 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Berish v. Bornstein6/28/2002
f notice pleading, "there is no requirement that a complaint state the correct substantive theory of the case." Gallant v. Worcester, 383 Mass. 707, 709 (1981). See Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975); Ahern v. Warner, 16 Mass. App. Ct. 223, 226 n.2 (1983). A complaint must, however, contain "a short and plain statement of the claim," Mass. R. Civ. P. 8 (a) (1), 365 Mass. 749 (1974), which affords fair notice to the defendant of the basis and nature of the action against him. Clark v. Greenhalge, 411 Mass. 410, 413 n.6 (1991); Ciccone v. Smith, 3 Mass. App. Ct. 733, 734 (1975). Here, the breach of fiduciary duty claim sets forth allegations against "Bornstein," whereas other counts in the complaint identify "Bornstein, individually and as Trustee of the [nominee trust]." Applying our own view of the law, Lucey v. Hero Int'l Corp., supra, we conclude that the complaint did not afford fair notice that the trustees were asserting this claim against Bornstein in his capacity as trustee of the nominee trust. Indeed, any fiduciary duties that Bornstein owed to the unit owners' association, were owed in his capacity as trustee of that assocation and not as trustee of the nominee trust. We therefore conclude that the master properly narrowed this claim as against Bornstein as trustee of the unit owners' association.
Bornstein appeals from the damages award in the master's amended report, contending that it is flawed in three ways: (1) it uses an improper measure of damages for the breach of a trustee's duty to repair; (2) it relies on evidence of repair costs that was too remote in time; and (3) it is not supported by admissible evidence. We reject these contentions.
As to the proper measure of damages, the declaration of trust imposed on the trustees the obligation to "provide for the necessary work of maintenance, repair and replacement of the common areas and facilities and payments therefor." The master concluded that Bornstein breached this obligation by failing to undertake the necessary repairs, and assessed the amount of damages as "the fair and reasonable value of the labor and materials" to replace the defective decks, to install flashing, to repair the sliding doors, and to repair the chimneys and skylights. Bornstein contends that the measure of damages should not have been the cost of repairs but rather the difference between the fair and reasonable value of the repairs if undertaken now, and their value if undertaken when Bornstein was a trustee. As to what that difference might be, Bornstein claims that the plaintiffs have offered no evidence.
When a breach of trust occurs, the beneficiary of the trust is "entitled to be put in the position he would have been in if no breach of fiduciary duty had been committed." Fine v. Cohen, 35 Mass. App. Ct. 610, 616 (1993). Cf. Restatement (Third) of Trusts ยง 205(b) (1990) (trustee who commits breach of trust is "chargeable with the amount required to restore the values of the trust estate and trust distributions to what they would have been if the trust had been properly administered). Thus, a trustee who breaches his fiduciary duty to "maintain, repair, and replace" common areas is liable for the cost of returning the unit owners' association to the position that it would have been in had such steps been undertaken. In circumstances such as those present here, where the cost of repair and replacement, if undertaken, would have been assessed against the unit owners association as "common expenses," the liability of a trustee (if any) would be limited to additional costs incurred as a result of the delayed undertaking of those tasks. In this respect, Bornstein is correct as to the proper measure of damages in the ordinary cas
Page 1 2 3 4 5 6 7 8 9 10 11 12 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|