Caitlin Schiffer v. Brendan Reid.

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-289

CAITLIN SCHIFFER

vs.

BRENDAN REID.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The underlying action arises from a dispute among three

siblings over the proceeds of their mother's estate.2 The

plaintiff filed the action in Norfolk County Superior Court,

alleging that the defendant wrongfully took funds from the

estate, contrary to the instructions in their mother's will.

After the defendant failed to comply with multiple discovery

orders, a judge imposed on him a sanction of default on all of

the plaintiff's claims (for fraud, breach of fiduciary duty,

conversion, and tortious interference with inheritance). The

judge then held an evidentiary hearing on assessment of damages,

following which judgment entered for the plaintiff in the amount

1 Individually and as personal representative of the estate of
Claire F. Reid.
2 One sibling, who was originally a plaintiff, was dismissed from

the case upon the filing of a suggestion of death.
of $42,319.03 in damages and $30,900 in attorney's fees, plus

interest and costs. The defendant now appeals from the judgment

and from the denial of his later motion to vacate.3

We begin by noting that the record appendix submitted by

the defendant is inadequate to permit meaningful appellate

review. Among other deficiencies it does not contain the docket

entries, the hearing transcript, the pertinent decisions of the

judge, the judgment, or the notices of appeal. See Mass.

R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). As the

appealing party, the defendant had the obligation to produce an

appendix containing all relevant portions of the record; that he

is pro se did not excuse him from this obligation. See Davis v.

Tabachnick, 425 Mass. 1010, 1010 (1997). For this reason alone,

we decline to overturn the judgment.

For completeness, however, we will address the defendant's

arguments, as we understand them. The defendant first asserts

that the plaintiff served him with a complaint that was "never

3 The defendant filed multiple motions to vacate. His first
motion was allowed in part as to the computation of damages, and
a revised judgment entered. After appealing from the revised
judgment, the defendant filed a second motion to vacate, which
was denied by a second judge, the original judge having retired.
Although the defendant filed an appeal from the second judge's
decision, he does not raise any separate argument with respect
to it and has thus waived his right to appellate review of that
ruling. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833
(2015). He did not appeal from the denials of any of his later
motions.

2
part of the official record" and that his "entire defense" was

based on this complaint. Evidently, the defendant is referring

to a duplicative action that the plaintiff filed in Plymouth

County Superior Court, which was eventually dismissed with

prejudice by stipulation. From what we can tell, the complaint

filed in Plymouth County is identical to the one that initiated

the underlying case in Norfolk County, except that the former is

missing paragraphs seven and twelve.4 Although this appears to

have caused momentary confusion at the evidentiary hearing, the

defendant has not demonstrated how he was thereby prejudiced.

Absent a showing of substantial prejudice, the defendant is not

entitled to relief. See G. L. c. 231, § 119; Care & Protection

of Frank, 409 Mass. 492, 499 (1991).

Next, the defendant contends that damages should not have

been awarded on the claims of fraud and tortious interference

with inheritance because the factual predicates of those claims,

as pleaded in the complaint, were either contradicted by

evidence adduced at the evidentiary hearing or were insufficient

to state a claim on which relief could be granted. See Nancy P.

v. D'Amato, 401 Mass. 516, 519 (1988) ("When . . . a defendant

4 Paragraph seven of the underlying complaint states,
"Immediately following Ms. Reid's death, Brendan, the oldest
sibling, represented to Bryan and Caitlin that their Mother had
passed away intestate." Paragraph twelve states, "The June 7,
1999 will also provided that Ms. Reid's estate was to pay all
costs associated with her funeral."

3
is defaulted, well-pleaded facts are deemed to be admitted, but

a plaintiff may recover only to the extent the complaint states

a claim for relief"). To the extent this argument relies on the

evidence adduced at the hearing, we cannot consider it because

the defendant failed to provide us with a copy of the

transcript. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84

(1995). That aside, the argument does not support any reduction

of damages, given the judge's finding that "the plaintiff would

have been entitled to recover damages under any or all of her

four claims." As the defendant does not separately challenge

the judgment with respect to the claims of breach of fiduciary

duty and conversion, we have no basis to vacate the damages

award.

Nor do we have a basis to vacate the default judgment. The

defendant asserts that a default judgment was a disproportionate

sanction for his discovery violation because the discovery

requests were "never served upon" him yet he "complied with what

he could anyway." But the record flatly contradicts this

assertion. The attorney representing the defendant at the time

attested in an affidavit that he received the discovery requests

by e-mail. In addition, as the judge stated in her decision

imposing the sanction, "[t]he defendant was provided with a copy

of the [discovery requests] on the record and in the presence of

the Court." The judge's decision also describes how the

4
defendant willfully and repeatedly violated her discovery

orders, despite multiple warnings and extensions of the

deadline. In these circumstances the judge was within her

discretion to impose the sanction of default. See Short v.

Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 852-853

(2011).

The judge was also within her discretion to award the

plaintiff her reasonable attorney's fees. The defendant

challenges the award on the ground that it was in essence a

second sanction for his failure to comply with discovery. As

the defendant acknowledges, however, the award was based only

"in part" on the discovery violation. The primary basis was

that the defendant engaged in "bad faith conduct that

constituted contempt"; specifically, as the judge found, the

defendant concealed information from the Probate and Family

Court during the probate of the estate -- forcing the plaintiff

"to file this lawsuit to recover the assets to which she was

clearly entitled" -- and he then "continued to maintain that the

[e]state was insolvent and refused to produce discovery that

demonstrated the falsity of that assertion up until the eve of

trial." Given the defendant's bad faith, the judge determined

that this was one of those "rare and egregious cases" in which

an award of attorney's fees was warranted. Police Comm'r of

Boston v. Gows, 429 Mass. 14, 19 (1999). The defendant has not

5
demonstrated, or even argued, that this was an abuse of

discretion. See id. at 18 (judge has discretion to award

attorney's fees based on conduct amounting to contempt of court,

including where litigant acted in bad faith, where "litigant's

conduct [was] unreasonably obdurate or obstinate," and "where it

should have been unnecessary for a successful litigant to have

brought the action").5

Judgment affirmed.

Order dated September 21,
2020, denying motion to
vacate judgment, affirmed.

By the Court (Sacks, Shin &
D'Angelo, JJ.6),

Clerk

Entered: June 26, 2023.

5 We deny the plaintiff's request for appellate attorney's fees,
as she has offered no basis for such an award.
6 The panelists are listed in order of seniority.

6