BOTELLO v. BOTELLO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from a judgment in a will contest between three of the decedent's four children and the decedent's second wife. The children attempted to probate a 1999 will of the decedent, whereas the second wife attempted to probate a 2011 will of the decedent. The judge ruled on summary judgment that the decedent's 2011 will should be admitted to probate. On appeal, the children argue that there were errors in rulings on various discovery matters and evidentiary issues. They also argue that it was error to grant summary judgment since there remained genuine issues of material fact regarding the testamentary capacity of the decedent, fraud, and undue influence relating to the 2011 will. We affirm.

Background. Paul Botello died on April 13, 2016, survived by his wife, Barbara Botello, and his four children from a previous marriage: Stephen Botello, Christopher Botello, Susan Botello, and Terri Botello-Phelan. During his life, Paul ³ owned and operated Botello Lumber Company, Inc. (Botello Lumber), a hardware, lumber, and building supply center. In 1999, Paul executed a will that, for all intents and purposes, left his estate to his four children. In August 2006, Paul suffered a brain hemorrhage that required him to be temporarily hospitalized. The next month, Paul and Barbara got married. On April 1, 2011, Paul executed a new will and trust at his attorney's office. This will left Paul's tangible personal property to Barbara and the residue of his probate estate to the 2011 trust.

Following Paul's death, Christopher, Susan, and Terri (children) submitted Paul's 1999 will for probate. Barbara objected to the probate of the 1999 will on the grounds that it had been revoked by Paul's execution of the 2011 will, and filed a petition to probate the 2011 will. The children objected to the allowance of the 2011 will on the grounds that Paul lacked testamentary capacity at the time he executed the will and that the will was the result of undue influence and fraud. Barbara filed a motion for summary judgment seeking to dismiss the children's challenge to the 2011 will and to admit the 2011 will for probate. After hearing, summary judgment entered dismissing the children's petition to probate Paul's 1999 will and allowing Barbara's petition to probate Paul's 2011. The children appeal.

Discussion. 1. Impoundment. The children argue that it was improper to allow the impoundment of three affidavits that were filed in connection with the children's objections to the 2011 will. The children also challenge the impoundment of the entire case. However, the record reveals that the children's motion to terminate impoundment of the entire case was allowed on July 19, 2016. Likewise, the three affidavits that remain impounded retain that status due to a stipulation of the parties that was completed that same day. Even if the case file remained impounded against the wishes of the children, they do not contend that such impoundment prejudiced them in any way. We discern no “abuse of discretion or other error of law” by the judge in impounding the affidavits. See New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 83 (2012). Nor have the children furnished any reason why any error in the impoundment order should impair the validity of the judgment.

2. Discovery and evidentiary matters. The children next argue that there was error in rulings on various discovery and evidentiary matters. We disagree. Orders pertaining to discovery will not be disturbed on appeal absent a showing of prejudicial error resulting from an abuse of discretion. See Buster v. George W. Moore, Inc., 438 Mass. 635, 653 (2003). “We do not consider that discretion abused unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986).

a. Protective order. The children argue it was error to grant Botello Lumber's motion for a protective order. The motion was filed in response to a subpoena from the children that sought a wide range of records. The children contend that it was improper for the judge to order that no documents at all be produced even though Botello Lumber objected to only a portion of the subpoena. Even if the judge erred in the extent of the order, the children have not demonstrated how the prevention of access to the requested documents affected their ability to prove their case. While they argue they were prejudiced because Barbara later used Botello Lumber's keeper of records as an affiant in support of her summary judgment motion, they could have deposed the keeper of records, but chose not to. Because the children have failed to show a prejudicial error, we have no reason to disturb the allowance of Botello Lumber's motion for a protective order. See Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 799 (1987).

b. Stephen's divorce proceedings. Similarly, the children's argument that it was error to deny their “Motion to Allow Ellen Botello to Produce Documents Covered by Confidentiality Agreement” is unavailing. The motion was in response to Stephen's ex-wife Ellen's objection to a subpoena the children served on her. The subpoena sought the production of “any trust documents in [Ellen] or [Ellen's] attorney's possession in which [Susan, Christopher, Terri, Barbara, or Stephen] were listed as beneficiaries, trustees, or fiduciaries.” This argument fails due to the same deficiencies as the previous claim -- namely, the children's failure to articulate what trust materials they expected Ellen to have in her possession and how those materials are relevant to the validity of Paul's will. Moreover, this motion was filed four months after Ellen refused to comply with the children's subpoena and eight days before a scheduled pretrial conference. It is within a judge's discretion to deny a motion to compel based on the undue delay of pursuing discovery. See Bishop v. Klein, 380 Mass. 285, 288 (1980). In any event, the children have shown no basis to believe that the requested discovery would be relevant to the question of undue influence or testamentary capacity. We therefore do not discern an abuse of discretion by the judge in denying this motion.

