MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises from Sheldon Manuels petition to probate her late husbands will, which was countered by a petition for adjudication of intestacy filed by Blair Tingley, the decedents only child. Manuel
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appeals from a judgment dismissing her petition with prejudice as a sanction for her repeated violations of discovery orders and from a separate decree adjudicating the decedents intestacy.
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See Mass. R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass. 1208 (1984). Concluding that the sanction of dismissal was unwarranted in the circumstances, we reverse the judgment of dismissal and the decree, and remand the case for a reconsideration of sanctions.
Background. We summarize the facts found by the Probate and Family Court judge, supplemented by undisputed facts in the record. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). On May 20, 2013, Manuel filed a petition for formal probate of the decedents will, in which he purportedly left his entire estate to her. Tingley filed an objection to Manuels petition and a petition for adjudication of intestacy, to which Manuel subsequently objected. Tingley challenged the validity of the will and the validity of Manuels marriage to the decedent. On August 19, 2013, a judge appointed Attorney Michelle Mannix as the special personal representative (SPR) of the decedents estate.
On November 25, 2014, Manuel filed a motion for summary judgment on Tingleys petition, arguing that there was no genuine issue of material fact as to the validity of her marriage to the decedent. The motion judge granted the motion in part and denied it in part, dismissing the claims concerning the marriage only and allowing discovery to proceed on Tingleys claims concerning the validity of the will.
On March 23, 2015, the SPR filed and the judge allowed a motion to depose Manuel about checks she drew from the decedents account shortly before and after his death.
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Over the next fourteen months, Manuel failed to appear for her deposition, or to produce requested documents, despite extensive accommodations, and was twice warned that continued failure to appear for the deposition could result in dismissal of her petition. She filed three motions to continue, citing medical issues, and continually refused to cooperate with opposing counsel to schedule the deposition. After Manuels third motion to continue, the SPR and Tingley filed a joint motion for sanctions against Manuel, requesting the judge to strike Manuels objection to Tingleys petition and to award attorneys fees and costs incurred. After a hearing, the motion judge dismissed Manuels petition with prejudice, finding that her noncompliance with discovery orders was in bad faith. The judge also struck Manuels objection to Tingleys petition, entered a decree determining that the decedent died intestate, and appointed the SPR as the personal representative of the estate.
Discussion. “[W]hen confronted with a party who fails to obey an order to provide or permit discovery,” Keene v. Brigham & Womens Hosp., Inc., 439 Mass. 223, 233 (2003), a judge has “wide latitude to ‘make such orders ․ as are just.’ ” Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 224 (1999), quoting Mass. R. Civ. P. 37 (b) (2). Sanctions should be “appropriately punitive in relation to the objectionable behavior, and appropriately remedial in relation to the disadvantage visited.” Grassi Design Group, Inc. v. Bank of Am., N.A., 74 Mass. App. Ct. 456, 460-461 (2009). When a judge imposes the “extreme sanction” of dismissal, we “generally require that [the decision] be predicated on a finding of wilfulness or bad faith.” Keene, supra at 235-236. We review a judges decision on discovery sanctions for an abuse of discretion. See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-132 (2002).
The motion judges memorandum, though including a finding of bad faith, lacked a clear explanation of why the “extreme sanction” of dismissal was warranted in the circumstances. We conclude that dismissal was not warranted on this record, as the subject of the deposition for which Manuel failed to appear bore, at most, a tangential relationship to the central issues of her probate petition. Manuel refused to be deposed about checks she allegedly drew from the decedents account around the time of his death, which did not directly relate to the validity of the decedents will, or to whom the estate was to be distributed. While we do not condone Manuels noncompliance with discovery orders, the judges decision to impose the sanction of dismissal “falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
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We additionally note that, in this type of probate matter, the judges central role is to ascertain and give effect to the decedents intentions if they have been communicated through a will and, if not, to apply the law of intestacy. See Waring v. Loring, 399 Mass. 419, 422 (1987), citing Nickerson v. Bowly, 8 Met. 424, 432 (1844). Dismissing Manuels petition, while triable issues remain regarding the validity of the will, risks prematurely foreclosing opportunities to ascertain the decedents wishes.
In light of the weighty consequences of dismissal and the nature of Manuels discovery violations, we reverse the judgment of dismissal of Manuels petition and the decree on Tingleys petition. The case is remanded for a reconsideration of sanctions. Though we reverse, nothing in this opinion should be read as precluding imposition of further sanctions, including even dismissal, should Manuels misconduct continue.
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,
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So ordered.
reversed and remanded
FOOTNOTES
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. We refer to the appellant by her surname in the interest of convenience, recognizing that the decedent (the appellants late husband) has the same surname.
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. Manuel also claims error in an interlocutory order denying, in part, her motion for summary judgment on Tingleys petition.
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. The existence of the checks emerged from discovery in Sheldon Manuel vs. Daniel B. Ford. Jr., Trustee of the Anne M. Manuel-David B. Manuel, Jr. Trust, Docket No. BA-14E-063-QC. In that case, a Probate and Family Court judge dismissed Manuels complaint with prejudice for failure to prosecute and for committing fraud upon the court, and his decision was affirmed on appeal. See Manuel v. Ford, 99 Mass. App. Ct. 1114 (2021).
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. While recognizing that “it is not our province to substitute our judgment for that of the judge,” Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 853 (2011), we note that other sanctions were available to the judge, such as an order precluding Manuel from presenting evidence on the dissipation of the decedents estate, imposing penalties on her for dissipation, and reimbursing costs incurred by opposing parties, or other reasonably tailored sanctions.
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. While Manuel also argues on appeal that her motion for summary judgment on Tingleys petition should have been granted in full, we note that her memorandum in support of her motion for summary judgment did not address Tingleys claims regarding the validity of the will.
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. We deny Tingleys request for appellate attorneys fees, based on her contention that the appeal is frivolous.