Himmelfarb v. Greenspoon

• Decision Date: 07 February 1980
• Docket Number: No. 13722.,13722.
• Citation: 411 A.2d 979
• Parties: Julian HIMMELFARB, Appellant, v. Benjamin GREENSPOON et al., Appellees.
• Court: D.C. Court of Appeals

411 A.2d 979

Julian HIMMELFARB, Appellant, v. Benjamin GREENSPOON et al., Appellees.

No. 13722.

District of Columbia Court of Appeals.

Argued October 25, 1979.

Decided February 7, 1980.

Rehearing En Banc Denied March 10, 1980.

Harry L. Ryan, Jr., Arlington, Va., with whom Robert W. Hickey, Arlington, Va., was on the brief, for appellant.

Philip N. Margolius and J. Harry Welch, Washington, D. C., with whom William F. Krebs, Washington, D. C., was on the brief, for appellees.

Before KELLY, NEBEKER and MACK, Associate Judges.

KELLY, Associate Judge:

This case is before us for the second time.¹ In this appeal, appellant Himmelfarb challenges (1) the trial court's dismissal of paragraph 8A of his complaint for failure to comply with the court's discovery orders² and (2) the trial court's grant of summary judgment in favor of appellees as to the remainder of the complaint. We affirm.

The case has a long history, only a small part of which is relevant to the instant appeal. Mr. Paul Himmelfarb, appellant's father, died on January 16, 1968, leaving an estate valued at approximately $1.7 million. His will, as amended by four codicils,³ provided that each of the testator's eight children would receive $10,000 if he or she did not contest the will.⁴ At the time of Mr. Himmelfarb's death, his testamentary scheme left most of his estate to the Paul and Annetta Himmelfarb Foundation, Inc., a nonprofit charitable foundation established by the testator during his lifetime.

On November 14, 1973,⁵ appellant filed a complaint challenging the validity of the will, naming appellees (the Paul and Annetta Himmelfarb Foundation, Inc., and the four executors nominated in the will) and approximately eighty-five other persons as defendants. In summary, the complaint alleged that (1) the testator lacked the requisite testamentary capacity to execute his will and codicils; (2) the will and codicils had been obtained from the testator by the use of fraud and deceit; (3) the will and codicils had been procured through undue influence and duress; and (4) the appellees, by violating their fiduciary duties to the testator, had controlled and used the testator's estate to their own advantage.

On July 30, 1976, appellees served interrogatories on appellant asking him to state specifically the facts that he would rely on at trial to substantiate the allegations of the complaint. Appellant's answers were extremely general and appellees filed an objection to them on September 15, 1976.⁶ On January 12, 1977, the Honorable Margaret Haywood issued an order compelling appellant to produce more complete and specific answers. The answers filed on February 15, 1977 were still deficient. On May 11, 1977, after appellees' motion for a second order compelling answers, Judge Haywood specifically ordered appellant to relate his facts to the exact dates and circumstances of the execution of the will and codicils.⁷ The answers appellant filed on July 14, 1977⁸ were strikingly similar to the previous ones he had filed. Appellees then filed a motion to dismiss paragraph 8A, the paragraph that alleged lack of testamentary capacity. On February 9, 1978, Judge Haywood dismissed paragraph 8A pursuant to Super.Ct.Civ.R. 37(b)(2)(C). Appellees' motion for summary judgment as to the remainder of the complaint was granted on June 14, 1978.

Appellant contends that the dismissal of paragraph 8A for failure to comply with the court's discovery orders was improper. Arguing that his interrogatory answers regarding paragraph 8A raised genuine issues of material fact, he urges us to review this dismissal pursuant to Super.Ct.Civ.R. 37(b)(2)(C)⁹ under the summary judgment standard of review.¹⁰ We cannot do so.

The trial court has broad discretion under Rule 37 to dismiss an action or part of an action for failure to comply with discovery orders. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); United States Merchandise Mart, Inc. v. D&H Distributing Co., D.C.App., 279 A.2d 511 (1971). The court's dismissal will be reversed only if there has been an abuse of that discretion. National Hockey League v. Metropolitan Hockey Club, Inc., supra, 427 U.S. at 642, 96 S.Ct. at 2780; Coleman v. Lee Washington Hauling Co., D.C.App., 392 A.2d 1067 (1978). In deciding whether there has been any abuse, we must examine the "entire proceedings prior to [the imposition of the sanction]." United States Merchandise Mart, Inc. v. D&H Distributing Co., supra at 513. We will not disturb the trial court's exercise of discretion unless we are convinced that it abused that discretion by "imposing a penalty too strict or unnecessary under the circumstances." Dodson v. Evans, D.C.App., 204 A.2d 338, 341 (1964) (citation omitted).

