CHRISTOPHER J. DIGIOVANNI v. STEPHEN M. DIGIOVANNI & 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

23-P-296

CHRISTOPHER J. DIGIOVANNI

vs.

STEPHEN M. DIGIOVANNI1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After years without an accounting or any distributions to

him, Christopher DiGiovanni, one of the beneficiaries of the

DiGiovanni Family Irrevocable Trust (DFIT or trust), commenced

this action, claiming that the defendant trustees had breached

their fiduciary duties to him and seeking their removal and

other relief due to mismanagement, waste of trust property,

commingling of trust funds, and self-dealing. Following an

eight-day trial, a judge of the Superior Court issued an amended

decision concluding that some of the trustees' actions or

omissions had breached their fiduciary duties to the

1Individually and as trustee of the DiGiovanni Family
Irrevocable Trust.

2Maureen Clark, as trustee of the DiGiovanni Family
Irrevocable Trust, and Richard B. Aronson.
beneficiaries and that their breaches were willful or reckless.

The judge removed trustee Stephen DiGiovanni and ordered him and

trustee Richard Aronson to compensate the trust for its losses

and pay certain of the plaintiff's attorney's fees and costs.3

Those trustees now appeal; we affirm.

Background. We draw the facts from the stipulated facts

and the judge's findings.

1. The DFIT. The DFIT was created in 2004 by the settlor,

Mary DiGiovanni, the mother of the plaintiff, Christopher

DiGiovanni, and defendant Stephen DiGiovanni.4 Christopher and

Stephen were both beneficiaries and original trustees of the

DFIT; Mary was never a beneficiary or a trustee of the DFIT.5

The trust instrument provided that only "disinterested

trustee(s)" had authority to make discretionary distributions of

3 Judgment entered against Stephen DiGiovanni in the amount
of $2,212,091 and against Richard Aronson in the amount of
$889,612, "which represents a joint and several liability with
Stephen DiGiovanni." The judgment also ordered Stephen
DiGiovanni to pay Christopher DiGiovanni attorney's fees in the
amount of $728,849.50, plus costs of $11,923.78, and held
Richard Aronson jointly and severally liable for $110,000 of
those amounts.

4 We use the first names of the DiGiovanni family members
because of the common surname.

5 Some of Mary's other children were beneficiaries from 2004
through 2008, but they are no longer beneficiaries and are not
parties to this appeal.

2
income or principal to the beneficiaries.6 From December 21,

2007, until he resigned on July 29, 2016, defendant Aronson

served as the disinterested trustee of the DFIT. Aronson was an

attorney whose practice concentrated in estate planning and

estate and trust administration and he had been a trustee for

approximately 200 trusts over his career. The judge found that

Aronson was an experienced attorney, having drafted thousands of

trusts in his career and having acted as the trustee of numerous

trusts holding real property, including rental property. From

December 2007 through July 2016, Stephen and Aronson were the

only trustees.7

The trust grants broad powers to the trustees over the

trust's property. Importantly, the trust contains an

"exculpatory clause":

"No Trustee or successor or additional Trustee hereunder
shall be personally liable for any loss to the trust
estate, any act or omission, or any error or mistake of
judgment or law, unless it results from his or her willful
or intentional misconduct or bad faith."

6 From 2004 through December 12, 2007, Morris Boladian, a
family friend, served as the disinterested trustee. He is not a
party to this action. Maureen Clark became the disinterested
trustee on December 30, 2016. The judge ruled that her
appointment was valid and denied Christopher's request to remove
her. She did not appeal.

7 Christopher was removed as a trustee in 2007 due to his
deteriorating mental health. He was not replaced with a
successor trustee. He has always remained, however, a
beneficiary of the trust.

3
2. The Truro property. The settlor, Mary, had acquired

property in Truro from Louis DiGiovanni as part of their divorce

settlement and subsequent modification. She obtained

subdivision approval for a five-lot subdivision of that property

on February 23, 2000. One of the subdivision lots, known as 6

Mary's Way, became the family's vacation home and was never

owned by the DFIT. The other four lots, known as 1-4 Mary's

Way, were undeveloped, but Mary's plan was to construct a home

on each lot, with access to the beach, and use them as rental

properties until they were sold. In 2004, Mary directed that

the beneficial interest in lots 1 and 3 be transferred to the

DFIT. The beneficial interests in 2 and 4 Mary's Way were

transferred to the DFIT on December 12, 2008. At that time, 4

Mary's Way had a five thousand square-foot house on it; 2 Mary's

Way was undeveloped. Each of the four lots was subject to

mortgages when they were transferred into the trust.

