-: SJC-13030 Kathleen Hornebrooke, Sherrilyn Rashard.
-: Attorney Kelley, Good morning.
-: Good morning.
Good morning and may it please the court.
My name is Kristen Kelly and I'm here with Alan David
and we represent the defendant appellant Sherrilyn Rashard.
The issue before the court this morning
is whether a court appointed conservator
is entitled to absolute quasi judicial immunity
for claims where it is undisputed
that with respect to all allegations in the complaint,
that the conservator was acting within the scope
of her court-appointed duties.
Now briefly, this matter arises
between a dispute between Kevin Hornerbrooke,
who is his mother's court appointed guardian
and the eventual personal representative of her estate,
Sherrilyn Rashard was Kathleen Hornerbrooke's
court appointed conservator.
The main premise of this dispute, is that Mr. Hornerbrook
is seeking to hold Ms. Rashard personally liable
for tort damages or actions that she indisputably took
in her scope of appointment as a conservator.
For example,
-: Can I clarify--
-: Counsel--
-: Go ahead, go ahead.
-: I was just going to ask you to counsel
can you please let me know are you alleging
that your all the actions
were within the scope of the duties of the conservator
and that's the only issue we have to conclude
or are you arguing that if they were outside that action,
we need to address the liability question?
-: My position is in this case,
all the actions were within the scope
of the appointed-- -: As the conservator.
And now are you also suggesting then
we kind of when we look at the immunity issues
we take a functional approach,
correct? -: Absolutely, yes.
-: Now how does that affect the issue
of immunity in this instance?
-: In this instance in the case
I don't think there is an issue
with respect to whether the actions were inside
or outside the scope for a couple of reasons.
First, Mr. Hornerbrooke never argued that Ms. Rashard
was acting outside the scope of her duties
and even conceded as much in a reply brief
in the superior court.
And even throughout the briefing here,
he's referred to Ms. Rashard as the conservator,
I think on that alone the court can conclude
that Ms. Rashard was acting within the scope of her duties
with respect to all allegations in the complaint.
However, if the court were to go further
and say that there was a challenge
I think a functional analysis also establishes
on a plain reading of the complaint
that all of the allegations were
within the scope of her duties.
-: From what I understand,
the judge gave either pre or post approval,
the right to sell the house, right?
And the right to have the house cleaned, right?
(poor transmission drowns out speaker)
-: Provided to be cleaned.
The conservator was granted a license
after a contested motion practice to sell the house,
which reading that I assumed she would need to clean it out
to be able to do that.
There was a motion, but it was never ruled on
or it's not on the docket to say what the disposition
of cleaning out the house was.
-: See I'm trying to put up the express actions
taken by the judge,
the express actions taken by the probate judge,
with the conservator compared to what the claims are.
What are your understanding
of what the particular claims are?
From what I understand
one of them is that when they sold the house
or cleaned the house, some property disappeared.
-: My understanding of that is the same,
essentially that in preparing the house to be sold,
that some of the property within it,
which were, family mementos were also removed
without notice.
-: Okay and so how do we,
so are you saying when the judge gives the permission
to sell the house,
he also gives permission to dispose of the personal property
in the house?
Is that what the argument is?
I'm just trying to understand it,
because again I've got these two claims that are left,
this conversion one which relates to that property,
and then there's some kind of issue
related to the eviction of Francis that I don't fully follow
but did the judge give express permission to evict Francis?
-: Not in this.
So the conservator hired an attorney
to have Francis evicted, so that's somewhat separate.
I think more the issue here
is whether the actions which the conservator took
related to the sale of the house
either pre or post the license being granted
are within her duties as the conservator.
And because if they're within the duties
then there is immunity for those actions.
(indistinct crosstalk)
-: One last question,
let me give you the hyper hypothetical.
When she, and this isn't this case.
When they clean out the house
they discover all of the mother's jewelry
and it's worth a lot of money.
