Hayes v. Mirick et al
District Judge Timothy S. Hillman: ORDER entered granting in part and denying in part 36 Motion to Dismiss. Defendants'motion to dismiss is granted as to Count VIII but denied as to Counts III, IV, and IX. (Castles, Martin)
Case 4:18-cv-12238-TSH Document 43 Filed 09/09/21 Page 1 of 18
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GORDON H. HAYES, JR.,
JOHN O. MIRICK and MIRICK,
O’CONNELL, DEMALLIE & LOUGEE,
ORDER ON DEFENDANTS’ MOTION TO DISMISS (Docket No. 36)
SEPTEMBER 9, 2021
Gordon H. Hayes, Jr. (“Plaintiff”) brings this suit against Attorney John O. Mirick
(“Mirick”) and, through vicarious liability, the law firm of Mirick, O’Connell, DeMallie & Lougee,
LLP (“Mirick O’Connell”) (collectively, “Defendants”). (Fed. Compl., Docket No. 2). The
remaining claims are deceit and misrepresentation (Count III), civil conspiracy (Count IV), unjust
enrichment (Count VIII), and vicarious liability (Count IX).
Plaintiff alleges that while acting without legal authorization as Plaintiff’s de facto
conservator, Mirick engaged in deceit and misrepresentation with Plaintiff’s court-appointed
conservator Tracy Craig (“Craig”) regarding the location of his pet dog, improperly prolonged the
conservatorship, and improperly withdrew funds from Plaintiff’s estate as compensation for
conservatorship fees and services. (Fed. Compl. at ¶¶ 51-52, 60, 77-80). Defendants move to
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dismiss all remaining claims as barred by the doctrine of claim preclusion, based on the prior
proceedings in Massachusetts Probate and Family Court.
Defendants’ motion to dismiss is granted as to Count VIII but denied as to Counts III, IV,
and IX. In accordance with § 4 of this Order, the parties shall submit limited supplemental briefing
so that the Court can ascertain whether Plaintiff’s remaining claims meet the statutory amount in
controversy threshold necessary for the Court to have subject matter jurisdiction.
On November 18, 2008, the Plymouth County Probate and Family Court issued a
Permanent Decree of Conservatorship and appointed Craig, a partner in Mirick O’Connell’s Trust
and Estates practice, to serve as Plaintiff’s conservator. (Probate Court Findings of Fact ¶ 3,
Docket No. 29-2 [hereinafter Prob. Dec.]). The conservatorship endured for approximately nine
years. (¶ 27).
On October 21, 2015, Plaintiff filed a complaint in Worcester Superior Court against Craig
for conversion, alleging that Craig stole Plaintiff's dog, Charlie, and seeking Charlie’s return. (State
Ct. Compl. at 2, Docket No. 15-1). On November 5, 2015, Craig filed a petition to resign. (Prob.
Dec. ¶ 76). On July 6, 2016, Plaintiff petitioned to terminate the conservatorship. (¶ 14). On
August 17, 2017, the Plymouth County Probate and Family Court granted Plaintiff's petition. (¶
The Probate Court Fiduciary Session Trial
As part of Craig's responsibilities as Plaintiff’s conservator, she was required by state law
to file yearly accounts with the Probate Court detailing the value of the petitioner's estate. 1 To
“An executor, administrator, guardian or conservator, or a trustee required by law to give bond to
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prevent abuse of the conservatorship system, Massachusetts law provides for supplemental
proceedings if the petitioner or a guardian ad litem files an objection to any accounting. Mass.
Supp. R. Prob. & Fam. Ct. 60, 72. Plaintiff filed objections to all but one of Craig's accounts. (¶¶
5-35). On May 23, May 28, May 29, May 30, and June 13, 2019, the Fiduciary Litigation Session
of the Probate Court held a bench trial on: Craig's Petition for Allowance of the First and Final
Account of the Temporary Conservator, filed November 5, 2015; Craig's Petition for Allowance of
the First Through Sixth Accounts, filed November 5, 2015; Craig's Petition for Allowance of the
Seventh Account, filed April 20, 2016; Craig's Petition for Allowance of the Eighth Account, filed
May 26, 2017; Craig's Petition/or Order a/Complete Settlement, filed October 4, 2017; Plaintiff's
Objection to the Petition for Allowance of the First and Final Account, filed December 14, 2015;
Plaintiffs Objection to the Petition for Allowance of the First Through Sixth Accounts, filed
December 14, 2015; Plaintiffs Objection to the Petition/or Allowance of the Seventh Account, filed
May 18, 2016; Plaintiffs Objection to the Petition for Allowance of the Eighth Account, filed
September 21, 2017; and Plaintiffs Objection to the Petition for Complete Settlement, filed
November 14, 2017.2 The Probate Court issued its 36-page decision on October 2, 2019, and
issued an amended judgment and attorneys' fees award on January 9, 2020. (Docket Nos. 29-1, 293).
