The First Church of Christ, Scientist v. Barbara Ann Charder. ( 2023 )

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
22-P-416
THE FIRST CHURCH OF CHRIST, SCIENTIST
vs.
BARBARA ANN CHARDER.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The First Church of Christ, Scientist (Church) holds the
remainder interest in a bungalow-style, two-story home on Fair
Street in Nantucket (the property). The defendant has held a
life estate in the property since 2003. Alleging waste, the
Church commenced this action seeking (i) to terminate the
defendant's life estate in the property pursuant to G. L.
c. 242, § 1,2 (ii) to recover damages caused by waste, and (iii)
a declaration terminating the defendant's life estate and
vesting title in fee simple in the Church. On the Church's
second motion for sanctions for failure to comply with rules of
1 Now known as Ara Charder.
2 General Laws c. 242, § 1, provides that "If a tenant . . . for
life . . . commits or suffers waste on the land so held, the
person having the next immediate estate . . . may have an action
of waste against such tenant to recover the place wasted and the
amount of the damage . . . ."
discovery and with court orders compelling compliance, a judge
of the Superior Court entered final judgment terminating the
defendant's life estate, and granting all right, title,
interest, and possession to the Church.3 On appeal, the
defendant argues that the sanction of default was too severe,
and that the facts alleged in the complaint did not warrant a
judgment in the Church's favor. We affirm.
Background. The Church commenced this action on September
11, 2019, and the defendant filed a timely answer. On April 7,
2020, the Church filed a motion to compel discovery. The
defendant's attorney sought and was granted leave to withdraw;
and the Church was ordered to serve the discovery on the
defendant, personally. The Church did so. On August 3, 2020,
having received no discovery, the Church filed a second motion
to compel discovery. A judge ordered the defendant to comply on
or before September 4, 2020. On January 12, 2021, the Church
filed a motion for sanctions due to the defendant's failure to
comply with the court order by September 4, 2020. On January
20, 2021, the judge found that sanctions were warranted but
deferred "making any finding as to sanctions" at that time. The
judge thereafter extended the deadline for the defendant to file
a motion for summary judgment.
3 Count II, seeking damages due to waste, was dismissed.
2
The summary judgment record demonstrated that the local
board of health had communicated with the Church on October 31,
2011, indicating it had received complaints about rodents at the
property and that the occupant had refused access for an
inspection. The Church engaged an expert architect who
evaluated the exterior of the building on May 8, 2019. He
observed: rotted and non-functional gutters that had allowed
water damage to exterior walls; wet rot negatively impacting the
integrity of the wood; a sagging roof near the main entry, bowed
wall, and distressed windows, all indicating that the structural
integrity of framing had failed; the roof needed to be replaced;
rotting wood on south façade was allowing water to infiltrate
behind the siding or to the interior; the integrity of the
siding, windows, roof, and exterior walls were compromised; the
glass of one window was broken; moss, lichen or algae were
growing on cedar shingles; four square feet of shingles were
missing; storm windows were partially detached; there was
missing split flashing above five windows; there were missing
components and exposed wires on the front light; the front door
was barricaded with plywood; debris littered a rear deck; and,
finally, the yard was unkempt, overgrown, and scattered with
debris. The architect concluded that the property had not been
reasonably or properly maintained for several years, the neglect
had allowed "severe and substantial deterioration to occur," and
3
further opined that the overall condition was that of an
unoccupied residence that had not been reasonably maintained and
that the home likely was uninhabitable with compromised
integrity of the siding, windows, roof, and exterior walls.
In the course of the summary judgment proceedings, the
judge granted the Church's motion to strike evidence in
opposition to the summary judgment motion, noting that the
defendant had failed to answer the Church’s discovery requests
concerning the condition of the property at various intervals,
its maintenance over the years, and the basis for any facts
supporting her position that (1) the property has not
deteriorated substantially since she acquired title in 2003, and
(2) she has not failed in her duty to preserve the property for
the benefit of the Church. The judge ultimately denied summary
judgment, however, on the basis that the Church's expert did not
opine on the condition of the building's interior or estimate
the costs of repair.
