Lodigiani v. Paré

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22-P-459 Appeals Court

JAMES B. LODIGIANI & another1 vs. NINA PARÉ.

No. 22-P-459.

Hampden. March 10, 2023. – August 22, 2023.

Present: Wolohojian, Shin, & Hodgens, JJ.

Real Property, Partition, Life estate, Remainder interests.
Probate Court, Partition proceedings, Judicial discretion,
Attorney's fees. Practice, Civil, Attorney's fees. Waste.

Petition for partition filed in the Hampden Division of the
Probate and Family Court Department on February 22, 2019.

The case was heard by Claudine T. Wyner, J., and motions
for reconsideration and for attorney's fees and costs were
considered by her.

Karen M. Lodigiani for the petitioners.
Jessica R. Sofio for the respondent.

SHIN, J. This is the petitioners' appeal from a decree

entered in the Probate and Family Court ordering that the

proceeds from a partition and sale of the subject property

1 Anne A. Betramello, individually and as representative of
the estate of Leonard C. Lodigiani.
2

(property) be divided equally among the parties. Prior to the

partition, the parties, who are all siblings, owned remainder

interests in the property subject to the life estate of their

father, Leonard C. Lodigiani. While the life estate was still

in existence, the respondent-remainderman Nina Paré caused

damage to the property over the course of several years. The

petitioners-remaindermen James B. Lodigiani and Anne A.

Beltramello incurred costs to mitigate the damage, which they

then sought to recoup from Nina2 in the underlying partition

action.

The judge determined that James and Anne's claim for

contribution from Nina was beyond the scope of the partition

action, and so she could not consider it. This was because, the

judge reasoned, Leonard had the duty as life tenant to preserve

the property for the benefit of the remaindermen; thus, James

and Anne's exclusive remedy was to bring an action for waste

against Leonard's estate. We conclude that this was error

because Nina had her own duty as a remainderman not to impair

the rights and interests of her coremaindermen. It was

therefore within the judge's authority to consider whether to

account for the property damage caused by Nina when determining

how to equitably divide the proceeds from the partition sale.

2 As some of the parties share the same surname, we will
refer to all parties hereafter by their first names.
3

Further concluding that additional explanation from the judge is

needed as to her denial of the petitioners' motion for

attorney's fees and costs, we vacate the decree in part, and the

order denying the motion for attorney's fees and costs and

remand.

Background. We summarize the judge's factual findings,

supplemented by uncontested facts of record.3

On March 11, 2004, Leonard and his wife Helen deeded the

property to James, Anne, and Nina as joint tenants with rights

of survivorship, while reserving a life estate for themselves.

The deed provided that Leonard and Helen had "the exclusive

right to occupy the premises" during their lifetimes, along with

the obligation to pay "the cost of all insurance, maintenance,

fees, charges and expenses relating to the premises" and "all

taxes assessed or imposed with respect thereto, and all

principal and interest on any mortgages thereon."

Following execution of the deed, Leonard and Helen lived

together at the property with their fourth child John, who has

developmental disabilities. After Helen died in 2007, Leonard

continued to live at the property with John. In or about 2011,

3 Several documents referred to in the petitioners' brief
are not included in the record appendix, including the petition
itself and the deed. We stress that it is an appellant's duty
to produce an appendix containing all portions of the record
relevant to the issues raised on appeal. See Mass. R. A. P.
18 (a), as appearing in 481 Mass. 1637 (2019).
4

Nina moved into the property, where she assisted in caring for

both Leonard and John.

Nina, who has a history of hoarding, continued that

behavior while living at the property. In or about July 2012,

James began sending e-mail messages to Nina, urging her to clean

up and "not add to the mess." Despite his efforts, by 2014 the

property was in very poor condition. Late that year James

arranged and paid for a dumpster to be brought to the property

for the purpose of cleaning up the clutter and trash that Nina

had accumulated. Nina's behaviors persisted, however, leading

the town's health department to issue several violation notices

to Leonard in 2016 for violations of the State sanitary code.

In July 2017 James told Nina that she was no longer welcome

to stay at the property and needed to remove her belongings.

