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
22-P-1075
REBECCA M. BROWN & others1
vs.
JOHN J. DONOVAN, SR., & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this protracted litigation, the narrow issue currently
before us is whether a Superior Court judge erred in confirming
an arbitration award that sanctioned the defendant, John J.
Donovan, Sr. ("Donovan"), by divesting him of his interest in a
trust. Donovan argues that the arbitrator refused to hear
evidence, exceeded his powers, and demonstrated evident
partiality, and that the award was procured by fraud. We
affirm.
Background. In 2003, three of Donovan's children ("the
siblings") filed the underlying complaint against him and
another sibling, John J. Donovan, Jr. ("John"). Thereafter, the
1 James H. Donovan, Maureen Donovan Lantz, and Carolyn Donovan Rosenbaum. 2 The estate of John J. Donovan, Jr. parties agreed to submit their disputes to an arbitrator, and
the same arbitrator has heard the parties' disputes for over a
decade. The Superior Court retained jurisdiction over the case
for the purpose of enforcing the agreement and related issues.
As the arbitrator summarized, the siblings "were always at odds
with their father," while John was often in the middle,
"sympathetic to the views of his siblings but also supportive of
his father and concerned for his welfare." Thus, "John worked
with his siblings and his father to resolve disputes and was
instrumental in forging an agreement which resulted in the
creation of a trust for [Donovan] which John hoped would provide
his father with financial security for the remainder of his
life."
After John died in 2015, Donovan claimed that a codicil to
John's will gave him authority to act on John's behalf.
Pursuant to that purported authority, Donovan filed a number of
self-benefiting documents with the registry of deeds that, among
other things, were designed to deprive John's widow and children
of their interests in various assets. Donovan also claimed that
John wanted to make a posthumous confession that he and his
siblings had committed tax fraud, thereby corroborating
allegations made by Donovan that were previously discredited,
and that the codicil instructed Donovan to submit paperwork to
that effect with the Internal Revenue Service. Upon discovering
2 these filings, the siblings and John's estate submitted a demand
for arbitration and contended that Donovan forged the codicil.
In an award dated January 25, 2017, the arbitrator concluded
that the codicil was "false and fraudulent." The arbitrator
contemplated divesting Donovan of his interest in the trust as a
sanction for his wrongdoing, did not do so "out of respect for
what [the arbitrator] believed John would have wanted," but
warned Donovan that there would "be no more second chances." A
Superior Court judge confirmed the award, and Donovan did not
appeal from that order.
Then, by letter to the arbitrator dated January 19, 2021,
Donovan asked for various forms of relief, including entry of an
order rescinding all prior orders entered in the arbitration
proceedings. The letter reasserted Donovan's tax fraud
allegations and suggested that John had legitimate reasons for
instructing Donovan to report that fraud to the Internal Revenue
Service. The arbitrator received documentary evidence from the
parties and agreed to hear Donovan's testimony, after which the
arbitrator would decide whether to hear any additional testimony
from other parties. After hearing Donovan's testimony, the
arbitrator decided not to hear any additional testimony and
issued an award dated November 10, 2021, which concluded that
Donovan was fraudulently trying to charge his children with tax
fraud, and sanctioned Donovan by divesting him of his interest
3 in the trust. The arbitrator noted his prior reluctance to
impose that sanction but concluded that "[e]nough is enough." A
Superior Court judge confirmed the award, which is the subject
of this appeal.
Discussion. "[A]n arbitration award is subject to a narrow
scope of review" (citation omitted). Beacon Towers Condominium
Trust v. Alex, 473 Mass. 472, 474 (2016). We "review an
arbitrator's award to determine only whether one of the
statutory grounds for vacating, modifying, or correcting the
award has been met." Katz, Nannis & Solomon, P.C. v. Levine,
473 Mass. 784, 793 (2016). As pertinent here, the statutory
grounds for vacatur include that "the arbitrators . . . refused
to hear evidence material to the controversy . . . as to
prejudice substantially the rights of a party"; "the arbitrators
exceeded their powers"; "there was evident partiality by an
arbitrator"; and "the award was procured by corruption, fraud or
other undue means." G. L. c. 251, § 12 (a).
Donovan argues that the arbitrator "refused to hear
evidence" by not permitting Donovan to present any testimony
other than his own. G. L. c. 251, § 12 (a) (4). This argument
disregards the history of the case and the context of Donovan's
requests for relief. The arbitrator, who had spent over a
decade arbitrating disputes between the parties, was exceedingly
familiar with the parties and the underlying issues. Donavan's
4 2021 letter asked the arbitrator to rescind all his prior orders
based on Donovan's previously discredited tax fraud allegations.
