SARAH H. WELCOME v. CHRISTIE BRIZIDA, Trustee, & 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-1170

SARAH H. WELCOME

vs.

CHRISTIE BRIZIDA, trustee,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Sarah H. Welcome (Welcome) obtained default judgments in

the Superior Court against, inter alia, Dana M. Chiles (Chiles).

To ensure the judgments against Chiles could be satisfied,

Welcome then amended her complaint to add claims to reach and

apply real property held in trust, contending that Chiles was

the beneficial owner of that property. After a jury-waived

trial on Welcome's reach and apply claims, and in response to

1 Of the Nine Dukes Road Realty Trust.

2Chiles Holdings, LTD; Chiles Development Corp.; Dana M.
Chiles; Shoney, LLC; Steven Grant, cotrustee of the Nine Dukes
Road Realty Trust; Christie Brizida, trustee of the Equestrian
Realty Trust; and Chiles Investment Group, Inc. These
defendants have not participated in this appeal.
special questions, the judge found that Chiles was the sole

equitable and beneficial owner of the property at 9 Dukes Road,

Nantucket (property), and Welcome was entitled to a resulting

trust for that property. Christie Brizida (Brizida), as trustee

of the Nine Dukes Road Realty Trust, challenges the judgment.3

We discern neither abuse of discretion in the judge's order

limiting Chiles's trial testimony, nor prejudice resulting from

that order. Moreover, we are satisfied that the evidence

presented at trial was sufficient to support the judge's

verdicts. Accordingly, we affirm.

Background. The history of this appeal spans more than a

decade. For the purposes of our decision, it is sufficient to

say that, in 2014, Welcome sued Chiles and others in connection

with a loan she made to Chiles. In 2015, Welcome obtained

default judgments of approximately $282,000 against Chiles and

three entities over which Chiles exercised control. The

Superior Court issued executions and, in 2018, after failing to

obtain satisfaction of the executions, Welcome amended her

complaint to add claims against Paulette Mosley, as trustee of

the Nine Dukes Road Realty Trust (later substituted for

successor cotrustees, Brizida and Steven Grant); Brizida, as

3 Chiles noticed an appeal from the judgment, but did not
docket that appeal. Brizida is thus the only appellant.

2
trustee of the Equestrian Realty Trust; and Chiles Investment

Group, Inc. These claims were for fraudulent transfer, see

G. L. c. 109A, § 5; statutory and common law reach and apply,

see G. L. c. 214, § 3 (6); and violations of G. L. c. 93A,

§§ 2 and 11.

Chiles Investment Group, Inc. was defaulted on the amended

complaint. In 2023, however, the remaining parties agreed to

try the reach and apply claims and the c. 93A claims in a jury-

waived trial, pursuant Rules 20(2)(h) and 20(8) of the Rules of

the Superior Court (2022) (Superior Court Rules). At the close

of the plaintiff's case, defense counsel moved for a directed

verdict on all counts at issue in the trial; the judge allowed

the motion as to Welcome's c. 93A claims only.4 The defense then

sought to recall Chiles as a rebuttal witness. When the judge

denied that request, the defense called one additional fact

witness before resting.

Ultimately, the judge found in favor of Welcome on her

statutory and nonstatutory claims to reach and apply. In her

answer to special questions, the judge found that Chiles was the

sole beneficial owner of the property, and that the property was

4 Because this case was tried without a jury, we understand
the judge to have treated the motion for a directed verdict as a
motion for involuntary dismissal. See Mass. R. Civ. P.
41 (b) (2), 365 Mass. 803 (1974); Skowronski v. Sachs, 62 Mass.
App. Ct. 630, 632-633 (2004).

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subject to a resulting trust in favor of Welcome.5 This appeal

followed.

Discussion. 1. Denial of defendants' request to recall

Chiles in rebuttal. We are not persuaded that the judge in this

case abused her "substantial discretion" in denying the

defendants' request to recall Chiles as a rebuttal witness.

Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 732

(1997). The judge provided defense counsel with a full and fair

opportunity to cross-examine Chiles -- who was his own client

and a friendly witness -- when Welcome called Chiles to testify.

At trial, defense counsel explained his need to recall Chiles by

stating that Chiles's additional testimony was necessary "[t]o

rebut the assertions of Miss Fair6 and Miss Welcome." Defense

counsel made no offer of proof beyond that statement, nor did he

argue that Fair's or Welcome's testimony included any newly

discovered evidence. Notably, counsel also did not challenge

the judge's explicit finding that, "given the length of time

that this litigation in multiple facets ha[d] been ongoing . . .

