In THE MATTER OF THE ESTATE OF WILLIAM A. GUTHRIE (And a Consolidated Case).

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

23-P-383

IN THE MATTER OF THE ESTATE OF WILLIAM A. GUTHRIE (and a
consolidated case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

George Sayen appeals from an order of a Probate and Family

Court judge entered on March 2, 2021, dismissing his appeals in

two related matters that were consolidated in the trial court

but maintained separate dockets. Although we are loath to

revive these matters, which have dragged on for well over a

decade, we reverse the order dismissing the appeals and remand

for further proceedings.

Background. In June 2011, the personal representative of

the estate of William A. Guthrie (proponent) filed a petition

for probate of Guthrie's will dated May 29, 2009 (the will

case). Sayen and his brother David objected to the will. In

February 2013, PNC Bank, NA, as trustee of Guthrie's 1996

1PNC Bank, NA, trustee, vs. Christopher M. Falzone &
others.
revocable trust (trustee), filed a complaint seeking to declare

the trust valid and to permit distributions according to its

terms (the trust case). Following a trial held over nine days

in December 2018 and January 2019, in a decision and

accompanying decree dated July 10, 2019, the judge found that

Guthrie had testamentary capacity at the time he executed the

will, admitted the will to probate, and entered a declaratory

judgment affirming the validity of the trust. The decree in the

will case was docketed in error on July 10, then entered on July

15, 2019. The judgment in the trust case entered on July 10.

Sayen timely filed notices of appeal in both cases on July 29,

2019. In the interim, however, in the will case, the proponent

filed a motion for attorney's fees, which was styled a motion to

alter or amend the judgment under Mass. R. Civ. P. 59 (e), 365

Mass. 827 (1974). The judge denied the motion to alter or amend

in a margin order dated August 13, 2019, which was entered on

the docket on September 5, 2019, somewhat cryptically, as

follows:

"Motion To Waive Counsel may file a separate petition under
215 § 45 DENIED on 08/13/2019 File
Reference # 235
Denial was on 8/13/19 regrading [sic] the Motion to alter
and amended [sic]"

Two and one-half months later, on November 22, 2019, Sayen filed

a second notice of appeal from the July 10 order (in both

cases).

2
One month after that, on December 23, 2019, in the will

case, the proponent and the trustee filed an "amended[2] joint

motion to strike appeal," arguing that the proponent's motion to

alter or amend had rendered Sayen's first notice of appeal in

that case a nullity and that the second notice of appeal was

untimely. 3 On July 13, 2020, the proponent and the trustee

served a "supplemental joint motion to strike or dismiss

appeal," arguing that both appeals should be dismissed for the

additional reason that Sayen had failed to order a transcript of

the trial. This motion does not appear to have been docketed in

either case. On September 3, 2020, the judge ordered a status

hearing to be held on September 16, 2020, to discuss the pending

motion to dismiss the appeals and the effect, if any, of an

unpublished decision of a panel of this court, Capobianco v.

DiSchino, 98 Mass. App. Ct. 1101 (2020), that had recently been

issued. At the conclusion of that hearing, the judge

established a briefing schedule for motions arising from the

Capobianco decision and a subsequent hearing date, October 29,

2020, to address those motions and the motion to strike the

2 The word "amended" suggests that a prior joint motion to
strike had been filed, but the record does not otherwise reflect
the existence of a prior motion.

3 They also argued that the appeals in both cases should be
dismissed for Sayen's failure to post a corporate surety bond in
the amount of $100,000 that the judge had ordered on August 13,
2019 (entered August 15).

3
appeals. At the October 29 hearing, counsel for the proponent

argued that both appeals should be dismissed because Sayen had

failed to request a transcript and to file a certification that

the transcript had been ordered, although it was disclosed later

in the hearing that the transcript had in fact been ordered and

was near completion. The judge took the matters under

advisement.

