Opinion
18-P-1369
01-07-2020
Nicholas J. DELPRATO v. Nancy DELPRATO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties in this appeal are siblings embroiled in at least four actions, which were filed in the Suffolk division of the Probate and Family Court, concerning the care and decision making of their now-late parents, Madalena and Giuseppe DelPrato. In the two matters before us, the plaintiff, Nicholas J. DelPrato, seeks to remove the defendant, Nancy DelPrato, as the trustee of two trusts (the 186 Baywater Trust and the 188 Baywater Trust), both of which were created by the parents in December 2002.
Because the parties share the same surname, we will refer to each by their first names. Madalena died in January 2015; Giuseppe died during the pendency of the present appeal.
While there were two separate petitions filed by Nicholas in the Probate and Family Court, we address both together here as one consolidated appeal. In addition, Nicholas filed an action seeking to appoint a conservator for Giuseppe, and an equity complaint to remove Nancy's appointment under Giuseppe's durable power of attorney, and as health care agent under Giuseppe's health care proxy.
In May 2016, following Nicholas's last-minute cancellation and failure to appear at his deposition, Nancy moved to dismiss the actions pursuant to Mass. R. Civ. P. 37 (d), 365 Mass. 797 (1974). In June 2016, while the motions to dismiss were pending, and consistent with the timeframe set forth in the scheduling order, Nancy filed motions for summary judgment. The Probate and Family Court judge allowed Nancy's motions to dismiss, in part, insofar as they related to the equity action, but declined to dismiss the present actions. Instead, the judge allowed Nancy's motions for summary judgment. On appeal, Nicholas contends that the judge erred in (1) denying his motion to extend the discovery deadline, and (2) granting summary judgment.
In doing so, the judge appeared to have mistakenly assumed that Nicholas failed to oppose the motions for summary judgment. Accordingly, Nicholas filed motions for reconsideration specifically directing the judge to his opposition papers. The judge denied these motions.
Discussion. 1. Mootness. As set forth supra, Nicholas seeks to remove Nancy as trustee for the two trusts created by their parents, both of whom have died.
a. The 186 Baywater Trust. The 186 Baywater Trust is an irrevocable trust. The trust owns the property at 186 Baywater in East Boston, in which the parents maintained a residence. The purpose of the trust was to manage the parents' assets and to use them to allow them to live in the community as long as possible. The trust "shall terminate upon the earlier of (a) the death of both of the donors and [Nicholas], or (b) upon the complete distribution of the assets of the Trust." The trust property will be distributed according to appointment by will, remainder to Julie Theresa DelPrato and Christina Nicole DelPrato, Giuseppe and Madalena's granddaughters, in equal shares. According to Nicholas, Giuseppe's wills provided for a complete distribution of the trust property -– one-half to Nicholas and one-half to Julie and Christina. Accordingly, by its terms, the 186 Baywater Trust has terminated, and this appeal insofar as it concerns the removal of Nancy as trustee for the 186 Baywater Trust is moot. See Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976) ("Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome").
Nancy, as trustee, is empowered to distribute "as much of the income of the trust as [the trustee] shall determine in [her] sole and non-reviewable discretion to be necessary for our care and well-being." The parents retained "the right to use and occupy any residence" held in trust, and the trust instrument provided that Nicholas "shall also have the right to use and occupy any residence" held in trust.
The parties inform us that Giuseppe executed a will in 2006, which is in the record on appeal, and another will in 2014, which is not.
b. The 188 Baywater Trust. The 188 Baywater Trust is also an irrevocable trust; it owns the neighboring property at 188 Baywater in East Boston. Like the 186 Baywater Trust, the purpose of this trust was to manage the parents' assets and to use them to allow them to live in the community as long as possible. The trust "shall terminate upon the earlier of (a) the death of both donors, or (b) upon the complete distribution of the assets of the Trust." The trust property will be distributed according to appointment by will, remainder to Nancy. Because both donors have died, the trust by its terms has terminated. Accordingly, this appeal insofar as it regards the removal of Nancy as the trustee of the 188 Baywater Trust is also moot. See Blake, 369 Mass. at 703.
Nancy maintains a residence in the building.
Nancy, as trustee, is empowered to distribute "as much of the income of the trust as [the trustee] shall determine in [her] sole and non-reviewable discretion to be necessary for our care and well-being." The parents retained "the right to use and occupy any residence" held in trust.
If Nancy does not survive the donors then to her issue in equal shares. If Nancy does not survive the donors and has no issue, then to their granddaughters, Julie and Christina, in equal shares.
The parties have not addressed this issue in their briefs. At oral argument, Nicholas represented that there is a will contest such that there has not yet been a full disposition of the properties owned by the trust. Thus, we assume arguendo that the matters are not moot and proceed to address the arguments raised on appeal.
Neither party has supplemented the record to reflect this ongoing nature of the dispute as to the wills in relation to the trusts.
2. Motion to extend discovery. Nicholas contends that the judge erroneously denied Nicholas's motion to extend discovery pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), thus making summary judgment premature. Trial judges have wide discretion on discovery matters. See Blake Bros. Corp. v. Roche, 12 Mass. App. Ct. 556, 560 (1981). The record shows that Nicholas filed these actions in September 2014. In March 2015, Nicholas filed a motion demanding an accounting for each of the two trusts at issue. In June 2015, the parties entered into a stipulation, approved by the judge, pursuant to which Nancy agreed to provide an accounting for each of the two trusts. Nancy provided the requested accounting in July 2015. Over the next several months, the parties jointly moved for several continuances. In April 2016, a scheduling order was entered providing the parties an additional seven weeks to complete all discovery and setting a discovery cutoff of May 27, 2016.
Rule 56 (f) provides that "[s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."