The record shows that appellant was given three opportunities to provide proper answers to appellees' interrogatories. Since the court's orders were explicit in their instructions, we must assume that he was aware of what was required of him. His second set of answers, following the court's first order requiring more complete and specific answers, was substantially the same as his first set. His third set of responses was similar to the first two and again failed, without a valid explanation, to relate the facts to the specific times of execution of the will and codicils, as specifically requested by Judge Haywood's second order.¹¹ Moreover, by the time appellant filed his third set of answers, almost a full year had elapsed since the interrogatories were first propounded. Such an unwarranted time lapse is directly contrary to the spirit of Super.Ct.Civ.R. 1, which calls for "the just, speedy, and inexpensive determination of every action." See United States Merchandise Mart, Inc. v. D&H Distributing Co., supra at 514. In light of these facts and proceedings, we find that Judge Haywood did not abuse her discretion by dismissing paragraph 8A of appellant's complaint.

Appellant's second contention is that the trial court improperly granted appellees' motion for summary judgment as to the remainder of the complaint. In reviewing a grant of summary judgment, we begin with the clear language of Super.Ct.Civ.R. 56(c): summary judgment is properly granted "if the pleadings, depositions, [and] answers to interrogatories, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The facts are to be viewed in the light most favorable to the party opposing the motion (appellant), United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), and the burden is on the moving party (appellees) to establish the lack of a triable factual issue. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Willis v. Cheek, D.C.App., 387 A.2d 716, 719 (1978); 6 Moore's Federal Practice ¶ 56.15[8] at 642.

The first prong of our review requires that we "determine whether any issue of fact pertinent to the ruling exists . . ." Owens v. Tiber Island Condominium Association, D.C.App., 373 A.2d 890, 894 (1977) (citing International Underwriters, Inc. v. Boyle, D.C.App., 365 A.2d 779, 782 (1976)). Appellees filed a statement of material facts as to which there was no genuine issue, in which they admitted, for purposes of the motion, all the facts set forth by appellant. In light of this admission, the court's finding that no material facts were in issue was proper.

The second prong of our review requires that we determine whether appellees were entitled to judgment as a matter of law. Owens v. Tiber Island Condominium Association, supra at 894 (citing Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)). To do so, we must examine the law governing the allegations of the complaint and apply it to the uncontroverted facts.

Appellant claimed that his father's will and codicils had been obtained by the use of fraud and deceit. To establish an action for fraud in the inducement, appellant would have to prove that

(1) wilful false statements of fact were made to the testator;

(2) the statements were made by a beneficiary under the will that was induced;

(3) the statements were intended to deceive the testator;

(4) the testator was actually deceived;

(5) the statements actually induced the testator to make a will; and

(6) the testator would not have made the induced will absent the false statements. 1 Page on Wills § 179 at 353 (1941). See also Duckett v. Duckett, 77 U.S.App.D.C. 303, 134 F.2d 527 (1943);¹² Atkinson on Wills § 56 at 265-67 (2d ed. 1953). None of the numerous facts in appellant's answers to interrogatories would allow a jury to find in his favor on the issues of fraud and deceit. Appellant's factual allegations are that: the Foundation is a charitable organization that was under his father's control before the will was executed; after the execution of the will, the appellee executors schemed to abrogate the children's rights to become members of the Foundation; the attorney who drafted the will was not the testator's regular attorney and was initially contacted by one of the appellees; and the Foundation entered into numerous improper business transactions after the will had been drafted. While these facts may form the underpinnings of a charge of fraud and deceit, they do not, standing alone, constitute issues of material fact with respect to inducement of a will. Nowhere does appellant allege that false statements induced his father to make a will, or that any other facts exist that would support such an allegation. Since appellees would be entitled to a judgment on these issues as a matter of law, the grant of summary judgment was proper.

Appellant also claimed that the will and codicils were procured through duress, undue influence, and coercion. Duress, in the context of estate law, is "the use of coercion or force...