the Superior Court was permitted to review whether the

Secretary's determination would have been the same had the

Secretary known the statements made were false.

Finally, even assuming arguendo that we were to conclude

the defendants were interested parties as a matter of law, the

fact that the judge found the defendants' revival application

contained false statements, as discussed below, supported the

judge's order voiding the revival application. See e.g., Burke

v. Walpole, 405 F.3d 66, 82 (1st Cir. 2005) ("a court owes no

deference to a magistrate's decision to issue an arrest warrant"

where "reckless misstatements or omissions" were included in

warrant affidavit). See also Purdue Pharma L.P. v. Faulding

Inc., 230 F.3d 1320, 1329 (Fed. Cir. 2000) (district court was

not required to defer to finding of patent examiner, as court

found that examiner's statement was not persuasive in light of

all evidence). Once again, this is particularly true

considering the Secretary's answer to Lavendar's complaint that

it was unable to administratively void the revival application,

and instead could only do so in response to a court order.

15
3. Fraudulent misrepresentations. We review the issue

whether Ford made fraudulent and material misrepresentations in

the revival application under the de novo standard. "[T]o

ensure that the ultimate findings and conclusions are consistent

with the law, we scrutinize without deference the legal standard

which the judge applied to the facts." Kendall v. Selvaggio,

413 Mass. 619, 621 (1992).

Fraud involves "a misrepresentation of an existing fact

made with knowledge of the falsity of the misrepresentation or

with reckless disregard of the actual facts." Christian v.

Mooney, 400 Mass. 753, 764 (1987), cert. denied, 484 U.S. 1053

(1988). Fraud or deceit "may be perpetrated by an implied as

well as by an express representation" (citation omitted).

Briggs v. Carol Cars, Inc., 407 Mass. 391, 396 (1990). "A

representation is one of opinion if it expresses only (a) the

belief of the maker, without certainty, as to the existence of a

fact; or (b) his judgment as to quality, value, authenticity, or

other matters of judgment" (citation omitted). McEneaney v.

Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 575 (1995).

"In some circumstances, however, a statement that in form
is one of opinion may constitute a statement of fact if it
may reasonably be understood by the recipient as implying
that there are facts to justify the opinion or at least
that there are no facts that are incompatible with it.
This is particularly true where the maker is understood to
have special knowledge of facts unknown to the recipient."

16
Id. See Briggs, supra (car dealer's representation to

uninformed buyer that car was in "good condition" was construed

to be statement of fact).

The defendants challenge the judge's conclusion that Ford's

statement in the revival application, that "[w]e have tried very

hard to locate anyone with direct authority to revive the

corporation but have had no success," was a material falsehood.

We discern no error. Through that assertion, Ford was not

giving an opinion or offering his personal judgment on an issue,

but rather, was representing that he did something -- namely,

that he attempted to locate someone in AWF with authority --

before arriving at a conclusion that reasonable efforts would be

futile. At the time he made this statement, Ford knew that

Lavendar had told him she was the director of AWF with authority

to act on its behalf, and further that she and Hammer were

identified as directors of AWF in "an official filing" with the

New Mexico Secretary of State. Yet Ford omitted this

information in his revival application. See Buffalo-Water 1,

LLC v. Fidelity Real Estate Co., 481 Mass. 13, 25 (2018) (fraud

may occur by omission). In addition, Ford knew there were two

directors, Chan and Petrelli, listed in the Secretary's

database, but he did not attempt to contact either of them until

after he filed the application.

17
Ford made these false statements and omission in response

to the application question seeking the applicant's

"relationship to, or interest in, the corporation," in order to

establish himself as an "interested party" to gain approval to

revive and take control of AWF to merge it with Sterling. It

was not error for the judge to conclude that Ford, having no

recognized interest in AWF or its property, attempted to create

one through his material falsehoods.

4. Lavendar's management of AWF. The defendants also

claim that the judge erred by excluding certain evidence that

would have revealed Lavendar's mismanagement of AWF, including

the fact that she recorded multiple liens against AWF's property

in New Mexico and allowed the property to fall into disrepair.