c. Attorney-client privilege. The children next argue that Attorney Nealon ⁴ and Barbara improperly invoked the attorney-client privilege during depositions to withhold information that was later used in affidavits supporting Barbara's summary judgment motion. They contend that they should have been allowed to conduct the depositions again, free from assertions of privilege, and if not, then the privileged portions of those affidavits should have been struck from the record.

i. Motion to compel. Specifically, the children claim that it was error to deny their “Motion to Compel Discovery and Request for Sanctions,” which was filed in response to the invocation of the attorney-client privilege at the depositions of Attorney Nealon and Barbara.⁵ We disagree.

“In general, we uphold discovery rulings ‘unless the appellant can demonstrate an abuse of discretion that resulted in prejudicial error.’ ․ Where the attorney-client privilege is concerned, however, our review is more textured. On appeal from any decision on a privilege claim, we review the trial judge's rulings on questions of law de novo.”

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302 (2009), quoting Buster, 438 Mass. at 653. We discern no abuse of discretion or error of law in the denial of the motion to compel discovery.

The children argue that the answers withheld during the depositions contained information that was necessary for them to meet their evidentiary burden on testamentary capacity, undue influence, and execution of the 2011 will, and that invoking the attorney-client privilege was improper since the information fell within an exception to the privilege rules. The exception is that the attorney-client privilege does not apply “[a]s to a communication relevant to an issue between parties who claim through the same deceased client.” Mass. G. Evid. § 502(d)(2) (2019). See Phillips v. Chase, 201 Mass. 444, 449 (1909).

Even if the exception applied, however, Attorney Nealon and his brother were ethically bound by the Massachusetts Rules of Professional Conduct to invoke the privilege as to such communications made in the course of their representation of Paul. See Mass. R. Prof. C. 1.6, as appearing in 471 Mass. 1323 (2015). The questions that Attorney Nealon and Barbara refused to answer were indeed seeking disclosure of such privileged communications.⁶ Moreover, the children were not without means to lift the privilege. They could have sought a court order to appoint a personal representative who could have then waived the privilege on Paul's behalf, see District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 172-173 (1994), or otherwise sought an order lifting the privilege. See Mass. R. Prof. C. 1.6 (b) (6). Attorney Nealon, in fact, notified the children's counsel prior to the depositions that he anticipated not being able to answer certain questions due to the privilege. The children, however, did not seek a court order or otherwise raise the issue with the court until more than six months after the depositions had taken place. Due to the foregoing, we discern no error in the judge's order denying the children's motion to compel.⁷

ii. Motion to strike. The children's second argument regarding the privilege is that the judge erred in refusing to strike portions of the affidavit Attorney Nealon filed in support of Barbara's motion for summary judgment. We disagree.

The children claim that the affidavit contained some of the same information that was withheld in depositions under claims of privilege, and thus should not have been brought in as part of the summary judgment record. As the judge properly noted, however, Attorney Nealon's deposition testimony included an account of the circumstances surrounding Paul's execution of the 2011 will and why he believed Paul to be of sound mind at the time. The affidavit was largely consistent with that testimony, and as noted by the judge, put the children “on notice of Attorney Nealon's opinion regarding Paul's testamentary capacity and the circumstances surrounding the signing of the 2011 will.” Moreover, in offering his opinion regarding such matters, based on his personal observations, Attorney Nealon did not rely on any matters covered by the attorney-client privilege. We thus discern no abuse of discretion by the judge in denying the children's motion to strike portions of the affidavit.

3. Summary judgment. The children further contend that the judge improperly entered summary judgment where there were material facts in dispute. They also claim that dismissal of the entire case was improper since Barbara only moved for partial summary judgment. We disagree on both accounts.

