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-287
GEORGE H. WHEATON & another1
vs.
ANNA COLLETTA & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant Anna Colletta appeals from a Superior Court
judgment, after a bench trial, that found (1) that she violated
G. L. c. 93A, and (2) that she breached fiduciary duties to the
plaintiff, George Wheaton, in connection with the sale of George
Wheaton's (George or plaintiff)3 home. Colletta was a licensed
real estate broker at the time of the sale in December of 2020,
and George's position at trial was that Colletta had acted as an
1Shirley Skaggs, as conservator and next friend of George H. Wheaton.
2Margaret Wheaton; Select Realty Trust; and Joseph Badolato, Curtis Lanciani, and Doug Sylvester, as cotrustees of Select Realty Trust.
3Because of their common surname, we refer to George Wheaton and Margaret Wheaton by their first names. "undisclosed dual agen[t]" for both him as the seller, and for
Select Realty Trust (Select Realty) as the buyer. For the
reasons that follow, we affirm the judgment as to the chapter
93A claim. We reverse the judgment as to the breach of
fiduciary duty claim, as there was insufficient evidence to
conclude that Colletta owed fiduciary duties to George.
Background. The events at issue began in the spring of
2020, when Margaret Wheaton, George Wheaton's sister-in-law,
brought Colletta to George's home. Margaret Wheaton and
Colletta were family friends; at one point, Colletta had been
married to Margaret's cousin. Margaret was concerned that
George was thinking of selling his home to one of his neighbors,
and that the price offered ($150,000 or $190,000) was far too
low. Colletta was at that time a licensed real estate
salesperson. Margaret asked Colletta to visit George, and to
"look at the house and tell me what you think."
Colletta thereafter introduced a potential buyer -- Select
Realty, one of the principals of which was Curtis Lanciani, who
Colletta was then dating. George negotiated with Lanciani,
arriving at a price of $400,000 for the home. The home was
assessed for $817,700. Colletta testified that she was not
involved in negotiating the price on George's behalf, and there
is no evidence that she was.
2 Colletta prepared an offer to purchase, which she provided
to Margaret and to Select Realty. George signed the agreement,
which called for a closing date in late July of 2020. The
agreement did not identify Colletta as the real estate agent for
either party, and there was no evidence introduced that Colletta
was to be compensated by the seller, George, in connection with
the sale. Indeed, both Margaret and Colletta testified that
George was adamant that he did not want a real estate agent to
work for him.
On the other hand, there was ample evidence that the buyers
considered Colletta to be the buyers' agent, and that the buyers
expected that, if and when they resold the property, Colletta
would act as their agent and be compensated accordingly. All
three principals of Select Realty stated in interrogatory
answers that Colletta was the real estate agent, and one of the
principals clarified that she was "acting as real estate agent
on behalf of Select Realty Trust." The principals discussed,
over text message, "giv[ing] Anna [Colletta] back the listing"
when reselling the property. No one disclosed this expectation
to George or to Margaret. Moreover, Colletta had a romantic
relationship with a principal of the buyer, Lanciani. She did
not disclose that relationship to George or Margaret either.
3 The closing did not happen in July of 2020, as the offer
provided. George had signed a purchase and sale agreement in
May of 2020, which was prepared by Select Realty's attorney.4
However, around that time (the spring of 2020) it became
increasingly apparent to Margaret that George was struggling
mentally. Margaret became George's attorney-in-fact in June of
2020. Also in June of 2020, George's sister, plaintiff Shirley
Skaggs, came to Massachusetts and began residing with George;
thereafter, Skaggs brought George to live with her in Kentucky.
Skaggs also retained a lawyer, Peter Marino, and sought to have
Margaret's power of attorney revoked. Relevant here, Marino
called Colletta at some point after the purchase and sale
agreement was signed, but prior to the December 2020 closing; as
a result of this call Colletta was aware, before the closing,
that there was a lawyer purporting to represent George's
interests.
As indicated, the closing with Select Realty occurred in
December of 2020. George was not present. Margaret signed the
documents on behalf of George.5 Colletta also was present. No
4 The purchase and sale agreement also did not identify Colletta as a broker for either party. The sections of the printed form agreement referring to brokers stated, "N/A."