The Probate Court's October 2, 2019 detailed findings of fact narrate the tumultuous
breakdown in communications between Craig and Plaintiff in 2015. In short, the Probate Court
a judge of probate, shall render an account relative to the estate in his hands at least once a year
and at such other times as shall be required by the court, until his trust is fulfilled; but eh court may
at his request excuse him from rendering an account in any year, if satisfied that it is not necessary
or expedient that it should be rendered.” M.G.L. c. 206 §1.
In re: Conservatorship of Gordon H, Hayes, Jr., Plymouth County Family and Probate Court,
Docket No. PL08P1529PM (Plymouth Cty. Prob. Ct. Oct. 2, 2019).
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found that from her appointment in 2008 until April 2015 Craig communicated regularly with
Plaintiff (¶ 115) and responsibly managed his considerable debt and mental health challenges,
reaching beneficial settlements with various creditors (¶ 116 ), arranging his petition for divorce (¶
112-13), obtaining disability benefits (¶ 116), and allocating his living expenses (¶ 116). However,
the relationship soured when Plaintiff began abusing alcohol, opening credit cards without
permission, and demanding increasing amounts of money from Craig beyond his customary
allowance. (¶¶ 38-41). Eventually, the relationship deteriorated to the point where Craig testified
she felt threatened by Plaintiff and became concerned he might die without alcohol abuse
treatment. (¶ 42). She emailed Plaintiff on April 22, 2015, demanding that he stop calling and
emailing her until he agreed to seek treatment. (¶ 43). On April 27, 2015, Plaintiff’s brother
contacted Craig asking about Charlie—Craig assured him that Charlie was being cared for. (¶ 45).
On April 30, 2015, Craig wrote an email to Plaintiff’s wife and children and medical providers
proposing that Mirick O’Connell “informally transfer” the conservatorship to Craig's colleague,
Paul Carey, so that Plaintiff would not resent Craig for “making decisions about his day to day
money.” (¶ 47).
Plaintiff soon grew frustrated with Carey, who, in consultation with Craig, continued to
limit his living allowance. (¶ 48). Craig took possession of Charlie when Plaintiff was admitted to
an inpatient rehabilitation program in Arizona on May 20, 2015. (¶ 52). Craig testified that
Charlie was neglected, poorly trained, and aggressive, though the Probate Court found no evidence
to reject or corroborate this; Craig assured Plaintiff that Charlie was doing well and she took
$225.75 from Plaintiff’s account for food, toys, treats, and a rabies shot. (¶¶ 54-57). Plaintiff
threatened to sue Craig for referring his inquiries to Attorney Carey, and on June 23, 2015, Mirick,
Mirick O'Connell's general counsel, sent Plaintiff a letter advising him that Craig was “prepared to
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step down” as conservator and directing Plaintiff to contact Mirick moving forward. (¶ 58). On
July 22, 2015, Mirick emailed Plaintiff to request a meeting and assured Plaintiff that Craig had
custody of Charlie, although he knew that Craig had given Charlie away to another family. (¶ 66).
Plaintiff told Mirick that Craig was blocking his emails, an allegation which the Probate Court
found credible. (¶ 69).
After Plaintiff’s discharge, he met with Mirick and Craig on August 7, 2015, but they
refused to discuss Charlie. (¶ 71). In a phone call between Mirick, the rescue group which had
Charlie, and Plaintiff’s attorney, Mirick announced that Craig wanted a home visit to be conducted
before Charlie was returned to Plaintiff. (¶ 73). In October 2015, Plaintiff sued Craig for
conversion and Charlie's return.3 (State Ct. Compl., Docket No. 15-1). In her responsive pleading,
Craig admitted to Plaintiff that she had given away Charlie in July 2015 and that she had misled
him about that fact. (¶ 75).
