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-593
IN THE MATTER OF THE SALLY A. CONNOLLY TRUST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, Kathleen Connolly, is the trustee of the
Sally A. Connolly Trust (trust).1 Kathleen's mother, Sally, who
died in September 2015, was the settlor of the trust. Kathleen
and her three siblings, Sean, Jennifer, and Kelly are the
beneficiaries. In 2018, in accordance with her administrative
responsibilities, Kathleen filed a general trust petition to
which Sean and Kelly objected. Litigation ensued and was
ongoing when, in September 2019, Kathleen filed a petition for
allowance of the first and final trust account (petition).
Ultimately, after prolonged negotiations and further litigation,
the matter went to trial in the fiduciary litigation session of
the Probate and Family Court. Kathleen, Sean, and Kelly
1With one exception (Kelly Colby), the parties share last names. We therefore refer to them by their first names for ease of reference. testified as did various experts. At the conclusion of the
trial, the judge entered a detailed and comprehensive decision
and allowed the petition. The judge also ordered Kathleen to
reimburse the trust $545, allowed a trustee fee to Kathleen of
$28,910, allowed an award of attorney's fees to counsel for
Kathleen as trustee in the amount of $180,000, denied Sean's
motion for attorney's fees, and ordered Sean and Kelly to
reimburse the trust for their portion of the attorney's fee
award in the amounts of $45,000 and $15,000 respectively. Sean
appeals from the decree.2
As an initial matter, we address Kathleen's argument that
the appeal should be dismissed due to Sean's failure to comply
with the Rules of Appellate Procedure. We agree with Kathleen
that Sean's brief and appendix are lacking in many respects.
The brief does not contain an adequate statement of the case,
see Mass. R. A. P. 16 (a) (6), as appearing in 481 Mass. 1628
(2019), and has no statement of the facts, see Mass. R. A. P.
16 (a) (7). In addition, the brief includes improper argument
and unfounded accusations of misconduct on the part of the judge
and the parties. See Mass. R. A. P. 16 (a) (9). Lastly, the
appendix utterly fails to comply with Mass. R. A. P. 18, as
appearing in 481 Mass. 1637 (2019). Sean's failure to provide
2 Sean is a licensed attorney and represents himself in this appeal. Kelly has not appealed.
2 us with a transcript of the trial, as required by Mass. R. A. P.
18 (b) (4), is particularly troublesome and ordinarily would
result in a waiver of many of the issues Sean has raised on
appeal. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84
(1995). However, because Kathleen has submitted a supplemental
appendix which contains the transcript of the trial, we have an
adequate record of the proceedings. We therefore now turn to
the merits of the appeal.
Background. We recount only those facts and aspects of the
procedural history necessary to give context to our discussion.
As we have noted, Sally's children are the beneficiaries of the
trust and Kathleen is the trustee. Kathleen also was appointed
as the personal representative of Sally's estate. The primary
trust assets were two properties -- a house in Danvers that has
since been sold, and a house in Ossipee, New Hampshire. The
siblings agreed that $200,000 was a fair purchase price for the
Ossipee property and, at various times, Kathleen and Sean both
expressed interest in purchasing the property. Sean submitted
several purchase and sale agreements, but none of them were
executed. Ultimately, in July 2018, Kathleen filed a general
trust petition seeking to move forward with purchasing the
Ossipee property herself. Sean filed an objection, and the same
judge who later presided over the trial entered a decree on June
25, 2019, ordering the sale of the property to Sean within
3 forty-five days for $200,000, with Sean paying $150,000 with the
remaining $50,000 from Sean's one-quarter interest in the sale
price as a trust beneficiary. The decree provided that Kathleen
as trustee could sell the Ossipee property to herself
individually under the same terms and conditions if Sean did not
purchase the property. Sean did not purchase the property
pursuant to the court's decree by the specified date (and later
extended by agreement of Kathleen), and Kathleen purchased the
Ossipee property for $200,000 in August 2019. Thereafter,
Kathleen filed a petition for allowance of the first and final
trust account. Sean and Kelly filed objections which primarily
related to the expenses for the Ossipee property after January
2017, legal fees, and trustee fees.
After a five-day trial held on nonconsecutive days, the
judge issued detailed written findings based, in part, on his
assessment of Kathleen and Sean's credibility. Relevant here,
the judge found that Kathleen did not prevent Sean from buying
the property. Rather, Kathleen repeatedly attempted to
accommodate Sean's expressed intent to purchase the property but
his failure to close on the property delayed the sale. The
judge also found that Kathleen did not breach her fiduciary
duty. Additionally, the judge found that with two minor
exceptions, all of the various expenses associated with the
upkeep and maintenance of the property were reasonable and
4 necessary to prevent damage and that Sean's objections to them
were not supported by the evidence. The judge further found
that Kathleen was entitled to reasonable compensation for her
work as trustee and the amount she requested was fair and
supported by contemporaneous, detailed time records. Based on
expert testimony, which the judge credited, and detailed billing
records, the judge allowed Kathleen's request for attorney's
fees. Because, as the judge found, Sean's objections lacked
merit and resulted in an increase of attorney's fees for the
trust and a delay in the administration of the trust, Sean's
request for attorney's fees was denied.
