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Braxton v. City of Boston

Appeals Court of Massachusetts, Suffolk

December 16, 2019

ZARINA BRAXTON, trustee, [1]
v.
CITY OF BOSTON.

          Heard: July 12, 2019.

         Civil action commenced in the Land Court Department on June 9, 2017.

          The case was heard by Michael D. Vhay, J., and a motion for relief from judgment was considered by him.

         The case was submitted on briefs.

          Donald C. Kupperstein for the plaintiff.

          George T. Bahnan, Assistant Corporation Counsel, for the defendant.

          Present: Henry, Sacks, & Ditkoff, JJ.

          DITKOFF, J.

         The plaintiff, Zarina Braxton, as trustee of the Twenty Seven Walnut Street Realty Trust (trust), [2] filed a notice of appeal pro se from a judgment issued by a Land Court judge in favor of the defendant, the city of Boston (city), dismissing her complaint claiming that the trust enjoyed a prescriptive easement over a parcel of land owned by the city. She also filed a notice of appeal pro se from the order denying her motion for relief from that judgment. We conclude that the trustee, who is not an attorney and is not a beneficiary of the trust, may not represent the trust in court pro se. Nonetheless, we conclude that a notice of appeal filed by such a trustee pro se provides us with authority to entertain the appeal, provided that counsel promptly assumes prosecution of the appeal. As counsel filed all pleadings and the brief in this court, we have the authority to adjudicate the appeal. Concluding that the judge properly dismissed the trust's complaint with prejudice, we affirm the judgment and the order denying the motion for relief from judgment.

         1. Background.

         Represented by counsel, the trust filed a complaint alleging that property located at 27 Walnut Street in the Hyde Park section of the city (property) was entitled to a prescriptive easement over a portion of the city's adjoining parcel.[3] The city moved to dismiss the trust's complaint for lack of standing, alleging that the trust did not actually own the property. The trust presented a notarized, recorded deed purporting to show a transfer of title to the trust's predecessor in the chain of title, and the city responded with an affidavit from the person who purportedly signed the deed, denying ever doing so. At trial, after hearing from the notary that the transaction was not in her log book and did not appear to be her work, the judge concluded that the deed in question was forged and therefore void. Moreover, the judge found that the trust's attorney, Donald Kupperstein, was aware that the deed was forged and, in fact, apparently drafted the forged deed himself. The judge issued a judgment in favor of the city, dismissed the plaintiff's complaint with prejudice, declared that the forged deed did not convey title to the property, and ordered that an attested copy of his order be recorded at the registry of deeds.[4]

         Attorney Kupperstein did not withdraw from the case but nonetheless made no further filing in the Land Court. Instead, the trustee filed pro se a notice of appeal. The trustee simultaneously filed pro se a motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974).[5] The judge denied the motion without prejudice, on the ground that the trustee, who was not an attorney, could not represent the trust. Three days later, a new attorney filed a notice of appearance in the Land Court on behalf of the trust. Nonetheless, three days after that, the trustee filed pro se a notice of appeal from the denial of the motion. Unlike her notice of appeal from the judgment, this notice stated that the "[t]rust shall be represented by counsel in the appeal."[6]

         The Land Court's notice of assembly of the record properly listed both of the trust's attorneys, as neither had withdrawn. It also listed the pro se trustee, presumably because she had filed the two notices of appeal pro se. The trustee promptly paid the docketing fee, and our clerk's office identified both attorneys as active counsel of record for the trust.[7] Within two weeks of entry of the appeal, Attorney Kupperstein filed the docketing statement. He timely filed a motion to enlarge the time to file a brief, the brief, and the appendix.[8]

         2. Noti ...


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