For the next two years, Plaintiff filed various objections to Craig's accounts and the parties
continued to litigate and negotiate Craig's removal as conservator, until at one point a
doctor reported that Plaintiff no longer needed a conservator, and the conservatorship was
terminated in August 2017. (¶¶ 76-84). During this period, Mirick emailed Plaintiff’s counsel that
Craig would stipulate to terminate the conservatorship if he would release his claims and
objections to the accounts, a conditional offer which the Probate Court deemed improper. (¶ 82).
The Court also found that “Craig made no real effort to have her petition [to resign] heard,” even
though Craig should have “promptly” moved the Court to take it up and appoint a successor once
the breakdown between Craig and Plaintiff occurred. (Id. at 34-35).
This case was dismissed by joint stipulation on April 23, 2015.
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Upon examination of the record and after hearing testimony, the Probate Court found that:
Craig breached her fiduciary duty to Plaintiff by allowing Carey, then Mirick, to act as Plaintiff’s
de facto conservators; that there was no urgent reason for Craig to rehome Charlie; that Craig and
Mirick repeatedly misrepresented Charlie's status and whereabouts to Plaintiff; that Craig should
have petitioned the Court to appoint a successor or allow her to resign when the relationship broke
down, rather than allow the impasse to fester; and that Craig improperly continued to charge
Plaintiff conservatorship fees despite evidence as early as June 2016 that he no longer needed a
conservator. (¶¶ 100, 101, 103, 116-21, 135-36). The Probate Court surcharged $106,291.20 of
Mirick O'Connell's fees and $6,270 for the cost of Plaintiff’s efforts to locate Charlie (which
included an award for fees for the Superior Court action). In essence, the Court concluded "[t]he
manner in which the conservatorship was managed is of concern" given "the amount of fees
incurred, the quality of services provided given the relationship between [Craig] and [Plaintiff],
and the duration of the conservatorship." (Id. at 33, 34). On January 9, 2020, the Probate Court
awarded Plaintiff $28,000 in attorney’s fees and noted it had also awarded Plaintiff $10,000 in a
prior amended judgment for the cost of the guardian ad litem who analyzed the disputed accounts
at trial. (Docket No. 29-3).
The Federal Suit
While Plaintiff’s objections to the conservator’s accounts were pending and about ten
months before the Probate Court Trial, Plaintiff, a resident of Rhode Island, filed this federal suit
on October 26, 2018, invoking the Court's diversity jurisdiction. I dismissed Plaintiff’s breach of
fiduciary duty (Count I), negligence (Count II), defamation (Count V), invasion of privacy (Count
VI), and intentional infliction of emotional distress (Count VII) on May 13, 2019. (Docket No.
20). At the parties' request, the Court stayed the case from July 3, 2019 through April 5, 2021 due
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to the Probate Court action. (Docket Nos. 24, 31).
The crux of Plaintiff’s remaining claims are that between August 2015 and the termination
of the conservatorship in August 2017, Mirick and Mirick O'Connell lied to Plaintiff about giving
his dog away, artificially extended the conservatorship, and misappropriated his assets in the guise
of carrying out legitimate conservatorship duties. Count III (deceit and misrepresentation) alleges
that Mirick repeatedly lied about the status and disposition of Charlie until it was too late for
Plaintiff to be reunited with his pet. Count IV (civil conspiracy) alleges that Mirick conspired with
Craig to commit the misconduct in Count III. Count VIII (unjust enrichment) is not limited to
Charlie: it alleges that Mirick's entire course of conduct from August 2015 to August 2017 was
ultra vires and so Plaintiff is entitled to recover the $101,335.31 in compensation collected by
Mirick and Mirick O'Connell while they were acting as his de facto conservator. Count IX
(vicarious liability) states that Mirick O'Connell is vicariously liable for all the tortious acts and
omissions committed by Mirick.
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must allege "a
plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). In
evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be
granted, the court must accept all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiffs favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st
Cir. 2000). "[A] plaintiff’s obligation to provide the 'grounds' of his 'entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Id. at 555. "The relevant inquiry focuses on the reasonableness of the inference of
liability that the plaintiff is asking the court to draw from the facts alleged in the complaint."
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Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011). "[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged-but it has not 'show[n]'-that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).
"Under the full faith and credit statute, 28 U.S.C. § 1738, a judgment rendered in a state
court is entitled to the same preclusive effect in federal court as it would be given within the state
in which it was rendered." In re Sonus Networks, Inc, Shareholder Derivative Litigation, 499 F.3d
47, 56 (1st Cir. 2007) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81
(1984)). Therefore, Massachusetts law determines whether the Probate Court's decision has
preclusive effect in this suit. Id.
