GEORGE L. CUSHING, Trustee v. MARK W. WILLIAMSON & Others.

• Court: Massachusetts Appeals Court
• Decided: December 24, 2024
• Docket: 23-P-0237
• Status: Unpublished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-237

GEORGE L. CUSHING, trustee,1

vs.

MARK W. WILLIAMSON & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from a Probate and Family Court judge's

decision to remove both George L. Cushing and Mark W. Williamson

from their roles as cotrustees of the Philip G. Spiva Trust and

the Philip G. Spiva Memorial Endowment Trust (Endowment trust).

Because, contrary to the appellants' argument, we conclude that

the judgment granted only the relief requested by the parties

and nothing more, and because we decline the appellants'

1 Of the Philip G. Spiva Trust.

2Valley View School, Inc., Galapagos Conservancy, Pomfret School, Katherine S. Upchurch, and the Public Charities Division of the Office of the Attorney General. invitation to review dicta in the judge's memorandum of

decision, we affirm.

Discussion. The following facts are uncontested. Cushing

and Williamson served as cotrustees of the trusts. The pairing

was not a compatible one and, in 2018, they each filed petitions

for removal of the other as cotrustee. After a bench trial, the

judge concluded that "[Cushing and Williamson] clearly [could

not] work together for the benefit of the trusts" and it was

therefore in the best interests of the trusts that they be

removed from their roles. See G. L. c. 203E, § 706 (b) (1)—(3).

Judgments entered ordering the removal of both Cushing and

Williamson as cotrustees, appointing an "independent trustee"

for both trusts, and authorizing the appointment of successor

cotrustees.3

The judge accompanied her judgment with a detailed

memorandum of decision explaining her reasoning. To provide

context to this decision, the judge also outlined the

cotrustees' differing interpretations of certain provisions of

the Endowment trust. Specifically, "[t]o prevent further

3 The judgment also directed the trustees of the Endowment trust to take the steps necessary to have the Endowment trust's tax-exempt status reinstated, required Williamson to provide the new trustees with the information needed for their transition, and permitted the parties to submit additional filings related to their requests for attorney's fees and costs.

2 litigation and cost," she provided a one-paragraph advisory

opinion interpreting the disputed provisions, including the

authority of the trustees of the Endowment trust to make

distributions to Valley View School, Inc. (Valley View).4 This

dispute was not resolved in the judgment; indeed, the judgment

was silent on the trusts' requirements. Moreover, the judgment

did not turn on nor reference the judge's advisory opinion.

On appeal, Williamson and Valley View do not challenge

Williamson's removal from the role of cotrustee. Instead, they

contend -- based on the judge's inclusion of the advisory

opinion in her written decision -- that the judgment below

exceeded the scope of the relief sought in the complaints.

Their argument is unavailing.

Putting aside the appellants' failure to cite to any

precedential authority supporting their position, the judgment

in this case granted Cushing and Williamson only the relief they

sought -- the removal of the other party as cotrustee of the

trusts. Additionally, it is apparent from the judge's

memorandum that her decision to remove the cotrustees was not

based on her interpretations of the trusts. Instead, her

advisory guidance was dicta or, at most, amounted to an

interlocutory determination. See Commonwealth v. Rahim, 441

4 Valley View is the primary beneficiary of both trusts.

3 Mass. 273, 284 (2004) (defining dicta as "language which was

unnecessary . . . and which passed upon an issue not really

presented" [quotations and citation omitted]).

Dicta is not binding, see Rahim, 441 Mass. at 284, quoting

Old Colony Trust Co. v. Commissioner of Corps. & Taxation, 346

Mass. 667, 676 (1964), and is not generally subject to appellate

review. Cf. Commonwealth v. Soto, 104 Mass. App. Ct. 806, 810-

811 (2024) (differentiating dicta from alternative holdings,

which are directly related to questions at issue). Moreover,

even if the judge's advisory opinion in this case were an

interlocutory order, the appellants have not demonstrated that

any exception to the usual rule against appellate review of such

orders applies. See Wilbur v. Tunnell, 98 Mass. App. Ct. 19, 20

(2020), quoting Maddocks v. Ricker, 403 Mass. 592, 597 (1988)

("As a general rule, there is no right to appeal from an

interlocutory order unless a statute or rule authorizes it").

Cf. Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671,

673-674 (2008) (recognizing doctrine of present execution as

"narrow exception" to usual rule).

As there is no challenge to the judgment below, we need not

and do not decide whether that judgment was correct. For the

4 reasons we have explained, we do not address the appellants'

remaining arguments.

Judgment affirmed.

By the Court (Massing, Hand & Smyth, JJ.5),

Clerk

Entered: December 24, 2024.

5 The panelists are listed in order of seniority.