In the Matter of Neil Ernest Simoni.

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-621

IN THE MATTER OF NEIL ERNEST SIMONI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Elsbeth L. Simoni (petitioner) appeals from a Probate and

Family Court decree dismissing without prejudice her petition

for guardianship of an incapacitated person, her father Neil

Ernest Simoni (respondent). The petitioner also seeks to

challenge a judge's order allowing, in the amount of $4,704.81,

the respondent's motion for attorney's fees incurred in

defending against the petition. After this appeal was briefed

and taken under panel consideration, the petitioner reported

that the respondent had died on May 19, 2023, and successor

counsel for the respondent filed a suggestion of the

respondent's death.

We conclude that the appeal from the decree dismissing the

guardianship petition is moot. We decline, however, to conclude

that the appeal from the order for attorney's fees is moot.

That order, if affirmed, may be enforceable by the respondent's
estate. Without ruling on the enforceability issue, which has

not been briefed, we affirm the order itself.

Background. We recount only the background necessary to

understand the appellate issues regarding the order for

attorney's fees. After the respondent moved to dismiss the

petition, he also moved for fees pursuant to G. L. c. 215, § 45,

and G. L. c. 231, § 6F. On March 31, 2022, the judge ordered

both motions allowed, but those orders were not docketed until

April 15, 2022, the day the decree of dismissal was issued. 1

That same day, the petitioner filed three documents: a notice

of appeal, listing only the dismissal of the guardianship

petition; an affidavit "in support of filing for [a]ppeal"

arguing that the fee award was erroneous; and a motion for

relief from the fee award. The judge denied that motion on May

5, 2022. The petitioner did not file another notice of appeal.

Discussion. 1. Propriety of appeal. We are unpersuaded

by the respondent's arguments that the appeal from the

attorney's fee order is not properly before us. First, although

the respondent is correct that the notice of appeal did not

1 The judge's order allowing the fee motion did not identify the
statutory basis for ordering fees. Because the order did not
make the findings required by G. L. c. 231, § 6F, we treat the
order as issued pursuant to G. L. c. 215, § 45. We note that an
appeal of any order for fees under G. L. c. 231, § 6F, would
have been to a single justice of this court and thus would not
be properly before us. See G. L. c. 231, § 6G.

2
designate the fee order as a subject of the appeal, see Mass. R.

A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019), the

accompanying affidavit made sufficiently clear the self-

represented petitioner's intention to appeal the fee order as

well. Some imprecision in designating the judgment, order, or

decree appealed from may be overlooked if circumstances warrant.

See Youghal, LLC v. Entwistle, 484 Mass. 1019, 1021 (2022);

Guardianship of Kelvin, 94 Mass. App. Ct. 448, 451 n.8 (2018).

The respondent identifies no prejudice from the failure of the

notice of appeal to designate the fee order, and the

respondent's brief addresses the merits of the appeal from that

order. See Fazio v. Fazio, 91 Mass. App. Ct. 82, 84 n.7 (2017).

Second, the respondent argues that the petitioner's motion

for relief from the fee award, viewed in light of Mass. R. A.

P. 4 (a) (2), and 4 (a) (3), as appearing in 481 Mass. 1606

(2019), rendered the notice of appeal of no effect, meaning that

a new notice of appeal was required to be filed after that

motion was denied on May 5, 2022. Although the petitioner did

not then file a new notice of appeal, no action had been taken

on her appeal before the motion was denied, and therefore we

treat the notice of appeal as effective. See Tocci Bldg. Corp.

v. IRIV Partners, LLC, 101 Mass. App. Ct. 133, 136 n.5 (2022),

citing Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019).

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2. Merits of fee award. Under G. L. c. 215, § 45, "[i]n

contested cases before a probate court . . . costs and expenses

in the discretion of the court may be awarded to either party,

to be paid by the other . . . as justice and equity may

require." This language "establish[es] a broad standard, one

that certainly reaches beyond bad faith or wrongful conduct,"

and "an award of costs and fees by a judge in the Probate Court

under § 45 may be presumed to be right and ordinarily ought not

to be disturbed" (quotation and citation omitted). Matter of

Estate of King, 455 Mass. 796, 805 (2010). We review the fee

award for abuse of discretion. 2 See id.

a. Liability for fees. The respondent's motion asserted

that fees were warranted because the guardianship petition was

defective in three significant respects. First, it failed to

include a medical certificate attesting to the respondent's

incapacity. 3 Second, it did not disclose the existence of a

2 Section 45 is generally "limited to matters relating to wills,
estates, and trusts." Matter of Estate of King, 455 Mass. at
803, citing United Tool & Indus. Supply Co. v. Torrisi, 359
Mass. 197, 197-199 (1971). See Howe v. Tarvezian, 73 Mass. App.
Ct. 10, 16-17 (2008) (partition proceedings). In United Tool &
Indus. Supply Co., supra at 199, the court held that section 45
"is to be construed with the provisions of G. L. c. 215, §§ 39A
and 39B." General Laws c. 215, § 39A, provides in pertinent
part that a probate court judge may order the payment of
attorney's fees in "estate" cases, and "[f]or the purposes of
[that] section, the term 'estate' shall be deemed to include
. . . guardianships."
3 The petitioner filed a motion for leave to file a medical

affidavit at a later time, with supporting affidavit, but the

4
valid durable power of attorney -- which nominated the

respondent's other daughter as his guardian should one become

necessary -- and a valid health care proxy for the respondent.

