No. 09-3081.Commonwealth of Massachusetts Superior Court. Middlesex, SS.
December 9, 2009.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
LEILA R. KERN, Justice, Superior Court.
INTRODUCTION
This action arises from a promise by Thomas C. Troy, Sr. to leave certain real property to his son, Thomas C. Troy, Jr., for Troy, Jr.’s work to maintain and improve that property. Troy, Jr. brings claims against the estate of Phyllis C. Troy for, inter alia, fraud. Troy, Jr. alleges that Phyllis led him to believe he would inherit the real property from a realty trust created by Troy, Sr., when in fact she had changed the trust’s schedule of beneficiaries to exclude Troy, Jr. Before the Court is Phyllis’ Motion to Dismiss Count IV, the fraud claim. For the following reasons, that motion will be ALLOWED.
BACKGROUND
The following facts are taken from the Complaint and treated as true for the purposes of the Motion to Dismiss only.Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). In or about 1979, Troy, Sr. and his wife, Phyllis, acquired real property located at 207 Woburn Street, Reading, Massachusetts. From its acquisition until Troy, Sr.’s death in 2000, Troy, Jr. maintained the property and made renovations thereto without payment from Troy, Sr. or Phyllis. Instead,
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Troy, Jr. did that work in reliance on Troy, Sr.’s promise that Troy, Jr. “would someday own the [property].” From 1979 to 2000, Troy, Sr. regularly stated, in the presence of Phyllis and others, that he planned to leave the property to Troy, Jr. and Jean Trumble Sullivan, Troy, Sr.’s niece.
In 1998, the property was conveyed to the T P Realty Trust. Troy, Jr. believed that he was named as a beneficiary of that trust, or that some other mechanism would ensure that Troy, Sr.’s promises to him about someday owning the property would be honored. After Troy, Sr.’s death in 2000, Phyllis declined to allow Troy, Jr. to continue to maintain the property, although Troy, Jr. indicated a willingness to perform that work upon request. Troy, Jr. believed that provisions had been made in Troy, Sr.’s estate plan that would ultimately provide him with an interest in the property after the death of Phyllis.
Phyllis died in 2008. In March 2009, Troy, Jr. requested the schedule of beneficiaries for the T P Realty Trust from the attorneys for Phyllis’ estate. The attorneys provided one schedule of beneficiaries, created on January 10, 2005, showing that Phyllis was the 100% beneficiary of the T P Realty Trust. Ostensibly, there was no provision in Phyllis’ estate plan to provide an interest in the property to Troy, Jr.
DISCUSSION
“While a complaint attacked by a motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide the `grounds’ of his `entitle[ment] to relief’ requires more than labels and conclusions. Factual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that the allegations in the complaint are true.”Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp.
v. Twombly, 127 S. Ct. 1955, 1965 (2007). In addition, allegations of fraud must be pled with particularity. Mass. R. Civ. P. 9(b).
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Here, the Complaint does not even identify a specific representation by Phyllis that Troy, Jr. avers to be fraudulent. Instead, the Complaint includes a series of allegations that might support the inference that Phyllis could have played a role in removing Troy, Jr. from the schedule of beneficiaries of the T P Realty Trust. This kind of tenuous inference is not sufficient to raise Troy, Jr.’s right to relief above the speculative level under the Iannacchino standard, much less state his fraud claim with the requisite particularity required by Mass. R. Civ. P. 9(b). Contrast Friedman v.Jablonski, 371 Mass. 482, 488-489 (1976) (“The complaint alleged the misrepresentation, specifically. . . . It alleged who made the statements, their falsity, and the defendants’ knowledge of their falsity. . . . There can be no question that the defendants were warned adequately concerning the particular statements which constituted the alleged fraud so that they could prepare their defense.”)
ORDER
For the foregoing reasons, the Motion to Dismiss Count IV (the fraud claim) is ALLOWED.
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