And the conservator takes the jewelry and keeps it,
would she be protected from, if he did that?
-: I think she would be protected from tort claims
but I'm not saying there's no remedy at all.
We have plenty of remedies within the probate court
such as surcharge, removable, indemnity,
the probate court can deal with that
in a certain way.
I'm not saying that criminal actions
are also barred by this immunity.
And, even if this attorney,
not every conservator is an attorney
we also have things like the BBO and remedies there
in a professional capacity.
So it's not that there's no remedy,
it's just the remedy is not the civil tort claims
that the plaintiff's bringing in this case.
-: Council may I ask you,
perhaps I'm missing the threshold issue.
Is your position a Rule 12 issue?
Or is it really getting to the meat of the,
whether it is in immunity or not?
Because if it's the conversion issue,
what I'm struggling with is,
that the court found that the allegations of the complaint
were sufficient, to survive a Rule 12 motion,
that they pled, things that were outside of the scope
of the immunity to the conservator even if we assume
that there was one, particularly this conversion issue.
So is it really about whether or not immunity applies
or is this really about whether or not the judge was wrong
that the factual allegations met the (indistinct) standard?
That's what I'm struggling with.
-: I think it's a little bit of both.
So the heart of this case is with respect to immunity
and whether the court appointed conservator
is entitled to immunity for actions taken
within the scope of their conservatorship.
And I think that--
-: If that were pled.
If the allegations of the complaint were,
that all of the things that they complained about
were things that were within the scope
of the conservators authority,
but if it's not,
if they're alleging things that were outside of the scope,
why is that about whether or not the immunity applies
one way or the other?
And not just about whether or not it's properly
and sufficiently pled?
-: Well, I think answering that in two ways.
So first with respect to the decision of the superior court,
I think their decision is conflicting
and I can't reconcile it,
which is part of the reason why we appealed.
On the one hand they say that the conservator is entitled
to clause a judicial immunity
and then sort of gave the plaintiff sort of some leeway,
to explore through discovery
in a brief amount of time,
whether the actions were outside the scope
of her conservatorship.
However, there had been no suggestion by the plaintiff
that any of the actions were outside the conservatorship.
And on top of that,
the decision actually doesn't point to anything.
It's giving Mr. Hornerbrook, may find,
he doesn't pointed to anything
that there is any allegation outside.
And I think at the motion to dismiss stage,
this is the time we need to do that evaluation.
The court has everything before it that it needs to,
it has the allegations in the complaint
and then it can have the court appointment
and the duties of the conservator as well,
and hat's usually an order of the probate court
so it's either attached or referenced in the complaint
or otherwise it can be taken in a judicial notice.
The purpose of quasi judicial immunity,
we wanna get these out at the beginning.
It's litigation immunity, not just damages.
So to allow this when,
particularly in this case
where there was no allegation that--
-: Well, I understand that the conservator
doesn't have the protection
if they have to go forward with the lawsuit,
because the immunity as you say it's an immunity from sue,
but impliciting the superior court judge's decision,
is that some of the allegations obviously
fell beyond the immunity issue.
And the question really is,
the specificity of the court order under
Court versus Constantino case.
Don't you think so?
Doesn't there have to be some specificity that's tied back
to the court order,
I think that was the
thrust of Justice Kafker's initial questions.
-: And I think that's right
and I think in this case it's clear.
Without an allegation from the plaintiff
that everything was outside,
and then actually doing a functional analysis
which I don't think was done in the superior court decision.
I think this case falls clear
that everything was within that scope.
-: What about the statute? -: Counsel when you--
Go ahead.
-: Go ahead Justice Cipher.
-: No I was just going to ask about the,
you said that the,
in your brief that the proceeding to discovery
aggregates the doctrine,
because it deprives the conservators of absolute immunity.
But we always use, we use a functional approach,
so wouldn't any functional approach require us
to examine, to permit discovery in some cases?