The defendants argue that the exclusion of this evidence was

prejudicial because it would have cast doubt on the injury

Lavendar suffered by demonstrating that her interests in

petitioning the court to void the revival of AWF were personal,

thus beyond the scope of an "interested party." G. L. c. 156B,

§ 108.

Lavendar counters that the defendants waived this argument

as it applied to whether she had standing to bring a declaratory

action. We agree. The defendants attempted to enter the

evidence as impeachment evidence for a limited purpose -- to

demonstrate that Lavendar had failed to adequately manage AWF

18
during her time as director -- but did not claim the evidence

bore on her standing to bring suit. Thus, the defendants waived

the argument that the judge erred by excluding this evidence on

the issue of standing. See Metro Equip. Corp. v. Commonwealth,

74 Mass. App. Ct. 63, 73 n.9 (2009) (arguments that could have

been raised before trial court, but were not, are deemed waived

on appeal); Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997)

("Objections, issues, or claims -- however meritorious -- that

have not been raised at the trial level are deemed generally to

have been waived on appeal").

Even if the defendants had preserved the issue, the trial

judge did not abuse his discretion in excluding the evidence.

"[J]udges have significant discretion in admitting or excluding

evidence." Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 91

(2021), citing Commonwealth v. Gray, 463 Mass. 731, 751-752

(2012). "[T]he appropriate test is whether the proponent of

erroneously excluded, relevant evidence has made a plausible

showing that the trier of fact might have reached a different

result if the evidence had been before it." DeJesus v. Yogel,

404 Mass. 44, 48-49 (1989). On this record, we cannot say the

defendants have made a showing that the judge would have come to

a different conclusion as to Lavendar's standing had he

considered the claims of liens. In fact, the judge ventured as

much when inquiring, as follows, with the defense counsel for

19
Ford as to the relevance of impeaching Lavendar as to her

management of AWF:

THE COURT: "So, if hypothetically I were convinced that Ms.
Lavendar was, in fact, a director of the Ann Wigmore
Foundation, how would it be relevant whether she was doing
an excellent job, a poor job, doing the best she can and
there were still things that needed attention? I'm not
understanding relevance to the issues I need to decide."

MR. CADIGAN: "I understand, Your Honor. Nothing else on
that."

While Lavendar's management of AWF and her intent behind and the

validity of the liens may have been relevant to the merits of

the defendants' counterclaims, this evidence does not bear on

whether Lavendar, as the undisputed former director of AWF who

lost her position and place of residence due to the defendants'

revival of AWF, had standing to challenge the revival and

subsequent merger with Sterling.12 See Hoffman v. Board of

Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804, 809 (2009)

("The threshold question of whether [a plaintiff] has standing

is different than the ultimate merit of [the] allegations").

5. Appellate costs and fees. Lavendar requests that for

pursuing this appeal the defendants be sanctioned pursuant to

Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), and

G. L. c. 211A, § 15.

12The defendants' counterclaim for declaratory judgement
averred "That any liens and equitable liens placed on the
Property by Plaintiffs are null and void and have no legal
effect."

20
We agree that the defendants' appeal is frivolous and allow

Lavendar's request for appellate fees and costs. See rule 25;

Avery v. Steele, 414 Mass. 450, 455 (1993) ("An appeal is

frivolous [w]hen the law is well settled, when there can be no

reasonable expectation of a reversal. . . . The determination

whether an appeal is frivolous is left to the sound discretion

of the appellate court" [quotation omitted]). In accordance

with the procedure specified in Fabre v. Walton, 441 Mass. 9,

10-11 (2004), Lavendar may, within fourteen days of the issuance

of this decision, apply for attorney's fees and costs with the

appropriate supporting materials. The defendants shall have

fourteen days thereafter to file a response to that application.

Judgment affirmed.

By the Court (Henry,
Hershfang, & Smyth, JJ.13),

Clerk

Entered: February 11, 2025.

13 The panelists are listed in order of seniority.

21