Claim preclusion "makes a valid, final judgment conclusive on the parties and their privies,
and prevents relitigation of all matters that were or should have been adjudicated in the action."
Kucharski v. Tribeca Lending Corp., 620 F. Supp. 2d 147, 150 (D. Mass. 2009) (quoting O'Neill v.
City Manager, 428 Mass. 257, 259, 700 N.E.2d 530, 532 (1998)). The doctrine prevents claim
splitting and aims to preclude parties who had the opportunity to fully litigate the matter in the first
proceeding to try their luck a second time. Carpenter v. Carpenter, 73 Mass.App. Ct. 732, 738,
901 N.E.2d 694, 699 (2009).
Claim preclusion requires: "(1) the identity or privity of the parties to the present and prior
actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." Daluz v.
Department of Correction, 434 Mass. 40, 45 (2001) (quoting Franklin v. North Weymouth Coop.
Bank, 283 Mass. 275, 280 (1933)). The burden of establishing these elements falls on the party
asserting the defense. Carpenter, 73 Mass. App. Ct. at 738, 901 N.E.2d at 699. If these three
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requirements are met, claim preclusion is a valid defense to a later suit. Reppert v. Marvin Lumber
& Cedar Co., 359 F. 3d 53, 56 (1st Cir. 2004) (citing United States v. Cunan, 156 F. 3d 110, 114
(1st Cir. 1998)).
Defendants argue that Plaintiff’s claims should be dismissed because they were fully
litigated in the Probate Court trial. (Docket No. 36). Plaintiff contends that the motion to dismiss
should be denied because there is a lack of privity between the defendants in the instant
proceeding and the matters in In re Conservatorship of Gordon H. Hayes, Jr.; a lack of identity
between the two proceedings; and that the Probate Court did not result in a final judgment on the
merits of Plaintiff’s pending claims against Mirick. (Docket No. 39). Because Massachusetts
Probate Courts are courts of limited equity jurisdiction and Plaintiff could not obtain the tort
damages he seeks in federal court before the Probate Court, I find that a rare exception to claim
splitting applies which precludes the application of claim preclusion to Counts III and IV, but not
1. Privity of Parties
First, a successful defense of claim preclusion requires the identity or privity of the parties
to the present and prior actions. Daluz, 434 Mass. at 45. Under Massachusetts law, claim
preclusion may be invoked by a person who was not a party to the earlier proceeding, only if that
person's interest was represented by a party to the prior action. Cavic v. America's Servicing Co.,
806 F. Supp. 2d 288, 292 (D. Mass. 2011). Defendants argue that though Mirick and Mirick
O'Connell were not directly named in the Probate Court litigation, they were quasi parties, and
therefore, privity still exists. Defendants assert that they are quasi parties because Mirick's
involvement in Plaintiff’s conservatorship was discussed at length in the Probate Court Decision
and because Mirick O'Connell was surcharged for Mirick's actions, which stemmed from the same
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series of transactions alleged by Plaintiff in the matter that is now before this Court.
Defendants rely on the Superior Court decision in Weiss v. Grolman, where the court found
that privity requires “a very close relationship bordering on a complete identity of interest.” 30
Mass. L. Rptr. at *3 (quoting Mongeau v. Boutelle, 10 Mass. App. Ct. 246, 250 (1980)). In Weiss,
the court held that the privity requirement was satisfied because although defendant was not a party
to the earlier case, he was in privity with his partner and the law firm, who were named as
defendants in that case. Id. Further, the court held that under M.G.L. ch. 108A § 15, the partners
were vicariously liable for each other's conduct with respect to claims arising from their practice,
and that their interests were identical in this regard. Id.
Plaintiff argues that the instant proceeding is distinguished from Weiss by the fact that
Judge Moriarty found that the Probate Court matter concerned Plaintiff’s dispute with Craig in
her capacity as his conservator, not Craig's partnership with Defendants. (See Prob. Dec. ¶ 141).