5 The judge also found, however, that Chiles had no right to
a second piece of property at 3 Equestrian Way, Berkley.
Welcome does not challenge this, or any of the judge's other
determinations.

6 Elizabeth Fair was Chiles's former employee and had, by
the time of the trial in this case, been engaged in her own
lawsuit against Chiles for approximately three years.

4
there [could not] be anything that surprised anybody and could

not have reasonably been anticipated prior to trial."7 Cf.

Commonwealth v. Hicks, 375 Mass. 274, 276-277 (1978)

(acknowledging, in criminal contexts, that "[c]ourts have found

. . . abuse[s] of discretion where the refusal to permit recall

of a witness unreasonably deprives [a] defendant of an

opportunity to present newly discovered information material to

the defense").

Even if we were to conclude that the judge had exceeded her

discretion, however, we would still not reverse, as Brizida has

not demonstrated that she was prejudiced by the judge's ruling.

See Abramian v. President & Fellows of Harvard College, 432

Mass. 107, 123 (2000); Cohen v. Liberty Mut. Ins. Co., 41 Mass.

App. Ct. 748, 752 (1996). "Establishing prejudicial error in

the exclusion of evidence requires the proponent of the excluded

evidence to make 'a plausible showing that the trier of fact

might have reached a different result if the evidence had been

before it.'" Cohen, supra, quoting DeJesus v. Yogel, 404 Mass.

44, 48-49 (1989). No such showing has been made here.

7 Brizida argues in her brief that defense counsel made a
strategic choice to have Chiles "testify briefly" during
Welcome's case in an effort to "preserv[e] his right to file a
[m]otion for [involuntary dismissal] at the close of Ms.
Welcome's case in chief." Putting aside the merits of this
argument, however, it was not raised to the judge, and so was
waived. See Trapp v. Roden, 473 Mass. 210, 220 n.12 (2015).

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2. Beneficial ownership of 9 Dukes Road. Brizida has

likewise failed to show that the judge erred in finding (as

reflected in her answers to special questions) that Chiles was

the "100% equitable or beneficial owner[] of 9 Dukes Road." The

parties agreed to try this case in accordance with Superior

Court Rules 20(2)(h) and 20(8). Accordingly, on appellate

review, we will uphold the judgment if "anywhere in the

evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be drawn in favor of the [prevailing party]." Rabassa v.

Cerasuolo, 97 Mass. App. Ct. 809, 814 (2020), quoting Dobos v.

Driscoll, 404 Mass. 634, 656, cert. denied, 493 U.S. 850 (1989).

See Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10 (2020) (standard

of review applicable to verdict by jury applies to judge's

answers to special questions); Superior Court Rule 20(8)(b)

("[A]ppellate review of the court's decision and of the judgment

entered shall be according to the standard of review that would

apply to a verdict by a jury in a case tried to a jury and to

the judgment entered thereon").

At trial, Welcome presented evidence from which the judge

could have found that, at the time, the property was held by the

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trustee of the Nine Dukes Road Realty Trust.8 Specifically,

there was evidence to show that the sole beneficiary of the

trust was Beatus VIR, LLC (Beatus), and that Chiles was the

"sole member" of Beatus. This evidence was sufficient to

establish that Chiles alone held beneficial title to the

property, despite the trustee's retention of its legal title.

See Dickey v. Inspectional Servs. Dep't of Boston, 482 Mass.

1003, 1004 (2019) (discussing sole member of LLC in terms of

member's "ownership" interest in LLC); Caputo v. Moulton, 102

Mass. App. Ct. 251, 258 (2023), citing 90 C.J.S. Trusts § 249

(2020) (beneficiary, and not trustee, holds beneficial title to

trust res). To the extent Brizida argues that there was

evidence from which the judge could have reached a different

conclusion, her argument fails to recognize our standard of

review. See Rabassa, 97 Mass. App. Ct. at 814. We discern no

8 Paulette Mosley, Chiles's mother, was the trust's original
trustee. She was succeeded by Brizida and Steven Grant, as
cotrustees.

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error in the judge's answers to special questions, nor in the

resulting judgment. See id.

Judgment affirmed.

By the Court (Rubin, Hand &
Brennan, JJ.9),

Clerk

Entered: January 9, 2025.

9 The panelists are listed in order of seniority.

8