CourtListener 10710368•Patricia Postale v. Rose Mitchell.
Testo completo
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
2
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.
3
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.
4
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.
5
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
6
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.
7
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