Rather, Plaintiff argues that the instant proceeding involves claims against Mirick for his
independent tortious acts and omissions, which fall outside the scope of Craig’s work as his
Although the Probate Court acknowledged that Plaintiff was "unlike a regular law firm
client," it also acknowledged Craig's partnership with both Defendants. (See
¶ 141). Specifically, the Probate Court addressed Craig's relationship with Mirick O'Connell
through the firm's fees and surcharges for her services as conservator to Plaintiff. (See id. at ¶¶
122-140). It also found that Craig worked closely with Mirick, as she allowed him to act as a
"point person" so Craig did not have to communicate with Plaintiff but could stay connected with
the case, to act in her stead as Plaintiff’s conservator, and to further her lies about Charlie. (See id.
at ¶¶ 119, 121). In the Probate Court proceeding, the claims against Craig implicated the
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Defendants, as they became entangled in the conservatorship dispute. See Weiss at *3. Because
Mirick and Mirick O'Connell's interests were represented in the earlier proceeding, this Court
should find that the relationship between Craig and the Defendants is sufficient to constitute
In the alternative, Plaintiff argues that even if Mirick were deemed to be in privity with
Craig, claim preclusion would still be inapplicable because (1) the two proceedings do not involve
the same identity of issues; (2) there has been no final judgment on the merits of Plaintiff’s claims
against Mirick; and (3) different available remedies were available in each proceeding. (Docket
No. 39 at 6).
2. Identity of the Causes of Action
A successful claim preclusion defense further requires that the asserted causes of action are
sufficiently identical or related. Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 17 (1st Cir. 2010).
Massachusetts courts use a transactional approach to weigh relatedness, and look to whether the
causes of action arise out of a common nucleus of operative facts. Mass. Sch. of Law at Andover,
Inc. v. Am. Bar. Ass 'n, 142 F.3d 26, 38 (1st Cir. 1998). The Court makes this determination by
looking at factors such as “whether the facts are related in time, space, origin or motivation,”
"whether they form a convenient trial unit," and whether treating them as a unit "conforms to the
parties' expectations." In re Iannochino, 242 F. 3d 36, 46 (1st Cir. 2001) (quoting
RESTATEMENT (SECOND) OF JUDGMENTS§ 24 (1982)).
Plaintiff concedes that the operative facts are sufficiently identical, but asserts that there is
no identity of issues because the available remedies in this Court and the state Probate Court were
different. Presented with this highly unusual fact pattern, the Court concurs.
Under longstanding Massachusetts jurisprudence barring claim splitting, the entry of a
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“valid and final judgment extinguishes . . . all rights of a plaintiff to remedies against the
defendant with respect to all or any part of the transaction, or series of connected transactions, out
of which the action arose." Boyd v. Jamaica Plain Co-op. Bank, 386 N.E.2d 775, 781-82 (Mass.
App. Ct. 1979) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 61(1). In accordance
with that principle, claim preclusion applies "even though the claimant is prepared in a second
action to present different evidence or legal theories to support his claim or seeks different
remedies." Tapalian v. Town of Seekonk, 188 F. Supp. 2d. 136, 139 (D. Mass. 2002) (quoting
Heacock v. Heacock, 402 Mass 21, 23 (1988)).
It may be formidable, but the bar against claim splitting is not universal. It does not apply
where the plaintiff “was unable to rely on a certain theory of the case or to seek a certain remedy or
form of relief in the first action because of the limitations on the subject matter jurisdiction of the
courts or restrictions on their authority to entertain multiple theories or demands for multiple
remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely
on that theory or seek that remedy or form of relief.” RSMT 2d. JUDG § 26(1)(c)(Exceptions to
the General Rule Concerning Splitting). As the Restatement explains, because the claim splitting
rule "is largely predicated on the assumption that the jurisdiction in which the first judgment was
rendered was one which put no formal barriers in the way of a litigant's presenting to a court in one
action the entire claim including any theories of recovery or demands for relief that might have
been available to him under applicable law ... it is unfair to preclude a Plaintiff from bringing a
second action... " Id.
The U.S. District Court of Maine applied this so-called judicial competence exception to
the general prohibition against claim-splitting in a very similar scenario. In Siegemund v.
Shapland, the plaintiff, who had previously sought unsuccessfully to remove her elderly mother's
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guardians in Massachusetts and Maine probate courts, later sued the guardians for tortious conduct
in federal court in Maine after her mother's death. 247 F.Supp.2d 1 (D.Me. 2003). Judge Hornby
denied the guardians' motion to dismiss for claim preclusion, holding that because Siegemund was
unable to obtain the relief she sought in federal court before the Massachusetts probate court, claim
preclusion was unavailable as an affirmative defense.4 Id. at 3-5.
