CYNTHIA TOMASETTI, Individually and as Trustee, & Another v. STEVEN PAECHT, Individually and as Trustee.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1326

CYNTHIA TOMASETTI, individually and as trustee,1 & another2

vs.

STEVEN PAECHT, individually and as trustee.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Steven Paecht (defendant), a beneficiary and cotrustee of

the H & M Paecht Trust (the trust), appeals from a judgment in

favor of his cotrustees and siblings, Cynthia Tomasetti and

Karen Giombetti (plaintiffs), finding that his option to

purchase the property held in the trust had expired and

therefore plaintiffs were authorized to accept a third-party's

offer to purchase the property. We affirm.

1 Of the H & M Paecht Trust.

2Karen Giombetti, individually and as trustee of the H & M
Paecht Trust.

3 Of the H & M Paecht Trust.
Background. Marilyn H. Paecht (mother) and Harold Paecht

(father), both of whom are now deceased, established the trust

on June 30, 2000, for the benefit of their three children. The

plaintiffs and the defendant are the decedents' only children,

and they are equal beneficiaries and cotrustees of the trust.

The trust holds the property at 65 Broad Bay Road in Center

Ossipee, New Hampshire. On November 25, 2019, following the

mother's death, the father amended the trust to include

paragraph 3.1(b). This new provision provided that, upon the

father's death, the trustees were required to sell the property.

"First, however, [the property] shall be offered, in writing, to

the [father's] children at a value equal to ninety-five percent

(95%) of the average of two fair market value appraisals

obtained by the Trustee." "The offer shall be valid for a

period of forty-five days following the [father's] death."

The father met with the three children to discuss this

amendment. The defendant asked the father to consider extending

the timeline for beneficiary offers beyond forty-five days. The

father refused because he wanted to limit the beneficiary

purchase option to the forty-five day period after his death.

At the close of that meeting, the children had notice that the

forty-five day period was incorporated into the trust language.

2
The father died on October 30, 2021. Shortly after the

father's death, his attorney4 provided copies of the trust

documents to the three children. On November 30, 2021, the

children met with the father's attorney to discuss the

administration of their father's estate and the trust. During

that discussion, the three children agreed that they would delay

listing the property for sale until the spring of 2022. The

defendant did not express an interest in purchasing the property

at that meeting. Moreover, none of the children expressed an

interest in purchasing the property within the forty-five days

after their father's death.

The father's attorney sent the children a status letter

dated December 15, 2021, to memorialize the November 30

discussion. This letter included a specific reference to the

forty-five day period: "As you know, your father's trust

contained a provision directing that the property be sold. This

direction was subject to [a] 45-day period starting with the

date of death during which the property could be offered to one

of you." The letter also memorialized the agreement that the

children would delay putting the house on the market until the

4 The father was represented by a law firm in connection
with the trust. Several attorneys in the firm worked on this
matter. For simplicity's sake, we refer to all of them as "the
father's attorney."

3
spring. Each of the three children received a copy of this

letter and signed it to indicate their agreement.

The children had a teleconference with the father's

attorney on March 19, 2022. At that time, none of the children

expressed an interest in purchasing the property, asked for

appraisals, or submitted written offers. But the children did

discuss the fact that a neighbor of the property made an offer

to purchase it for $600,000, as is, with no contingencies, no

broker's fee, and placing no obligation on the trust to repair

the septic system.5 At the end of the meeting, the defendant

alerted the plaintiffs and the father's attorney that he was

represented by outside counsel, who would be in touch with them.

The defendant's attorney contacted the father's attorney to

confirm his representation of the defendant, but did not

indicate that the defendant had any interest in making an offer

on the property.

In his capacity as a cotrustee, the defendant blocked a

sale to the neighbor. The plaintiffs then made an offer to

purchase the property for $600,000. The defendant also refused

to accept that offer.

5 The neighbor sent a written offer to the children the next
day.

4
Soon after the March 19 meeting, the children attended a

Zoom meeting with the defendant's attorney and the father's

attorney. At that time, the defendant requested that the

father's attorney obtain two appraisals, ostensibly so he could

make an offer on the property. The father's attorney obtained

the appraisals within approximately two weeks and immediately

sent them to the parties. The father's attorney also sent the

appraisals to the defendant's attorney via e-mail on April 7,

2022, and the defendant's attorney forwarded them to the

defendant that same day. The father's attorney had

approximately thirty e-mail exchanges with the defendant's

attorney up to that point, all using the same address, without

incident. Both appraisals, from independent assessors, valued

the property at $540,000.

On May 20, 2022, the father's attorney sent a letter to the

defendant by e-mail in care of his attorney notifying the

defendant of his "right to make an offer on the property for 95%

of the two appraisals, $513,000."6 Plaintiff Tomasetti testified

that she and her sister had decided to "giv[e] him a second

chance" at the forty-five day time period to make an offer to

6 Pursuant to the terms of the trust, the children's option
to purchase the property at ninety-five percent of its appraised
value had expired forty-five days after the father's death on
October 30, 2021.

5
purchase the property. The father's attorney sent this letter

to the e-mail address that the defendant's attorney had used in

their electronic communication prior to that point.7 The

defendant's attorney acknowledged receipt of this e-mail message

but claimed that it was delivered to his e-mail program's "spam"

folder, and thus he did not receive actual notice of the written

offer until August 5, 2022, when his assistant discovered the

message. When the defendant's attorney purportedly learned of

the e-mail message, he wrote to the father's attorney and

asserted that the defendant had the right to make an offer

within forty-five days of August 5. The plaintiffs rejected

that position, asserting that the forty-five day period had

started on May 20 and had already elapsed. Instead, the

plaintiffs wanted to accept a renewed offer from the neighbor

for $600,000. Again, the defendant blocked the sale.