5 Margaret purported to sign the documents as attorney-in- fact for George. The judge did not make findings regarding
4 one was present from Select Realty; an attorney-in-fact signed
on its behalf. No one notified the lawyer, Marino, that the
closing was going to occur.
This lawsuit was filed in January of 2021. The plaintiffs
are (1) George, and (2) Skaggs, as George's conservator and next
friend. Margaret and Select Realty initially were the named
defendants; in February of 2022, the complaint was amended to
include Colletta as a defendant. After a bench trial, the judge
found, among other things, that Colletta violated G. L. c. 93A,
and also that Colletta breached fiduciary duties that she owed
to George. By agreement with the parties, the judge's findings
were abbreviated, pursuant to rule 20(2)(h) of the Rules of the
Superior Court (2018).6 The judge awarded $25,000 in damages on
each of the c. 93A and fiduciary duty counts, yielding a total
of $50,000 in damages as to Colletta. Colletta appeals.7
Discussion. 1. Chapter 93A claim. We first address
Colletta's challenge to the sufficiency of the evidence that she
whether the power of attorney naming Margaret as attorney-in- fact was then valid, and the issue is not before us.
6 The judge's finding appeared, in form, like a civil jury verdict. Rule 20(2)(h) states that all parties may agree, among other things, to "[t]rial to a judge without a jury with or without additional conditions (by way of illustration: waiver of detailed written findings of fact and rulings of law . . . )."
Free access — add to your briefcase to read the full text and ask questions with AI
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-287
GEORGE H. WHEATON & another1
vs.
ANNA COLLETTA & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant Anna Colletta appeals from a Superior Court
judgment, after a bench trial, that found (1) that she violated
G. L. c. 93A, and (2) that she breached fiduciary duties to the
plaintiff, George Wheaton, in connection with the sale of George
Wheaton's (George or plaintiff)3 home. Colletta was a licensed
real estate broker at the time of the sale in December of 2020,
and George's position at trial was that Colletta had acted as an
1Shirley Skaggs, as conservator and next friend of George H. Wheaton.
2Margaret Wheaton; Select Realty Trust; and Joseph Badolato, Curtis Lanciani, and Doug Sylvester, as cotrustees of Select Realty Trust.
3Because of their common surname, we refer to George Wheaton and Margaret Wheaton by their first names. "undisclosed dual agen[t]" for both him as the seller, and for
Select Realty Trust (Select Realty) as the buyer. For the
reasons that follow, we affirm the judgment as to the chapter
93A claim. We reverse the judgment as to the breach of
fiduciary duty claim, as there was insufficient evidence to
conclude that Colletta owed fiduciary duties to George.
Background. The events at issue began in the spring of
2020, when Margaret Wheaton, George Wheaton's sister-in-law,
brought Colletta to George's home. Margaret Wheaton and
Colletta were family friends; at one point, Colletta had been
married to Margaret's cousin. Margaret was concerned that
George was thinking of selling his home to one of his neighbors,
and that the price offered ($150,000 or $190,000) was far too
low. Colletta was at that time a licensed real estate
salesperson. Margaret asked Colletta to visit George, and to
"look at the house and tell me what you think."
Colletta thereafter introduced a potential buyer -- Select
Realty, one of the principals of which was Curtis Lanciani, who
Colletta was then dating. George negotiated with Lanciani,
arriving at a price of $400,000 for the home. The home was
assessed for $817,700. Colletta testified that she was not
involved in negotiating the price on George's behalf, and there
is no evidence that she was.
2 Colletta prepared an offer to purchase, which she provided
to Margaret and to Select Realty. George signed the agreement,
which called for a closing date in late July of 2020. The
agreement did not identify Colletta as the real estate agent for
either party, and there was no evidence introduced that Colletta
was to be compensated by the seller, George, in connection with
the sale. Indeed, both Margaret and Colletta testified that
George was adamant that he did not want a real estate agent to
work for him.