See G. L. c. 190B, § 5-303 (b) (8)-(9). Third, the petition was

filed immediately after and in retaliation for the respondent's

removal of the petitioner as a trustee of a family trust.

On this record, the judge could reasonably have found that

the petition suffered from each of the three stated defects.

The judge could also reasonably have concluded that, even if the

petition was not "wholly unsubstantial, frivolous, and advanced

in bad faith" as the fee motion argued, "justice and equity"

required that the petitioner, not the respondent, should pay the

costs of defending against it. G. L. c. 215, § 45.

b. Amount of fees. The fee motion was supported by

counsel's affidavit and detailed time records and sought

$6,269.81 in attorney's fees and costs. 4 This sum represented

$4,269.81 already incurred as of the date of the motion in

opposing the guardianship petition, plus $2,000 in anticipated

fees to prepare for and attend the guardianship hearing, which

had not yet occurred. The amount allowed by the judge,

judge could have concluded that the motion and affidavit
asserted no sound basis for the petitioner's failure to obtain
an affidavit before filing the petition. See G. L. c. 190B,
§ 5-303 (b) (11).
4 Because the costs requested totaled only $19.81, for simplicity

we have used the term "fees" to encompass costs as well.

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$4,704.81, appears to correspond to the $4,269.81 already

incurred, plus $435, which was lead counsel's customary rate for

one hour of work.

The petitioner advances four arguments as to why the fee

award was improper in whole or in part; none of them is

persuasive. First, she asserts that the fees were excessive, in

violation of Mass. R. Prof. C. 1.5, as amended, 480 Mass. 1315

(2018). She did not make this argument in her opposition to the

fee motion, and thus we need not consider it. See Albert v.

Municipal Court of Boston, 388 Mass. 491, 493-494 (1983)

(arguments not made in trial court waived on appeal). In any

event, based on our review of the record and the eight factors

set forth in Mass. R. Prof. C. 1.5 (a), the judge could

reasonably have found that neither the amount sought nor the

amount she awarded was excessive.

Second, the petitioner asserts that the respondent was

indigent and of diminished capacity and thus attorney's fees

should have been waived. But the petitioner cites no authority

and no reasons in support of this assertion. Her passing

reference to Mass. R. Prof. C. 1.14, as amended, 471 Mass. 1305

(2015), concerning clients with diminished capacity, does not

constitute acceptable appellate argument, and we do not consider

it further. See Mass. R. A. P. 16 (a) (9) (A), as appearing in

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481 Mass. 1628 (2019). See also Maroney v. Planning Bd. of

Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020).

Third, the petitioner asserts that certain charges set

forth in the respondent's prior counsel's billing records were

not compensable. She claims that because counsel's invoice bore

the notation "[e]state [p]lanning," the charges detailed on the

attached time records were unrelated to the guardianship

petition. The billing records themselves, however, plainly

referred to that petition in nearly every entry. 5 The petitioner

also asserts that two entries on the time records, involving a

paralegal's communications with the Millis police department

regarding a restraining order, and totaling $117.50, are

unrelated to the guardianship petition and not compensable. The

judge was entitled to reject this argument, in light of prior

counsel's representation at the motion hearing that her law firm

had attempted to obtain a copy of the order "in conjunction with

these proceedings," i.e., the guardianship petition.

5 The petitioner similarly claims that the billing records
include an entry for an October 12, 2021 telephone call with the
respondent's other daughter regarding "financial estate
planning." The entry in question actually refers to a call with
that daughter, who held the respondent's power of attorney, "to
discuss proceeding with matter, and financial issues." The
judge could reasonably conclude that the telephone call
concerned responding to the guardianship petition and the
financial issues the response raised.

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Finally, the petitioner asserts that the respondent's prior

counsel, in opposing the petitioner's motion for relief from the

fee order, moved to impound certain financial information, in

order to "intimidate" the petitioner "and to amass expenses."

To the extent this assertion is intended as an argument that the

fee request was improperly inflated, it suffices to say that no

charges for preparing the impoundment motion were included in

the fee request. To the extent the assertion is intended to

support the petitioner's attack on the respondent's prior

counsel as having acted improperly or unethically or engaged in

"financial exploitation" of the respondent, the petitioner did

not make this argument to the judge, and thus it is waived. See

Albert, 388 Mass. at 493-494. Nor does the petitioner's attack

merit any further discussion, let alone action, by this court.

Conclusion. Insofar as the appeal challenges the decree

dismissing the guardianship petition, the appeal is dismissed as

moot. 6 The order that the petitioner pay the respondent

6 Ordinarily, when a case becomes moot on appeal, an appellate
court will "vacate the [judgment, order, or decree] appealed
from with a notation that the decision is not on the merits, and
remand the case to the [lower court] with directions to dismiss
the action." Blake v. Massachusetts Parole Bd., 369 Mass. 701,
708 (1976). Here, however, where the decree simply dismissed
the petition, without prejudice and without stating any reason,
we see no need to vacate it.

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$4,704.81 in attorney's fees is affirmed. 7

So ordered.

By the Court (Neyman, Sacks &
Hodgens, JJ. 8),

Clerk

Entered: August 24, 2023.

7 The respondent's request for appellate attorney's fees is
denied.
8 The panelists are listed in order of seniority.

9