LUCY H. NESBEDA v. HANNAH TUCKER CLARK MOORE & 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

24-P-1113

LUCY H. NESBEDA

vs.

HANNAH TUCKER CLARK MOORE & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Lucy Nesbeda (Lucy), brought this action in

the Superior Court against the trust of her late mother, the

Mary H. Clark 1987 Trust (trust), and its surviving cotrustees

and other beneficiaries. Lucy claimed a breach of fiduciary

duty by the cotrustees, her siblings Hannah Tucker Clark Moore

(Hannah) and Stephen Clark (Stephen), and sought declaratory and

equitable relief under Florida law, including an accounting.

Under G. L. c. 203E, § 201, which is part of the Uniform

Trust Code, a Massachusetts court "may intervene in the

administration of a trust to the extent its jurisdiction is

1Caroline C. Kressly, Helen C. Tupper, JoAnn Watson, Mary
H. Clark 1987 Trust, Stephen H. Clark, William Van Allen Clark,
III.
invoked by an interested person or as provided by law." G. L.

c. 203E, § 201 (a). See G. L. c. 203E, § 201 (c) ("A judicial

proceeding involving a trust may relate to any matter involving

the trust's administration, including a request for instructions

and an action to declare rights"). The code further provides,

however, that:

"The court shall not over the objection of a party,
entertain proceedings under section 201 involving a trust
registered or having its principal place of administration
in another state, unless: (1) all appropriate parties
could not be bound by litigation in the courts of the state
where the trust is registered or has its principal place of
administration; or (2) the interests of justice otherwise
would seriously be impaired."

G. L. c. 203E, § 203.

Hannah moved to dismiss the action for lack of subject

matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass.

754 (1974), on the ground that the trust has its principal place

of administration in Florida. The remaining defendants joined

in Hannah's motion to dismiss. A judge allowed the defendants'

motion, and Lucy appeals from the resulting judgment. We

affirm.

Background. In 1987, Mary H. Clark (Mary) moved from

Massachusetts to Florida, where she established the trust. As

donor, Mary reserved the right to revoke or amend the trust,

including by withdrawing or assigning its assets, at any time.

At the outset, Mary, Stephen, and Peter Nesbeda (Peter), Lucy's

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spouse at the time, were cotrustees. The 1987 trust agreement

stated that it would be "construed, governed and administered in

accordance with Massachusetts law."

Mary served as trustee of the trust from 1987 until she

died in 2021. In Florida, Mary actively managed the trust's

assets, regularly scheduled quarterly and annual meetings to

discuss her investments with the cotrustees, and also consulted

with investment advisors. In 2011, Peter and Lucy divorced,

Peter resigned as trustee, and Hannah took his place.

In 2016, Mary amended and restated the trust in its

entirety. She retained considerable control over the trust,

reserving to herself personally the rights to amend or revoke

the trust, remove and replace trustees, withdraw assets, change

investments, and direct the trustees to make distributions

during her lifetime. The restated trust removed the earlier

reference to Massachusetts law and instead provided:

"All matters involving the validity and interpretation of
this Trust are to be governed by Florida law. Subject to
the provisions of this Trust, all matters involving the
administration of a trust are to be governed by the laws of
the jurisdiction in which the trust has its principal place
of administration."

The restated trust repeatedly referred to Florida law,

providing, for example, that any revocation of the trust had to

be "executed with the formalities of a Will in Florida"; the

trustees' accountings to qualified beneficiaries were controlled

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by Florida law; the trustees' knowledge of certain facts would

be "determined as provided" by Florida law; and, in the event

that Mary left no decedents, the residuary trust estate would be

distributed to her heirs "under Florida law." Like the 1987

trust agreement, the restated trust did not expressly designate

a principal place of administration.

Mary died in 2021. Her death terminated the trust, and the

trustees distributed the residue of the trust's assets equally

to the seven beneficiaries: Lucy, Hannah, Stephen, three other

children of Mary, and a family friend.

Discussion. "We review de novo the allowance of a motion

to dismiss for lack of subject matter jurisdiction under rule

12 (b) (1)." Allegaert v. Harbor View Hotel Owner LLC, 100

Mass. App. Ct. 483, 486 (2021), quoting 311 West Broadway LLC v.

Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016).

Where a party's challenge is supported by affidavits or

other matters outside the record, the burden falls to the non-

moving party to prove jurisdictional facts. Callahan v. First

Congregational Church of Haverhill, 441 Mass. 699, 710-711

(2004), overruled on other grounds by Temple Emanuel of Newton

v. Massachusetts Comm'n Against Discrimination, 463 Mass. 472,

478 (2012). See Ginther v. Commissioner of Ins., 427 Mass. 319,

322 n.6 (1998). Under such a factual challenge, "the

plaintiff's jurisdictional averments [in the complaint] are

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entitled to no presumptive weight [and] the court must address

the merits of the jurisdictional claim by resolving the factual

disputes between the parties." Hiles v. Episcopal Diocese of

Mass., 437 Mass. 505, 515-516 (2002), quoting Valentin v.

Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

Because, as discussed, Massachusetts courts generally lack

jurisdiction to entertain proceedings involving a trust's

administration if the "principal place of administration" of the

trust is "in another state," G. L. c. 203E, § 203, we must

determine the principal place of administration of Mary's trust.

