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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 2013CV00497
DONALD DESMARAIS, Individually and
as Executor of The Howard Loring Estate,
vs.
STEPHEN PRICE, Individually and
as Trustee of The Charles Loring Trust
Consolidated with:
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. PROBATE AND FAMILY COURT
No. ESO8P2645EA
IN RE: Charles Loring Trust
Consolidated with:
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 1377CV01984
DONALD DESMARAIS, Individually and
as Executor of The Howard Loring Estate,
vs.
SALVATION ARMY, BARBARA BURGESS-MAIER,
and ANDREW BURGESS-MAIER
ORDER ON MOTIONS TO CONSOLIDATE AND BIFURCATE
Page 1 of 4Fe
These three matters involve distributions from a testamentary trust established
by Charles Raymond Loring II (“Loring”) upon his death in September 2008 (“Loring
Trust”). The Loring Trust named Stephen Price (“Price”) as the trustee.
Generally speaking, in the matter of Desmarais v. Price, Docket No.
1377CV00497 ("SC Action A”), Donald Desmarais (“Desmarais”), as executor of the
Estate of Howard Loring, claims that Price breached his fiduciary duty owed to Howard
Loring (“Howard”),' the (deceased) father of Loring, by, inter alia, failing to distribute
trust funds to Howard during Howard's lifetime.?
In. the matter of Desmarais v. Salvation Army, et al., Docket No. 1377CV01984
(“SC Action B”), Desmarais seeks to reach distributions from the Loring Trust made by
Price to the Salvation Army, Barbara Burgess-Maier, and Andrew Burgess-Maier.
In the matter of Estate of Charles Raymond Loring II, Essex Probate and Family
Court Docket No. ESO8P2645EA (“PFC Action”), which was transferred to this Court by
an Order of Interdepartmental Transfer, Desmarais challenges the First and Final
Account (“Account”) rendered by Price in his capacity as the executor/personal
representative of the Loring Estate.3
SC Action A and the PFC action were previously consolidated and the trial of
those two matters was scheduled to begin on January 22, 2018.4 5 However, in
Procedural Order No. 2 in SC Action A (SC Action A, Paper No. 42) and Procedural
Order No. 1 in SC Action B (SC Action B, Paper No. 14), the Court granted all parties
the opportunity to address, by proper motion, whether all three matters should be
consolidated for trial.
1 The Court will refer Howard Loring by his first name given that he shares the same last name
as the declarant of the Loring Trust.
2 See Procedural Order No. 2 (Paper No. 42) in SC Action A for further details regarding the
procedural history of these three matters.
3 Desmarais filed various motions and petitions in the PFC Action seeking, inter alia, the
removal of Price as trustee of the Loring Trust, to compel the return of trust distributions made
to Salvation Army and the Burgess-Maiers, and a finding that Price breached his fiduciary duty
owed to Howard.
* It is not clear to the Court when and how SC Action A and the PFC Action were consolidated
for trial. However, the parties agree that those two matters were so consolidated. In fact, it
appears that consolidation was ordered at the request of Price’s previous counsel. See Price's
Cross-Motion to Bifurcate at p. 9.
5 The trial of those matters is now scheduled to begin on December 3, 2018.
Page 2 of 4Now before the Court are the following:
Filed In SC Action A:
1. Motion Of Plaintiff Howard Loring Estate To Have The Probate Case And
Superior Court Case To Be Heard At One Trial (SC Action A, Paper No. 48)
(‘Desmarais’ Motion to Consolidate”);
2. Defendant's Memorandum In Partial Opposition To Motion Of Plaintiff Howard
Loring Estate To Have The Probate Case And Superior Court Case To Be heard At One
Trial and Defendant's Cross-Motion To Bifurcate Trial Of Equitable Counts From The
Trial Of Probate Account (SC Action A, Paper No. 48.1) (collectively “Price's Cross-
Motion to Bifurcate”); and,
3. Plaintiff Howard Loring Estate’s Memorandum In Opposition To The Defendant
Stephen Price's Cross-Motion To Bifurcate The Superior Court Trial From The Probate
Court Hearing (SC Action A, Paper No. 48.3) (‘Desmarais’ Opposition to Bifurcation”).
Filed In SC Action B:
1. Assent Of Plaintiff Howard Loring Estate To Consolidate All [Three] Cases Into
One Case And To Be Tried At the Same Time (SC Action B, Paper No. 15);
2. Assent Of The Defendant, Salvation Army, To Consolidate All Related Cases
For The Purpose Of Discovery And Trial (SC Action B, Paper No. 17); and,
3. Assent Of The Defendants, Barbara Burgess-Maier and Andrew Burgess-
Maier, To Consolidate All Related Cases For The Purpose Of Discovery And Trial (SC
Action B, Paper No. 18).
Thus, the plaintiff in SC Action A, all parties in the PFC Action (except Price), and
all parties in SC Action B assent to the consolidated trial of all three matters. Only Price
objects, in part. Price requests a second, separate trial of Desmarais’ objection to the
Account in the PFC Action.
