The special administrator of the estate of Helyn M. Carlon (administrator) appeals from portions of a judgment issued by a judge of the Probate and Family Court finding that the administrator failed to sustain his burden of proving damages on his claims of conversion and what the judge construed as a claim of unjust enrichment related to the contents of certain safe deposit boxes, and dismissing those claims. The administrator contends that the judge erred in concluding that the evidence of damages was too remote or speculative. We vacate the portions of the judgment related to those claims and remand the matter for further proceedings consistent with this memorandum and order.
Background. We recite only the facts relevant to this narrow appeal. Prior to their deaths, Helyn Carlon (Helyn) and her husband, Steven Carlon Sr. (Steven Sr.),3 maintained a system of bank accounts, safe deposit boxes, and hidden cash for the purpose of bequeathing their assets to their four children without paying inheritance taxes. Steven Sr. meticulously recorded the accounting for that system until his health declined in 2006. Over the next four years, Helyn assumed the role of accounting for the family's finances. However, Helyn's maintenance of the various financial records was unorganized and irregular.
As part of her estate plan, Helyn jointly owned two safe deposit boxes. The first safe deposit box was kept at Berkshire Bank and was jointly owned by Helyn; Helyn's daughter, Donna Circosta (Donna); and one of Helyn's sons, Kevin Carlon (Kevin).4 The second safe deposit box was kept at TD Banknorth and was also jointly owned by Helyn, Donna, and Kevin.5 Financial records from 2004 and 2006 reflect that both safe deposit boxes contained large amounts of cash.
In May, 2010, Helyn informed Kevin of her financial records and the locations of the family's financial assets. At that time, Helyn showed Kevin the contents of the safe deposit box kept at TD Banknorth. Kevin could not state the exact amount of money inside that safe deposit box, but testified that the twelve-by-twelve-by-six-inch inch box was "filled with cash consisting of old $100 bills." Helyn died a few months later. Following her death, a family dispute arose when each safe deposit box was discovered to be empty.
In addition to other claims, the administrator brought both an equitable and a legal claim against Donna in the Probate and Family Court alleging that Donna improperly removed cash from the safe deposit boxes.6 At trial, evidence showed that Donna accessed the TD Banknorth safe deposit box in the months before Helyn's death and multiple times in the days thereafter. The judge did not credit Donna's testimony that "there was nothing of value in either [safe deposit] box ... when she initially accessed them after her mother's death." The judge also found it "highly unlikely that Helyn would withdraw all the cash from these safe deposit boxes during the last months of her life." However, the judge ruled in favor of Donna on the administrator's claims related to the safe deposit boxes. Specifically, the judge found the administrator failed to meet his burden of proving "damages" as it related to the assets contained within either safe deposit box that Donna "may have removed." The administrator appeals from the portions of the judgment dismissing those claims.
Discussion. We note that the administrator brought a claim of "constructive trust" regarding the contents of the safe deposit boxes. Before proceeding with our review, we clarify that a constructive trust is an equitable remedy, not an independent cause of action. See Barry v. Covich, 332 Mass. 338, 342-343 (1955). As a remedial device, a constructive trust has no elements, but is instead a "flexible tool of equity designed to prevent unjust enrichment resulting from fraud, a violation of a fiduciary duty or confidential relationship, mistake, or other circumstances." Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 246 (2007) (quotation omitted). We interpret the administrator's claim, as did the judge below, to be a claim of unjust enrichment seeking the remedy of a constructive trust. See Powers, Inc. v. Wayside, Inc. of Falmouth, 343 Mass. 686, 694-695 (1962). "Unjust enrichment is defined as retention of money or property of another against the fundamental principles of justice or equity and good conscience." Santagate v. Tower, 64 Mass. App. Ct. 324, 329-330 (2005) (quotation omitted).
The administrator's burden was to prove by a preponderance of the evidence that Donna was "unjustly enriched by the acquisition of title to identifiable property at the expense of the claimant or in violation of the claimant's rights." Restatement (Third) of Restitution and Unjust Enrichment § 55(1), at 296 (2011). See Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 643-644 (2013). Included within this burden is the obligation of the administrator to present evidence of the total or gross amount of the defendant's gain, or a reasonable approximation thereof.7 See Bonina v. Sheppard, 91 Mass. App. Ct. 622, 626-627 (2017), citing Dobbs, Law of Remedies § 4.1(4), at 566 (2d ed. 1993). However, if a plaintiff's evidence cannot lead to even a reasonable approximation, the claim of unjust enrichment is merely speculative and must fail as a matter of law. See Taylor Woodrow Blitman Constr. Corp. v. Southfield Gardens Co., 534 F. Supp. 340, 347 (D. Mass. 1982).
We cannot determine from the judge's decision whether he found, as Donna argues, that the administrator failed to prove that she took the cash from the safe deposit boxes, or whether the judge found, as the administrator argues, that Donna took the cash but that the evidence was too speculative to establish the amount taken. Furthermore, if the latter, we cannot determine whether the judge took into account all of the evidence offered at trial, which might allow him, after discounting evidence that he deems too remote or speculative, to come to some reasonable approximation of the amount of cash left in the safe deposit boxes at the time of Helyn's death. We therefore remand for further findings on these issues.8
In remanding the matter, we acknowledge that "measuring restitution for unjust enrichment poses special difficulties and, as such, trial judges need considerable discretion to fashion appropriate remedies." Bonina v. Sheppard, 91 Mass. App. Ct. at 626 (quotation omitted). See Restatement (Third) of Restitution and Unjust Enrichment § 55(1) comments g, h (2011). If on remand the judge determines that the administrator met his burden at trial to prove that Donna was unjustly enriched by removing property from the safe deposit boxes, including a reasonable approximation of her gain, the judge may fashion an equitable remedy, such as restitution in the form of a constructive trust, weighing the equities "based on the specific circumstances of [the] case" using his sound discretion. Bakwin v. Mardirosian, 467 Mass. 631, 639 n.9 (2014).
The administrator also brought a claim of conversion against Donna under a similar theory of recovery.9 Conversion is a tort claim requiring proof of damages. See Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 507 (1985). "While the damages may not be determined by speculation or guess, an approximate result is permissible if the evidence shows the extent of damages to be a matter of just and reasonable inference." McKenna v. Begin, 5 Mass. App. Ct. 304, 311 (1977). "A wrongdoer may not complain that damages cannot be measured precisely where he alone is responsible for the harm." Ibid. For the same reasons as stated above, remand is required for the judge to clarify the basis for his resolution of this claim.
We vacate those portions of the judgment dismissing the administrator's claims based on unjust enrichment and conversion related to the contents of the safe deposit boxes, and remand the matter for further proceedings consistent with this memorandum and order.10 The judgment is otherwise affirmed.11
So ordered.
Vacated in part; Affirmed in part.