The First Church of Christ, Scientist v. Barbara Ann Charder.

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

22-P-416

THE FIRST CHURCH OF CHRIST, SCIENTIST

vs.

BARBARA ANN CHARDER.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The First Church of Christ, Scientist (Church) holds the

remainder interest in a bungalow-style, two-story home on Fair

Street in Nantucket (the property). The defendant has held a

life estate in the property since 2003. Alleging waste, the

Church commenced this action seeking (i) to terminate the

defendant's life estate in the property pursuant to G. L.

c. 242, § 1,2 (ii) to recover damages caused by waste, and (iii)

a declaration terminating the defendant's life estate and

vesting title in fee simple in the Church. On the Church's

second motion for sanctions for failure to comply with rules of

1 Now known as Ara Charder.
2 General Laws c. 242, § 1, provides that "If a tenant . . . for
life . . . commits or suffers waste on the land so held, the
person having the next immediate estate . . . may have an action
of waste against such tenant to recover the place wasted and the
amount of the damage . . . ."
discovery and with court orders compelling compliance, a judge

of the Superior Court entered final judgment terminating the

defendant's life estate, and granting all right, title,

interest, and possession to the Church.3 On appeal, the

defendant argues that the sanction of default was too severe,

and that the facts alleged in the complaint did not warrant a

judgment in the Church's favor. We affirm.

Background. The Church commenced this action on September

11, 2019, and the defendant filed a timely answer. On April 7,

2020, the Church filed a motion to compel discovery. The

defendant's attorney sought and was granted leave to withdraw;

and the Church was ordered to serve the discovery on the

defendant, personally. The Church did so. On August 3, 2020,

having received no discovery, the Church filed a second motion

to compel discovery. A judge ordered the defendant to comply on

or before September 4, 2020. On January 12, 2021, the Church

filed a motion for sanctions due to the defendant's failure to

comply with the court order by September 4, 2020. On January

20, 2021, the judge found that sanctions were warranted but

deferred "making any finding as to sanctions" at that time. The

judge thereafter extended the deadline for the defendant to file

a motion for summary judgment.

3 Count II, seeking damages due to waste, was dismissed.

2
The summary judgment record demonstrated that the local

board of health had communicated with the Church on October 31,

2011, indicating it had received complaints about rodents at the

property and that the occupant had refused access for an

inspection. The Church engaged an expert architect who

evaluated the exterior of the building on May 8, 2019. He

observed: rotted and non-functional gutters that had allowed

water damage to exterior walls; wet rot negatively impacting the

integrity of the wood; a sagging roof near the main entry, bowed

wall, and distressed windows, all indicating that the structural

integrity of framing had failed; the roof needed to be replaced;

rotting wood on south façade was allowing water to infiltrate

behind the siding or to the interior; the integrity of the

siding, windows, roof, and exterior walls were compromised; the

glass of one window was broken; moss, lichen or algae were

growing on cedar shingles; four square feet of shingles were

missing; storm windows were partially detached; there was

missing split flashing above five windows; there were missing

components and exposed wires on the front light; the front door

was barricaded with plywood; debris littered a rear deck; and,

finally, the yard was unkempt, overgrown, and scattered with

debris. The architect concluded that the property had not been

reasonably or properly maintained for several years, the neglect

had allowed "severe and substantial deterioration to occur," and

3
further opined that the overall condition was that of an

unoccupied residence that had not been reasonably maintained and

that the home likely was uninhabitable with compromised

integrity of the siding, windows, roof, and exterior walls.

In the course of the summary judgment proceedings, the

judge granted the Church's motion to strike evidence in

opposition to the summary judgment motion, noting that the

defendant had failed to answer the Church’s discovery requests

concerning the condition of the property at various intervals,

its maintenance over the years, and the basis for any facts

supporting her position that (1) the property has not

deteriorated substantially since she acquired title in 2003, and

(2) she has not failed in her duty to preserve the property for

the benefit of the Church. The judge ultimately denied summary

judgment, however, on the basis that the Church's expert did not

opine on the condition of the building's interior or estimate

the costs of repair.

