57 OLD ROAD TO NINE ACRE CORNER OPERATING CO., LLC v. RICHARD A. FRASCA, Personal Representative.

• Court: Massachusetts Appeals Court
• Decided: August 14, 2024
• Docket: 23-P-0370
• Status: Unpublished

Opinion

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-370

57 OLD ROAD TO NINE ACRE CORNER OPERATING CO., LLC 1

vs.

RICHARD A. FRASCA, personal representative. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant Richard A. Frasca, as personal representative

of the estate of his mother Mary D. Frasca, appeals from the

February 13, 2023 denial of his motion to vacate a November 18,

2022 order of postjudgment real estate attachment by the

Superior Court. The attachment order sought to secure a

$104,051.22 judgment with real estate owned by the estate at 426

Hanover Street, Unit 4, in Boston. On appeal, the defendant

contends that the judge erred because the Superior Court had no

jurisdiction to issue the attachment order due to G. L. c. 230,

§ 7, which requires Probate Court permission to attach "on mesne

1 Doing business as Care One at Concord.

2 Of the estate of Mary D. Frasca. process" the property of a deceased person. We need not resolve

the issue because the appeal is moot.

Discussion. "[L]itigation is considered moot when the

party who claimed to be aggrieved ceases to have a personal

stake in its outcome." Lynn v. Murrell, 489 Mass. 579, 582

(2022), quoting Blake v. Massachusetts Parole Bd., 369 Mass.

701, 703 (1976). See Lawyers' Comm. for Civ. Rights & Economic

Justice v. Court Adm'r of the Trial Court, 478 Mass. 1010, 1011

(2017) (single justice properly dismissed petition as moot "as

no further effective relief [could] be granted"). "Generally,

an issue is moot when the parties 'would no longer be personally

affected by the resulting decision.'" Harmon v. Commissioner of

Correction, 487 Mass. 470, 475 (2021), quoting Commonwealth v.

Walters, 479 Mass. 277, 280 (2018). "It is the general rule

that courts decide only actual controversies." Harmon, supra at

475, quoting Matter of Sturtz, 410 Mass. 58, 59 (1991).

Here, the defendant seeks a ruling on the validity of an

attachment order which was meant to secure the plaintiff's

judgment pending appeal. But the attachment order by itself had

no real effect; the record does not show, and the defendant does

not assert, that a writ of attachment was ever issued as a

result, let alone recorded. Moreover, even before the defendant

filed his notice of appeal concerning the attachment order, this

court had affirmed the judgment, see 21-P-0535, and the Superior

2 Court had issued a writ of execution on the judgment. 3 Because

the writ of execution could have been recorded at the Registry

of Deeds, thereby securing the judgment, the issuance and

recording of a writ of attachment was no longer necessary and

the validity of the attachment order became irrelevant. 4

When a case becomes moot on appeal, we vacate the order,

judgment, or decree appealed from with a notation that the decision

is not on the merits, in order to free the parties of collateral

estoppel consequences, should the same issues rearise in future

litigation between the parties. See Aquacultural Research Corp.

v. Austin, 88 Mass. App. Ct. 631, 635 (2015). We therefore vacate

3 Once the judgment and the execution issued, it appears that a writ of attachment could no longer have issued "on mesne process," and thus G. L. c. 230, § 7, no longer applied in any event. See Still Assocs., Inc. v. Porter, 24 Mass. App. Ct. 26, 30 (1987) ("'mesne process' refers to process issued before entry of final judgment"). See also Eno v. McGinn, 103 Mass. App. Ct. 662, 665 n.9 (2024).

4 Indeed, the question of the validity of the attachment order may have been a moot point even at the time that the order issued. In another complaint brought by the plaintiff against the defendant, the plaintiff alleged that the defendant fraudulently diverted estate property to avoid settlement obligations. See 57 Old Road to Nine Acre Corner Operating Company, LLC vs. Richard Frasca, as Personal Representative of the Estate of Mary D. Frasca, and Richard Frasca as Trustee of the Mary D. Frasca 1993 Trust, Suffolk Superior Civil Action No. 2384CV02537C. In connection with that litigation, the plaintiff obtained a pre-judgment attachment on the trust property in the amount of $104,051.22. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court may take judicial notice of records in related case).

3 the Superior Court's November 18, 2022, attachment order, not on

the merits but because it is moot.

So ordered.

By the Court (Sacks, Singh & Walsh, JJ. 5),

Clerk

Entered: August 14, 2024.

5 The panelists are listed in order of seniority.