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
23-P-1056
DANA M. CHILES, trustee, 1
vs.
THOMAS W. LITTAUER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The trustee, Dana M. Chiles, appeals from a Superior Court
judgment dismissing his first amended complaint (complaint),
both for lack of prosecution and as a sanction for what a judge
(first motion judge) concluded was a willful failure to provide
discovery. The defendant, Thomas W. Littauer, cross-appeals
from a second motion judge's order allowing the trustee's motion
for leave to file his notice of appeal late. Seeing no abuse of
discretion in the latter order, we conclude that the appeal is
properly before us. We are constrained to conclude, however,
that the first motion judge abused his discretion in dismissing
the complaint. We therefore vacate the judgment of dismissal.
1 Of the Brabern Realty Trust. Background. The trustee's 2016 complaint asserted a claim
for wrongful foreclosure on a property where he operated a horse
stable business. The complaint included related claims for
damages based on theories such as defamation, fraud,
G. L. c. 93A, and interference with business relationships.
Littauer deposed the trustee and served requests for production
of documents. In response, the trustee produced a few
photographs but asserted that he did not possess any more
responsive documents. After Littauer filed a motion to compel,
a judge 2 ruled in 2018 that the trustee must produce responsive
documents within four weeks or else be precluded from
introducing them at the trial set for later that year. The
trustee produced no more documents.
After postponements of trial and further motion practice,
another judge ruled in 2019 that, because of the trustee's
"failure to produce documents after repeated offers and
requests, the [trustee] is precluded from entering any documents
at trial (with the exception of photographs he has produced)
that support any and all claims for damages."
After the trial was further delayed, a judge entered
partial summary judgment concluding that Littauer had wrongfully
2 With the exception of the two motion judges whose rulings are directly at issue on appeal, we do not differentiate between the many judges who ruled on motions during the long history of this case.
2 foreclosed on the property the trustee claimed to own. The
trustee continued to pursue his damages claims.
In June 2022, Littauer, asserting that the trustee still
had not produced any more documents, moved in limine to preclude
the trustee from introducing any documents at the impending
trial. In November 2022, when the trustee's then-counsel was
experiencing medical issues, a judge ordered the trustee either
to ensure then-counsel was ready for trial in March 2023 or to
have a successor file a notice of appearance by February 1,
2023, and be prepared for trial in March 2023. Then-counsel
moved to withdraw, but the trustee failed to have new counsel
file a notice of appearance by February 1.
In response, on March 20, 2023, a judge allowed then-
counsel to withdraw and ordered the trustee to have new counsel
appear, and "to file any opposition" to Littauer's still-pending
motion in limine, by April 28, 2023. The judge's order stated,
"If there has been no notice of appearance filed by successor
counsel on or before April 28, 2023, and/or no opposition to the
motion in limine, this matter shall be dismissed for lack of
prosecution." The judge ordered the trustee not to treat this
warning "with the same indifference" as the trustee had
displayed in response to the November 2022 order.
New counsel for the trustee filed his appearance by the
April 28, 2023 deadline, but he did not file a response to the
3 motion in limine until a week later, on May 5, 2023. In the
response, the trustee asserted that counsel had read the March
20, 2023 order and concluded that he need not file an opposition
to the motion in limine, for two reasons. First, he viewed the
motion as moot, because two previous judges had already
precluded the trustee from offering documents at trial if not
produced in discovery. Second, he asserted that no further
documents were necessary to prove the trustee's damages; the
trustee would do so based on trial testimony.
Littauer then filed a reply memorandum in which he asserted
three grounds to dismiss the trustee's remaining claims. These
were, first, that the trustee's failure to file an opposition to
the motion in limine was a violation of the March 20, 2023
order, which had warned that noncompliance would lead to
dismissal for lack of prosecution. Second, dismissal was
warranted as a discovery sanction, for failure to comply with
prior orders to produce documents. Third, the trustee could not
prove damages by relying only on witness testimony, and
therefore a trial would be a waste of judicial resources.
