Patricia Postale v. Rose Mitchell.

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

24-P-1330

PATRICIA POSTALE

vs.

ROSE MITCHELL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal was paired for argument with Postale vs.

Mitchell, Appeals Court No. 24-P-1331, which addresses the

merits and underlying facts in dispute. This separate appeal

focuses exclusively on whether it was proper for the Probate and

Family Court judge to sanction defense counsel for failing to

comply with Probate and Family Court Standing Order 2-99.1

Counsel argues that the judge abused her discretion in a variety

of ways. On the limited record with which we have been

provided, we see no abuse of discretion, and we thus affirm the

sanctions order.

1We refer to counsel because the sanctions were ordered
against him directly, rather than the defendant.
Background. After judgment entered on the merits, the

defendant made three posttrial motions: one for relief from

judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828

(1974) (rule 60 [b]), one for attorney's fees pursuant to G. L.

c. 231, § 6F (§ 6F), and one to stay the judgment and subsequent

proceedings pending appeal. Counsel marked all three motions

for hearing, despite the Standing Order 2-99(b)(1) prohibition

on marking rule 60 (b) motions for hearing. In response, the

plaintiff moved for sanctions against counsel.

At a hearing on the motions, the judge denied the

rule 60 (b) motion due to its noncompliance with Standing Order

2-99. The judge then turned to the defendant's motion for

attorney's fees, saying "well, that follows that motion, so I'm

not --" before counsel interrupted to argue that the motion was

separate from anything to do with the judgment. The judge gave

counsel an opportunity to withdraw the motion, but stated, "if

you want to argue it, then I will rule on it." Counsel then

withdrew the motion. The judge next addressed the motion for a

stay pending appeal; each party had the opportunity to argue the

motion on the merits before the judge ultimately denied it.

The judge then heard the plaintiff's motion for sanctions

against counsel. The plaintiff argued that counsel repeatedly

failed to follow rules of procedure, such as not following "any

of the requirements of 2-99," and asked for sanctions in the

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amount of the attorney's fees necessary to respond to either the

improperly marked rule 60 (b) motion or all three motions. In

response, counsel acknowledged that he was "unaware of Standing

Order 2-99" and "didn't read it," but argued that plaintiff's

counsel had also failed to follow procedural rules throughout

the case. The judge took the arguments under advisement and

thereafter issued an order, granting the plaintiff's motions for

sanctions in the amount of $1,160, an amount based on the

plaintiff's affidavit detailing the costs of reviewing the rule

60 (b) motion and preparing the motion for sanctions. The

defendant appealed.2

Discussion. Standing Order 2-99(d) states that "[f]ailure

to comply with any and all of the provisions of this order may

result in the [c]ourt's refusal to entertain the motion and/or

the imposition of sanctions and/or costs against a party or

his/her counsel." We review a judge's sanctions order for abuse

of discretion. See, e.g., Van Christo Advertising, Inc. v. M/A-

COM/LCS, 426 Mass. 410, 417 (1998). Abuse of discretion is not

established merely when the reviewing court would have made a

different decision, but rather when the judge made a "clear

2 Although the notice of appeal designates the sanctions
order and the order denying reconsideration thereof as the
subjects of this appeal, counsel makes no separate argument
regarding the reconsideration motion, so we do not discuss it
further.

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error of judgment in weighing the factors relevant to the

decision such that the decision falls outside the range of

reasonable alternatives" (quotation and citation omitted). L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

As an initial matter, counsel errs in asserting that the

judge stated that all three motions were improperly filed

according to Standing Order 2-99. We see no support for this

contention in the record. The transcript does not reflect that

the judge mentioned the standing order when discussing either of

the other two motions. The relevant portion of the order

granting sanctions refers only to the rule 60 (b) motion, with

the other motions addressed separately.

Because the judge ordered sanctions based only on the rule

60 (b) motion's noncompliance with Standing Order 2-99, we

decline to address defense counsel's other arguments regarding

the other motions. We also note that the merits of the judge's

action on any of the three posttrial motions are not before us.3

Counsel concedes that his rule 60 (b) motion was marked for

hearing in violation of Standing Order 2-99. He nonetheless

argues now that this was a minor error and that the motion

3 Counsel concedes that the motion for relief from judgment
was improperly filed and that its denial was appropriate. The
motion for attorney's fees was never decided by the judge
because counsel withdrew it. The ruling on the motion to stay
is not challenged.

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complied with the standing order in at least some respects.

Plaintiff's counsel argued in the hearing that the motion "did

not follow any of the requirements of 2-99," and the judge's

order does not specify whether particular sections of the

standing order were violated or whether the motion was entirely

noncompliant.

As counsel did not provide us the rule 60 (b) motion itself

in his record appendix, we are unable to assess whether his

noncompliance with standing order 2-99 was minimal or extensive.4

Therefore, we cannot say that the judge abused her discretion

when ordering sanctions for his noncompliance.

Counsel also argues that the sanctions were improper

because plaintiff's counsel had similarly failed to follow rules

of procedure but has not likewise been sanctioned. We are

unable to assess these claims because the record appendix does

4 Mass. R. A. P. 18 (a) (1) (A) (v) (b), as appearing in 481
Mass. 1637 (2019), requires that a party's appendix include "any
document, or portion thereof, filed in the case relating to an
issue which is to be argued on appeal." This requirement is
reiterated in Rule 18 (a) (1) (D), as appearing in 491 Mass.
1603 (2023), which states "Parties must include in the appendix
all portions of the record that are relied upon in the brief or
that relate to an issue on appeal." It is "a fundamental and
long-standing rule of appellate civil practice" that the
appellant has an obligation "to include in the appendix those
parts of the [record that] are essential for review of the
issues raised on appeal." Shawmut Community Bank, N.A. v.
Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass.
807 (1992). Indeed, it seems worth noting that defense counsel
made this error in an appeal challenging a sanction for failing
to follow procedural rules.

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not include any of the motions or orders pertaining to the

plaintiff's conduct. See note 4, supra. Since we cannot

compare the parties' conduct, we cannot conclude that it was an

abuse of discretion to sanction defense counsel while not

sanctioning the plaintiff or plaintiff's counsel.

Counsel next argues that there was no harm to the plaintiff

warranting sanctions. He argues that the judge sufficiently

resolved his noncompliance with Standing Order 2-99 by denying

the rule 60 (b) motion, and that she abused her discretion by

also imposing sanctions. Even assuming that the noncompliance

was minimal, counsel cites no authority suggesting that

sanctions to compensate the opposing party for the consequences

of counsel's rule violation would be an abuse of discretion

under Standing Order 2-99(d). To the extent that the judge was,

as counsel argues, "effectuating the lesser measures available

to her" when denying the rule 60 (b) motion, we know of nothing

that prohibits both such a denial and sanctions for

noncompliance with the standing order.

Counsel also argues that the rule 60 (b) motion did not

require plaintiff's counsel to do any additional work, and thus

that the sanctions were improperly punitive rather than

compensatory. But the sanctions order cited plaintiff's

counsel's affidavit as the basis for its valuation, yet defense

counsel has not provided us with this affidavit. Nor is there

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anything else in the record appendix on this issue. Therefore,

we cannot say that the sanctions amount was an abuse of

discretion.

Sanctions order affirmed.

Order denying motion for
reconsideration of
sanctions order affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.5),

Clerk

Entered: October 24, 2025.

5 The panelists are listed in order of seniority.

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