The DFIT was unfunded other than the real estate holdings,

and development of the properties required loans because the

DFIT had no funds to pay real estate taxes or other expenses.

With a variety of different forms of financing, including loans

from Mary and from Stephen's wife, Donna, development of the

lots progressed as follows. Between 2005 and 2007, five

thousand square-foot homes were constructed on 1, 3, and 4

4
Mary's Way.8 As each home was completed, they were operated as

vacation rentals until their sale. Construction of a ten

thousand square-foot home on 2 Mary's Way concluded in July

2015.

From 2004 through 2008, expenses for 1, 3, 4, and 6 Mary's

Way were paid from one account at Wainwright Bank even though a

different trust held 6 Mary's Way. From 2008 through 2015,

rental income from the four trust properties and the rental

income for 6 Mary's Way was deposited and expenses were paid

from one account at Bank of Canton. And, from 2015 through

2019, income from all of the properties, including 6 Mary's Way,

was deposited and expenses were paid from a single Rockland

Trust account.9

The judge found that "Christopher was aware of the

construction projects as they were underway" and "never

8 In 2006, although the properties were operating at a
deficit, Stephen installed an outdoor recreation area during the
construction of 4 Mary's Way, including a tennis court,
basketball court, bocce court, shuffleboard, putting green,
horseshoe pit, and swing set, at a cost of $400,000. While the
judge characterized this expenditure as "unwise," he concluded
that Stephen had not acted in bad faith or engaged in willful or
intentional misconduct in expending DFIT funds to construct the
recreation area.

9 The judge found that this commingling was not, as Stephen
testified, required by Bank of Canton; rather, the judge found
that it was "consistent with Stephen's lax financial approach to
trust matters and failure to distinguish between his own desires
and the interests [of], and fiduciary obligations to, the DFIT."

5
complained to the other trustees or to Mary that the

construction projects were ill-advised." The judge further

found that "Stephen did not act in bad faith in connection with

the planning, design, financing, and construction of 1, 3 and 4

Mary's Way and acted without willful or intentional misconduct

or reckless indifference to the purpose of the trust or to the

interests of the beneficiaries." However, the judge enumerated

many imprudent expenditures by Stephen that the judge held did

not rise to the level of intentional or reckless conduct but

were "strong evidence of Stephen's state of mind, which included

a continual extravagance, imprudence and lack of concern for his

fiduciary duties." The judge explained that Stephen's

"underlying state of mind was never far from willful and

reckless disregard of those duties. This pattern [played] a

significant role in the court's determination that, on some

occasions, Stephen went even farther and did engage in

intentional or reckless conduct or bad faith."

3. BSC-Truro Ventures, LLC. At the end of 2007, various

high-interest loans were coming due, but the trust did not have

the money to pay them. Stephen and Aronson engaged Richard

Scimone, a long-time friend, to assist them in obtaining new

financing. They worked with Bank of Canton.10 They created BSC-

10 Stephen paid Scimone $4,500 per month for three years
either as a "broker's fee" or for providing a guaranty of the

6
Truro Ventures, LLC ("BSC" or "the LLC"), a limited liability

company, and made Scimone the sole "manager."11 Section 3.03 of

the LLC agreement provided:

"Powers and Duties of the Managers. The business and
affairs of the LLC shall be conducted by or under the
direction of the [m]anagers, who shall have and may
exercise on behalf of the LLC all of its rights, powers,
duties and responsibilities."

The powers of the manager also included the power to sell,

convey, mortgage, pledge, or encumber any of BSC's real

property. The DFIT held a ninety-nine percent membership

interest in BSC and Scimone held a one percent membership

interest. Stephen transferred 1 and 3 Mary's Way to BSC.

In the end, BSC and Stephen, as trustee of another trust,

obtained a $3.2 million loan from Bank of Canton, secured by a

mortgage on all four Truro lots and the personal guarantee of

Scimone, among other security. The loan was used to discharge

several preexisting mortgages on the properties and generated

$1.1 million in cash. In addition, the influx of cash allowed

the trust to pay legal fees and other debts in related family

loan described infra. In addition, the trust paid over $200,000
to Scimone for purported legal or consulting services.