Discussion. Sean raises numerous arguments on appeal.
From what we can discern from his brief, he claims (1) the judge
should have held the trial on consecutive days and failed to
issue his written decision within ninety days; (2) the judge
erred by not ruling on his motions for a directed verdict;
(3) the judge erred in failing to sequester the witnesses,
including a retired judge who served as an expert witness for
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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-593
IN THE MATTER OF THE SALLY A. CONNOLLY TRUST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, Kathleen Connolly, is the trustee of the
Sally A. Connolly Trust (trust).1 Kathleen's mother, Sally, who
died in September 2015, was the settlor of the trust. Kathleen
and her three siblings, Sean, Jennifer, and Kelly are the
beneficiaries. In 2018, in accordance with her administrative
responsibilities, Kathleen filed a general trust petition to
which Sean and Kelly objected. Litigation ensued and was
ongoing when, in September 2019, Kathleen filed a petition for
allowance of the first and final trust account (petition).
Ultimately, after prolonged negotiations and further litigation,
the matter went to trial in the fiduciary litigation session of
the Probate and Family Court. Kathleen, Sean, and Kelly
1With one exception (Kelly Colby), the parties share last names. We therefore refer to them by their first names for ease of reference. testified as did various experts. At the conclusion of the
trial, the judge entered a detailed and comprehensive decision
and allowed the petition. The judge also ordered Kathleen to
reimburse the trust $545, allowed a trustee fee to Kathleen of
$28,910, allowed an award of attorney's fees to counsel for
Kathleen as trustee in the amount of $180,000, denied Sean's
motion for attorney's fees, and ordered Sean and Kelly to
reimburse the trust for their portion of the attorney's fee
award in the amounts of $45,000 and $15,000 respectively. Sean
appeals from the decree.2
As an initial matter, we address Kathleen's argument that
the appeal should be dismissed due to Sean's failure to comply
with the Rules of Appellate Procedure. We agree with Kathleen
that Sean's brief and appendix are lacking in many respects.
The brief does not contain an adequate statement of the case,
see Mass. R. A. P. 16 (a) (6), as appearing in 481 Mass. 1628
(2019), and has no statement of the facts, see Mass. R. A. P.
16 (a) (7). In addition, the brief includes improper argument
and unfounded accusations of misconduct on the part of the judge
and the parties. See Mass. R. A. P. 16 (a) (9). Lastly, the
appendix utterly fails to comply with Mass. R. A. P. 18, as
appearing in 481 Mass. 1637 (2019). Sean's failure to provide
2 Sean is a licensed attorney and represents himself in this appeal. Kelly has not appealed.
2 us with a transcript of the trial, as required by Mass. R. A. P.
18 (b) (4), is particularly troublesome and ordinarily would
result in a waiver of many of the issues Sean has raised on
appeal. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84
(1995). However, because Kathleen has submitted a supplemental
appendix which contains the transcript of the trial, we have an
adequate record of the proceedings. We therefore now turn to
the merits of the appeal.
Background. We recount only those facts and aspects of the
procedural history necessary to give context to our discussion.
As we have noted, Sally's children are the beneficiaries of the
trust and Kathleen is the trustee. Kathleen also was appointed
as the personal representative of Sally's estate. The primary
trust assets were two properties -- a house in Danvers that has
since been sold, and a house in Ossipee, New Hampshire. The
siblings agreed that $200,000 was a fair purchase price for the
Ossipee property and, at various times, Kathleen and Sean both
expressed interest in purchasing the property. Sean submitted
several purchase and sale agreements, but none of them were
executed. Ultimately, in July 2018, Kathleen filed a general
trust petition seeking to move forward with purchasing the
Ossipee property herself. Sean filed an objection, and the same
judge who later presided over the trial entered a decree on June
25, 2019, ordering the sale of the property to Sean within
3 forty-five days for $200,000, with Sean paying $150,000 with the
remaining $50,000 from Sean's one-quarter interest in the sale
price as a trust beneficiary. The decree provided that Kathleen
as trustee could sell the Ossipee property to herself
individually under the same terms and conditions if Sean did not
purchase the property. Sean did not purchase the property
pursuant to the court's decree by the specified date (and later
extended by agreement of Kathleen), and Kathleen purchased the
Ossipee property for $200,000 in August 2019. Thereafter,
Kathleen filed a petition for allowance of the first and final
trust account. Sean and Kelly filed objections which primarily
related to the expenses for the Ossipee property after January
2017, legal fees, and trustee fees.
