author: Baker, Judge.

text:
    INDY AUTO MAN, LLC, Appellant-Plaintiff, v. KEOWN & KRATZ, LLC, and Dustin Stohler, Appellees-Defendants
    Court of Appeals Case No. 18A-PL-1154
    Court of Appeals of Indiana.
    FILED November 1, 2018
    Attorney for Appellant: Christopher P. Jeter, Massillamany Jeter & Carson LLP, Fishers, Indiana
    Attorneys for Appellee: Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, Indiana, Michael E. Brown, Kightlinger & Gray, LLP, Indianapolis, Indiana
   Baker, Judge.

[1] Indy Auto Man, LLC (IAM), appeals the trial court's order granting summary judgment in favor of Keown & Kratz, LLC (the Firm), on IAM's legal malpractice complaint. Finding that there are genuine issues of material fact that must be resolved by a factfinder, we reverse and remand for further proceedings.

Facts

[2] IAM is a used car dealership that, at the time of the facts giving rise to this appeal, was located in Carmel. Yevgeniy Gorin is one of IAM's two principal members. In August 2013, IAM was the named defendant in two unrelated lawsuits.

[3] Mario Massillamany is Gorin's friend and long-time attorney. Gorin attempted to retain Massillamany (who was then with Barnes & Thornburg) to represent IAM in the two lawsuits, but Massillamany declined. Gorin asked that Massillamany recommend a "good reputable attorney" with "some backing to them" because IAM had made the mistake in the past of retaining "backyard mechanics," or attorneys "that were not associated with anyone," costing it "a lot of money" as a result. Appellant's App. Vol. III p. 30. Massillamany recommended that IAM hire Dustin Stohler, a college friend, whom he knew to be affiliated with the Firm.

[4] The Firm is a fifty-fifty limited liability company owned by William Keown and Donald Kratz. The Firm has no employees or secretarial staff and, while Keown and Kratz split expenses, they maintain separate clients and profits.

[5] In early 2013, the Firm realized that it was having to refer increasing numbers of prospective clients to other attorneys for litigation needs. In April 2013, the Firm and Stohler began discussing the possibility of working together. They reached an understanding but did not memorialize it to writing. Evidently, the parties agreed that Stohler would work on some cases for the Firm but would also maintain his own separate clients. The Firm gave him rent-free office space, Firm business cards and letterhead, and a Firm email address. He was allowed to use the Firm's conference rooms and to have his mail delivered to the Firm's office address. Stohler was permitted to use the Firm's billing assistant for his work on Firm client files. The Firm also added Stohler to its legal malpractice insurance policy and, while the Firm claims that this was only intended to cover cases involving the Firm's clients for whom Stohler did work, there is nothing in writing in the record supporting that claim. In May 2013, an announcement appeared in the Wabash College alumni newsletter indicating that Stohler had "recently joined the Indianapolis law firm Keown and Kratz as a Litigation and Employment Attorney." Id. at 127. The Firm did not place the announcement.

[6] IAM retained Stohler to represent it in the two pending cases. When filing his appearance and answer in both cases, he used Firm letterhead and listed the Firm address and his Firm email address as his contact information.

[7] At some point, the relationship between Stohler and the Firm began to sour. Kratz and Keown found that Stohler was tardy, provided pleadings rife with errors, missed deadlines, failed to return calls to clients, and often failed to apprise anyone of his whereabouts. They found him to be unprofessional and became concerned that he was abusing alcohol. In January 2014, Stohler stopped coming to work at the Firm and did not respond to phone calls or an email from Kratz. The Firm filed a missing person's report and the police found that he was "alive and well." Id. at 61. During Stohler's absence, mail addressed to him at the Firm arrived at the Firm's office and was placed on his desk without being opened. The Firm eventually learned that Stohler had accepted an in-house position at a collections firm.

[8] At some point either during or after Stohler's relationship with the Firm, he failed to respond to discovery within the appropriate timeframe on each of the two IAM cases. In one of those cases, a default judgment and damages award of approximately $60,000 were entered against IAM. When Gorin received notice of the damages award, he attempted to contact Stohler but was unsuccessful, so he reached out to Massillamany. Massillamany felt responsible for IAM's situation because he had recommended Stohler, so he stepped in as IAM's attorney in both cases. He was able to settle both cases for the aggregate sum of $45,000.

[9] In July 2015, IAM filed a legal malpractice complaint against Stohler and the Firm. IAM attempted to serve Stohler but was unsuccessful; he has never appeared in this case. On September 12, 2016, the Firm filed a motion for summary judgment, arguing that as a matter of law it did not owe IAM a duty of care. Following briefing and argument, on March 3, 2017, the trial court entered summary judgment in favor of the Firm. IAM now appeals.

Discussion and Decision

[10] Our standard of review on summary judgment is well settled:

The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Reed v. Reid , 980 N.E.2d 277, 285 (Ind. 2012). Once these two requirements are met by the moving party, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party. Id. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of material fact and that the moving party deserves judgment as a matter of law. Freidline v. Shelby Ins. Co. , 774 N.E.2d 37, 39 (Ind. 2002).

Goodwin v. Yeakle's Sports Bar and Grill, Inc. , 62 N.E.3d 384, 386 (Ind. 2016). Our Supreme Court has cautioned that "[a]s long as competent evidence has been designated in response to a summary judgment motion, ... 'weighing [the evidence]-no matter how decisively the scales may seem to tip-[is] a matter for trial, not summary judgment.' " Stafford v. Szymanowski , 31 N.E.3d 959, 963 (Ind. 2015) (quoting Hughley v. State , 15 N.E.3d 1000, 1005-06 (Ind. 2014) ). In other words, if any weighing of evidence-of the facts-is required, then summary judgment is inappropriate.