This court reviews the allowance of a motion for summary judgment de novo. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012). “While we examine the record in its light most favorable to the nonmoving party, ․ ‘[c]onclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment.’ ” O'Rourke v. Hunter, 446 Mass. 814, 821 (2006), quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 890 (1987).

a. Testamentary capacity. “At the time of executing a will, the [testator] must be free from delusion and understand the purpose of the will, the nature of [his] property, and the persons who could claim it.” O'Rourke, 446 Mass. at 826-827. The children contend that the evidence put forth by their medical expert indicated that Paul lacked testamentary capacity.⁸ The expert's findings, however, contained no opinion that Paul lacked testamentary capacity at the critical time in April 2011.⁹ On the other hand, Attorney Nealon and the witnesses to the will attested that Paul was of sound mind on April 1, 2011, when he signed the will. Moreover, Barbara presented corroborating medical evidence showing that Paul was of sound mind during the time period just before and after the will's execution. This unrebutted evidence provided ample support for granting summary judgment on the children's claim that Paul lacked testamentary capacity. See id. at 827.

b. Undue influence. Similarly, the evidence provided by the children is inadequate to prove the elements of undue influence, “namely that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.” Hernon v. Hernon, 74 Mass. App. Ct. 492, 497 (2009), quoting O'Rourke, 446 Mass. at 828. A proponent will prevail on a motion for summary judgment if he affirmatively demonstrates that the contestants had “no reasonable expectation of proving an essential element of [their] case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

“We agree with the judge that there is no suggestion in the record of an unnatural disposition.” O'Rourke, 446 Mass. at 828. Although Paul left the bulk of his estate to Barbara, he provided for his children by naming each a beneficiary to a $2 million life insurance trust. Indeed, there was “nothing inherently unnatural about this disposition.” Id. While we may dispose of the undue influence claim upon this conclusion, see id., we note that the children also failed to show that Barbara procured the disposition through improper means. The evidence does not show, as the children suggest, that Barbara had isolated Paul around the time he executed the 2011 will. Attorney Nealon testified, for example, that “Barbara was not present during most of my meetings with Paul. I never discussed Paul's estate planning with Barbara outside of Paul's presence.” Based on the foregoing, there is no credible evidence that the 2011 will did not represent Paul's own free will and independent judgment. The entry of summary judgment against the children on the claim of undue influence, therefore, was proper.

c. Fraud. The children contend that despite Barbara's moving for summary judgment only on the children's testamentary capacity and undue influence claims, the judge improperly entered summary judgment on their fraud claim as well. The record on which the judge decided the fraud claim, however, was well developed and included evidence submitted by the children in support of that claim. Cf. Gamache v. Mayor of N. Adams, 17 Mass. App. Ct. 291, 295-296 (1983). Moreover, following summary judgment, the children did not file a motion for leave to file further evidence on the claim. There is also no indication by the children on appeal that additional evidence existed to support this theory. We thus conclude that there was an adequate basis upon which to enter summary judgment on the fraud claim, and that the judge's decision to rule on the whole case was not in error.¹⁰

Conclusion. For the foregoing reasons, the judgment on the 2011 will is affirmed.¹¹

So ordered.

Affirmed.

FOOTNOTES

3.   We refer to the parties by their first names to avoid confusion.

4.   Attorney Nealon represented Paul and drafted the 2011 will.

5.   Barbara was instructed by Attorney Nealon's brother, Attorney John Nealon, to not answer the questions that involved privileged information.

6.   Barbara's presence during discussions between Paul and Attorney Nealon did not destroy the privilege. See C.B. Mueller & L.C. Kirkpatrick, 2 Federal Evidence § 5:18 (4th ed. 2016).

7.   Our conclusion that the judge did not err in denying the children's motion to compel discovery of the privileged communications disposes of the children's request for an adverse inference to be drawn against Barbara for withholding information.

8.   While the children argue that they put forth sufficient evidence to withstand summary judgment on testamentary capacity, they also concede in their brief that they cannot meet their evidentiary burden to show incapacity without access to the discovery materials that were withheld below.

9.   A reference to Paul's mental state in April 2011 was struck from the expert's report because it was not contained in the report that was initially filed with the court, but was added to a refiled version.

10.   Although, on appeal, the children do not address the merits of the fraud claim, we note that there was insufficient evidence of fraud, namely, that Paul relied on false representations in making the will, to withstand summary judgment. See Wellman v. Carter, 286 Mass. 237, 253 (1934). To the extent that the children argue that the 2011 will was not properly executed, we agree with the judge that the children “do not state any facts negating an element of proper execution and summary judgment may be had on this claim.”

11.   We decline Barbara's request for appellate fees and costs.