Heard: July 12, 2019.
action commenced in the Land Court Department on June 9,
case was heard by Michael D. Vhay, J., and a motion for
relief from judgment was considered by him.
case was submitted on briefs.
C. Kupperstein for the plaintiff.
T. Bahnan, Assistant Corporation Counsel, for the defendant.
Present: Henry, Sacks, & Ditkoff, JJ.
plaintiff, Zarina Braxton, as trustee of the Twenty Seven
Walnut Street Realty Trust (trust),  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.
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. 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.
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). 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."
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. 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.