11Managers were not required to be members, but if a member
was a manager, the member-manager was required to have an
aggregate interest of at least one percent in income, gain,
loss, deduction or credit of the LLC, and maintain an aggregate
capital account balance of not less than one percent of the
total positive capital account balances of all members, or
$500,000, whichever was less.

7
litigation, leading to the transfer of the beneficial interest

in 2 and 4 Mary's Way to the DFIT.

While the benefits of the Bank of Canton loan were many and

the judge found that the trustees had "few, if any, other

options," the judge also found that "giving control over trust

assets to a non-trustee" -- Scimone -- created "serious and

obvious risks" that Stephen and Aronson intentionally or

recklessly disregarded. Indeed, Scimone, as sole manager,

subsequently used his power to finance three real estate

purchases that were unrelated to the business of BSC, using his

status as manager or using the BSC properties as security. In

addition, Scimone borrowed money from the trust. As a result of

these transactions, the trust was damaged. The judge concluded

that although Stephen believed in good faith that the Bank of

Canton loan was in the best interest of the DFIT, "[t]he same is

not true of the gratuitous benefits given to Scimone or the

relinquishment of Stephen's responsibilities to manage the

[t]rust's assets in the interest of the DFIT's beneficiaries."

Eventually, in 2011, Scimone transferred his one percent

membership interest in BSC to Stephen's wife, Donna. It is

unclear whether Scimone technically was removed as a manager of

BSC, but other than signing tax returns for BSC in 2022, the

record does not reflect that he played a role in BSC or

8
exercised control over the BSC properties after the 2011

transfer.

The properties at 1-4 Mary's Way have been sold; the net

proceeds are being held in escrow.

Discussion. The rule is general and fundamental,

"that no person holding trust funds can be allowed to
derive any personal gain or advantage, either directly or
indirectly, from the use thereof, but he must manage them
with a single eye to the advantage of the trust estate;
and, if he assumes to use them in any manner for his own
benefit or in his own business, he must account for all the
profits arising from such use, if profits are made, or for
the principal and interest, in case of loss." (Citation
omitted.)

Ball v. Hopkins, 268 Mass. 260, 269 (1929). "The rule that a

fiduciary may not derive personal advantage at the expense of

the trust, nor put himself in a position antagonistic to the

beneficiaries of the trust, will be strictly enforced." Johnson

v. Witkowski, 30 Mass. App. Ct. 697, 706 (1991). "The burden of

proving good faith and fairness is on the trustee, as is the

burden to show that any questioned transaction was advantageous

to the beneficiaries." Id.

With these general standards in mind, we review Stephen's

and Aronson's arguments, understanding that "the judge's

assessment of the quality of the testimony is entitled to our

considerable respect because 'it is the trial judge who, by

virtue of his firsthand view of the presentation of evidence, is

in the best position to judge the weight and credibility of the

9
evidence.'" Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203

(1986), quoting New England Canteen Serv., Inc. v. Ashley, 372

Mass. 671, 675 (1977).

1. Abdication of control over trust properties. Although

the judge found that the decision to take out the loan from Bank

of Canton benefitted the trust and did not constitute a breach

of the trustees' fiduciary duties, the judge found that Stephen

and Aronson abdicated control over trust properties when they

signed the LLC agreement, transferred the properties to BSC, and

designated Scimone, who owed no fiduciary duties to the

beneficiaries of the trust, as the sole manager of BSC. The

judge further concluded that this abdication resulted in

$889,000 in damages to the trust. On appeal, Stephen and

Aronson do not quibble about the amount of the damages; they

argue that they are not liable, because Bank of Canton required,

as a condition of the loan, that Scimone hold a one percent

interest in BSC and be the sole manager of it. They contend

that there was no basis for the judge to conclude otherwise and

that the judge's finding that the bank did not require Scimone's

interest in BSC or sole control of the management of BSC is

clearly erroneous.