Nicholas did not seek an extension of the discovery deadline, did not timely seek any additional discovery, and thwarted Nancy's attempts at obtaining discovery. Specifically, Nicholas failed to respond meaningfully to Nancy's written discovery requests, and, as determined by the judge, "wilful[ly] and intentional[ly]" failed to appear at his deposition. He also scheduled Nancy's deposition and then cancelled it at the last minute, as Nancy was arriving at the deposition location.
Nicholas blames "miscommunications and disagreements" and an "acrimonious" relationship with his former counsel. In civil cases, parties ordinarily are bound by the actions or inactions of counsel. See Shattuck v. Bill, 142 Mass. 56, 60–61, 63 (1886) ; Tibbitts v. Wisniewski, 27 Mass. App. Ct. 729, 733 (1989). We see no reason to deviate from this longstanding general principle in this case where Nicholas does not explain how, if at all, his counsel hindered efforts at discovery compliance. Moreover, he does not set forth the specific discovery that he still needs for his opposition to Nancy's motion for summary judgment.
Nicholas's affidavit in opposition to Nancy's motion for summary judgment avers that he promptly provided discovery responses to his former counsel; yet, he does not set forth the substance of those responses and did not immediately have that discovery served once he retained new counsel. With regard to the cancellation of his deposition, Nicholas takes three slightly different positions. He avers, in his affidavit, that the decision to cancel his deposition was that of counsel and that he was simply following counsel's advice. At the hearing on summary judgment, Nicholas took the position that he did not know of the deposition at all. And, at the time of the cancellation, his former counsel informed Nancy's counsel that the deposition was cancelled because Nicholas was unable to attend. The judge found that the decision to cancel the deposition was willful and intentional. On this somewhat irreconcilable record of explanations, we cannot say that the judge clearly erred.
Where, as here, a party has not diligently pursued discovery during the pendency of the case, the judge does not abuse her discretion by declining an eleventh hour request to permit a party more time to conduct the discovery he failed to pursue previously. See Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 111 n.6 (2008), quoting Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994) ("We are in agreement with the observation of the First Circuit that ‘ Rule 56 [f] is designed to minister to the vigilant, not to those who slumber upon perceptible rights’ "). See, e.g., Fidelity Mgt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 201 (1996) (defendant not entitled to Mass. R. Civ. P. 56 [f] discovery where she failed to conduct discovery during more than three years case was pending). See also Vargas–Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 5 (1st Cir. 2004) ("[A] party seeking to postpone the adjudication of a summary judgment motion on the ground of incomplete discovery must explain why, in the exercise of due diligence, he has been unable to obtain the necessary information").
3. Motion for summary judgment. We review the judge's grant of summary judgment de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). When reviewing a grant of summary judgment, we consider the evidence in the light most favorable to the nonmoving party. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
A trustee may be removed if:
"(1) the trustee has committed a serious breach of trust; (2) there is a lack of cooperation among co-trustees that substantially impairs the administration of the trust; (3) because of unfitness, unwillingness or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or (4) there has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust and a suitable co-trustee or successor trustee is available."
G. L. c. 203E, § 706 (b ). At summary judgment, the principal grounds raised by Nicholas for removal of Nancy is his speculation as to the nature of certain expenses that he believes were improperly attributed to one trust as opposed to the other trust. He also asserts that Nancy has not provided further documentation regarding the trusts' financial activities, cites to certain expenses borne by the parents personally rather than through the trusts, cites to repairs he asserts were unnecessary, or failure to perform repairs he deemed required, and generally blames Nancy for hostility in the family. Such bare allegations and speculation, supported only by Nicholas's affidavit following his refusal to submit to deposition, are insufficient to sustain his burden on summary judgment. See Madsen v. Erwin, 395 Mass. 715, 721 (1985) ("Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment" [quotation and citation omitted] ). Without more, these assertions do not create a genuine issue of material fact as to whether Nancy should be removed as trustee under the bases for removal set forth above, and Nancy is entitled to judgment as a matter of law.
The mere fact that there is friction or hostility between Nancy and Nicholas is not necessarily a sufficient ground for removal. See Steele v. Kelley, 46 Mass. App. Ct. 712, 742 (1999). "It is only ‘where there is such friction or hostility as seriously to impede the proper performance of the trust, especially if the trustee is at fault, [that] the trustee will be removed’ " (citation omitted). Id.
To the extent Nicholas's inability to marshal admissible evidence is a result of his failure to timely seek discovery, as set forth supra, the judge did not abuse her discretion in declining Nicholas's motion to extend discovery. Nicholas cannot avoid summary judgment by resting on speculation even in the form of his own affidavit. See, e.g., Brick Constr. Corp. v. CEI Dev. Corp., 46 Mass. App. Ct. 837, 840 (1999) (affirming summary judgment where nonmoving party claimed inability to oppose summary judgment due to need for further discovery, where that party failed to seek discovery, and failed to properly seek further discovery pursuant to Mass. R. Civ. P. 56 [f)). This is especially true here where the judge found that Nicholas willffurther discovery pursuant to Mass. R. Civ. P. 56 [f] ). This is especially true here where the judge found that Nicholas willfully and intentionally refused to make himself available for his deposition. See generally Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 647-648 (2002) ("nonmoving party cannot create a material issue of fact and defeat summary judgment simply by submitting affidavits that contradict its previously sworn statements").
Nancy's cursory request for attorney's fees and costs is denied. She neither cites authority for her request, in contravention of Mass. R. A. P. 16 (a) (10), as appearing in 481 Mass. 1630 (2019), nor marshals any cogent argument that justice and equity require such an award. See G. L. c. 215, § 45 ; Matter of the Estate of King, 455 Mass. 796, 803 (2010).
Judgment affirmed.