After a hearing, the first motion judge ordered the
trustee's remaining claims dismissed, both for lack of
prosecution and as a sanction for what the judge termed the
trustee's "willful failure to provide discovery and comply with
4 court orders." On May 18, 2023, a judgment entered dismissing
the complaint in its entirety. 3
The trustee then prepared a notice of appeal, which was
dated May 31, 2023, and to which he attached a certificate of
electronic service bearing the same date. But, the Superior
Court clerk's office did not receive the notice of appeal by the
applicable deadline, June 19, 2023. Learning of this, the
trustee filed a motion for leave to file a late notice of
appeal, asserting that the delay was the result of excusable
neglect within the meaning of Mass. R. A. P. 4 (c), as appearing
in 481 Mass. 1606 (2019). Specifically, counsel asserted that
"due to some computer glitch the notice of appeal got sent to
his [d]rafts folder on [the court's electronic filing website]
instead of being timely filed." A second motion judge allowed
the motion, and the trustee filed his notice of appeal on July
6, 2023.
Littauer then cross-appealed from the order allowing the
motion and also sought reconsideration, asserting that the
trustee had failed to show excusable neglect. The trustee
opposed reconsideration and filed an affidavit of counsel
further explaining his belief that the late filing resulted from
3 Because we vacate the judgment in any event, we need not address whether its scope was erroneously broader than that of the order of dismissal.
5 an error in the electronic filing system rather than his own
negligence. The second motion judge denied reconsideration.
Discussion. 1. Trustee's late notice of appeal. To
determine whether the trustee's appeal is properly before us, we
must turn first to Littauer's cross appeal. Littauer argues
that the second motion judge abused his discretion in allowing
the trustee to file a late notice of appeal. See Mass. R. A.
P. 4 (c), as appearing in 481 Mass. 1606 (2019) (on showing of
excusable neglect, trial court may extend time for filing notice
of appeal for period not to exceed thirty days from original
deadline); Adoption of Patty, 489 Mass. 630, 636 n.9 (2022)
(judge's decision under rule 4 (c) reviewable for abuse of
discretion). The excusable neglect standard looks to
"circumstances that are unique or extraordinary" and is not
extended "to cover any kind of garden-variety oversight"
(citations and quotations omitted). Bernard v. United Brands
Co., 27 Mass. App. Ct. 415, 418 n.8 (1989). An abuse of
discretion is a "clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation
omitted).
We see no abuse of discretion here. The second motion
judge reasonably could have credited the trustee's counsel's
6 assertions that he attempted to file the notice of appeal on May
31, 2023, which would have been timely. Counsel asserted that,
as he discovered only later, the filing remained in the
"[d]rafts" folder of his electronic filing system account -- a
problem he had never experienced before. These assertions were
supported by the dates on the notice of appeal and certificate
of service, by counsel's later affidavit, and by the undisputed
fact that counsel ordered transcripts for the appeal that same
day, May 31, 2023.
That counsel did not initially support his motion with an
affidavit was not fatal. Counsel's later-filed affidavit
explained that he had filed the motion, inferably in haste, on
the same day as he learned that the clerk had not received his
notice of appeal. Although, as Littauer argues, counsel
apparently failed to realize that he had not received a filing
confirmation e-mail on the day he believed he had filed the
notice of appeal, counsel explained he had received two other
filing confirmations that same day, related to this same case,
and may have confused them with the confirmation relating to the
notice of appeal.
Littauer also points to another court's decision, on quite
different facts, that failure to note the absence of a filing
confirmation email was inconsistent with excusable neglect. See
Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 329 (3d Cir.
7 2012). But that does not establish any abuse of discretion
here. Cf. L.L., 470 Mass. at 185 n.27 (decision not abuse of
discretion simply because reviewing court would have reached
different result). Rule 4 (c) does not require that the late-
filing party be completely blameless, but only that any neglect
be excusable. The second motion judge did not abuse his
discretion in concluding that the standard was met here. The
trustee's appeal is thus properly before us.
2. Dismissal for lack of prosecution. "On motion of the
defendant, with notice, the court may, in its discretion,
dismiss any action for failure of the plaintiff to prosecute or
to comply with these rules or any order of court." Mass. R.
Civ. P. 41 (b) (2), 365 Mass. 804 (1974). The trustee argues
that the first motion judge abused his discretion in dismissing
the trustee's remaining claims for failure to prosecute. See
Monahan v. Washburn, 400 Mass. 126, 128 (1987) (dismissal for
lack of prosecution reviewed for abuse of discretion).