Following that decision, a different judge conducted a Rule
16 hearing on September 27, 2021, which the defendant and her
new attorney attended. At that hearing, the parties agreed to a
date, October 15, 2021, for the Church's expert to conduct an
inspection of the interior.4 The judge stated that "the
4 The Church’s expert would have been unavailable for an extended
period of time after October 2021, and so offered several dates
4
inspection will go forward on the . . . 15th. Ms. Charder is,
of course, welcome to attend. I do agree, though, that it is
not necessary that she attend, and I would expect that the
inspection would go forward whether she is able to make herself
available or not." The judge noted that "the ultimate sanction
for failure to comply with discovery is judgment for the
opposing side, so I think it's important that this go forward as
scheduled."5
Beginning the day before the scheduled inspection, the
defendant made efforts to change the time of the inspection from
11 A.M. to between 9 A.M. and 9:30 A.M. Due to ferry schedules
and other traveling challenges, the Church's counsel declined to
change the time. The defendant also informed the Church that
she refused to allow more than one person into the building and
refused to allow the Church's attorney to enter the building.
Counsel for the Church and three others (the original architect,
the architect's co-worker, and a consultant on costs of repairs)
in October for the inspection. The defendant claimed that she
would be busy with her charter bus tour business in October and
suggested that the Church get a new expert in order to schedule
a later inspection. Noting that the defendant's personal
presence was not required, the court ordered the defendant to
choose from among the October dates offered; she agreed to
October 15, 2021.
5 In addition, the judge issued a written order that inspection
by the plaintiff's expert will go forward on October 15, 2021,
with or without the defendant's presence, and also provided
dates for any renewed motion for summary judgment, mediation, a
final pretrial conference, and a trial date.
5
arrived at the property at 11 A.M. and found the building
locked. The defendant had filed an emergency motion for a
protective order seeking to limit entry to one person and
prevent counsel for the Church, the architect's co-worker, and
the consultant from accompanying the architect into the
building. The judge denied the motion and specifically stated
that "[t]he architect, his associate or associates, and
plaintiff's counsel may enter the premises to inspect it."
Counsel for the Church thereafter demanded immediate access
and returned to the property around 2 P.M. The defendant did
not appear; counsel for the Church traveled to her home and saw
her tour van in the driveway and the defendant sitting in a lawn
chair in the yard, using a smart phone. A few minutes later,
the defendant's counsel called and told the Church's counsel
that the defendant was busy providing a tour and would not allow
the inspection until 4:30 P.M. After continuing conversations
between counsel indicated that the defendant would not permit an
inspection until 4:30 P.M., counsel for the Church and the
Church's experts departed from the property and left the island.
The Church filed a renewed motion for summary judgment and
a motion for sanctions. The Church detailed what it
characterized as the defendant's willful and repeated defiance
of court orders compelling discovery despite being warned by the
judge that sanctions for not cooperating with the October 15,
6
2021 property inspection could include entry of judgment. In
addition, the Church argued that the defendant had lied that she
lived at the property from 2003-2017 because records indicated
that there had been no water service at the property since
November 5, 2014, and that she lied about being unavailable
before 4:30 P.M. on October 15.
The judge granted the motion for sanctions "for
substantially the reasons set forth in the plaintiff's
memorandum in support of its motion," and entered judgment
against the defendant pursuant to Mass. R. Civ. P. 37 (b) (2)
(C), as amended, 390 Mass. 1208 (1984), terminating the
defendant's life estate and awarding all right, title, interest
and possession of the property to the Church.6
Discussion. Entry of a default judgment is "committed to
the sound discretion of the trial judge," and "[w]e do not
consider that discretion abused unless its exercise has been
characterized by arbitrary determination, capricious
disposition, whimsical thinking, or idiosyncratic choice."
Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct.
426, 429 (1986). "The consideration to be balanced in deciding
a default question for failure to make discovery are, on one
hand, a concern about giving parties their day in court, and, on
6 The judge also dismissed count II for damages, but the Church
does not appeal.