The Court may consolidate the trial of actions involving common questions of law
or fact. Mass.R.Civ.P. 42(a); see also Superior Court Rule 31 (procedure for
consolidation of Superior Court actions). Here, all three matters involve interpretation of
the same trust instrument, and the same factual allegations and transactions regarding
the actions of Price in his capacity as trustee of the Loring Trust. The trial of these three
matters will involve the same witnesses and exhibits. Consolidation will serve the
interests of judicial economy and will not prejudice any party. To be sure, consolidation
of these three matters for trial is not a close call.®
® Price argues that a bench trial of Desmarais’ claims against him for breach of fiduciary duty
and unjust enrichment in SC Action A should be conducted before a second bench trial on
Desmarais’ objection to the Account because Desmarais would purportedly lack standing to
object to the Account if he is not successful his underlying claims against Price. Without
commenting on the merits of the standing argument, the Court notes that the issue of standing
Page 3 of 4As such, the Court HEREBY ORDERS the following:
1. Desmarais’ Motion to Consolidate (SC Action A, Paper No. 48) is ALLOWED.
2. Price’s Cross-Motion to Bifurcate (SC Action A, Paper No. 48.1) is DENIED.
3. The following matters are hereby CONSOLIDATED for all purposes, including
trial: Docket No. 1377CV00497, Docket No. 1377CV01984, and Essex Probate and
Family Court Docket No. ESO8P2645EA.
4. The stay of the proceedings in AC Action B entered by the Court on July 1,
2016, is hereby VACATED.
5. Upon prompt written request by Salvation Army, the Court will decide the
merits of Motion Of The Defendant, Salvation Army, For Judgment On The Pleadings
(SC Action B, Paper No. 12), or schedule a hearing thereon. Any supplementation of
said motion or opposition thereto shall be served and filed pursuant to Superior Court
Rule 9A. Notwithstanding Procedural Order No. 1 in SC Action B, a written request of
Salvation Army for the Court to decide the merits of said motion does not need to be
served under Rule 9A if it contains no supplementation of argument.
6. The pretrial conference in these consolidated matters shall be held on
October 4, 2018, at 2:00 p.m.
7. The Final Trial Conference in these consolidated matters shall be held on
November 27, 2018, at 2:00 p.m.
8. The trial of these consolidated matters shall begin on December 3, 2018, at
9:00 a.m.
An original duplicate copy of this Order shall be filed with the Register’s
fi Action.
Jeffreys V
Associate Justice] wosver Court
Dated: May 1, 20
does not alter the Court’s view that a single trial of all three matters is warranted because alll
three actions, including the objection to the Account in the PFC Action, involve common
questions of law and fact.
Page 4 of 4
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5\ COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No. 2013CV00497 DONALD DESMARAIS, Individually and as Executor of The Howard Loring Estate, vs. STEPHEN PRICE, Individually and as Trustee of The Charles Loring Trust Consolidated with: COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. PROBATE AND FAMILY COURT No. ESO8P2645EA IN RE: Charles Loring Trust Consolidated with: COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION No. 1377CV01984 DONALD DESMARAIS, Individually and as Executor of The Howard Loring Estate, vs. SALVATION ARMY, BARBARA BURGESS-MAIER, and ANDREW BURGESS-MAIER ORDER ON MOTIONS TO CONSOLIDATE AND BIFURCATE Page 1 of 4Fe These three matters involve distributions from a testamentary trust established by Charles Raymond Loring II (“Loring”) upon his death in September 2008 (“Loring Trust”). The Loring Trust named Stephen Price (“Price”) as the trustee. Generally speaking, in the matter of Desmarais v. Price, Docket No. 1377CV00497 ("SC Action A”), Donald Desmarais (“Desmarais”), as executor of the Estate of Howard Loring, claims that Price breached his fiduciary duty owed to Howard Loring (“Howard”),' the (deceased) father of Loring, by, inter alia, failing to distribute trust funds to Howard during Howard's lifetime.? In. the matter of Desmarais v. Salvation Army, et al., Docket No. 1377CV01984 (“SC Action B”), Desmarais seeks to reach distributions from the Loring Trust made by Price to the Salvation Army, Barbara Burgess-Maier, and Andrew Burgess-Maier. In the matter of Estate of Charles Raymond Loring II, Essex Probate and Family Court Docket No. ESO8P2645EA (“PFC Action”), which was transferred to this Court by an Order of Interdepartmental Transfer, Desmarais challenges the First and Final Account (“Account”) rendered by Price in his capacity as the executor/personal representative of the Loring Estate.3 SC Action A and the PFC action were previously consolidated and the trial of those two matters was scheduled to begin on January 22, 2018.4 5 However, in Procedural Order No. 2 in SC Action A (SC Action A, Paper No. 42) and Procedural Order No. 1 in SC Action B (SC Action B, Paper No. 14), the Court granted all parties the opportunity to address, by proper motion, whether all three matters should be consolidated for trial. 1 The Court will refer Howard Loring by his first name given that he shares the same last name as the declarant of the Loring Trust. 