Specifically, the trustee asserts that it was an abuse of
discretion for the judge to rely on the trustee's failure to
file an opposition to Littauer's motion in limine by April 28,
2023, because the order setting that deadline was unclear.
Although the first motion judge was understandably concerned
that the case was still unresolved "more than five years past
the originally scheduled trial date," we agree with the trustee
8 that dismissal for lack of prosecution was improper in these
circumstances. 4
A dismissal for lack of prosecution "is a drastic sanction
which should be utilized only in extreme situations." Monahan,
400 Mass. at 128. "As a minimal requirement, there must be
convincing evidence of unreasonable conduct or delay. A judge
should also give sufficient consideration to the prejudice that
the movant would incur if the motion were denied, and whether
there are more suitable, alternative penalties." Id. at 128-
129.
Here, the order setting the deadline contained two
imprecise phrases regarding the filing of an opposition, such
that the trustee's failure to file one was not "convincing
evidence of unreasonable conduct or delay." Monahan, 400 Mass.
at 128. First, the order required the trustee "to file any
opposition" to the motion by April 28, 2023. The phrase "any
opposition" clearly implies that there may be no opposition at
all. A party is not ordinarily required to oppose a motion and
may reasonably choose not to do so if, for example, the party is
We focus on the specific conduct -- failure to file an 4
opposition to the motion in limine -- that the first motion judge considered as the basis for dismissal for lack of prosecution. Whether the trustee in fact engaged in any unreasonable conduct or delay earlier in the case, or for that matter violated "any order of court" earlier in the case that might have warranted dismissal for lack of prosecution, see rule 41 (b) (2), is not before us.
9 indifferent to whether the motion is allowed. Here, if the
judge who issued the order setting the deadline meant to require
the trustee to file a statement of his position on the motion
(whatever it might be), then an order to file "any opposition"
by a certain date was not a clear way to do so.
Second, the order setting the deadline stated, "If there
has been no notice of appearance filed by successor counsel on
or before April 28, 2023, and/or no opposition to the motion in
limine, this matter shall be dismissed for lack of prosecution."
The term "and/or" is a "vague expression," and its use may
"make[] it impossible to discover" the meaning of the sentence
in which it is used. Hanson v. Bradley, 298 Mass. 371, 378
(1937). "[T]he use of the phrase 'and/or' creates ambiguity."
Matter of the Colecchia Family Irrevocable Trust, 100 Mass. App.
Ct. 504, 514 (2021). Here, the trustee reasonably could have
understood, as he asserted he did, that to avoid a dismissal for
lack of prosecution, it was sufficient for counsel to file a
notice of appearance by the deadline; he need not also file an
opposition to the motion in limine.
Further, the failure to file an opposition caused no
unreasonable delay, where the first motion judge could simply
have allowed the motion in limine once the opposition deadline
passed. And once the trustee did file what he styled an
"opposition," one week after the April 28, 2023 deadline, his
10 position was that the motion was moot because "the precise
relief" it sought had already been granted by two earlier
orders. Regardless whether that assessment was correct, 5 the
trustee's filing still left the judge with the option to allow
the motion in limine and proceed to trial, based on the
trustee's representation that he stood "ready to try [the] case
as scheduled" and would rely on oral testimony to attempt to
prove his damages.
Because "convincing evidence of unreasonable conduct or
delay" is the "minimal requirement" for a dismissal for lack of
prosecution, Monahan, 400 Mass. at 128, but is absent here, we
need not consider the remaining factors at any length. It is
enough to say, regarding "the prejudice that the movant would
incur if the motion [to dismiss] were denied," id., that the
unfair prejudice Littauer faced from the trustee's failure to
oppose the motion in limine (or his one week delay in opposing
it) was virtually nonexistent. Littauer had already obtained
orders barring the trustee from introducing at trial any
5 The two prior orders differed in scope, but each appeared to leave room for the trustee to introduce some documents at trial. Littauer's motion in limine, however, sought to preclude the trustee from introducing any documents whatsoever at trial. The trustee, while professing to believe that that relief had already been granted, maintained in his opposition that he could still "introduce documents filed or obtained via subpoena, and record documents." We need not address that issue. For purposes of this appeal, we assume that the trustee's only evidence of damages was and is witness testimony.
11 documents bearing on damages that had not already been produced.