-: I think there could be some cases
where it's not clear on the face,
but in this case it is pretty clear on the face.
You have the complaint and the allegations
and you have the conservator's appointment.
So you can compare those at the motion to dismiss stage.
In this case, it's pretty clear that the biggest thing
of this complaint is regarding the issue
of the selling of the house
which was pitched particularly before the probate court
and approved in a motion, after disputed motion practice.
So in this case,
I don't know what discovery would even show.
Actions are within the,
using the property of Ms. Hornebrook,
which is something that
is within the scope of her conservatorship.
And the we have the--
-: But before you get there though,
that's the that's the part I'm getting
about the conversion.
Assume that the order was you can sell the home.
Are you saying that impliciting that order,
is you can get rid of everything that's in there
in preparation for it
without any regard to the rights of the beneficiaries
or the family of Ms. Hornebrook?
-: The conservator almost acts as like a trustee for the
protected person.
So she has the property essentially in her possession,
in her name,
and she can do with it what is appropriate.
And if there's an issue,
it's not that it goes to the superior court for tort damages
but instead we're going to the probate court
where there are other remedies that are available such as,
removal or accounting or surcharge, there's other remedies,
it's just not here
and in reviewing this,
it's I think it's pretty clear that all of these actions
were within the scope of her conservatorship.
-: Okay counsel I have one more question about what you said
the home was in her possession.
But she didn't even know it was being foreclosed on,
how does she explain that?
I don't think that's completely before the court
I mean, she did--
-: Would that be part of the discovery?
-: I mean, the allegations in the complaint regard.
I mean, so,
yes it should be, it seems to be a part of the complaint,
as it is part of her role as a conservator
to have the property and almost be like a trustee
that she's entrusted of the protected person's property.
Yes, some of that inquiry is there
but it should be in the probate court.
The probate court is the one that has issued these orders,
the probate is the one that has the specialty
who's been involved in this process,
the probate court has granted this license
to sell the house.
The probate court is intimately involved
in this process to sort of remove it from that
where the probate court has already issued orders
relating to the--
-: I thought you removed it.
Didn't your client move it to the superior court?
-: No, well--
-: Is it the other way around?
-: This started out in the probate court,
asserting civil tort damages.
We've always said that the plaintiff
could have brought these remedies in probate court,
just that the civil tort damages
couldn't be brought in probate court.
If you're bringing those types of claims,
they need to be in superior court.
Well then, it's appropriate for the probate remedies
to be brought in probate court.
-: I think Justice Kafker has a question.
-: Can I ask you to interpret
this statutory provision for me, 190B5-28B.
So we've got this thing is entitled,
Personal Liability of Conservator.
The conservator is not personally liable,
unless the conservator is personally at fault
for either obligations arising from ownership
or control of property of the estate.
So again, in sort of,
when we're dealing with this conversion claim,
they alleged that property was improperly disposed of.
Doesn't that fit B?
Why doesn't that fit within B?
I understand it may be too generally pled
as Justice Georges points out,
but again if it were rings, diamond rings
or something like that, that she took or threw away,
why doesn't that provision cover that?
-: In my understanding in reading the statute
is that sections A, B and C
relate to claims against the conservator
as respect to third parties.
-: I understand you argue that, but I
the language doesn't say that expressly,
are any cases,
do you have any cases I can read,
because from my understanding
there's this Alaska case that goes the other way.
Are there any cases that support your position?
-: Not that I know of here in Massachusetts.
And I think that--
-: How about all 50 States?
I'll ask you the justice (indistinct) question.
Other states?
-: That I am not sure of.
-: So how do I decide those provisions,
which on their face aren't limited to third parties
or limited to third parties without any case law guidance.
Is there any legislative history that I can turn to
that says that solemnly rights to the third parties?
-: With specifically that point, no,
not that I'm aware of, but I'm looking at section D
which specifically addresses liability
between the estate and the conservator personally,
which seems to be more specific to this type of claim.