Massachusetts probate courts are courts of limited jurisdiction. They are courts of equity,
which cannot hear tort actions for damages. See, e.g., Heacock v. Heacock, 402 Mass. 21, 520
N.E.2d 151, 153 (Mass.1988) ("[T]he Probate Court does not have jurisdiction to hear tort actions
and award damages."). Therefore, Plaintiff could not have brought his deceit and
misrepresentation (Count III) or his civil conspiracy (Count IV) tort claims against Mirick or
Mirick O'Connell in the prior proceeding. Indeed, as the Probate Court Decision suggests in its
Conclusions of Law, the only remedy available to him was repayment for excessive expenses: his
recovery was limited to what Defendants overcharged him for conservatorship fees. If he prevails
in federal court he can obtain money damages for harm separate from repayment of excessive
conservatorship fees. Given that Plaintiff had no control over the limited jurisdiction of the
Probate Court which tried his objections to Craig's accounting, it would be unfair to preclude him
from holding her liable in federal court, where he can recover tort damages.
As Judge Hornby acknowledged, there is some ambiguity about whether Probate Courts can
actually hear tort claims and award non-equitable damages. M.G.L. 205 § 31 suggests that lawsuits
in probate court upon a bond and authorize the recovery of "all damages caused by ... neglect or
maladministration" but there is no evidence of a probate court issuing tort damages. At the motion
to dismiss hearing, Defendants argued the Probate Court’s $28,000 attorneys’ fee award and
$6,270 award for Plaintiff’s expenses to locate Charlie demonstrate that the Probate Court had
broad discretion to craft remedies, including money damages, so that Plaintiff was not deprived of
a remedy in state court. However, attorney’s fees are readily distinguishable from the tort damages
which Plaintiff seeks, and the funds awarded for Charlie were surcharges from the Plaintiff’s
conservatorship fees (Prob. Dec. ¶ 135), and thus are an equitable rather than legal remedy.
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However, the same rationale does not apply to Plaintiff’s unjust enrichment claim (Count
VIII). To prevail on an unjust enrichment claim, the plaintiff must prove: (1) a benefit conferred on
the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit and
(3) that acceptance or retention by the defendant of the benefit under the circumstances would be
inequitable. Stevens v. Thacker, 550 F.Supp.2d 161, 165 (D. Mass. 2008). The Probate Court
made detailed findings about Mirick and Mirick O’Connell’s mishandling of Plaintiff’s
conservatorship, and ordered them to pay back the exact amount of conservatorship fees that it
would be unfair to allow them to keep. But Count VIII insists that Defendants have no right to
“any monies invoiced between August 2015 and August 17, 2017” and seeks to have this court
second-guess the Probate Court’s prior ruling and award Plaintiff a greater share of his
conservatorship fees than what the Probate Court thought was equitable. The Full Faith and Credit
Clause at 28 U.S.C. § 1738 expressly forbids this Court from such action.
3. Prior Final Judgment on the Merits
Finally, the party invoking claim preclusion must establish that the claim was actually and
necessarily decided in a prior action or that there was a full and fair opportunity to do so that was
not taken. See Heacock, 402 Mass. at 24; Massachusetts Prop. Ins. Underwriting Ass'n v.
Norrington, 395 Mass. 751, 753 (1985); Ratner v. Rockwood Sprinkler Co., 340 Mass. 773, 775
(1960). For claim preclusion purposes, a final judgment on the merits ends the litigation, leaving
"nothing for the court to do but execute the judgment." AVX Corp. v. Cabot Corp., 424 F. 3d 28, 32
( lst Cir. 2005) (quoting Acevedo-Villalobos v. Hernandez, 22 F. 3d 384, 388 (1st Cir. 1994)).
When evaluating whether a judge's ruling ended the litigation, the Court is "bound to defer to a
reasonable interpretation of the judgment's meaning and effect elucidated by the judicial officer
who authored it." Witty v. Dukakis, 3 F.3d 517, 520 (1st Cir. 1993).
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Defendants argue that the Probate Court decision was a final judgment on the merits
because it was issued after a five-day bench trial and resulted in Craig, Mirick, and Mirick
O'Connell disgorging a portion of the fees they had charged Plaintiff for conservatorship services,
and reimbursing Plaintiff for costs associated with locating Charlie, including suing his conservator
to divulge the dog’s whereabouts. Plaintiff contends that there was no final judgment because the
Probate Court found Mirick had committed misconduct but could not assess damages against him,
making the Probate Court proceeding a limited one. (Docket No. 39 at 5).