The absence of an opposition from the trustee in no way delayed
the first motion judge from allowing the motion in limine, to
whatever extent it was not moot. And the "more suitable,
alternative penalt[y]" for the trustee's failure to file an
opposition to Littauer's motion in limine, id. at 129, would
have been merely to allow the motion. We conclude that the
dismissal for lack of prosecution was an abuse of discretion.
3. Dismissal as a discovery sanction. Where "a party
fails to obey an order to provide or permit discovery," a judge
may impose sanctions up to and including "dismissing the
action." Mass. R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass.
1208 (1984). Such dismissal is an "extreme sanction," which
generally must be "predicated on a finding of wilfulness or bad
faith." Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223,
236 (2003). Here, the first motion judge concluded that the
trustee's failure to "provide[] any documentary evidence
supporting his claims" was a "willful failure to provide
discovery" that warranted dismissal. 6 Reviewing the order for
abuse of discretion, see Solimene v. B. Grauel & Co., 399 Mass.
6 To whatever extent the judge may have viewed the failure to file any opposition to the motion in limine by April 28, 2023, as another discovery violation, dismissal on that basis was an abuse of discretion, for the reasons already explained and also because the order to file an opposition was not "an order to provide or permit discovery." Rule 37 (b) (2) (C).
12 790, 799 (1987), we are again constrained to conclude that
dismissal was not warranted.
The trustee consistently asserted that he had produced all
responsive documents in his possession, custody, or control; he
claimed that other documents had been lost when a separate
property owned by the trustee was foreclosed upon. The trustee
argued that he "can't produce documents he doesn't have."
Littauer did not challenge this assertion as untrue, 7 nor did any
of the judges who ruled on earlier motions to compel find it to
be untrue. Rather, Littauer sought, and obtained, orders
precluding the trustee from relying at trial on any documents
not produced by a particular date, or on any documents that
supported the trustee's damages claims. Littauer told one judge
that this preclusive remedy was "very fair."
As the court stated in Keene, "[r]equests for discovery
pursuant to Mass. R. Civ. P. 34 (a), 365 Mass. 792 (1974),
require production of documents that 'are in the possession,
custody or control of the party upon whom the request is
served.'" Keene, 439 Mass. at 233. Accordingly, "rule 34 (a)
does not demand production of documents that 'were in' or that
7 Littauer makes this claim for the first time in his appellate brief, but he cites no evidence for his assertion. Notably, at the trustee's 2018 deposition, Littauer failed to question the trustee about his damages, let alone whether he had documents to prove those damages.
13 'should have been kept in' the party's possession. Put simply,
there can be no discovery violation, and hence no rule 37
sanction, when a party fails to produce documents it does not
possess," id., or that are not in its custody or control.
Absent a finding that the trustee had responsive documents
in his possession, custody, or control that he had failed to
produce, there was no basis to find a violation of a discovery
order, let alone the willful violation that would be required to
justify dismissal. The Supreme Judicial Court has said that
such a finding, whether explicit or implicit, is necessary and
must be supportable:
"Since due process requirements may limit the sanction of dismissal, where there is an inability to comply, we conclude that it is necessary for an appellate court to know if the judge's action was predicated on a finding of wilfulness, bad faith, or fault, unless it is clear that such a determination was implicit and warranted" (emphasis added; footnote omitted).
Gos v. Brownstein, 403 Mass. 252, 257 (1988). To whatever
extent the judge's reference to the trustee's "willful failure
to provide discovery" included an implicit finding that the
trustee possessed responsive documents, Littauer has pointed to
no evidence in the record supporting such a finding. See
DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct.
339, 343 (1985) (finding clearly erroneous when there is no
evidence to support it). Because there was no supportable
14 finding of a discovery violation, dismissal as a discovery
sanction was an abuse of discretion.
Littauer's reliance on Maywood Bldrs. Supply Co. v. Kaplan,
22 Mass. App. Ct. 944 (1986) is misplaced. There, this court
affirmed dismissal of an action as a sanction for "a pattern of
persistent failure to comply with discovery orders." Id. at
944. The court acknowledged that the sanction was "severe, but
it followed only after several efforts to flush out documentary
material fundamental to the proof of the case. If that material
did not come forward, there was no point in letting the comedy
go on." Id. at 945. The court rejected the plaintiffs'
argument that dismissal was inappropriate without a finding that
the violations were willful. Id. Two years later, however, the
Supreme Judicial Court held the contrary. See Gos, 403 Mass. at
257 (dismissal as discovery sanction inappropriate absent
finding of willfulness, bad faith, or fault). Maywood Bldrs.