When Nina did not oblige, James told her in early 2018 that he

and Anne "as majority owners of the house" needed to prepare the

property for sale and that Nina needed to leave. In May 2018

Leonard moved himself and John out of the property.

In or about December 2018, Leonard obtained a no-trespass

order against Nina. Thereafter, James, Anne, and their families

worked to clean up the property. The clean-up process took

approximately one year and required a series of dumpsters at a

cost of over $6,000, which James paid.
5

Meanwhile, in February 2019, James, Anne, and Leonard filed

a joint petition for partition, naming Nina as respondent. The

petition requested that Leonard be allowed to surrender his life

estate and that the property be sold and the proceeds

distributed in proportions that included compensating the

petitioners for the costs they incurred to mitigate the damage

caused by Nina. The judge issued an interlocutory decree

ordering partition by sale and appointed a commissioner, who

closed the sale of the property on January 27, 2020.4 Leonard

died the next day.5

The case proceeded to a bench trial on the issue of how the

sale proceeds should be divided among the parties. From the

evidence the judge found it "clear that [Nina] was the cause of

the waste, trash accumulation and debris in and around the

property." The judge further found that James and Anne

"incurred significant expense and spent considerable time to

essentially clean up their sister's mess." Nonetheless, the

judge concluded that Leonard, not Nina, was the appropriate

person from whom to seek reimbursement because Leonard, as the

4 The commissioner's report is not included in the appendix,
and there is no other document in the appendix showing the
amount of proceeds received from the sale.

5 Anne was later substituted for Leonard as personal
representative of his estate.
6

life tenant, had the exclusive right to possession at all

relevant times, and so was "the sole person [with] the duty to

preserve and protect the property for the benefit of the

parties." Based on this reasoning, the judge concluded that

James and Anne's claim for contribution was beyond the scope of

the partition action and instead had to be raised through an

action for waste against Leonard's estate.

The petitioners moved for reconsideration under Mass. R.

Civ. P. 59 (e), 365 Mass. 827 (1974), and separately moved for

attorney's fees and costs under G. L. c. 241, § 22. The judge

summarily denied both motions. She then issued a final decree

ordering that the sale proceeds be divided equally among the

parties, after deducting the commissioner's expenses and

charges.

Discussion. 1. Equitable division. The overall objective

of a judge in a partition proceeding is to make a "just and

equitable" division "according to the respective rights of the

parties." Batchelder v. Munroe, 335 Mass. 216, 218 (1957). See

Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007)

("purpose of partition proceedings is to balance the rights and

equities of the parties concerning the property at issue").

Although there is a "presumption that partitioned property

should be equally divided," the presumption can be rebutted if a

party "show[s] that his [or her] beneficial interest is
7

different from that indicated by the record title" (quotation

and citation omitted). Canepari v. Pascale, 78 Mass. App. Ct.

840, 844 (2011). A judge making a division therefore has the

discretion to depart from the presumption if warranted by the

circumstances bearing on the equities and the parties' rights,

including any prior financial contributions made by a party to

preserve the common estate. See Sanborn v. Johns, 19 Mass. App.

Ct. 721, 724 (1985); Stylianopoulos v. Stylianopoulos, 17 Mass.

App. Ct. 64, 69-70 (1983).

It is evident from the judge's decision here, however, that

she believed she lacked the discretion to credit James and Anne

for the costs they incurred in cleaning up the property, even

though Nina was the cause of its poor condition. The judge took

this view based on a conclusion of law: that a remainderman

like Nina cannot be held responsible for any property damage

that occurred during a prior life tenancy because it is the life

tenant who has the right to possession and the corresponding

duty to preserve the property for the remaindermen. From this

premise the judge further concluded that the party responsible

for the damage was Leonard -- who, the judge found, could have

obtained a no-trespass order against Nina sooner than he did --

and so the exclusive vehicle through which James and Anne could

seek to recoup their costs was an action for waste against

Leonard's estate.
8

We think the judge viewed the scope of her discretion too

narrowly. It is true, as a general matter, that a life tenant

has the "duty to preserve the estate for the benefit of the

remaindermen" and can be held liable to the remaindermen in an

action for waste for property damage occurring during the

tenancy. Matteson v. Walsh, 79 Mass. App. Ct. 402, 406 (2011).

