Opinion
13-P-1816
11-10-2014
GUARDIANSHIP OF MARSHA FORMAN (and a companion case).
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
By orders dated November 30, 2010, a Probate and Family Court judge appointed Susan C. Hubbard as the guardian and conservator of Marsha Forman, an elderly woman who had been diagnosed with "probable Dementia of the Alzheimer's type." No appeals were taken. On May 29, 2012, Attorney Thomas E. Beatrice, identifying himself as "[a] person interested in [Forman's] welfare" due to being her counsel, filed petitions to terminate both the guardianship and the conservatorship on the basis that Forman was no longer incapacitated. Hubbard opposed. A consolidated trial commenced on January 25, 2013. However, after the parties' respective exhibits were admitted and Beatrice put on his only witness, the judge allowed Hubbard's motion to dismiss the petitions. On Beatrice's appeal from the judgment of dismissal, we affirm.
We begin by addressing the proper procedural lens through which the allowance of Hubbard's motion should be viewed. Because the proceedings below were ones seeking equitable relief in the Probate and Family Court, they were governed by the Massachusetts Rules of Civil Procedure. See Mass.R.Civ.P. 1, as amended, 450 Mass. 1403 (2008) (defining the application of the rules). Hubbard's motion did not recite the specific procedural rule under which dismissal was sought. The judge's allowance of the motion came in the form of a "judgment of dismissal and findings." Although the judge did not specify the procedural rule under which he allowed dismissal, in form and substance his ruling reveals that in his review of Beatrice's evidence, the judge was assessing credibility, weighing the evidence, and making factual findings. In this manner, it is plain that the judge appropriately was treating Hubbard's motion as one filed pursuant to Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), seeking involuntary dismissal in a bench trial at the close of the plaintiff's case.
The Supplemental Rules of the Probate and Family Court (2012) also generally apply, but none is on point.
In pertinent part, rule 41(b)(2) states as follows:
"After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff the court shall make findings as provided in [Mass.R.Civ.P.] 52(a)."
Beatrice understandably prefers that Hubbard's motion instead be considered as one for a directed verdict filed pursuant to Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), because then Beatrice's evidence would have to be taken in the light most favorable to him. However, as the Supreme Judicial Court recognized even before the Massachusetts Rules of Civil Procedure were adopted, a motion for directed verdict filed after evidence was heard in a bench trial is "inappropriate." Wire & Textile Mach., Inc. v. Robinson, 332 Mass. 417, 418 (1955) (treating such a motion instead "as raising the question . . . that the evidence did not warrant a finding for the plaintiff"). Beatrice protests that Hubbard herself may have considered her motion as one for a directed verdict. But whether one or even both litigants misunderstood the applicable procedural framework is ultimately beside the point. The judge appropriately viewed the motion under the rule 41(b)(2) rubric, and Beatrice has raised no impediment to his doing so. Our review therefore will be undertaken on that basis.
Beatrice accurately points out that there are multiple references in Hubbard's appellate brief to the motion as one seeking a "directed verdict."
This is not a case where the procedural rubric that the judge used potentially deprived a party of the opportunity to present relevant evidence. See White v. Peabody Constr. Co., 386 Mass. 121, 127 (1982) (observing that parties should receive notice of a judge's decision to treat a motion to dismiss as a motion for summary judgment, to "ensure that neither party is taken by surprise . . . and thereby deprived of an opportunity to present further material in response"); Metropolitan Dist. Commn. v. Codex Corp., 395 Mass. 522, 524-525 (1985) (acknowledging the potential for prejudice where a preliminary injunction hearing is consolidated with a trial on the merits without adequate notice). Here, Beatrice had rested his case.
Before turning to the merits, we address one other procedural point. During the proceedings below, the judge made clear his view that Beatrice had the burden of proving by a preponderance of the evidence that Forman was no longer incapacitated. Beatrice accepted that this was his burden at trial, and on appeal he affirmatively stated that the judge allocated the correct burden of proof to him. Any contention that the judge may have erred in this regard therefore has been waived.
Thus, whether the Legislature intended to reallocate the burden of proof when it enacted the Massachusetts Uniform Probate Code, G. L. c. 190B, is not before us. Compare Guardianship of Lander, 697 A.2d 1298, 1300 (Me. 1997) (holding that under the Maine guardianship statute, whose language is similar to the Massachusetts statute, the party seeking termination of guardianship bears the burden of proof throughout the termination proceeding), with Matter of Rosenberg, 211 Md. App. 305, 319-320 (2013) (concluding that the invasion of liberty occasioned by a guardianship requires a burden-shifting approach; after petitioner files a valid medical certificate, the burden of proof shifts to and remains with the party opposing termination).
With these observations in place, the merits require little discussion. Beatrice presented only one witness, Robert W. Mullaly, a psychologist who had examined Forman on various occasions without notice to Hubbard, her guardian and conservator. The judge also had before him Mullaly's reports and medical certificate, as well as those completed by Elizabeth H. Nasser, the psychologist on the basis of whose opinion the guardianship and conservatorship were originally created. After hearing the testimony of Beatrice's sole witness, the judge declined to credit that testimony as sufficient proof that Forman was no longer incapacitated. The judge recognized that Mullaly expressed his expert opinion that Forman was now competent to make decisions about her life and the management of her property. However, in the judge's view, Mullaly was unable adequately to articulate how he came to that conclusion, particularly where he conducted no testing of Forman (in contrast to Nasser who conducted formal testing on which her opinion was based). Beatrice has not demonstrated that the judge's fact-finding was clearly erroneous, or that he committed any error of law.
As Mullaly acknowledged, the testing showed that Forman suffered notable impairment of her short-term memory and cognitive abilities. Mullaly accepted that the tests were properly administered, but he contested the import of their results. Overall, he claimed that any problems Forman exhibited were normal signs of aging, not evidence that she suffered from Alzheimer's disease or some other form of dementia. It bears noting that while Forman herself did not testify, she did attend the trial and the judge therefore was able to observe her. The record indicates that following a break in the proceedings during which Forman apparently was left unattended, the judge sua sponte ordered that she not be left alone in the courtroom or courthouse. Also, the record reveals that at a different point in the proceedings, he expressed concern for her well-being based on his personal observations.
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Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.), Clerk Entered: November 10, 2014.