Kline v. Reed
Kline v. Reed
Opinion of the Court
The opening words look like a scrivener’s mistake but give rise to a possible claim that the conveyance was to both Robert, individually, and the trust, in some kind of common ownership. On January 23, 1978, Robert died, and there is some reason to think that if the 1974 conveyance passed an interest to Robert, individually, that interest passed to June, individually.
On June 24, 1980, June, styling herself trustee of the trust, entered into an agreement with David Kline to sell the Provincetown property to him for a stated consideration. At that date, through certain changes permissible under the trust, the trustees were June, her son John D. Gutzler, and William E. Halliday. So, by the usual rule, which would require that all trustees join' in such a transaction,
“During the tenure of a settlor as trustee and the cotrustee is other than a settlor, the settlor shall have a deciding vote if the trustees shall be at variance upon any question arising in the course of their management of the business or property of the trust.”
Some time after the making of the agreement with Kline, Halliday resigned as trustee.
Upon hearing that Kline was acting in the Provincetown transaction for Abe Saada, June refused to complete the sale. Thereupon Kline and Saada commenced the present action in Superior Court against June, “individually and as trustee of Gutzler Property Trust,” to compel specific performance. For June’s failure to answer interrogatories, a default judgment entered in the action with effect on October 7,1982,
The plaintiffs Kline and Saada had commenced enforcement proceedings under the judgment. They were met on June 21, 1984, by a motion on the part of the special administrators of the estate of June Gutzler — she had died on October 12, 1983
A judge of the Superior Court denied the rule 60(b) motions without explanation and the order is here on review. Pending this appeal, enforcement proceedings were stayed by a single justice of this court.
On the merits, we agree with the single justice that there is some strength, at least on the surface, in John’s contention, for it does not necessarily follow that because June could outvote John, she could validly disregard him altogether and act alone.
On the technical side, the decision below was perhaps correct. However, it did not advance the case to a sensible resolution. The administrators needed no 60(b) (6) motion. As parties in the action by reason of the suggestion of death of June (see note 9, supra) they, in connection with any resumption of the enforcement proceedings, will represent the individual interest of their decedent, June, and will, apparently, take the position that they have no claim of ownership in the Provincetown parcel. John probably had no standing for a motion pursuant to 60(b) (4) because that, like the other numbered clauses of 60(b), seems to contemplate a motion by one who has been a party to the action.
We do not venture any suggestion about the outcome of the action as it may be reconstituted.
The order denying rule 60(b) relief may stand. The action is remanded to the Superior Court for further development as indicated.
So ordered.
See Sadler v. Industrial Trust Co., 327 Mass. 10, 13 (1951); Equilease Corp. v. D’Annolfo, 6 Mass. App. Ct. 919 (1978); Loring, Trustee’s Handbook § 30, at 102 (Farr rev. 1962).
We need not follow the details of this entry of judgment.
Neither the deed conveying the property to the trust (and perhaps also to Robert) nor the trust declaration was before the court at the time of this earlier decision.
A suggestion of her death was filed in the action on June 21, 1984. See Mass.R.Civ.P. 25(a) (2), 365 Mass. 771 (1974).
“Rule 60. RELIEF FROM JUDGMENT OR ORDER ...(b) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void ... or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of review, of error, of audita querela, and petitions to vacate judgment are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.”
Cf. In re Langdon, 154 Misc. 252, 254 (N.Y. Sur. Ct. 1935).
See National Acceptance Co. of America, Inc. v. Frigid-Meats, Inc., 627 F.2d 764, 766 (7th Cir. 1980); Mobay Chem. Co. v. Hudson Foam Plastics Corp., 277 F. Supp. 413, 416-417 (S.D. N.Y. 1967). But see Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044, 1051-1052 (2d Cir. 1982).
See Kupferman v. Consolidated Research Mfg. Corp., 459 F.2d 1072, 1074 n.1 (2d Cir. 1972).
See 7 Moore’s Federal Practice pars. 60.15, 60.36, 60.41 (2d ed. 1985 and 1984-85 Supp.).
Reference
- Full Case Name
- David Kline & another v. Alette E. Reed, special administratrix, & others
- Cited By
- 1 case
- Status
- Published