The arbitrator received Donovan's documentary evidence and heard
his testimony. After considering that evidence, the arbitrator
concluded, based on his extensive experience with the case and
prior rejection of the same unsubstantiated allegations, that
Donovan had "brought before me another fraudulent application"
and there was no need to hear further evidence regarding those
allegations. Rather than refusing to hear evidence, the
arbitrator exercised his discretion to place reasonable bounds
on the scope of the evidence presented. See, e.g., Northland
Inv. Corp. v. Goodwin Proctor LLP, 82 Mass. App. Ct. 272, 273-
274 (2012).
Donovan also argues that the arbitrator exceeded his powers
in divesting Donovan of his interest in the trust. See G. L.
c. 251, § 12 (a) (3). However, the parties entered into an
agreement that gave the arbitrator "discretion to award any
remedy including sanctions, damages, attorney[']s fees . . . for
any reason." This language gave the arbitrator broad authority
to fashion an appropriate remedy for Donovan's wrongdoing and
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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
22-P-1075
REBECCA M. BROWN & others1
vs.
JOHN J. DONOVAN, SR., & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this protracted litigation, the narrow issue currently
before us is whether a Superior Court judge erred in confirming
an arbitration award that sanctioned the defendant, John J.
Donovan, Sr. ("Donovan"), by divesting him of his interest in a
trust. Donovan argues that the arbitrator refused to hear
evidence, exceeded his powers, and demonstrated evident
partiality, and that the award was procured by fraud. We
affirm.
Background. In 2003, three of Donovan's children ("the
siblings") filed the underlying complaint against him and
another sibling, John J. Donovan, Jr. ("John"). Thereafter, the
1 James H. Donovan, Maureen Donovan Lantz, and Carolyn Donovan Rosenbaum. 2 The estate of John J. Donovan, Jr. parties agreed to submit their disputes to an arbitrator, and
the same arbitrator has heard the parties' disputes for over a
decade. The Superior Court retained jurisdiction over the case
for the purpose of enforcing the agreement and related issues.
As the arbitrator summarized, the siblings "were always at odds
with their father," while John was often in the middle,
"sympathetic to the views of his siblings but also supportive of
his father and concerned for his welfare." Thus, "John worked
with his siblings and his father to resolve disputes and was
instrumental in forging an agreement which resulted in the
creation of a trust for [Donovan] which John hoped would provide
his father with financial security for the remainder of his
life."
After John died in 2015, Donovan claimed that a codicil to
John's will gave him authority to act on John's behalf.
Pursuant to that purported authority, Donovan filed a number of
self-benefiting documents with the registry of deeds that, among
other things, were designed to deprive John's widow and children
of their interests in various assets. Donovan also claimed that
John wanted to make a posthumous confession that he and his
siblings had committed tax fraud, thereby corroborating
allegations made by Donovan that were previously discredited,
and that the codicil instructed Donovan to submit paperwork to
that effect with the Internal Revenue Service. Upon discovering
2 these filings, the siblings and John's estate submitted a demand
for arbitration and contended that Donovan forged the codicil.
In an award dated January 25, 2017, the arbitrator concluded
that the codicil was "false and fraudulent." The arbitrator
contemplated divesting Donovan of his interest in the trust as a
sanction for his wrongdoing, did not do so "out of respect for
what [the arbitrator] believed John would have wanted," but
warned Donovan that there would "be no more second chances." A
Superior Court judge confirmed the award, and Donovan did not
appeal from that order.
Then, by letter to the arbitrator dated January 19, 2021,
Donovan asked for various forms of relief, including entry of an
order rescinding all prior orders entered in the arbitration
proceedings. The letter reasserted Donovan's tax fraud
allegations and suggested that John had legitimate reasons for
instructing Donovan to report that fraud to the Internal Revenue
Service. The arbitrator received documentary evidence from the
parties and agreed to hear Donovan's testimony, after which the
arbitrator would decide whether to hear any additional testimony
from other parties. After hearing Donovan's testimony, the
arbitrator decided not to hear any additional testimony and
issued an award dated November 10, 2021, which concluded that
Donovan was fraudulently trying to charge his children with tax
fraud, and sanctioned Donovan by divesting him of his interest
3 in the trust. The arbitrator noted his prior reluctance to
impose that sanction but concluded that "[e]nough is enough." A
Superior Court judge confirmed the award, which is the subject
of this appeal.