We are not persuaded; the evidence does not support the

trustees' assertions. The bank's commitment letter spelled out

the conditions of the loan in detail; although the conditions

10
were many, other than requiring Scimone to guarantee the loan,

the commitment letter did not mention him. Even if we were to

agree that the very formation of BSC was "required" by the bank,

the bank's failure to take any action that would ensure that

Scimone remain the manager is telling. The bank reserved in the

commitment letter the right to review and approve the management

agreement. Thus, the bank was aware that although the LLC

agreement identified Scimone as the "initial Manager[] of

[BSC]," it also provided that a manager "may be removed at any

time with or without cause by the other Managers or the

Members." The LLC agreement further provided that "[a]ny

vacancy in the office of Manager shall be filled by the

Members." In other words, even though Scimone was designated as

the manager, he could be removed at any time, without notice to

the bank, which undermines the suggestion that the bank required

the trustees to abdicate their duties in favor of Scimone.

Further, as the judge noted, when Scimone ultimately transferred

his one percent interest to Stephen's wife, permission of the

bank was not requested or given, and there has been no showing

that the bank sought information about Scimone's interest. We

discern no error in the judge's conclusion that the bank did not

11
require that Scimone own one percent of BSC or be its sole

manager.12

2. Exculpatory clause. The trustees argue that pursuant

to the exculpatory clause in the trust instrument, they are

liable only for "willful or intentional misconduct or bad

faith." "[T]he case law has long defined the phrase 'wilful

default' to include acts committed 'with reckless indifference

to the interest of the beneficiary.'" Passero v. Fitzsimmons,

92 Mass. App. Ct. 76, 81 (2017), quoting New England Trust Co.

v. Paine, 317 Mass. 542, 548, 550 (1945). The trustees contend

that they did not knowingly or intentionally disregard an

unreasonable risk or take risks that "entail[ed] a high degree

of probability that substantial harm would result" (quotation

and citation omitted). Manning v. Nobile, 411 Mass. 382, 387-

388 (1991).

This is true, Stephen contends, because he relied on

Aronson, who is a lawyer, to review the "structure of the deal"

"from a legal perspective," and, citing Dill v. Boston Safe

Deposit & Trust Co., 343 Mass. 97, 99-102 (1961), contends that

12Stephen testified that he did not see any reason to
become a manager because he would still be running the day-to-
day operations. This is despite the LLC agreement, which
provided that "[u]nless specifically authorized by the Managers,
no Member that is not a Manager shall be an agent of the LLC or
have any right, power or authority to act for or to bind the LLC
or to undertake or assume any obligation or responsibility of
the LLC or of any other Member."

12
such reliance "immunizes him from liability." Again, we are not

persuaded. The judge made no finding that he credited Stephen's

testimony that he relied on Aronson to review the transaction

"[t]o protect the trust from a legal perspective." Rather, the

judge credited evidence that "the delegation to Scimone was

intentional misconduct, reflected reckless indifference to the

interests of the [DFIT] and resulted from, at least, willful

blindness to the limiting language" of the trustee's powers

contained in the trust instrument.

Aronson, on the other hand, argues that he had "delegated

operational control to Stephen," and reasonably relied on

Stephen's assessment of Scimone's trustworthiness and on the

fact that Scimone was an attorney subject to rules of

professional responsibility. However, "[t]o fulfil his duty, a

cotrustee must 'participate in the administration of the trust

and [] use reasonable care to prevent a co-trustee from

committing a breach of trust or [] compel a co-trustee to

redress a breach of trust.'" Rutanen v. Ballard, 424 Mass. 723,

731 (1997), quoting Restatement (Second) of Trusts § 184 (1959).

See Restatement (Third) of Trusts § 81 (2007). Aronson did not

merely agree to delegate certain duties to Stephen and Scimone,

he "largely abandoned his duties of administering the trust" to

Stephen and Scimone, and thereby violated these principles.

Rutanen, supra. Aronson asked for accountings over the years,

13
but took no action when Stephen consistently failed to ever

provide Aronson with any financial documents or an accounting.

Aronson did not hire an accountant, or monitor any of Stephen's

or Scimone's activities to ensure that decisions were made in

the best interest of the beneficiaries. He "first expressed

concern about Scimone" in March 2015, and only later recommended

that he be removed as manager of BSC. Aronson did not seek

instruction from the court. See id. He approved the LLC

agreement with knowledge that the trust properties were being

conveyed to an entity that did not owe fiduciary duties as a

trustee to the DFIT. As the judge found, his acts of omission

included "the failure to do anything to limit Scimone's legal

authority, supervise him, monitor his activity, require

documentation or proof, or otherwise attempt to secure fidelity

to the trust's interest."13 Further, the judge found that "there

were . . . serious and obvious risks in giving control over

trust assets to a non-trustee, as Stephen and Aronson either

understood, or recklessly or with willful blindness disregarded.