On the other hand, there was ample evidence that the buyers
considered Colletta to be the buyers' agent, and that the buyers
expected that, if and when they resold the property, Colletta
would act as their agent and be compensated accordingly. All
three principals of Select Realty stated in interrogatory
answers that Colletta was the real estate agent, and one of the
principals clarified that she was "acting as real estate agent
on behalf of Select Realty Trust." The principals discussed,
over text message, "giv[ing] Anna [Colletta] back the listing"
when reselling the property. No one disclosed this expectation
to George or to Margaret. Moreover, Colletta had a romantic
relationship with a principal of the buyer, Lanciani. She did
not disclose that relationship to George or Margaret either.
3 The closing did not happen in July of 2020, as the offer
provided. George had signed a purchase and sale agreement in
May of 2020, which was prepared by Select Realty's attorney.4
However, around that time (the spring of 2020) it became
increasingly apparent to Margaret that George was struggling
mentally. Margaret became George's attorney-in-fact in June of
2020. Also in June of 2020, George's sister, plaintiff Shirley
Skaggs, came to Massachusetts and began residing with George;
thereafter, Skaggs brought George to live with her in Kentucky.
Skaggs also retained a lawyer, Peter Marino, and sought to have
Margaret's power of attorney revoked. Relevant here, Marino
called Colletta at some point after the purchase and sale
agreement was signed, but prior to the December 2020 closing; as
a result of this call Colletta was aware, before the closing,
that there was a lawyer purporting to represent George's
interests.
As indicated, the closing with Select Realty occurred in
December of 2020. George was not present. Margaret signed the
documents on behalf of George.5 Colletta also was present. No
4 The purchase and sale agreement also did not identify Colletta as a broker for either party. The sections of the printed form agreement referring to brokers stated, "N/A."
5 Margaret purported to sign the documents as attorney-in- fact for George. The judge did not make findings regarding
4 one was present from Select Realty; an attorney-in-fact signed
on its behalf. No one notified the lawyer, Marino, that the
closing was going to occur.
This lawsuit was filed in January of 2021. The plaintiffs
are (1) George, and (2) Skaggs, as George's conservator and next
friend. Margaret and Select Realty initially were the named
defendants; in February of 2022, the complaint was amended to
include Colletta as a defendant. After a bench trial, the judge
found, among other things, that Colletta violated G. L. c. 93A,
and also that Colletta breached fiduciary duties that she owed
to George. By agreement with the parties, the judge's findings
were abbreviated, pursuant to rule 20(2)(h) of the Rules of the
Superior Court (2018).6 The judge awarded $25,000 in damages on
each of the c. 93A and fiduciary duty counts, yielding a total
of $50,000 in damages as to Colletta. Colletta appeals.7
Discussion. 1. Chapter 93A claim. We first address
Colletta's challenge to the sufficiency of the evidence that she
whether the power of attorney naming Margaret as attorney-in- fact was then valid, and the issue is not before us.
6 The judge's finding appeared, in form, like a civil jury verdict. Rule 20(2)(h) states that all parties may agree, among other things, to "[t]rial to a judge without a jury with or without additional conditions (by way of illustration: waiver of detailed written findings of fact and rulings of law . . . )."
7 The judge also awarded $200,000 in damages against Select Realty. Select Realty did not appeal.
5 violated chapter 93A. To establish a violation of G. L. c. 93A,
§ 2, the plaintiff was required to prove:
"first, that [Colletta] has committed an unfair or deceptive act or practice; second, that the unfair or deceptive act or practice occurred 'in the conduct of any trade or commerce;' third, that [George] suffered an injury; and fourth, that [Colletta's] unfair or deceptive conduct was a cause of the injury."
Rafferty v. Merck & Co., 479 Mass. 141, 161 (2018), quoting
G. L. c. 93A, § 2 (a). See Herman v. Admit One Ticket Agency
LLC, 454 Mass. 611, 615-616 (2009). The thrust of Colletta's
argument is that the evidence did not establish that she acted
in "trade or commerce" with respect to the sale of George's
house. Rather, Colletta argues that she was doing a favor for a
friend. Colletta was not compensated by George with respect to
the transaction, and argues that she was not involved in the
negotiations for the sale.