Discussion. "[A]n arbitration award is subject to a narrow
scope of review" (citation omitted). Beacon Towers Condominium
Trust v. Alex, 473 Mass. 472, 474 (2016). We "review an
arbitrator's award to determine only whether one of the
statutory grounds for vacating, modifying, or correcting the
award has been met." Katz, Nannis & Solomon, P.C. v. Levine,
473 Mass. 784, 793 (2016). As pertinent here, the statutory
grounds for vacatur include that "the arbitrators . . . refused
to hear evidence material to the controversy . . . as to
prejudice substantially the rights of a party"; "the arbitrators
exceeded their powers"; "there was evident partiality by an
arbitrator"; and "the award was procured by corruption, fraud or
other undue means." G. L. c. 251, § 12 (a).
Donovan argues that the arbitrator "refused to hear
evidence" by not permitting Donovan to present any testimony
other than his own. G. L. c. 251, § 12 (a) (4). This argument
disregards the history of the case and the context of Donovan's
requests for relief. The arbitrator, who had spent over a
decade arbitrating disputes between the parties, was exceedingly
familiar with the parties and the underlying issues. Donavan's
4 2021 letter asked the arbitrator to rescind all his prior orders
based on Donovan's previously discredited tax fraud allegations.
The arbitrator received Donovan's documentary evidence and heard
his testimony. After considering that evidence, the arbitrator
concluded, based on his extensive experience with the case and
prior rejection of the same unsubstantiated allegations, that
Donovan had "brought before me another fraudulent application"
and there was no need to hear further evidence regarding those
allegations. Rather than refusing to hear evidence, the
arbitrator exercised his discretion to place reasonable bounds
on the scope of the evidence presented. See, e.g., Northland
Inv. Corp. v. Goodwin Proctor LLP, 82 Mass. App. Ct. 272, 273-
274 (2012).
Donovan also argues that the arbitrator exceeded his powers
in divesting Donovan of his interest in the trust. See G. L.
c. 251, § 12 (a) (3). However, the parties entered into an
agreement that gave the arbitrator "discretion to award any
remedy including sanctions, damages, attorney[']s fees . . . for
any reason." This language gave the arbitrator broad authority
to fashion an appropriate remedy for Donovan's wrongdoing and
did not limit the arbitrator to imposing "discrete payments to
compensate for specific expenses or wrongs," as Donovan argues.3
3 We note that Donovan faced criminal charges for fraud in connection with the codicil. He argues that his tax fraud
5 While Donovan also argues that the broad language, taken to its
extreme, permitted the arbitrator to divest Donovan of his
interest in the trust "just because he felt like it one day,"
that is not what occurred here. The arbitrator did not make the
decision lightly, gave Donovan warning, and divested Donovan of
his interest in the trust only after he repeatedly engaged in
unconscionable conduct. Accordingly, the arbitrator did not
"grant[] relief beyond the scope of the arbitration agreement,
. . . award[] relief beyond that to which the parties bound
themselves, or . . . award[] relief prohibited by law," and did
not exceed his powers (citations omitted). Plymouth-Carver
Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007
(1990).
Donovan's remaining arguments, that the arbitrator
demonstrated "evident partiality" and that the arbitration award
was procured by undue means require little discussion, as
Donovan has not established a factual basis for either argument.
See G. L. c. 251, § 12 (a) (1), (2). As to evident partiality,
Donovan largely points to various strongly worded comments made
by the arbitrator that, among other things, found fault with
allegations were critical to his defense and that he was impermissibly sanctioned for presenting that defense. This argument fails as a matter of fact; the arbitrator sanctioned Donovan for filing the petition in the arbitration proceedings, not for making the same arguments in his criminal case.
6 Donovan's experts and reproached Donovan for his wrongdoing.
The arbitrator made these comments based on his review of the
evidence, and they do not suggest that the arbitrator was biased
in reviewing that evidence or in deciding the merits of the
petition. As to undue means, Donovan relies on his discredited
allegations of tax fraud, but those allegations, even if they
had not been discredited, would not establish that the instant
award was procured by undue means.4
Judgment affirmed.
By the Court (Vuono,
Wolohojian & Toone, JJ.5),
Assistant Clerk
Entered: March 8, 2024.
4 Given our conclusion, we need not address Donovan's argument that the case should be remanded with instructions that a new arbitrator be appointed. 5 The panelists are listed in order of seniority.