13Aronson asserts that he took only one "intentional
act[ion]" -- signing the LLC agreement -- suggesting one act is
insufficient to overcome the protections of the exculpatory
clause. He ignores, however, that his acts of omission may also
constitute intentional disregard of an unreasonable risk, and on
these facts, his utter abdication of his duties can only be
viewed as such intentional disregard, given his vast knowledge
of trusts and trustees' duties. The judge did not err in
concluding that Aronson's utter failure to exercise his duties
as a trustee amounted to intentional misconduct in that sense.

14
Some of those risks later materialized . . . [and] the resulting

damage to the DFIT was precisely the type of harm that fell

within the scope of the risks that Stephen and Aronson created

by signing the LLC agreement, transferring the trust assets to

[BSC] and appointing Scimone as sole manager."

It is true that "[a] trustee may avail himself of the

services of others for the performance of administrative

details," but a trustee cannot "delegate his authority as

trustee to [another] nor commit the entire administration of the

trust to him." Milbank v. J. C. Littlefield, Inc., 310 Mass.

55, 62 (1941). In the absence of any safeguards, Aronson cannot

avoid liability for his acts and omissions by claiming he relied

on Stephen or trusted Scimone.

Stephen, too, argues that he merely delegated authority to

Scimone, and Scimone's misbehavior was unforeseeable. But, for

the same reasons, the argument is unavailing. The sheer amount

of power given to Scimone should have put Stephen on notice of

the potential dangers. More importantly, Stephen not only

turned a blind eye to those dangers, but the judge found that he

was aware of Scimone's misdeeds even before they happened and,

in some instances, approved of them. As the judge noted, the

trustees' conduct went much further than delegating ministerial

tasks.

15
3. Damages. Next, citing to page seventy-eight of the

judge's decision, Stephen argues that the damages award must be

reversed because it is premised on the judge's "speculation"

that "all [Stephen] had to do to get the loan was 'obtain

another form of security or someone else's personal guarantee to

convince the Bank to lend the money.'" Stephen takes the

judge's statement out of context. The judge made that statement

in concluding that it was not "willful misconduct to seek the

Bank of Canton loan, even though the DFIT's debt service

increased substantially." The judge explained that at the time,

"Stephen had few, if any, other options. He also had to
obtain another form of security or someone else's personal
guarantee, to convince the Bank to lend the money. Given
the DFIT's challenging financial circumstances and the
economy, Stephen acted for the purpose of preserving the
DFIT's existence and to pursue the development of the Trust
Properties."

Indeed, the judge continued, "[t]he DFIT's difficult

circumstances resulted, of course, from many risky and

extravagant decisions that Stephen made earlier, but none of

that went beyond the protection of the exculpatory clause." The

judge awarded no damages on the decision to borrow $3.2 million

from Bank of Canton. As discussed, the damages award derived

from the trustees' decisions to abdicate to Scimone their

responsibilities to the beneficiaries of the trust -- not from

their decision to obtain the Bank of Canton loan.

16
4. Mary's loans. The judge ordered Stephen to reimburse

the trust $92,983 in excess payments from DFIT funds that

benefitted Mary because Mary was not a beneficiary of the trust.

The judge found that Mary made loans to the DFIT totaling

$1,471,783.99, as Christopher asserted; on appeal, Stephen

asserts that Mary made loans totaling $2,571,783.99. Stephen

contends that the judge's choice between the amounts Christopher

contended were paid on Mary's behalf and the amounts that

Stephen now contends were paid was clearly erroneous. We

disagree. "If the trial judge makes one of several possible

choices of what facts are supported by the evidence, the judge's

choice is not clearly erroneous." Rood v. Newberg, 48 Mass.

App. Ct. 185, 191 (1999), quoting W. Oliver Tripp Co. v.

American Hoechst Corp., 34 Mass. App. Ct. 744, 751 (1993).

