DocketNumber: 17-P-1416
Citation Numbers: 122 N.E.3d 1100, 94 Mass. App. Ct. 1117
Filed Date: 1/17/2019
Status: Precedential
Modified Date: 7/24/2022
A Superior Court judge concluded that the defendant, William R. Kelley, Jr., testified untruthfully at his deposition, and the judge therefore allowed the plaintiffs' motion for contempt. Concluding that the defendant's statements made under oath during a postjudgment deposition supported the finding of contempt, we affirm.
Background. The plaintiffs, the two daughters of the defendant, filed an action against him in 2010 alleging that he sexually abused them over the course of many years. Prior to disposition on that action, the parties entered into a stipulation, and the court entered an order that prohibited the defendant from, inter alia, selling his thirteen-acre horse ranch located in Utah (property) without the plaintiffs' approval and leave of court. In October, 2014, the jury awarded the plaintiffs $5 million each plus interest and costs. A panel of this court affirmed the judgment in an unpublished decision issued pursuant to rule 1:28. See B.K. v. Kelley,
After the jury trial in the previous litigation, the plaintiffs served a notice of deposition on the defendant to obtain information regarding his assets available to satisfy the judgment against him. The defendant filed a motion to quash and for a protective order that was denied. Following an order to appear, the defendant attended the deposition on January 15, 2015.
During the deposition, the plaintiffs' attorneys asked the defendant, in pertinent part, about whether or not he had asked anybody to sell the property, whether he had any discussions with anybody other than Don Weiss about selling the property, and whether he had any intention to sell the property. As discussed in more detail below, the defendant provided incomplete and false answers to these questions.
After the deposition, the plaintiffs learned from the defendant's Utah counsel, Attorney Patricia Geary Glenn, that the defendant had provided false testimony at the deposition.
In May of 2015, after reviewing the defendant's deposition testimony and believing it to be false, Glenn filed a motion that informed the court that the defendant had provided false testimony at the deposition regarding his knowledge of the value of the property and his intent and efforts to sell the property. In particular, Glenn stated that she herself was involved with offering to sell the property in September, 2014, and had conveyed an informal offer of $7 million for the property to the defendant in September of 2014; that in January of 2015, the defendant met with a Park City, Utah commercial real estate broker "for purposes of selling the [p]roperty"; and that one day before and one day after his deposition in January, 2015, the defendant and Glenn had discussed, by written communication, selling the property.
Based on the information provided by Glenn, the plaintiffs filed a complaint for contempt against the defendant claiming that he committed perjury and fraud on the court. Following an evidentiary hearing, a Superior Court judge concluded that the defendant provided false testimony at the deposition. In his decision and order, the judge stated that "the defendant is hereby adjudged in contempt of the [o]rder to provide truthful testimony at his deposition on January 15, 2015," and ordered the defendant to pay the plaintiffs' attorney fees and costs, as well as Glenn's fees and expenses (contempt order).
Discussion. 1. Legal standards. We review the judge's contempt order for abuse of discretion. See K.A. v. T.R.,
"[C]ivil contempt consists in failing to do something which the contemnor is ordered by the court to do." O'Connell v. Greenwood,
2. Analysis. a. Challenged statements. The defendant's deposition was taken pursuant to an order of the court. The judge determined that implicit in that order was that the defendant must testify truthfully, and the judge found that "there is no question" that he did not do so.
First, the evidence was sufficient to prove that the defendant wilfully testified falsely as to whether or not he had asked anybody to sell the property. In response to the question, "Did you ask somebody to sell the property?" the defendant answered, "To sell it? No." The defendant contends that the term "sell" is ambiguous, that as a matter of law Glenn could not serve as a real estate broker and therefore the December, 2014, agreement was not a sales contract, and that Weiss was the defendant's "key person for evaluating any potential sale prospects." These arguments are unavailing. Approximately two weeks before the deposition, the defendant entered into the December, 2014, agreement with Glenn, which authorized her to "to show and offer [the property] for sale" for a seven-month period. Regardless of the ultimate validity of the agreement, the evidence demonstrated that the defendant had "ask[ed] somebody to sell the property," and thus testified falsely. The materiality of his statement is also apparent. By answering "no," the defendant prevented the plaintiffs from inquiring further about the identity of the parties involved in selling the property, thereby stalling their efforts to ascertain the value and status of the defendant's assets, which was the purpose of the deposition.