And mass general law section
or chapter or 190B Section 5-28
is derived from the Uniform Probate Code.
And the Uniform Probate Code is section 5-430,
in their comments they generally,
(indistinct) that their intent
is to limit the liability of conservators
and to protect the conservator.
So in that way, I think that's why it relates back that,
yes the probate code does allow for some remedies,
but the remedies are limited to between the state
and the conservator in section D
and are limited more to the probate court.
And the reason why it should be in the probate court
it must be interpreted as to section D in the probate court
is for a few reasons.
Mr. Hornebrook has relied mostly on that section D
to say that other appropriate proceeding or action
allows this action to proceed in the superior court
rather than the probate court,
but this can't be the case.
First, the canon of statutory construction ejusdem generis
provides that the specific words identify the class
and restrict the meaning of the general words
that come after in the class.
It would be inconsistent to find that,
the first three items in this list
which are probate remedies
allow for the fourth to be something so much broader
such as inaction superior court.
In addition, looking back to the probate code,
it expressed an intent
to narrow the liability of a conservator.
So to follow that same rationale
and more important to have this
as a narrow construction of the statute.
It's long been held that statute
should not be interpreted to--
-: I'm gonna stop you there.
Thank you very much.
This is very helpful
and we're gonna move on to Attorney Styles.
-: Thank you chief justice and justices
and may it please the court.
I'm Ethan styles and I represent Kevin Hornebrooke
who is the personal representative
of the estate of Kathleen Hornebrooke in this case.
And let me start by asking,
is a protective person under guardianship
a person, or a passport?
And the conservator made her views on that very clear
when she said you can move your mom back in the house
and deal with your drug addict brother,
my role is a financial one.
But the uniform,
so the Massachusetts Uniform Probate Code
says something quite different in section 5-416.
Where it encourages and requires conservators
to help the protected person regain
and participate in the management,
of their of their property to the extent that they can.
So in this case--
-: I'm confused 'cause your client's her guardian,
so are you imposing the guardian responsibilities
on the conservator?
And it just seems like
you're merging different obligations here,
but can I turn you into specifics,
particularly Justice George's question which,
what are you alleged specifically on this conversion?
'Cause she has permission to sell the house,
to sell the house you need to do some cleanup of the house,
particularly if it's been occupied, in sort of a messy way.
So tell me, what are you alleging
that is beyond her power to sell the house?
-: Well, in terms of the personal property inside the house,
whatever she has to do does not come to
what she actually did,
was to simply let the pickers go in
and take what they want and trash the rest
and that's what we alleged happened in this case--
-: Can you read what do you say in your complaint?
What did you say on that point?
You alleged what?
'Cause just saying there's a bunch of goodies in there
isn't helpful.
Do you allege that,
read what your allegation is on this point?
I don't have the specific allegation in front of me,
Justice Kafker but I do remember quite specifically
that I did state that the people who came in,
took everything out and would not let my client
or sister take any family mentos or keepsakes.
-: And are you alleging that that occurred outside
her function as a conservator?
And where do you allege that?
'Cause it seems to me you've conceded
that everything that you're alleging here
is within her function as a conservator.
-: Well, Justice Wendlandt, you can look at it two ways.
You either say, that this is outside
the function of a conservator
because she is a fiduciary for a property
both real and personal,
or if she was acting technically within the scope,
she's still liable under section 5-428
for this tre--
-: I guess I'm, let me be clear.
Where specifically do you allege or contend
that she is acting outside the scope of her conservator?
-: By the allegation that she permitted property
to be taken and destroyed,
that is an allegation that is outside the scope,
the term outside of the scope
may not be used and played as such.
It's quite clear that as I alleged
that this activity was either outside of the scope
or which she is liable for.
-: What paragraph of the complaint are you referring to?
-: The paragraph of the complaint would be
whichever one talks about cleaning out your house.