Lucy contends that the principal place of administration of the

trust is Massachusetts; the defendants contend that it is

Florida.

The restated trust provides that it shall be interpreted in

accordance with Florida law. 2 Accordingly, we apply Florida law

in determining the principal place of administration of the

trust. Under Florida law, if a trust instrument does not

designate its principal place of administration:

2 Although Lucy wrote in her reply brief that the trust "is
governed by Florida law," at oral argument she argued that the
trust is governed by Massachusetts law because that is what the
1987 trust agreement provided. When a trust instrument
authorizes a change in the trust's administrative governing law,
however, "the law governing the administration of the trust
thereafter is the local law of the other state and not the local
law of the state of original administration." Restatement
(Second) of Conflict of Laws § 272 comment e (1971).

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"[T]he principal place of administration of a trust is the
trustee's usual place of business where the records
pertaining to the trust are kept or, if the trustee has no
place of business, the trustee's residence. In the case of
cotrustees, the principal place of administration is:

(a) The usual place of business of the corporate
trustee, if there is only one corporate trustee;

(b) The usual place of business or residence of the
individual trustee who is a professional
fiduciary, if there is only one such person and
no corporate cotrustee; or otherwise

(c) The usual place of business or residence of any
of the cotrustees as agreed on by the
cotrustees."

Fla. Stat. § 736.108(2).

Here, Mary served as a trustee of the trust until her death

in 2021. If she had been sole trustee, determining her "usual

place of business" would have been straightforward. Mary

established the trust after she moved to Florida in 1987 and

resided there until her death. She regularly held meetings

concerning the trust in Florida. All trust expenses were paid

from Florida. Much of the trust's assets consisted of Florida

real estate. All of Mary's estate planning involving the trust

was done in Florida. Her residence was, in effect, the trust's

"place of business." Fla. Stat. § 736.108(2).

Lucy did not offer any evidence disputing these facts. See

Callahan, 441 Mass. at 710-711. Instead, she contends that the

affidavit submitted by Hannah and setting forth jurisdictional

facts in support of the defendants' motion to dismiss is a

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"sham" because, in 2014, Hannah, Stephen, and Mary filed a

different affidavit in the Sarasota Circuit Court in Florida

verifying a true and correct copy of the 1987 trust agreement.

There is no contradiction between the two affidavits, however,

much less anything that can be reasonably be characterized as a

sham. Lucy contends that the 2014 affidavit shows that "the

choice of law provision of the Trust was to be interpreted under

Massachusetts law," but that provision in the 1987 trust

agreement was eliminated when Mary amended and restated the

trust in 2016. Lucy also contends that the 2014 affidavit shows

that "the situs of the Trust" or "designated place of trust

administration" was Massachusetts, but nothing in the 2014

affidavit, the 1987 trust agreement, or anything else in the

record identifies Massachusetts as the principal place of

administration. 3

The analysis under Florida law is complicated by the fact

that Mary was not the only trustee. Even though she was the

trust's donor and, particularly after the trust was restated in

2016, reserved critical rights to herself, Mary did have

3 Although Lucy alleged in her complaint that the mailing
address of the trust was in Massachusetts, and now argues based
on that allegation that the trust records are "presumably"
maintained there, the 1987 trust agreement does not refer to
such an address and instead identifies the donor as "Mary H.
Clark of Englewood, Florida." The restated trust does not list
a Massachusetts address either.

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cotrustees. The first two conditions listed for "the case of

cotrustees" under Fla. Stat. § 736.108(2) do not apply, since

none of the trust's cotrustees was a corporate trustee or

professional fiduciary. Accordingly, the principal place of

administration is "[t]he usual place of business or residence of

any of the cotrustees as agreed on by the cotrustees." Fla.

Stat. § 736.108(2)(c). In light of the undisputed facts as to

where the business of the trust was conducted, as well as the

unified position of Hannah and Stephen in this litigation, we

conclude that, under Florida law, the principal place of the

trust's administration was Florida.

Even if we were to apply Massachusetts law to determine the

trust's principal place of administration, the result would be

the same. In Massachusetts, "[i]f the trust document does not

explicitly designate a place of administration, the settlor's

intent 'may appear from the language that [s]he uses as

interpreted in the light of all the circumstances'" (citation

omitted). Walton v. Harris, 38 Mass. App. Ct. 252, 254 (1995).

Cf. G. L. c. 203E, § 108 (a) (addressing when "terms of a trust

designating the principal place of administration shall be valid

and controlling," but not when trust does not designate such

place). In determining the settlor's intent, a Massachusetts

court may consider such factors as "the settlor's domicil at the

time the trust was created, the situs of the trust property at

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that time, the place of the execution of the trust instrument,

the purposes of the trust, as well as any other factors that may

help in the determination." Walton, supra at 255-256. For the

reasons discussed, and as the judge found in her decision, all

the relevant circumstances demonstrate that Mary intended

Florida to be the principal place of administration of the

trust.

In the absence of any showing by Lucy that all parties

cannot be bound by litigation in the courts of Florida, or that

the interests of justice otherwise would be impaired by

litigation there, the judge correctly ruled that the Superior

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Court lacks jurisdiction to hear and decide this action. See

G. L. c. 203E, § 203.

Judgment affirmed.

By the Court (Walsh, Toone &
Tan, JJ. 4),

Clerk

Entered: January 28, 2026.

4 The panelists are listed in order of seniority.

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