Opinion
13-P-1547
07-01-2015
RYAN TILDEN v. DONALD COLE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this case, we conclude that the plaintiff was entitled to further discovery, and consequently summary judgment was entered prematurely.
The plaintiff, Ryan Tilden, lent $25,000 to Preston Wealth Management, LLC (PWM) of which her then boy friend, Alexander Cole, was allegedly the chief executive officer (CEO). The plaintiff alleges that this corporation does not exist, that the corporate veil should be pierced, and the defendant, Donald Cole, the father of Alexander Cole, should be held personally liable for the debt. Some documents provided to the plaintiff by Alexander identify Donald as an owner of PWM. Donald admitted being named to, and agreeing to serve on, PWM's "advisory board," although denied actually doing anything in that capacity, or receiving any compensation for his service. PWM's Web site indicated he was a member of the advisory board.
Alexander Cole has refused to appear in this litigation and a default judgment has entered against him. There has been no appeal from that judgment, and the issues before us involve only the defendant, Donald Cole.
On March 7, 2012, Donald Cole was deposed. In his deposition he agreed that he was a part owner of PWM. He made several statements that, viewed in the light most favorable to the plaintiff, might be read as evasive. He claimed he did not know in what State his son resided, despite acknowledging that he discussed finances with him a week prior to the deposition. (In a subsequent electronic mail message [e-mail] from the defendant to Alexander dated September 17, 2012, and provided to the plaintiff by the defendant, the defendant tells his son he hopes he is "happy with your life down there," indicating the defendant had some knowledge of his son's residence, at least prior to filing his first motion for summary judgment.) The defendant also professed ignorance of a friend's address, before revealing that, in fact, he and his wife had visited the friend at the friend's house. And, when asked by counsel whether his son and the plaintiff had been boy friend and girl friend, he claimed not to know what that meant.
Nonetheless, in response to a question about whether he had given money to Alexander to launch PWM, Donald did not deny it. Rather, he stated, "I have given my son spending money for his expenses." He elaborated, stating, "I have been supporting my son." And, finally, he made clear that at least at that time, he still supported Alexander. He also acknowledged that he had given his son money to pay fees associated with PWM's industry, specifically those required of PWM by the Financial Industry Regulatory Authority. He was familiar with PWM's Web site, which contained his biography and photo, and listed him as a member of the advisory board.
In response to a later interrogatory -- the response was dated July 26, 2012, Donald, while preserving an objection to the question, admitted that he used "electronic funds transfer" to provide money to his son.
The defendant's deposition testimony supports an inference that he might have been a primary funder of the entity purportedly operating as a limited liability corporation, and raises legitimate questions about the scope of his ownership and control of that entity. Immediately after the deposition, on March 7, 2012, the plaintiff appropriately served Donald with interrogatories and requests for production of documents. Among other things, in her request for production of documents, she sought "any and all electronic money wiring receipts or statements and/or proof of electronic money transfers from Donald Cole to Alexander Cole from January 1, 2010, to the present[,] . . . . [p]roof of any and all withdrawals made from any of Donald Cole's personal accounts with the purpose of providing in whole or in part the withdrawn funds to Alexander Cole from January 1, 2010[,] to the present[,] . . . and [a]ny and all written correspondence between Donald Cole and Alexander Cole between January 1, 2010[,] to the present."
On August 3, 2012, the defendant served the plaintiff responses to the above request for production of documents and request for interrogatories. The boilerplate response to each of the three requests listed above was "Objection. The defendant objects to this interrogatory in that it is vague, overly broad, and seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence."
On September 28, 2012, Donald moved for summary judgment. His motion was supported by a memorandum of law. A week prior, he had "supplemented" his response to the plaintiff's interrogatory number 11, which stated, "should there exist any other method by which Donald Cole sends Alexander Cole money, please explain that method in full and complete detail[,]" but that supplementation, which referred to purchasing prepaid credit cards, did not respond to the requests for production of documents described above. On October 19, 2012, the plaintiff filed a motion to compel.
On November 1, 2012, a judge of the Superior Court denied the defendant's summary judgment motion from the bench. On December 5, 2012, the defendant filed a motion for reconsideration attaching a memorandum identical to the one filed with his initial motion. He attached another supplemental response to a discovery request, this time including some e-mails between him and his son. That same judge denied the motion in writing stating that his prior decision needed "no reconsideration[,] the court having concluded then that because of outstanding discovery issues the motion was premature," and "[t]reating [the motion for reconsideration] as a renewed summary judgment motion the court denies it again as premature [because d]iscovery has not been completed."
On March 15, 2013, discovery formally closed. However, the docket does not reflect that any ruling was made on the plaintiff's motion to compel prior to that time.
Ten days later, on March 25, 2013, the defendant served the plaintiff with the same motion for summary judgment a third time. The memorandum in support was changed only to add a statement that discovery had closed. The plaintiff opposed the motion on, inter alia, the basis of Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974).
On June 20, 2013, a different judge allowed the third motion for summary judgment. Although the judge noted that it appeared that "no ruling was ever issued" on the motion to compel, addressing the plaintiff's rule 56(f) argument, he concluded that summary judgment should not be delayed to permit further discovery because, "[t]he motion was primarily directed at the plaintiff's efforts to locate Alexander Cole." See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 306-308 (1991) ("A continuance is appropriate if the party opposing a summary judgment motion shows that it cannot, without further discovery, 'present by affidavits facts essential to justify [its] opposition.' Mass.R.Civ.P. 56 [f], 365 Mass. 825 [1974]").
As described above, the motion to compel sought discovery broader than that characterization. It was timely filed, it sought "information . . . reasonably calculated to lead to the discovery of admissible evidence," Mass.R.Civ.P. 26(c), as amended, 423 Mass. 1401 (1996), and the failure of any judge to rule on it was not the fault of the plaintiff. Thus, just as the first judge found with respect to the first and second motions for summary judgment, the third motion, too, should have been denied because, in light of the additional discovery to which the plaintiff was entitled, it was premature. To determine whether the summary judgment record raises a genuine issue of material fact, discovery and the creation of that record must be complete.
In light of this, we vacate the judgment and remand for further proceedings consistent with this memorandum and order. This disposition obviates the need to rule on any of the other questions presented by the appellant.
So ordered.
By the Court (Green, Rubin & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 1, 2015.