See Fay v. Brewer, 20 Pick. 203, 204 (1825). The Legislature

long ago enacted G. L. c. 242, § 1, which provides that "[i]f a

tenant in dower, by the curtesy, for life or for years commits

or suffers waste on the land so held, the person having the next

immediate estate of inheritance may have an action of waste

against such tenant to recover the place wasted and the amount

of the damage." Persons "holding vested remainders after . . .

[a] life estate" are among those persons "having the next

immediate estate of inheritance" under G. L. c. 242, § 1.

Thayer v. Shorey, 287 Mass. 76, 79 (1934). See G. L. c. 242,

§ 2 ("A person having . . . a remainder or reversion in fee

simple or fee tail after an intervening life estate . . . may

have an action of tort in the nature of waste to recover the

amount of the damage against the tenants named in the preceding

section"). An action for waste can also be brought against a

tenant's estate "for waste committed or suffered in the tenant's

lifetime." G. L. c. 242, § 3.
9

The concept of waste embodies the principle that a tenant

has the "obligation to treat the premises in such manner that no

harm be done to them and that the estate may revert to those

having an underlying interest undeteriorated by any wilful or

negligent act." Delano v. Smith, 206 Mass. 365, 370 (1910).

Waste is defined as "an unreasonable or improper use, abuse,

mismanagement, or omission of duty touching real estate by one

rightfully in possession which results in its substantial

injury." Id. It can take two forms -- voluntary, resulting

from the tenant's intentional conduct, and permissive, resulting

from neglect or omission. See Gade v. National Creamery Co.,

324 Mass. 515, 516-517 (1949); Chalmers v. Smith, 152 Mass. 561,

564 (1891); Matteson, 79 Mass. App. Ct. at 406-407.

While there are few cases in Massachusetts addressing when

a life tenant can be held liable to a remainderman for acts

committed by others, we need not reach that question, nor need

we decide specifically whether the judge was correct to conclude

that Leonard's delay in obtaining a no-trespass order against

Nina would be actionable as permissive waste against his estate.

The only question we must decide is whether the judge, when

apportioning the proceeds from the partition sale, had the

discretion to take into account damage to the property caused by

Nina while the life tenancy was in existence. We conclude that

she did. Our conclusion is buttressed by long recognized
10

exceptions to the general principle that a life tenant is

responsible to a remainderman for injuries to the estate; these

include exceptions for injuries caused by "the acts of God," by

"public enemies," and, as pertinent here, by "the reversioner

himself."6 Willey v. Laraway, 64 Vt. 559, 561 (1892). Accord

Rogers v. Atlantic, G. & P. Co., 213 N.Y. 246, 249 (1915). This

last exception reflects the commonsense notion that remaindermen

(or reversioners) who injure the premises by their own acts

cannot then hold the life tenant liable for the damage.

Because Nina is therefore responsible for the damage to the

property that she herself caused, we see no bar to James and

Anne's asserting a claim to account for that damage in a

partition action. Although the parties did not have possessory

interests while Leonard was still living, they had vested future

ownership interests arising from a common source of title. See

Thayer, 287 Mass. at 78-79. Nina had the duty as a remainderman

6 Although some of the cases we cite involve reversionary
interests, the rationale of those cases applies equally to
remainder interests. Both types of interests are future
interests in property that arise after termination of the prior
estate, but differ as to who is receiving the interest. In
particular, a reversion is "a future interest in land arising by
operation of law whenever an estate owner grants to another a
particular estate, such as a life estate or a term of years, but
does not dispose of the entire interest" and "occurs
automatically upon termination of the prior estate, as when a
life tenant dies." Black's Law Dictionary 1578 (11th ed. 2019).
A remainder is "[a] future interest arising in a third person
. . . who is intended to take after the natural termination of
the preceding estate." Id. at 1545.
11

not to impair the ownership interests of her coremaindermen

James and Anne. See Wilson v. Linder, 21 Idaho 576, 584 (1912)

("joint remaindermen in expectancy" have "duty and obligation of

protecting the common title the same as if they were

cotenants"); Givens v. Givens, 387 S.W.2d 851, 853 (Ky. Ct. App.

