Kemon v. Boudreau

Syllabus

The plaintiff, S, and his sister, E, were beneficiaries of a trust, executed by their father. E was the original trustee until her death in 2016, when the defendant K became the successor trustee. Upon E's death, K repre- sented to S that the trust's assets had been fully disbursed to S and E, but for $50,000 that had been set aside in a lawyers' trust account as a litigation reserve. Thereafter, the Probate Court approved an accounting submitted by K in 2016. Subsequently, S appealed to the Superior Court in 2017 from the probate order approving the 2016 accounting, claiming that the 2016 accounting was incomplete. In addition, S commenced a separate action in 2018 in the Superior Court, with similar claims to the probate appeal, but he also included claims asserting breach of trust, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, and tortious interference with an expectation of inheri- tance in counts two, three, four and six against K for his actions involving the payment of various fees and the $50,000 litigation reserve. The cases were consolidated for trial, and the trial court rendered judgment for the defendants in each case. Held: 1. The trial court erred in determining that S had abandoned counts two, three, four, and six at trial in the Superior Court action on the basis of statements by S's counsel made during closing argument, as S adequately advanced counts two, three, four, and six at trial for the court's consider- ation: during closing argument, S's counsel identified punitive damages in the form of attorney's fees as one of S's requests for relief predicated on K's alleged ''wilful, wanton conduct,'' counts two, three, four, and six were supported by allegations that K had engaged in ''wilful, wanton'' conduct, and, collectively, counsel's statements implicated the allega- tions pleaded by S in support of those counts concerning K's conduct; moreover, the trial court's articulation addressing counts two, thr