While the matters were pending, in the will case, the

proponent and the trustee filed a "further supplemental joint

motion to strike or dismiss appeal," now stating that the

transcripts had been completed since November 13, 2020, but that

they had not yet been delivered because Sayen had not paid the

stenographer the balance due, 4 and that both appeals should be

dismissed for that reason. Sayen responded in a letter to the

court, stating that he had not received the invoice and that he

was "waiting for a decision from the court as to whether my

appeal will be permitted to proc[eed], before I take any further

steps."

In an order dated March 1, 2021, docketed in both cases on

March 2, the judge allowed the joint motion to dismiss the

appeals. With respect to the will case, the judge held that the

4 The stenographer's invoice, attached to the motion, showed
that transcripts for all nine trial dates had been prepared,
that one of Sayen's attorneys had paid a deposit of $4,468, and
that the balance due was $3,396.

4
appeal was untimely because the proponent's motion to alter or

amend had rendered Sayen's first notice of appeal a nullity

under Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606

(2019), and the second notice of appeal was filed too late. As

an alternative ground, the judge dismissed the appeal for

Sayen's failure to order the transcript or file the requisite

certification that it would not be ordered under Mass. R. A. P.

9 (d) (2), as appearing in 481 Mass. 1615 (2019). With respect

to the trust case, noting that the first notice of appeal

remained in effect because the motion to alter or amend was not

filed in the trust case, the judge nonetheless dismissed the

appeal for Sayen's failure to file the transcript or

certification that it had been ordered. 5 Sayen timely filed

notices of appeal from the dismissal of the appeals in both

matters.

The proponent and the trustee next filed a motion to

dismiss the appeal from the order dismissing the appeals, which

was denied, and the record of this appeal was assembled on March

16, 2023.

5 The judge also suggested that the dismissal of the appeal
from the will case made that judgment final and had preclusive
effect with respect to the trust case.

5
Discussion. While the proponent's motion to alter or amend

arguably 6 made Sayen's first notice of appeal in the will case

premature and of "no effect" under Mass. R. A. P. 4 (a) (3),

recent cases of the Supreme Judicial Court and of this court

have foregone strict enforcement of this rule. Rather, in Roch

v. Mollica, 481 Mass. 164, 165 n.2 (2019), followed by Tocci

Bldg. Corp. v. Iriv Partners, LLC, 101 Mass. App. Ct. 133, 136

n.5 (2022), notices of appeal timely filed after entry of

judgment were given effect, notwithstanding subsequent motion

practice recognized under Mass. R. A. P. 4 (a) (2), as resetting

the appellate clock. "[N]otices of appeal like the original

ones filed here will bring the merits of an appeal before the

appellate court where, as here, 'no action on the appeal had yet

been taken before the motion for reconsideration was decided.'"

Tocci Building Corp., supra, quoting Roch, supra. We

accordingly hold that Sayen's original notice of appeal in the

will case is effective.

The only remaining reasons for dismissing the appeals have

to do with the transcript. 7 Assuming without deciding that an

6 Sayen argues persuasively that the proponent's motion,
which sought an award of attorney's fees, was collateral to and
separate from the underlying judgment and, as such, was not a
true motion to alter or amend under rule 59 (e). We do not
decide the appeal on this ground, which was raised for the first
time on appeal.
7 The judge did not address the proponent's and the

trustee's argument, which they continue to press on appeal, that

6
appeal may be dismissed under Mass. R. A. P. 10 (c), as

appearing in 481 Mass. 1618 (2019), for failure to comply with

Mass. R. A. P. 8 (b) (1), as appearing in 481 Mass. 1611 (2019),

concerning electronically recorded proceedings, see Neuwirth v.