I don't have the complaint in front of me,
I personally should have had it
but anyway, but when I talk about the paragraph
that references the cleanup company
called Clean Up Your House Inc.
That's the paragraph of which I refer to the actions
of that company that hired by the conservator
and also in the account that discusses the conversion claim.
-: Counsel, may I just follow up for one moment
on some facts.
And that is, you said that the pickers came in,
and this is Clean Up Your House,
the Clean Up Your House Inc, the pickers?
-: Yes.
-: Okay and then when they picked what they wanted,
did they buy it from and pay for it?
Or what happened to the quality items?
-: I don't know.
And that would be- -: Then no money went to the,
no money went back into the estate from that?
-: Nope, not a penny.
In fact, and that Clean Up Your House
they have an invoice, which is not in the complaint,
but that's how that allegation alleged, but says
that they can take what they want, and dispose of the rest.
-: Mr. Styles in response to Justice Wendlandt's question
you referenced statute Chapter 190B, Section 528
and the language other appropriate proceedings,
the conservator just argued that,
that provision is limited To remedies from the probate
and family court,
and doesn't give you the opportunity to litigate
in the superior court.
You say that language from the statute,
why isn't it limited to the probate family court
based on per statutory construction argument?
-: During my sister's presentation,
she referenced the Uniform Probate Code
section 5-430 from which Massachusetts 5-428 derives from.
And there is a comment,
what she didn't talk about
and the reason why it's quite clear,
'cause it says, quote
"The protection from liability provided
by the subsection does not apply however,
if the conservator is personally at fault,
meaning the conservative committed the tort
either intentionally or in negligence."
And that comment speaks to what this,
what these words are derived from.
-: Can I ask you to read that against slower?
-: Yes, of course.
-: Quote, "The protection from liability
provided by the subsection does not apply however,
if the conservator is personally at fault,
meaning the conservator committed the tort
either intentionally or negligently" end quote.
And so I would suggest that,
Massachusetts having derived that,
using the exact same language in subsection B
is again expressing the intent that,
that yes conservators are liable for the negligent acts.
And let me talk about the home,
because I feel that there is some confusion
of what the derivement of our complaint is on that count.
When Rashard was presented was appointed conservator,
she started her conservatorship ineptly
and ended indifferently.
And that action was to try and get Francis,
the drug addict brother Francis out of the home.
She tried to change the locks,
engage with self-help to evict him.
He came, he threatened her, she left.
And then for over a year, she did nothing,
but she kept promising my client, Kevin
that she would get him out of the house.
And she did nothing for a whole year, from 2015.
She kept making these promises via text messages
which we outlined in the complaint.
And then in 2016, Kevin learns
that the property is up for a foreclosure auction,
because his mother had been out of the house for 12 months
which was a requirements of the reverse mortgage covenants.
And so at that point, he calls the conservator,
and that's when she makes the quote
I mentioned at the beginning
about my role is a financial one.
And after that then she had to go and obtain counsel
to get a motion to restrict,
to restrain the home--
-: So what is your claim on this
that she did not evict Francis fast enough?
I can't, what is the claim?
What is the alleged violation on that point?
I understand your conversion argument
that worthwhile property that she should have preserved
was allowed to be walked off with.
I don't understand this one about Francis yet.
-: My argument is,
is that she was grossly negligent
in failing to evict Francis
and restore Kathleen to the home in a timely manner,
and as a result she lost the home.
-: So what claim does that fall under in your complaint?
-: That would be the breach of fiduciary duty claim,
is the most applicable one.
Because conversion applies to personal property,
not real property
so we have to use another source to do it.
-: So as a conservator, she did not,
again I'm trying to understand,
what is within her responsibilities as conservator
and how she violated it.
So it is within her responsibilities or not
to evict Francis and put mom back in?
Is that a conservator responsibility or not?
-: I mean, and first of all,
the conservative has control over the property
of the protected person as opposed to the guardian,
who has control over the person.
So it is also the conservative who's gonna decide
where she's gonna live if she can't live in her own home.