Here, Stephen's testimony was inconsistent, and we discern

no error in the judge's finding that on redirect examination,

Stephen testified that the trust owed Mary $1.4 million.

Moreover, the difference between the amounts seems to equal the

amount of proceeds from a Countrywide mortgage loan that Mary

obtained on December 8, 2005. While Stephen contends that the

trust's account received $1,293,597.06 on December 8 as a result

of that loan, he also concedes that $1.1 million was wired to

Mary's investment account from the trust's account. The judge

drew the reasonable conclusion that the trust was entitled to a

17
$1.1 million credit to Mary's loans from that transfer. Stephen

offers no alternative explanation as to how the $1.1 million

transfer should be considered. Accordingly, the judge's finding

was not clearly erroneous.

5. Donna's loans and interest. The judge credited

testimony that Stephen's wife, Donna, and her company made

substantial loans to the DFIT that benefitted the DFIT and were

obtained in good faith. The judge also found that Donna was

paid a total of $474,447 in interest. The judge found that

although the loans violated Stephen's duty of loyalty due to the

presumptive conflict of interest between Stephen's personal

interests and his duties as trustee, because the loans were

necessary and beneficial to the DFIT, and because court

approval, had it been requested, likely would have been granted,

the judge initially declined to disallow the $474,447 in

interest. On a motion for reconsideration, however, Christopher

argued that some of the interest paid to Donna should have been

allocated to 6 Mary's Way. The judge agreed and ordered Stephen

to account for use of proceeds from Donna's loans to benefit 6

Mary's Way. When Stephen responded that he was "unable to

determine a logical way to attribute loans made by Donna to 6

Mary's Way," the judge concluded that "[t]his inability is

entirely of Stephen's own making, as it results from his

commingling of accounts and failure to keep contemporaneous

18
records[;] . . . it constitutes self-dealing and intentional

misapplication of DFIT assets, for which Stephen is liable."

The judge disallowed the entire $474,447 of interest.

Stephen's sole argument on appeal is that the judge's

conclusion is clearly erroneous because there are no facts on

which to base the conclusion that the loans from Donna were not

used solely for DFIT purposes. "It was for the defendants to

keep the trust fund distinguished from other moneys in their

hands; and the consequences of any failure on their part to

comply with this duty must fall upon themselves." Attorney Gen.

v. Bedard, 218 Mass. 378, 386 (1914). Further, Stephen ignores

that the judge allowed him the opportunity to provide those

facts, but he could not do so -- because he had commingled the

accounts. "Where a trust is established the burden is upon a

trustee to show that he acted with reasonable skill and judgment

and to account for all the trust property which came into his

possession. If unable to account he must stand the loss."

Markus v. Markus, 331 Mass. 394, 399 (1954). We discern no

error.

6. Stephen's fees. Stephen challenges the judge's

reduction of fees he charged to the trust for property

management, professional services, and construction fees. While

concentrating on specific findings that he contends were clearly

erroneous, Stephen ignores the portion of the judge's analysis

19
that all of Stephen's fees, unapproved by the disinterested

trustee, constituted self-dealing; that with no credible

evidence of specific hours and tasks performed, and without

timely accountings that would have resolved many unanswered

questions, the judge's findings were necessarily made on "meager

evidence" about long-past matters; and that the judge found

Stephen's testimony on these matters was not credible. Thus,

the judge reasonably cautioned that especially in the absence of

detailed, contemporaneous and reliable records, as well as

consensus about a reference point to evaluate the fees,

mathematical precision of the amount of damages was unlikely.

Stephen charged the trust a professional services fee

separate and apart from a property management fee, and the judge

reduced the professional services fee by fifty percent. Stephen

argues that the judge, without basis in the record, erroneously

concluded that a property management fee would have included

"professional services," including the costs of lawn care and

maintenance of the properties, and erred in reducing the fee

Stephen charged. First, the evidence simply was not as clear or

compelling as Stephen suggests. He testified that a property

management fee is a "fee that the management company charges to

maintain and operate" a property. He attempted to distinguish

between arranging for maintenance and actually doing some of the

necessary tasks -- which he characterized as "professional

20
services" -- but the judge did not credit that distinction. We

discern no error in the judge's conclusion that Stephen had not

presented credible evidence the fees were not duplicative.