2 See Procedural Order No. 2 (Paper No. 42) in SC Action A for further details regarding the procedural history of these three matters. 3 Desmarais filed various motions and petitions in the PFC Action seeking, inter alia, the removal of Price as trustee of the Loring Trust, to compel the return of trust distributions made to Salvation Army and the Burgess-Maiers, and a finding that Price breached his fiduciary duty owed to Howard. * It is not clear to the Court when and how SC Action A and the PFC Action were consolidated for trial. However, the parties agree that those two matters were so consolidated. In fact, it appears that consolidation was ordered at the request of Price’s previous counsel. See Price's Cross-Motion to Bifurcate at p. 9. 5 The trial of those matters is now scheduled to begin on December 3, 2018. Page 2 of 4Now before the Court are the following: Filed In SC Action A: 1. Motion Of Plaintiff Howard Loring Estate To Have The Probate Case And Superior Court Case To Be Heard At One Trial (SC Action A, Paper No. 48) (‘Desmarais’ Motion to Consolidate”); 2. Defendant's Memorandum In Partial Opposition To Motion Of Plaintiff Howard Loring Estate To Have The Probate Case And Superior Court Case To Be heard At One Trial and Defendant's Cross-Motion To Bifurcate Trial Of Equitable Counts From The Trial Of Probate Account (SC Action A, Paper No. 48.1) (collectively “Price's Cross- Motion to Bifurcate”); and, 3. Plaintiff Howard Loring Estate’s Memorandum In Opposition To The Defendant Stephen Price's Cross-Motion To Bifurcate The Superior Court Trial From The Probate Court Hearing (SC Action A, Paper No. 48.3) (‘Desmarais’ Opposition to Bifurcation”). Filed In SC Action B: 1. Assent Of Plaintiff Howard Loring Estate To Consolidate All [Three] Cases Into One Case And To Be Tried At the Same Time (SC Action B, Paper No. 15); 2. Assent Of The Defendant, Salvation Army, To Consolidate All Related Cases For The Purpose Of Discovery And Trial (SC Action B, Paper No. 17); and, 3. Assent Of The Defendants, Barbara Burgess-Maier and Andrew Burgess- Maier, To Consolidate All Related Cases For The Purpose Of Discovery And Trial (SC Action B, Paper No. 18). Thus, the plaintiff in SC Action A, all parties in the PFC Action (except Price), and all parties in SC Action B assent to the consolidated trial of all three matters. Only Price objects, in part. Price requests a second, separate trial of Desmarais’ objection to the Account in the PFC Action. The Court may consolidate the trial of actions involving common questions of law or fact. Mass.R.Civ.P. 42(a); see also Superior Court Rule 31 (procedure for consolidation of Superior Court actions). Here, all three matters involve interpretation of the same trust instrument, and the same factual allegations and transactions regarding the actions of Price in his capacity as trustee of the Loring Trust. The trial of these three matters will involve the same witnesses and exhibits. Consolidation will serve the interests of judicial economy and will not prejudice any party. To be sure, consolidation of these three matters for trial is not a close call.® ® Price argues that a bench trial of Desmarais’ claims against him for breach of fiduciary duty and unjust enrichment in SC Action A should be conducted before a second bench trial on Desmarais’ objection to the Account because Desmarais would purportedly lack standing to object to the Account if he is not successful his underlying claims against Price. Without commenting on the merits of the standing argument, the Court notes that the issue of standing Page 3 of 4As such, the Court HEREBY ORDERS the following: 1. Desmarais’ Motion to Consolidate (SC Action A, Paper No. 48) is ALLOWED. 2. Price’s Cross-Motion to Bifurcate (SC Action A, Paper No. 48.1) is DENIED. 3. The following matters are hereby CONSOLIDATED for all purposes, including trial: Docket No. 1377CV00497, Docket No. 1377CV01984, and Essex Probate and Family Court Docket No. ESO8P2645EA. 4. The stay of the proceedings in AC Action B entered by the Court on July 1, 2016, is hereby VACATED. 5. Upon prompt written request by Salvation Army, the Court will decide the merits of Motion Of The Defendant, Salvation Army, For Judgment On The Pleadings (SC Action B, Paper No. 12), or schedule a hearing thereon. Any supplementation of said motion or opposition thereto shall be served and filed pursuant to Superior Court Rule 9A. Notwithstanding Procedural Order No. 1 in SC Action B, a written request of Salvation Army for the Court to decide the merits of said motion does not need to be served under Rule 9A if it contains no supplementation of argument. 6. The pretrial conference in these consolidated matters shall be held on October 4, 2018, at 2:00 p.m. 7. The Final Trial Conference in these consolidated matters shall be held on November 27, 2018, at 2:00 p.m. 8. The trial of these consolidated matters shall begin on December 3, 2018, at 9:00 a.m. An original duplicate copy of this Order shall be filed with the Register’s fi Action. Jeffreys V Associate Justice] wosver Court Dated: May 1, 20 does not alter the Court’s view that a single trial of all three matters is warranted because alll three actions, including the objection to the Account in the PFC Action, involve common questions of law and fact. Page 4 of 4