-: The allegation is within her function as a conservator
is what you're conceding?
It may not have been done appropriately
is what you're saying, but it's within her function.
-: Yes, that she does have that power and control
as a fiduciary of her property,
and in this case--
-: She has control, okay, all right.
I mean, any cases that say a conservator has that power?
-: It is in the powers in section five, I can't remember.
In five, it specifically says that she has title
to the real property.
-: I know, but there's also a guardian.
There's a guardian in place over mom, right?
-: That's correct.
-: So she, the guardian,
I'm just trying to understand
what are the guardian's responsibilities
versus what are her responsibilities.
'Cause her responsibilities preserve the value of the house,
it's not to make sure mom is well cared for,
that's your client's responsibility, wasn't it?
-: In this particular case, not so much because,
in order to preserve the value of the house,
Kathleen had to be in her home to do so
otherwise it goes to foreclosure.
So in this case she did have a responsibility to evict
and she's the only person who can evict,
the guardian cannot evict the drug addict brother,
he doesn't have that authority.
He has authority over the person
of the protected person not a property.
The conservator does that
and in this case, she volunteered for the job
when she was first appointed.
She heard about the plan.
she said, "Yes, that's a good plan.
I'll take care of it, I'm gonna evict the brother"
And the only action she took to evict him
was illegal, frankly,
and malpractice and if the judge dismisses
that part of the complaint.
So anyway, so--
-: But you're not appealing
the dismissal of the malpractice claim.
-: We cannot at this time that's --
-: Right, so that's out.
-: Yes.
-: Okay.
-: She was an attorney and Mr. Hornebrook is not an attorney.
So when she says I'm gonna take the lead on this
and that's what she kept saying that she would do
for the next year.
And in the meantime she's over the 12 year limit,
the the mortgagee wants to foreclose.
And by the time we get to the license to sell,
at that point the judge,
it's not longer an expression of
can Kathleen move back into her home or not,
and whether the conservative thinks that selling
it's better than Kevin thinks that being in the home
would be better,
now we've thought the rights of a third party
who's coming to the situation
and says, violation to the mortgage covenant,
I wanna foreclose.
And so it had to be sold.
And which brings me to the question that,
does the license to sell forgive all that's come before?
Now it's just that it does not.
it wouldn't be any different than if the
the conservator let the homeowner's insurance lapse,
the house burnt down
and she got a license to sell if they can want,
does that eliminate the negligence
of letting the insurance lapse?
It should not.
And that brings me to the reasons why
this court should allow this case to continue,
it's because ultimately,
when the Amicus letters talk about,
oh this is going to discourage people from serving,
they've never had any kind of respite from negligence.
And more importantly,
if the conservator gets (indistinct)
to do whatever they want without any real recourse
to the protected person or their family or their estate
then people are going to be rather cagey
about raising issues that could result
in the appointment of a conservator
if they think the conservator has (indistinct)
to do whatever they want and without personal liability
to the protected person.
And the remedies,
now when we filed, we filed this case in probate court.
And it was the defendant's,
my sisters from who tried to have it dismissed,
and they argued the probate court has no authority
to award money damages in this case.
And the probate court judge bought that
and transferred to superior--
-: Did he do it correctly?
You say bought it, did he do it right?
I mean, was it the right thing to do?
-: I mean,
I never agreed with the motion
but if that was one way we're gonna get this thing resolved
then that's fine
'cause the superior court
is a court of general equity jurisdiction
and it also has the ability to try tort cases
and it can try them by jury,
whereas the court does not.
However I would just,
either court would have been appropriate,
but we're appealing the order of a superior court judge
and not a` probate court judge.
And so ultimately this game of jurisdiction
has been going on for three years
and the conservator's yet to even file an answer
to the complaint.
And so ultimately we're asking this court
to remand this back to superior court for discovery
and for the proceedings.
Thank you.
-: Okay, thank you so much.