Opinion
13-P-1724
10-29-2014
FRANK S. HOWARD v. BARBARA HOWARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case presents a dispute between a brother and sister involving the competency of their elderly mother and the brother's accusation that the sister misused her power of attorney to steal their mother's money. The plaintiff, Frank Howard, appeals from the summary judgment entered in the Probate and Family Court. We affirm.
Background. In 2001, the defendant, Barbara Howard, received a durable power of attorney from her mother, Daphne Howard. Daphne, now in her early nineties, is presently mentally incompetent and resides in a continuing care facility. Frank is Barbara's brother and Daphne's son. He alleges that Barbara has exploited Daphne financially since Daphne's stroke in 1999, and he has brought a series of claims in this regard in various settings.
We refer to the parties by first names to avoid confusion.
In 2007, Frank filed a financial exploitation claim with a private agency, Springwell Protective Services, which found no evidence of financial abuse of Daphne by Barbara. Around this time, MassHealth also conducted an investigation and found no financial impropriety. In 2009, a guardian ad litem appointed by the Probate and Family Court judge reached a similar conclusion. The judge allowed Frank to obtain Daphne's bank records but later denied his attempt to obtain other documents about Barbara's finances.
In March, 2010, Frank filed a petition under G. L. c. 201D, § 17, for (1) removal of Barbara as an agent for Daphne, (2) an accounting, and (3) recovery of funds from Barbara. The judge allowed limited production of documents, and depositions were taken. The judge denied Frank's motion to release Daphne's medical records and his motion for release of Daphne's credit card statements. On October 17, 2011, the judge granted Barbara's motion for summary judgment.
General Laws c. 201D, including § 17, deals specifically with an agent's actions as a health care proxy, but the probate judge treated the petition as a motion to remove Barbara's power of attorney generally.
Discussion. We start, and could probably end, with Frank's failure to respond to Barbara's statement of facts in her motion for summary judgment. By his failure to respond, those facts became the law of the case. Rule 27C(b)(5)(ii) of the Supplemental Rules of the Probate and Family Court states: "[T]he opposing party shall reprint the moving party's statement of material facts and shall set forth a response to each directly below the appropriate numbered paragraph. . . . For purposes of summary judgment, the moving party's statement of a material fact shall be deemed to have been admitted unless controverted as set forth in this paragraph."
Frank also failed to include a fact section in his appellate brief. See Mass.R.A.P. 16(a)(3), 365 Mass. 860 (1974) ("The brief of the appellant shall contain . . . a statement of the facts relevant to the issues presented for review, with appropriate references to the record"). Similarly, Frank recites facts in the argument section of his brief without providing required citations to the record. See Lynn v. Thompson, 435 Mass. 54, 56 n.4 (2001).
The undisputed facts established that Daphne lived independently from 2001 to 2004, traveled to Hawaii and Jamaica by herself, and wrote and signed her own checks through mid-2004. The facts also established that Frank sent a detailed letter to Daphne that included a cost comparison of college options for his daughter, accepted a car from Daphne (who drove it to him), taught Daphne how to use the Internet, and accepted a paid vacation from her. Other uncontroverted facts indicated that, for estate planning and Medicaid purposes, Daphne wished to spend down her assets, which she substantially did while competent. Lastly, Frank improperly withheld Daphne's brokerage funds and a Minnesota court ordered those funds returned to Daphne with interest.
As the judge noted, a competent person may spend her money however she wishes.
Even if we were not to consider the substantial procedural obstacle, Frank would fare no better. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The court will not "resolve issues of material fact, assess credibility, or weigh evidence." Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007). An opposing party cannot rest on his pleadings and mere assertions of disputed facts to defeat a motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Finally, an appellate court will "examine the record in its light most favorable to the nonmoving party" and will affirm an order granting summary judgment "if the judge ruled on undisputed material facts and [her] ruling was correct as a matter of law." O'Rourke v. Hunter, 446 Mass. 814, 821 (2006).
Here, the judge reasonably could have concluded that there were no genuine issues of material fact because the uncontroverted evidence showed that Daphne was not incompetent during the time in question; indeed, Frank himself acted in such a manner as to demonstrate his belief in her competency, including her understanding of a cost comparison of college options for his daughter, her learning how to use the Internet, her driving and delivering her car to him, and her paying for and going on a vacation with him and his family. The judge's order granting summary judgment based on these undisputed facts was not in error. See O'Rourke v. Hunter, supra.
Frank's argument that the judge erred in denying his discovery request for Daphne's medical records is also without merit. A litigant is not entitled to discovery prior to disposition of a motion for summary judgment if he fails to make a minimum showing of a factual basis to support his complaint. E.A. Miller, Inc. v. South Shore Bank, 405 Mass. 95, 100 (1989). Here, the judge did not abuse her discretion in limiting the scope of discovery after finding that Frank failed to make the required minimum showing. See Solimene v. B. Grauel & Co., 399 Mass. 790, 799 (1987).
For these reasons and for substantially those in Barbara's brief, we affirm the judgment.
Given the tenure of the case, we allow Barbara's request for appellate attorney's fees and costs. Barbara shall, within fourteen days of the date of the rescript, file and serve a petition for attorney's fees and costs incurred on appeal, supported by an affidavit detailing such fees and costs in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Frank will have fourteen days thereafter to respond.
So ordered.
By the Court (Grasso,
Kantrowitz & Meade, JJ.),
Clerk Entered: October 29, 2014.