Following that decision, a different judge conducted a Rule

16 hearing on September 27, 2021, which the defendant and her

new attorney attended. At that hearing, the parties agreed to a

date, October 15, 2021, for the Church's expert to conduct an

inspection of the interior.4 The judge stated that "the

4 The Church’s expert would have been unavailable for an extended
period of time after October 2021, and so offered several dates

4
inspection will go forward on the . . . 15th. Ms. Charder is,

of course, welcome to attend. I do agree, though, that it is

not necessary that she attend, and I would expect that the

inspection would go forward whether she is able to make herself

available or not." The judge noted that "the ultimate sanction

for failure to comply with discovery is judgment for the

opposing side, so I think it's important that this go forward as

scheduled."5

Beginning the day before the scheduled inspection, the

defendant made efforts to change the time of the inspection from

11 A.M. to between 9 A.M. and 9:30 A.M. Due to ferry schedules

and other traveling challenges, the Church's counsel declined to

change the time. The defendant also informed the Church that

she refused to allow more than one person into the building and

refused to allow the Church's attorney to enter the building.

Counsel for the Church and three others (the original architect,

the architect's co-worker, and a consultant on costs of repairs)

in October for the inspection. The defendant claimed that she
would be busy with her charter bus tour business in October and
suggested that the Church get a new expert in order to schedule
a later inspection. Noting that the defendant's personal
presence was not required, the court ordered the defendant to
choose from among the October dates offered; she agreed to
October 15, 2021.
5 In addition, the judge issued a written order that inspection

by the plaintiff's expert will go forward on October 15, 2021,
with or without the defendant's presence, and also provided
dates for any renewed motion for summary judgment, mediation, a
final pretrial conference, and a trial date.

5
arrived at the property at 11 A.M. and found the building

locked. The defendant had filed an emergency motion for a

protective order seeking to limit entry to one person and

prevent counsel for the Church, the architect's co-worker, and

the consultant from accompanying the architect into the

building. The judge denied the motion and specifically stated

that "[t]he architect, his associate or associates, and

plaintiff's counsel may enter the premises to inspect it."

Counsel for the Church thereafter demanded immediate access

and returned to the property around 2 P.M. The defendant did

not appear; counsel for the Church traveled to her home and saw

her tour van in the driveway and the defendant sitting in a lawn

chair in the yard, using a smart phone. A few minutes later,

the defendant's counsel called and told the Church's counsel

that the defendant was busy providing a tour and would not allow

the inspection until 4:30 P.M. After continuing conversations

between counsel indicated that the defendant would not permit an

inspection until 4:30 P.M., counsel for the Church and the

Church's experts departed from the property and left the island.

The Church filed a renewed motion for summary judgment and

a motion for sanctions. The Church detailed what it

characterized as the defendant's willful and repeated defiance

of court orders compelling discovery despite being warned by the

judge that sanctions for not cooperating with the October 15,

6
2021 property inspection could include entry of judgment. In

addition, the Church argued that the defendant had lied that she

lived at the property from 2003-2017 because records indicated

that there had been no water service at the property since

November 5, 2014, and that she lied about being unavailable

before 4:30 P.M. on October 15.

The judge granted the motion for sanctions "for

substantially the reasons set forth in the plaintiff's

memorandum in support of its motion," and entered judgment

against the defendant pursuant to Mass. R. Civ. P. 37 (b) (2)

(C), as amended, 390 Mass. 1208 (1984), terminating the

defendant's life estate and awarding all right, title, interest

and possession of the property to the Church.6

Discussion. Entry of a default judgment is "committed to

the sound discretion of the trial judge," and "[w]e 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). "The consideration to be balanced in deciding

a default question for failure to make discovery are, on one

hand, a concern about giving parties their day in court, and, on

6 The judge also dismissed count II for damages, but the Church
does not appeal.

7
the other, not so blunting the rules that they may be ignored

'with impunity'" (citations omitted). Id. at 429-430. "Among

the pertinent considerations in determining whether conduct

warrants dismissal are 'the severity of the violation, the

legitimacy of the party's excuse, repetition of violations, the

deliberateness vel non of the misconduct, mitigating excuses,

prejudice to the other side and to the operations of the court,

and the adequacy of lesser sanctions.'" Sommer v. Maharaj, 451

Mass. 615, 621 (2008), quoting Robson v. Hallenbeck, 81 F.3d 1,

2 (1st Cir. 1996).