To date, the defendant has never made a formal offer to

purchase the property for any amount of money. The trust still

holds the property and has incurred significant expenses during

the pendency of this case.

7 The father's attorney also mailed this letter to the
defendant's attorney at an incorrect address, and thus the
defendant's attorney never received that physical copy of the
letter.

6
After a jury-waived trial, a judge of the Probate and

Family Court found that the defendant had waived the right to

purchase the property pursuant to the trust. Furthermore, the

judge found that the cotrustees were authorized to accept the

neighbor's $600,000 offer for the property, and that if the

defendant refused to execute the necessary documents for that

purchase, he would be removed as a cotrustee.

Discussion. 1. Standard of review. When reviewing a

bench trial decision, we accept the judge's findings of fact

unless clearly erroneous. Board of Registration in Med. v. Doe,

457 Mass. 738, 742 (2010). Clear error occurs when, "although

there is evidence to support [a finding of fact], the reviewing

court . . . is left with the definite and firm conviction that a

mistake has been committed" (quotation and citation omitted).

Marlow v. New Bedford, 369 Mass. 501, 508 (1976). Legal

conclusions, on the other hand, are reviewed de novo and without

deference to the trial judge's decision. See Trace Constr.,

Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 351

(2011).

2. First opportunity to purchase. The defendant argues

that the trust was required to send written notice of the

purchase price to the beneficiaries as a condition precedent to

the running of the forty-five day purchase option window and

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that the beneficiaries' decision to delay disposing of the

property until the spring of 2022 was not a waiver of his right

to purchase the property.

The defendant's interpretation of the trust contradicts his

father's intent. "A trust should be construed to give effect to

the intention of the [donor] as ascertained from the language of

the whole instrument considered in the light of the attendant

circumstances" (quotation and citation omitted). Schroeder v.

Danielson, 37 Mass. App. Ct. 450, 453 (1994). In this case, the

father's intent in tying the forty-five day beneficiary purchase

option window to the date of his death was clear. He wanted his

children to have the opportunity to purchase the property under

market value, but he also wanted his estate settled quickly to

minimize trust expenses in managing the property, and to prevent

strife between his children in the aftermath of his death. The

defendant's interpretation of the trust to require notice of the

purchase price before triggering the commencement of the forty-

five day purchase option window was contrary to that intent.

Second, the defendant had clear notice of the terms of the

trust long before his father's death. The defendant was not

merely a beneficiary, but a cotrustee. In that role, he had

received notice of the terms of the trust, including the fact

that the forty-five day purchase option window began upon his

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father's death, and was reminded of it multiple times. In fact,

he had asked his father to extend that window and his father had

refused. Accordingly, he had clear notice that, if he wanted to

exercise his purchase option, he had to request appraisals and

then make a purchase offer within forty-five days after his

father's death.8

3. Second opportunity to purchase. The judge found that

the cotrustees acquiesced in "reset[ting] the 45-day clock" by

authorizing the father's attorney to obtain two appraisals of

the property and then to send a written notice to the

defendant's attorney on May 20, 2022, stating that the defendant

could exercise an option to purchase the property for $513,000

within forty-five days. But because the defendant did not make

an offer to purchase the property within forty-five days from

May 20, 2022, the judge found that his option expired for a

second time. The defendant argues this finding was clearly

erroneous. We are not persuaded.

The defendant concedes that the trust fulfilled the written

notice condition on May 20, 2022, "when the [father's attorney]

8 Because we affirm the judge's ruling that the defendant
was required to make an offer to purchase the property within
forty-five days of his father's death, we do not address the
judge's alternative ruling that the defendant waived any
condition precedent to the commencement of the forty-five day
purchase option window.

9
sent the requisite letter. . . along with the appraisals and the

$513,000 purchase price." Moreover, it is undisputed that the

defendant's attorney received this notice by e-mail, and thus

that the father's attorney sent it to the correct e-mail

address. The defendant's attorney contended only that his e-

mail program filtered that e-mail message to a "spam" folder and

that he discovered it on August 5, 2022.

In support of her finding that the second purchase option

window expired forty-five days after May 20, 2022, the judge

found that the May 20, 2022, letter "restart[ed] the 45 day bid

period." She also found that the letter "was sent by e-mail to

an address provided by [the defendant's attorney]" and

"[d]elivery of [the letter] was confirmed." The judge noted

that these same two attorneys "had previously communicated by e-

mail without incident." Indeed, the father's attorney sent the

two appraisals to the defendant's attorney by e-mail on April 7,

2022, the defendant's attorney acknowledged he had received them

that same day, and the defendant acknowledged that his attorney

forwarded them to him that same day. We conclude that the

judge's finding that the forty-five day beneficiary purchase

option window restarted on May 20, 2022, and expired forty-five

10
days later was well-supported and certainly not clearly

erroneous.9

Judgment affirmed.

By the Court (Ditkoff,
D'Angelo & Wood, JJ.10),

Clerk

Entered: December 2, 2025.

9 The defendant also argues that the plaintiffs engaged in
bad faith by stating that they would not accept his offer to
purchase the property for $513,000. In fact, the defendant
never made such an offer. It is not bad faith for the
plaintiffs to express an unwillingness to accept a hypothetical,
untimely, under-market-value offer for the property. See G. L.
c. 203E, § 804 ("A trustee shall administer the trust as a
prudent person would, considering the purposes, terms and other
circumstances of the trust. In satisfying this standard, the
trustee shall exercise reasonable care, skill and caution").

10 The panelists are listed in order of seniority.

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