We are satisfied that there was sufficient evidence of a
violation of G. L. c. 93A. As to the "trade or commerce" issue,
"[t]he statute is intended to apply to individuals acting in a
business context and is therefore not applicable 'where the
transaction is strictly private in nature, and is in no way
undertaken in the ordinary course of a trade or business'"
(citation omitted). Sullivan v. Five Acres Realty Trust, 487
Mass. 64, 69 (2021). However, at the time the transaction
began, Colletta was a practicing real estate salesperson; by the
6 time of the closing, she was a licensed broker. When acting as
such, she met the standard of acting "in a business context."
See Rousseau v. Gelinas, 24 Mass. App. Ct. 154, 158-159 (1987)
(broker subject to c. 93A when selling property that broker
owned himself, where broker owned several other properties and
was "actively involved in every stage of the real estate
transaction"). And in this instance, there was more than
sufficient evidence to find that Colletta acted as a real estate
salesperson on behalf of Select Realty, the buyer. Colletta
introduced Select Realty to the property. The principals of
Select Realty understood that Colletta was acting as Select
Realty's agent. Colletta prepared the offer to purchase and
helped to facilitate the closing. And finally, there was
evidence indicating that Colletta stood to gain financially from
her efforts; Select Realty was in the business of buying,
improving, and reselling property, and there was evidence that
the principals of Select Realty expected Colletta to represent
Select Realty as the seller's agent for the resale of the
property.
There was also more than sufficient evidence that Colletta
committed an unfair or deceptive act or practice. It is well
settled that what qualifies as an unfair or deceptive trade
practice is not strictly limited by common law concepts; rather,
7 in determining unfairness, "[w]e look to '(1) whether the
practice . . . is within at least the penumbra of some common-
law, statutory, or other established concept of unfairness;
(2) whether it is immoral, unethical, oppressive, or
unscrupulous; [and] (3) whether it causes substantial injury to
consumers . . . .'" UBS Fin. Servs., Inc. v. Aliberti, 483
Mass. 396, 412 (2019), quoting PMP Assocs., Inc. v. Globe
Newspaper Co., 366 Mass. 593, 596 (1975). See H1 Lincoln, Inc.
v. South Washington Street, LLC, 489 Mass. 1, 24 (2022) ("a
cause of action under c. 93A is not dependent on traditional
tort or contract law concepts for its definition" [quotation and
citation omitted]). Here Colletta's conduct fell within the
above definitions. While as we discuss below Colletta's
relationship with George was not a fiduciary relationship,
Colletta did provide advice to Margaret and George, and she
introduced them to Select Realty. Colletta did so while failing
to disclose her relationships with Select Realty, which included
a future financial interest in having Select Realty be the
buyer, as well as a personal relationship with Lanciani. And
although Colletta knew that George was failing mentally and that
George's sister had retained a lawyer to represent his
interests, Colletta moved forward with the property closing with
Margaret representing George, and without informing the lawyer.
8 The price was well below the property's assessed value. A
factfinder could reasonably find that these acts were, at the
least, unscrupulous and unethical. See Piccuirro v. Gaitenby,
20 Mass. App. Ct. 286, 289-291 (1985) (unfair and deceptive
practice where defendant, a broker, used his position as member
of town board of health to approve defective sewer system on
property he was selling). Moreover, based on the above facts, a
factfinder could reasonably find that Colletta was in fact
acting as an agent for the buyers. The plaintiff's expert
testified that as a real estate agent, Colletta had a
professional obligation to disclose to the seller which party
she was representing -- meaning that, at the least, Colletta
needed to disclose to George and Margaret that she was
representing Select Realty. The failure to do so also supports
the finding of an unfair or deceptive practice.