However, Plaintiff cites no case law finding that because a proceeding is a limited one, it
cannot result in a final judgment on the merits. Rather, courts have even found the decisions of
administrative agencies acting in a judicial capacity to constitute final judgments on the merits. See
e.g., Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 7 (1st Cir. 1992); Pagan Hernandez v. Univ. of
P.R., 7 P.R. Offic. Trans 795, 804, 107 D.P.R. 720 (1978). Further, Probate Courts judgments can
constitute final judgments on the merits. See e.g., Marcello v. Harris, 2007 WL 3274325, at *22
(D.R.I. Nov. 2, 2007) (finding that the Probate Court's decision to be final upon the expiration of
the period allowed for filing the appeal). "If the plaintiffs mean to argue that, as a general
proposition, judgments of the Probate Court cannot serve as the basis for res judicata in a civil
court of general jurisdiction, they are wrong..." Siegemund v. Shapland, 2002 U.S. Dist. LEXIS
18160 at *19-20 (D. Me. Sept. 26, 2002); see Borman v. Borman, 378 Mass. 775,393 N.E.2d 847,
850-51 (Mass. 1979) (holding, in an appeal from the Probate Court, that "if a decree is to be
executed presently, so that an appeal would be futile unless the decree could be vacated by the
prompt entry of an appeal... the decree is a final one.").
I find that the Probate Court's Decision is a final judgment on the merits. Claim preclusion
is appropriate only if a plaintiff has had an "opportunity to litigate the matter fully in the first
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lawsuit." Foster v. Evans, 384 Mass. 687,696 n. 10 (1981). Based on the Probate Court Decision,
Plaintiff had the opportunity to litigate the matter fully. Thus, the Probate Court's Decision
constitutes a final judgment on the merits.
4. Amount in Controversy
Because federal courts are courts of limited jurisdiction, they have "an obligation to
enquire into [their] own subject matter jurisdiction." McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.
2004). The Court assumes that Plaintiff’s initial damages request of $140,838.96 accounts for
the value of the now-dismissed claims. (Docket No. 2-1). Now that I have dismissed the unjust
enrichment claim due to claim preclusion, the only remaining claims against Mirick (and by
extension of Count IX's vicarious liability theory, against Mirick O'Connell) are for Mirick's
misrepresentations and conspiracy to deprive Plaintiff of his pet dog, Charlie. At the hearing on
this motion, Plaintiff argued that Counts III and IV are not limited to damages arising from the
Plaintiff’s loss of Charlie’s companionship, but encompass all of Mirick and Mirick O’Connell’s
alleged misconduct during the final two years of the conservatorship. The Court has reviewed the
Complaint, but finds little support for this interpretation. Whereas Count VIII covers “[a]ll acts
and/or omissions by Mr. Mirick since August 2015,” and alleges that every action taken during that
period was ultra vires, Count III and IV are limited to “approximately four months” and references
nothing but Mirick’s misrepresentations about Charlie. (Compare Fed. Ct. Compl. ¶¶ 77, 81 with
¶¶ 51-57, 60-61).
Though the Court hesitates to put a price on man's best friend, it must confirm that it has
the subject matter jurisdiction to adjudicate the remaining claims. Plaintiff must demonstrate that
the amount in controversy requirement exceeds $75,000 by the preponderance of the evidence. See
Case 4:18-cv-12238-TSH Document 43 Filed 09/09/21 Page 17 of 18
28 U.S.C. § 1332; Bank One, Texas, N.A. v. Montie, 964 F.2d 48, 50 (1st Cir. 1992). Therefore, by
Monday September 20, 2021, Plaintiff shall submit supplemental briefing no longer than ten pages
on whether his remaining claims exceed the $75,000 threshold. Defendants shall have until
Monday October 3, 2021 to issue any responsive briefing.
The Court will not consider whether issue preclusion applies, as Defendants’ motion was
limited to the broader claim preclusion doctrine. Based upon the foregoing reasons, Defendants’
motion to dismiss is granted at to Count VIII but denied as to Counts III, IV, and IX. In
accordance with § 4 of this Order, the parties shall submit the limited supplemental briefing so that
the Court may ascertain whether Plaintiff’s remaining claims exceed the statutory amount in
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
Case 4:18-cv-12238-TSH Document 43 Filed 09/09/21 Page 18 of 18
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