Neuwirth, 85 Mass. App. Ct. 248, 256 n.11 (2014), as Sayen had

ordered the trial transcript prior to the hearing on the motion

to dismiss, the appeal in the will case could not be dismissed

for failure to order the transcript. See Mass. R. A. P. 10 (c)

("If, prior to the lower court's hearing such motion for

noncompliance with Rule 9 [d], the appellant shall have cured

the noncompliance, the appellant's compliance shall be deemed

timely"). Sayen's failure to certify that he had done so is not

the type of act "necessary to move the appeal along" that

the appeals should be dismissed for Sayen's failure to post the
corporate surety bond. See note 3, supra. Although we are free
to affirm on grounds different from those relied on by the
motion judge if those grounds are apparent on the record, see
Feeney v. Dell Inc., 454 Mass. 192, 211 (2009), it is not
apparent from the record that the judge made posting of the bond
a requirement for Sayen to pursue his appeals, nor are we aware
of any legal authority for the proposition that a Probate and
Family Court judge may condition a party's right to appeal on
the posting of a bond. The lone case cited by the proponent and
the trustee in the relevant section of their brief is off point.
See Mass. R. A. P. 16 (b) (2), as appearing in 481 Mass. 1628
(2019) ("The argument shall contain the contentions of the
appellee with respect to the issues presented, and the reasons
therefor, with citations to the authorities and parts of the
record on which the appellee relies" [emphasis added]). We
express no opinion whether the proponent and the trustee may
seek to enforce the bond order by some other means, such as a
complaint for contempt.

7
warrants dismissal. Scheuer v. Mahoney, 80 Mass. App. Ct. 704,

709 (2011), quoting Robinson v. Planning Bd. of Wayland, 23

Mass. App. Ct. 920, 921 (1986). Finally, in the circumstances

of this case, Sayen's failure to effect delivery of the

transcript by paying the balance due to the stenographer did not

delay the appeals. As Sayen noted, when the balance became due,

the proponent's and the trustee's multiple motions to dismiss

the appeals were pending, and it was possible that the appeals

would be dismissed regardless of whether the transcript was

delivered.

While we recognize that it is the appellant's burden to

move the appeal forward, including producing and filing the

transcript, see Neuwirth, 85 Mass. App. Ct. at 255-257,

appellees are expected to help, rather than hinder, the assembly

of the record. See South Boston Elderly Residences, Inc. v.

Moynahan, 88 Mass. App. Ct. 742, 743–744 (2015), quoting

Neuwirth, supra at 257 ("in Neuwirth we cautioned that, to avoid

unnecessary delay, appellees must remain vigilant in 'policing

the progress of an appeal' and should be willing to 'nudge an

appellant along' if need be"). Here, responsibility for the

regrettable delays in moving the appeals forward is shared among

the appellant and the appellees: the appellant and his counsel,

for their confusing arrangement with respect to Sayen's

representation on appeal and lack of diligence with respect to

8
the transcript; and the appellees, for their repetitive

(amended, supplemental, further supplemental) and time-consuming

motion practice with respect to dismissal of the appeals and

collateral matters.

"Although appellate courts ordinarily defer to a trial

court judge's dismissal of an appeal absent an abuse of

discretion, an appellate court nevertheless remains authorized

to exercise [its] own independent judgment as to what is

appropriate in the circumstances of a given case" (quotations

and citation omitted). Neuwirth, 85 Mass App. Ct. at 263.

Here, we conclude that it is appropriate to allow the appeals

from the underlying decree and judgment to go forward.

Conclusion. We reverse the order entered on March 2, 2021,

dismissing Sayen's appeals in the will and trust cases. The

case is remanded for further proceedings. Sayen shall forthwith

pay the balance due to the stenographer; the register of the

Probate and Family Court shall thereupon promptly assemble the

record; and Sayen shall timely docket the appeal pursuant to

Mass. R. A. P. 10 (a) (1). The proponent's and the trustee's

requests for appellate attorney's fees are denied.

So ordered.

By the Court (Massing, Shin &
D'Angelo, JJ. 8),

8 The panelists are listed in order of seniority.

9
Assistant Clerk

Entered: May 15, 2024.

10