7
the other, not so blunting the rules that they may be ignored
'with impunity'" (citations omitted). Id. at 429-430. "Among
the pertinent considerations in determining whether conduct
warrants dismissal are 'the severity of the violation, the
legitimacy of the party's excuse, repetition of violations, the
deliberateness vel non of the misconduct, mitigating excuses,
prejudice to the other side and to the operations of the court,
and the adequacy of lesser sanctions.'" Sommer v. Maharaj, 451
Mass. 615, 621 (2008), quoting Robson v. Hallenbeck, 81 F.3d 1,
2 (1st Cir. 1996).
The defendant argues that the sanction of default was too
severe and the judge should have considered lesser sanctions.
The record shows, however, that the defendant repeatedly flouted
discovery requests and related court orders. As for the
inspection, she offered no legitimate excuse, and even if the
Rule 16 order was vague regarding the number of persons that
could enter the house for inspection, any doubt was resolved by
the denial of the defendant's motion for a protective order by 2
P.M. on October 15. Yet, the defendant continued to deny entry.
In addition, the court had warned the defendant that judgment
could enter should she fail to cooperate with the home
inspection. We conclude that "[t]he ultimate sanction imposed
was amply justified in the circumstances." Roxse Homes Ltd.
Partnership v. Roxse Homes, Inc., 399 Mass. 401, 406 (1987)
8
(noncompliance in clear violation of court orders justified
ultimate sanction). See Eagle Fund, Ltd. v. Sarkans, 63 Mass.
App. Ct. 79, 85-86 (2005) (defendant's violation of court order
after persistent foot dragging justified imposition of default
judgment). There was no abuse of discretion.
To the extent a finding of willfulness is required, but see
Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235-236
(2003) (such finding only "generally" required), the Church
argued in its memorandum that the defendant's conduct was
willful. The judge's decision adopting the memorandum
implicitly made a finding of willfulness, which was more than
justified by the evidence. See Gos v. Brownstein, 403 Mass.
252, 257 (1988) (finding of willfulness necessary unless
"implicit and warranted"). In addition, absence of prejudice,
which is not clearly shown here given the state of the property,
"even if true, did not make the sanction imposed unreasonable."
Eagle Fund, Ltd., 63 Mass. App. Ct. at 86.7
7 At oral argument, but not in her brief, the defendant argued
that the judge, in granting the Church's motion for sanctions
"substantially for the reasons set forth in the plaintiff's
memorandum in support of its motion," did not adopt all of the
arguments in the memorandum. We need not address arguments not
made in the brief, Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019), but if the judge had rejected a
material argument in the memorandum, he no doubt would have said
so.
9
The defendant also contends that the complaint does not
contain sufficient facts to support a finding of waste -- that
it does not state a claim for relief. See Productor e
Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826,
834-835 (1978) ("even after default it remains for the court to
consider whether the unchallenged facts constitute a legitimate
cause of action, since a party in default does not admit mere
conclusions of law" [citation omitted]). The defendant contends
that the fact that the judge denied summary judgment
demonstrates that the complaint failed to state a claim. We
disagree.
"Waste has been defined as an unreasonable or improper use,
abuse, mismanagement, or omission of duty touching real estate
by one rightfully in possession, which results in its
substantial injury" (quotation and citation omitted). Matteson
v. Walsh, 79 Mass. App. Ct. 402, 405 (2011). Here, the
complaint detailed the condition of the exterior of the property
as set forth above, and alleged that "[a] substantial
deterioration of the [p]roperty occurred as a result of [the
defendant's] neglect of the [p]roperty, amounting to waste and
injuring the remainder interest of the Church," and that "[t]he
waste committed or allowed by [the defendant] was an
unreasonable or improper use, abuse, mismanagement, or omission
10
of duty touching the [p]roperty." The Church alleged sufficient
facts to allow the court to enter a judgment for waste.8
Judgment affirmed.
By the Court (Sacks, Singh &
Brennan, JJ.9),
Clerk
Entered: March 10, 2023.
8 The earlier denial of the Church's summary judgment motion was
based not on the complaint's failure to allege sufficient facts
or otherwise to state a claim but instead on the lack of record
evidence regarding the building's interior and the cost of
repairs, i.e., damages. Neither of these issues was an obstacle
to the entry of the judgment here, which, notably, dismissed the
Church's claim for damages.
9 The panelists are listed in order of seniority.
11