2. Breach of fiduciary duty. We reach a different result
with respect to the plaintiff's claim for breach of fiduciary
duty. To establish such a claim, the plaintiff needed to first
establish that a fiduciary relationship existed between George
and Colletta. See Baker v. Wilmer Cutler Pickering Hale & Dorr
LLP, 91 Mass. App. Ct. 835, 842 (2017). Fiduciary relationships
are not lightly declared to exist, and it was the plaintiff's
burden to prove that such a relationship existed here, id. at
9 844 n.15. See Aliberti, 483 Mass. at 405-406, 409, quoting
Locator Servs. Group, Ltd. v. Treasurer & Receiver Gen., 443
Mass. 837, 855 (2005) (no fiduciary relationship without "any
common-law fiduciary obligation, [or] any special relationship
of trust, confidence, or reliance"); Locator Servs. Group, Ltd.,
supra at 853 (fiduciary relationships recognized "in limited
circumstances").
In this case the thrust of George's argument is that
Colletta was his fiduciary because Colletta (allegedly) was
working as his real estate agent. If such an agency
relationship existed it likely would give rise to fiduciary
duties, see Gagnon v. Coombs, 39 Mass. App. Ct. 144, 154 (1995),
but George's evidence failed to show that such an agency
existed. George did not testify. Both Margaret and Colletta
testified unequivocally that George insisted that he did not
want to have a real estate agent represent him. The offer to
purchase that Colletta prepared did not identify Colletta as the
seller's agent, and Colletta was not compensated as the seller's
agent with respect to the sale.
It is true, of course, that the judge was not required to
credit Colletta's testimony, or Margaret's; disbelief of their
testimony, however, does not equate to affirmative evidence of a
fiduciary relationship. See Kunkel v. Alger, 10 Mass. App. Ct.
10 76, 86 (1980) ("[M]ere disbelief of testimony does not
constitute evidence to the contrary. A case lacking adequate
affirmative proof is insufficient to support a verdict in favor
of the party with the burden on the issue."). Margaret
testified that she brought Colletta along to meet George, to
look at the house, and to "let [her] know what you [Colletta]
think," but providing advice as a friend does not make one a
fiduciary. See Cleary v. Cleary, 427 Mass. 286, 293 (1998).
Nor does introducing a potential buyer. Margaret squarely
rejected the suggestion that Colletta acted as George's agent or
that George was relying upon Colletta:
Q.: "And you would agree that [sic] with me that you were relying on Anna and --"
A.: "No."
Q.: "-- her -- you weren't relying on Anna?"
A.: "No. I don't rely on people like that. I use my Godly good, good brains. And I knew what George wanted. He was adamant about not wanting to have an agent. That is true. She [Colletta] is correct when she said that. He was adamant about that. He says I don't want them walking through my home.
"I says, well, George, you need to have someone. And he said nope. I just want to look at this. And I gave him the paperwork [the offer to purchase]. He took it. He kept it overnight. And when I walked in that next day because he knew I was coming back to pick him up, he told me he had signed it."
11 Margaret's testimony thus does not support the judge's
finding that Colletta acted as George's agent and fiduciary.8
Nor does the testimony of the plaintiff's expert, who was
presented as an expert in the practices of real estate agents.
The expert had no personal knowledge of George's or Margaret's
relationship with Colletta. He testified that he read the
deposition transcripts and relevant documents, and that based
upon those it was his opinion that Colletta had engaged in an
"undisclosed dual agency relationship." But the expert did not
point to any particular evidence as a basis for his opinion that
Colletta had acted as George's agent; that portion of his
testimony was presented as an ipse dixit. An expert's "opinion"
must be based in facts, and as to the question whether Colletta
acted as George's agent, it was not.
Conclusion. So much of the judgment that awards damages
against Colletta pursuant to G. L. c. 93A is affirmed. So much
8 We note that Margaret gave the following answer in response to a question from George's lawyer:
Q.: "And so that's why you wanted to list Anna to come in, to make, to protect George and make sure he got a fair price for his property, right?"
A.: "Correct."
In context, this answer does not suffice as evidence that Colletta actually served as George's agent, and there was no evidence of actions by Colletta that supported such a conclusion.
12 of the judgment that awards damages against Colletta for breach
of duty fiduciary is reversed. The remainder of the judgment is
affirmed. The matter is remanded for issuance of an amended
judgment consistent with this decision.
So ordered.
By the Court (Desmond, Ditkoff & Englander, JJ.9),
Clerk
Entered: June 6, 2025.
9 The panelists are listed in order of seniority.