After a five-day trial held on nonconsecutive days, the
judge issued detailed written findings based, in part, on his
assessment of Kathleen and Sean's credibility. Relevant here,
the judge found that Kathleen did not prevent Sean from buying
the property. Rather, Kathleen repeatedly attempted to
accommodate Sean's expressed intent to purchase the property but
his failure to close on the property delayed the sale. The
judge also found that Kathleen did not breach her fiduciary
duty. Additionally, the judge found that with two minor
exceptions, all of the various expenses associated with the
upkeep and maintenance of the property were reasonable and
4 necessary to prevent damage and that Sean's objections to them
were not supported by the evidence. The judge further found
that Kathleen was entitled to reasonable compensation for her
work as trustee and the amount she requested was fair and
supported by contemporaneous, detailed time records. Based on
expert testimony, which the judge credited, and detailed billing
records, the judge allowed Kathleen's request for attorney's
fees. Because, as the judge found, Sean's objections lacked
merit and resulted in an increase of attorney's fees for the
trust and a delay in the administration of the trust, Sean's
request for attorney's fees was denied.
Discussion. Sean raises numerous arguments on appeal.
From what we can discern from his brief, he claims (1) the judge
should have held the trial on consecutive days and failed to
issue his written decision within ninety days; (2) the judge
erred by not ruling on his motions for a directed verdict;
(3) the judge erred in failing to sequester the witnesses,
including a retired judge who served as an expert witness for
Kathleen; (4) the trial judge, Kathleen as trustee, and her
counsel undertook a concerted action amounting to a civil
conspiracy to thwart his case; (5) the award of attorney's fees
to Kathleen's counsel was excessive; (6) his right to a fair
trial was violated because the judge chose to have the parties
file written proposed findings instead of permitting oral
5 closing arguments; (7) the judge's findings were "plainly
wrong"; and (8) all the judges involved in the matter violated
his rights by "intentionally failing to perform their legally
required judicial functions and duties; by intentionally
creating miscarriage(s) of justice through countless
intentional, malicious, grotesque abuse(s) of power; and by
their intentional, ongoing, malicious, biased, and prejudicial
maladministration of justice."
We have considered these arguments and conclude that none
of them have merit. It suffices to note the following. First,
because Sean did not object to the trial schedule or the time
spent by the judge to write his decision, these claims are
waived. See Wildlands Trust of Southeastern Mass., Inc. v.
Cedar Hill Retreat Ctr., 98 Mass. App. Ct. 775, 787-788 (2020).
Even if they were not waived, we discern no abuse of discretion.
It was appropriate to schedule the trial in a manner that best
promoted efficiency and, contrary to Sean's assertion, the judge
was not required to issue his decision within ninety days. See
Probate and Family Court Amended Standing Order 3-17 (2018).
Second, the judge properly deferred ruling on Sean's motion
for a directed verdict until the close of all the evidence.
Rule 41 (b) (2) of the Massachusetts Rules of Civil Procedure,
365 Mass. 803 (1974) (rule 41 [b] [2]), explicitly gives
discretion to the judge to do so and we discern no abuse of that
6 discretion here.3 Moreover, it was not an abuse of discretion to
take the motion under advisement, and the reasons for denying
the motion are clearly articulated in the judge's written
decision. Lastly, it bears noting there was no objection to the
manner in which Sean's motion was handled.
Next, the judge was well within his discretion to not allow
Sean's motion to sequester witnesses. Although Sean claims that
his motion was denied without argument, the record belies that
assertion. The motion was addressed on the first day of trial.
Sean has not provided us with any reasoned argument suggesting
that he was prejudiced by the nonsequestration of witnesses and
our review of the proceedings provides none.
Sean's remaining arguments require little or no discussion.
Nothing in the record supports his allegation regarding a civil
conspiracy among the judges and counsel. The argument is not
only frivolous, but disingenuous. To the extent Sean raises a
colorable argument about the fee award for the trustee's
counsel, there was no abuse of discretion. See Northern Assocs.
v. Kiley, 57 Mass. App. Ct. 874, 882 (2003) ("A trial judge has
wide discretion in determining the amount of attorney's fees to
be awarded to a party"). Sean's claim that the judge erred by
3 When a motion for a directed verdict is made at a bench trial, it may be treated as a motion for involuntary dismissal under rule 41 (b) (2). See Skowronski v. Sachs, 62 Mass. App. Ct. 630, 632 (2004).
7 not hearing closing arguments and instead inviting the parties
to submit a written "rationale" is similarly unavailing. Not
only was there no abuse of discretion, but there was no
objection to the procedure. Finally, there is no basis on which
we can conclude that the judge's analysis was faulty in any
respect or that Sean's rights were violated at any point during
the proceedings.
Accordingly, we affirm the decree. We also allow
Kathleen's request for appellate attorney's fees and costs, and
we deny Sean's request for attorney's fees and costs.4
Decree dated August 29, 2022, affirmed.
By the Court (Vuono, Englander & Hodgens, JJ.5),
Clerk
Entered: January 22, 2025.
4 Kathleen may file a petition for fees and costs, together with supporting materials, to the clerk of this court within fourteen days of the date of this decision. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Sean shall have fourteen days thereafter to respond. See id.
5 The panelists are listed in order of seniority.