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Appeals court hears dispute over service and notice in probate partition action
Summary
Brian Wells told the court he received no proper service of a partition petition in a property dispute and that a probate court decree and the subsequent auction proceeded without notice; opposing counsel argued process was adequate and that the appellant repeatedly failed to comply with appellate rules.
The Appeals Court heard argument April 3 in an appeal brought by Brian Wells challenging a probate partition decree and related proceedings in Melissa Call v. Brian Kenneth Wells.
Wells, appearing pro se in oral argument, told the court he never received the citations the petitioner says were left at 144 Willis Road and that no qualified constable signed service. He said he first learned of the partition when he received an email from counsel for the opposing side and later noticed docket entries showing a decree, appointment of a commissioner, and steps toward sale.
Why this matters: Partition decrees can result in sale of real property and have substantial financial consequences; Massachusetts court rules require proper service and permit relief where service is defective or judgment entered without notice.
Opposing counsel Joshua Tracy said the petitioners served Wells at his last usual place of abode (leaving copies at the address and mailing a copy), filed affidavits reflecting service, and later gave additional notices by e-mail and first-class mail about scheduling and access for the commissioner to collect property. Tracy urged that Wells had multiple post‑filing opportunities to pursue relief and repeatedly failed to comply with appellate filing requirements.
The panel questioned Wells and counsel about the timing of the probate decree, whether the probate judge had effectively denied the motion to vacate by allowing the partition to proceed, and whether Wells had filed a notice of appeal within the required 30 days. Wells said he sought to vacate under Rule 60 and that the probate court’s later orders striking other filings effectively constituted a constructive denial.
No immediate ruling was issued. The Appeals Court indicated it would review the record and address procedural sufficiency of service together with Wells’s compliance with appellate requirements.
Ending: The matter was submitted for decision; the court thanked counsel for argument.
