In the Matter of the Sally A. Connolly Trust.

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.

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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

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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

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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

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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

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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).

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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.

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