Supply Co. is thus no longer authoritative.
Littauer is also mistaken in suggesting that we affirm the
judgment of dismissal on the alternate ground relied on in
Keene, 439 Mass. at 237. There, the court recognized that a
party's failure to produce documents may give rise to an
inference that the documents would have contained proof adverse
to that party's case, sufficient to support ruling against that
party on liability as a matter of law. See id. But Keene was
15 an "exceptional" case, id., in which, among other distinguishing
circumstances, a trial court judge found that the defendant
hospital's failure to preserve medical records, as required by
statute, constituted spoliation; was the result of "at least
negligence"; and was an actionable form of medical malpractice.
Id. at 234-236. No comparable finding of fault was made here.
Whether such a finding could have been made, or could still be
made, is not before us. 8
4. Dismissal for lack of evidence. Finally, Littauer asks
us to affirm on the alternate ground that as a matter of law,
without the documents Littauer requested in discovery, the
trustee cannot prove any damages, and thus his remaining claims
should be dismissed without a trial. No doubt, "[w]hile it is
8 We do not mean to suggest that either the judge or Littauer was required to accept the trustee's representation that no documents regarding his damages claim were within his possession, custody, or control. Indeed, in the joint pretrial memorandum dated November 12, 2021, the trustee asserted that his damages were based upon, among other things, lost profits and customer good will, in a precise amount of $449,652.15. Yet the trustee claimed below, and continues to claim, that he has no documents in his possession, custody, or control that bear on the questions, for example, of what his profits were for the business, including his revenues and expenses, or, what customers he once had but allegedly lost. However implausible the trustee's representations, the problem with the record before us is that there was essentially no further discovery or testimony on what documents existed other than the request for documents, and thus there were no facts established from which the judge could find that documents had been willfully withheld.
16 true that a plaintiff need not prove damages with mathematical
certainty, 'damages cannot be recovered when they are remote,
speculative, hypothetical, and not within the realm of
reasonable certainty.'" Kitner v. CTW Transp., Inc., 53 Mass.
App. Ct. 741, 748 (2002), quoting Lowrie v. Castle, 225 Mass.
37, 51 (1916). But the cases Littauer relies upon do not
establish any broad rule that damages cannot be proven without
documents. 9 The trustee's testimony would have to be
sufficiently concrete to establish damages with reasonable
certainty, but the lack of documents is not an absolute bar to
recovery.
Although we may affirm "on any ground supported by the
record," Clair v. Clair, 464 Mass. 205, 214 (2013), quoting
Gabbidon v. King, 414 Mass. 685, 686 (1993), here the record is
not sufficient to conclude as a matter of law that the trustee
cannot prove any damages. Littauer did not depose the trustee
as to what his testimony would be as to damages. See note 7,
supra. Littauer could have moved for summary judgment, but did
not, on the ground that the trustee had no reasonable
expectation of proving damages, an essential element of his
case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706,
9 Snelling & Snelling of Mass., Inc. v. Wall, 345 Mass. 634, 635-636 (1963); Quarterman v. Springfield, 91 Mass. App. Ct. 254, 261-262, cert. denied, 583 U.S. 1013 (2017); Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 17-21 (2003).
17 716 (1991). The trustee then would have been required to put
forward "such facts as would be admissible in evidence," Mass.
R. Civ. P. 56 (e), 365 Mass. 824, 825 (1974) -- without
documents, per the prior orders -- and argue that those adduced
facts were sufficient to support a damages claim under the law.
Whether such a summary judgment motion would have succeeded, or
could succeed if on remand a judge allowed it to be filed, are
questions not before us.
Conclusion. We affirm the order granting leave to file a
late notice of appeal. The judgment is vacated, and the case is
remanded for further proceedings consistent with this memorandum
and order.
So ordered.
By the Court (Sacks, Englander & Grant, JJ. 10),
Clerk
Entered: November 4, 2024.
10 The panelists are listed in order of seniority.