The evidence also was sufficient to prove that the defendant wilfully testified falsely by answering, "I don't know," when asked whether he had any discussions with anybody except Weiss about selling the property. The defendant asserts that he answered this way because he could not "conclusively answer" whether various discussions "could be characterized as concerned with 'selling' the property." The evidence and testimony that the defendant had an agreement with Glenn to sell the property, had met with Glenn about selling the property, and had met with a commercial real estate broker in Utah about two weeks before the deposition, supported a finding of wilful false testimony.
b. Attorney-client privilege. The defendant contends that the attorney-client privilege barred disclosure of his communications with Glenn regarding the property, including disclosure of the December, 2014, agreement. He argues that Glenn's disclosures violated her professional obligation to maintain confidentiality and that the disclosures were not subject to any exception. We disagree.
"[T]he attorney-client privilege shields from the view of third parties all confidential communications between a client and [his] attorney undertaken for the purpose of obtaining legal advice." Suffolk Constr. Co. v. Division of Capital Asset Mgt.,
The defendant argues that the December, 2014, agreement was a fee agreement meant to compensate Glenn for her legal work. This argument is unavailing and was rejected as "wholly incredible" by the judge.
Additionally, Glenn testified during the hearing that while the defendant was in Utah from December, 2014, to January, 2015, she, the defendant, and a commercial real estate broker met together in Utah and "discussed selling the property." Glenn also testified on cross-examination that the defendant "was talking to [the commercial real estate broker] about selling the property any way he could." Insofar as a third party participated in the conversation, and the parties discussed the property and not the rendering of legal services, the attorney-client privilege could not apply to this communication in any event. See Commissioner of Rev.,
In sum, under the particular facts of this case, we discern no error or abuse of discretion in the judge's issuance of the contempt judgment.
Judgment of contempt entered September 25, 2015, affirmed.
At the time of the proceeding Glenn was licensed to practice law in Utah and had served as counsel for the defendant in Utah litigation involving the property. She has also assisted in the defense of this case and in drafting posttrial motions in Massachusetts.
A different Superior Court judge previously found the defendant in contempt for failing to produce certain requested documents at his deposition.
We discern no error in the judge's determination on this point and the parties do not contest that the defendant's oath at the deposition required him to testify truthfully. The order requiring the defendant to attend the deposition coupled with the requirement that he testify truthfully constituted "a clear and unequivocal command," which the defendant "undoubtedly disobeyed," as explained infra. Birchall, petitioner,
The parties agree that "the purpose of the inquiry involved the current status and value of the defendant's assets" in order to satisfy the judgment against him.
The defendant argues that the judge's finding that the defendant met with the commercial real estate broker and therefore "sought to utilize [his] efforts in potential sales efforts" was clearly erroneous. We disagree. The evidence supports the finding that the defendant met with the commercial real estate broker about two weeks before the deposition and that the discussion involved the sale of the property. See White,
The judge's determination that the defendant testified untruthfully by stating that he did not have any intention to sell the property "right now," while a closer call, also was not erroneous in view of the December, 2014, agreement, the defendant's meeting with the commercial real estate broker and Glenn, and the defendant's written communications with Glenn the day before and the day after the deposition. Even assuming, arguendo, that the judge erred as to this statement, if any of the three statements were wilfully false, the contempt order stands, a point which the defendant acknowledged during oral argument. See, e.g., O'Connell,
The judge specified that Glenn provided the information "[i]n conformity with the Rules of Professional Conduct."
We are not persuaded by the defendant's contention that Glenn's disclosures violated her professional duty to maintain the confidentiality of his information under Mass. R. Prof. C. 3.3,
For the reasons detailed supra, we discern no abuse of discretion in the judge's denial of the defendant's rule 59 motion. See Quarterman,