The defendant argues that the sanction of default was too

severe and the judge should have considered lesser sanctions.

The record shows, however, that the defendant repeatedly flouted

discovery requests and related court orders. As for the

inspection, she offered no legitimate excuse, and even if the

Rule 16 order was vague regarding the number of persons that

could enter the house for inspection, any doubt was resolved by

the denial of the defendant's motion for a protective order by 2

P.M. on October 15. Yet, the defendant continued to deny entry.

In addition, the court had warned the defendant that judgment

could enter should she fail to cooperate with the home

inspection. We conclude that "[t]he ultimate sanction imposed

was amply justified in the circumstances." Roxse Homes Ltd.

Partnership v. Roxse Homes, Inc., 399 Mass. 401, 406 (1987)

8
(noncompliance in clear violation of court orders justified

ultimate sanction). See Eagle Fund, Ltd. v. Sarkans, 63 Mass.

App. Ct. 79, 85-86 (2005) (defendant's violation of court order

after persistent foot dragging justified imposition of default

judgment). There was no abuse of discretion.

To the extent a finding of willfulness is required, but see

Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235-236

(2003) (such finding only "generally" required), the Church

argued in its memorandum that the defendant's conduct was

willful. The judge's decision adopting the memorandum

implicitly made a finding of willfulness, which was more than

justified by the evidence. See Gos v. Brownstein, 403 Mass.

252, 257 (1988) (finding of willfulness necessary unless

"implicit and warranted"). In addition, absence of prejudice,

which is not clearly shown here given the state of the property,

"even if true, did not make the sanction imposed unreasonable."

Eagle Fund, Ltd., 63 Mass. App. Ct. at 86.7

7 At oral argument, but not in her brief, the defendant argued
that the judge, in granting the Church's motion for sanctions
"substantially for the reasons set forth in the plaintiff's
memorandum in support of its motion," did not adopt all of the
arguments in the memorandum. We need not address arguments not
made in the brief, Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019), but if the judge had rejected a
material argument in the memorandum, he no doubt would have said
so.

9
The defendant also contends that the complaint does not

contain sufficient facts to support a finding of waste -- that

it does not state a claim for relief. See Productor e

Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826,

834-835 (1978) ("even after default it remains for the court to

consider whether the unchallenged facts constitute a legitimate

cause of action, since a party in default does not admit mere

conclusions of law" [citation omitted]). The defendant contends

that the fact that the judge denied summary judgment

demonstrates that the complaint failed to state a claim. We

disagree.

"Waste has been defined as an unreasonable or improper use,

abuse, mismanagement, or omission of duty touching real estate

by one rightfully in possession, which results in its

substantial injury" (quotation and citation omitted). Matteson

v. Walsh, 79 Mass. App. Ct. 402, 405 (2011). Here, the

complaint detailed the condition of the exterior of the property

as set forth above, and alleged that "[a] substantial

deterioration of the [p]roperty occurred as a result of [the

defendant's] neglect of the [p]roperty, amounting to waste and

injuring the remainder interest of the Church," and that "[t]he

waste committed or allowed by [the defendant] was an

unreasonable or improper use, abuse, mismanagement, or omission

10
of duty touching the [p]roperty." The Church alleged sufficient

facts to allow the court to enter a judgment for waste.8

Judgment affirmed.

By the Court (Sacks, Singh &
Brennan, JJ.9),

Clerk

Entered: March 10, 2023.

8 The earlier denial of the Church's summary judgment motion was
based not on the complaint's failure to allege sufficient facts
or otherwise to state a claim but instead on the lack of record
evidence regarding the building's interior and the cost of
repairs, i.e., damages. Neither of these issues was an obstacle
to the entry of the judgment here, which, notably, dismissed the
Church's claim for damages.
9 The panelists are listed in order of seniority.

11