1965) ("As in the case of joint tenants or tenants in common,

public policy dictates that a remainderman shall not impair the

title or interests of his coremaindermen"); Ransom v. Bebernitz,

172 Vt. 423, 432 (2001) ("co-remaindermen have a fiduciary

relationship to each other that no one of them may impair the

rights or interests of his co-remaindermen"). The judge thus

had the discretion to consider James and Anne's claim for

contribution from Nina in deciding what would be a just and

equitable division of the proceeds from the partition sale. See

Lowe v. Adams, 77 N.M. 111, 117 (1966) ("in every jurisdiction

where the action for partition has been considered as one

calling for equitable interposition and relief, it has been

uniformly held that an improving cotenant, who has in good faith

enhanced the value of the common remainder estate, should be

reimbursed for the value of such improvements upon a sale in

partition, and the fact that such improvements were made by a

tenant in common in reversion, during the previous life estate,
12

is not a bar to such contribution by the coremaindermen upon the

death of the life tenant").7

We express no view on whether James and Anne are entitled

to contribution. Although Nina argues that the judge could have

in her discretion divided the sale proceeds equally, even taking

into account the clean-up costs incurred by James and Anne, that

issue is not properly before us. It must be decided by the

judge on remand.

2. Attorney's fees and costs. As mentioned, the

petitioners brought their motion for attorney's fees and costs

pursuant to G. L. c. 241, § 22, which states in relevant part:

"The reasonable expenses and charges of partition
proceedings, including examination of title and preparation
of plan ordered by the court under section seventeen, and
the fees of counsel, of the commissioners, and of all
agents, guardians and other persons appointed to represent
interests in accordance with section nine, shall be
determined by the court, and in case of sale paid by the
commissioners out of the proceeds. . . ."

This statute "furnishes an exception to the general American

rule that each party to litigation is responsible for its own

expenses." Aiello v. Aiello, 63 Mass. App. Ct. 914, 915 (2005).

See Gonzalez, 68 Mass. App. Ct. at 788-789. Its purpose "is to

7 See also Smith v. Smith, 133 Ga. 170, 174 (1909)
(improvements made by remainderman during life estate "would be
taken into consideration in making the partition . . . after the
termination of the life-estate"); Dalgarno v. Baum, 182 Va. 806,
808 (1944) ("in a suit for partition instituted after the death
of the life tenant," remainderman entitled to compensation from
coremaindermen for improvements made during life estate).
13

apportion the expenses incurred to achieve the common benefit

from partition of shared property among the parties receiving

that benefit." Aiello, supra at 916.

Here, we are unable to determine whether the judge acted

within her discretion in denying the petitioners' motion because

she did not give reasons for her decision. We must therefore

vacate the order and remand the issue for further consideration.

For purposes of remand, we note that, contrary to the suggestion

in the petitioners' motion and their brief, G. L. c. 241, § 22,

does not automatically entitle them to contribution toward all

of their fees and costs; the statute applies only to those

expenses incurred to achieve a common benefit for the parties.

See Gonzalez, 68 Mass. App. Ct. at 789. Some of the expenses

sought by the petitioners related to tasks such as preparing the

petition, but a large portion related to trial preparation, the

trial itself, and posttrial motions. The question of which of

these expenses achieved a common benefit for the parties is for

the judge to decide in the first instance on remand. See

Aiello, 63 Mass. App. Ct. at 916.

Conclusion. So much of the decree as relates to the

distribution of the sale proceeds among the parties is vacated;

the decree is otherwise affirmed. The order denying the

petitioners' motion for attorney's fees and costs is also

vacated. The matter is remanded for further proceedings
14

consistent with this opinion. Nina's request for appellate

attorney's fees and costs is denied.

So ordered.