Moreover, even aside from determining that the fees were

duplicative, the judge reduced the fees because, in the

aggregate, the fees exceeded the lower bound of property

management fees in the area and because of the unauthorized

nature of the fees and the trustees' willful breaches of their

duty to account. The judge noted that a timely accounting would

have answered the obvious question: "if third parties already

performed services for fees that already came close to full

payment for comprehensive property management, what else was

left [for] Stephen [to] do?" Applying equitable principles and

extrapolating from the strictly conservative principles applied

to awards of attorney's fees in a nonvoluntary relationship, see

Mulhern v. Roach, 398 Mass. 18, 31 n.15 (1986), the judge

determined that a fifty percent reduction of fees was warranted.

The judge applied the same analysis to the construction

management fees14 Stephen paid himself or charged to the trust

14The trust entered into a joint venture with Edward
Medeiros to construct a home on 2 Mary's Way in the fall of
2014. The joint venture paid Stephen a "general contractor's
fee" of ten percent, which, the judge found, was less than that
charged by general contractors in the vicinity. The judge also
found, however, that Stephen's role was more akin to "owner's
representative," because he did not track his hours or submit
time sheets.

21
and also reduced those by fifty percent. In the circumstances

of this case, we discern no abuse of the judge's discretion.

See Lattuca v. Robsham, 442 Mass. 205, 210 (2004) (attorney's

fee award generally based on interplay of many factors and is

always highly discretionary).

7. Miscellaneous. The miscellaneous factual challenges

raised by Stephen demonstrate no clear error. The judge

rejected on credibility grounds Stephen's explanation for how

the $200,000 holdback related to the Wainwright payoff was

handled. "Findings that are based on credibility assessments

are uniquely the province of the trial judge, and we will not

disturb them on appeal." Corrado v. Hedrick, 65 Mass. App. Ct.

477, 484 (2006). Similarly, the judge rejected on credibility

grounds Stephen's explanation for a $100,000 payment to an

attorney which Stephen and Donna suggested was a partial

repayment of amounts due to Donna or her companies. We agree

that the documentation regarding the $100,000 payment is unclear

and discern no error in the judge's credibility determination.

8. Attorney's fees. Relying on a statement in Tocci v.

Tocci, 490 Mass. 1 (2022), Stephen contends that the trustees

should not be charged with Christopher's attorney's fees because

Christopher brought his claims only for his own benefit. Tocci,

however, addressed closed corporations and specifically

distinguished trusts from closed corporations. Id. at 19-21.

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Further, Tocci, supra at 20, quoted with approval Allard v.

Pacific Nat'l Bank, 99 Wash. 2d 394, 408 (1983), which states

that "[w]here litigation is necessitated by the inexcusable

conduct of the trustee, . . . the trustee [of a trust]

individually must pay" plaintiffs' attorney's fees. Cf. A.

Newman, G.G. Bogert, & G.T. Bogert, Trusts and Trustees § 970

(3d ed. 2010) (trustee is liable for damage to trust estate

caused by trustee's breach of trust).

Stephen also argues that because his sisters helped fund

the lawsuit in exchange for a share in Christopher's beneficial

interest in the DFIT, Christopher did not suffer a loss.

Although Christopher may not have to pay back his sisters'

expenditures on his attorney's fees, he does have to share his

beneficial interest in the DFIT. Thus, Stephen's suggestion

that Christopher has suffered no harm is without merit.

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For all of the foregoing reasons, we affirm the amended

judgment.15

So ordered.

By the Court (Sacks, Singh &
Walsh, JJ.16),

Assistant Clerk

Entered: May 21, 2024.

15Stephen's and Aronson's requests for appellate attorney's
fees and costs are denied. Christopher's request for appellate
attorney's fees and costs against Stephen and Aronson is
allowed. Christopher is invited to file a verified and itemized
application for such fees and costs within fourteen days of the
date of this decision, and Stephen and Aronson will have
fourteen days thereafter in which to file any opposition to the
amounts requested. See Fabre v. Walton, 441 Mass. 9, 10-11
(2004). For substantially the reasons set forth in the judge's
decision on the parties' motions for attorney's fees, Stephen
individually will be liable for the full amount to be awarded,
and Aronson individually will be jointly and severally liable
for about fifteen percent of that amount.

16 The panelists are listed in order of seniority.

24