[11] Here, IAM argues that the Firm assumed a duty of care to it because Stohler was acting as the Firm's agent. For an agency relationship to arise, three elements must be established: (1) a manifestation of consent by the principal; (2) acceptance of authority by the agent; and (3) control exerted by the principal over the agent. Bunger v. Demming , 40 N.E.3d 887, 893 (Ind. Ct. App. 2015). Generally, whether an agency relationship existed is a question of fact. Id. at 894.

[12] IAM argues that Stohler had actual and/or apparent authority to act as the Firm's agent; we will address only the issue of apparent authority. Apparent authority is the authority that a third person reasonably believes an agent to possess because of some manifestation from the agent's principal. E.g. , Rogers v. Sigma Chi Int'l Fraternity , 9 N.E.3d 755, 764 (Ind. Ct. App. 2014). To find that a person had apparent authority to act for the principal, it is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party. Pepkowski v. Life of Ind. Ins. Co. , 535 N.E.2d 1164, 1166-67 (Ind. 1989). The communication from the principal need not be made directly to the third party; instead, the communication is sufficient to endow the agent with apparent authority if it placed the agent in a position to perform acts or make representations that appear reasonable to a third party. Id.

[13] Here, the following facts are undisputed:

• The Firm provided Stohler with rent-free office space and allowed him to use the Firm's mailing address.
• The Firm provided Stohler with business cards and letterhead.
• The Firm provided Stohler with an email address, though he never activated it.
• Stohler used the Firm's contact information when filing appearances in the two IAM cases.
• The Firm added Stohler to its legal malpractice insurance policy. The Firm believes that was only intended to cover Stohler's work for the Firm's clients, but there is no written evidence supporting that belief.
• IAM sought to retain an attorney with the backing of a firm and selected Stohler, in part, because it believed that he was in such a situation.

The Firm emphasizes that when IAM retained Stohler, it was not familiar with the Firm or the arrangement that Stohler had with the Firm. But at his deposition, Gorin testified that "I knew [Stohler] was affiliated with the law firm. I don't know when I found that out." Appellant's App. Vol. III p. 30. Moreover, Massillamany attested that

I informed [IAM] that I had an attorney, Dustin Stohler, he worked for a firm Keown & Kratz, they're a smaller firm, they can handle the work. They won't charge you the hourly rate that I was charging at the time at Barnes & Thornburg, they'd be cheaper and just as good. And I believe they're a Hamilton County firm. So I said, since your cases are in Hamilton County, it would be good to have a Hamilton County firm.

Id. at 69.

[14] In other words, Massillamany believed Stohler worked for the Firm, Wabash College published an advertisement announcing that Stohler worked for the Firm, and the court system was sending mail to the Firm on behalf of Stohler-all third parties who relied on manifestations made by the Firm (e.g., provision of letterhead, permission to use business address, etc.). At the very least, there is a question of fact as to whether IAM had a reasonable belief that Stohler was acting as the Firm's agent based on the Firm's manifestations. It is clear that this evidence must be weighed and evaluated by a trier of fact. Consequently, it was erroneous to enter summary judgment in favor of the Firm on IAM's complaint.

[15] The judgment of the trial court is reversed and remanded for further proceedings.

May, J., and Robb, J., concur.

      IAM filed a first appeal in 2017. This Court dismissed the appeal without prejudice, finding that the summary judgment order was not final because it did not address Stohler or include the "magic language" of Indiana Trial Rule 56(C). Indy Auto Man, LLC v. Keown & Kratz, LLC , 84 N.E.3d 718, 721-22 (Ind. Ct. App. 2017). On remand, IAM voluntarily dismissed Stohler from the case. The Firm argues that this Court's opinion was erroneous and that IAM has forfeited its right to appeal because it did not seek rehearing or transfer. There is no requirement that IAM have done so. Instead, it chose to follow this Court's directive and is therefore entitled to bring this appeal.

      We address only Stohler's apparent authority to act on behalf of the Firm in this appeal, finding that issue dispositive. We express no opinion as to whether Stohler may have also had actual authority. That, too, is an argument that must be evaluated by a factfinder.


source: Caselaw Access Project

author: WENTWORTH, J.

license: Public Domain

text:
    SAHARA MART, INCORPORATED, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
    Cause No. 49T10-1709-TA-00017
    Tax Court of Indiana.
    Filed October 26, 2018
    ATTORNEY FOR PETITIONER: BRETT J. MILLER, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN
    ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR., ATTORNEY GENERAL OF INDIANA, WINSTON LIN, DEPUTY ATTORNEY GENERAL, Indianapolis, IN, HAMISH S. COHEN, SEAN P. BURKE, RAYMOND J. BIEDERMAN, DAVID C. DICKMEYER, MATTINGLY BURKE COHEN & BIEDERMAN LLP, Indianapolis, IN
    ORDER ON RESPONDENT'S MOTION FOR SANCTIONS AND CONTEMPT
   WENTWORTH, J.

Sahara Mart, Incorporated, has challenged the Indiana Department of State Revenue's final determination assessing it with unpaid Indiana sales tax liabilities for the 2013, 2014, and 2015 tax years (the years at issue). The matter is currently before the Court on the Department's "Motion for Sanctions and Contempt" ("Motion"). The Court, being duly advised in the premises, grants the Department's Motion.

FACTS AND PROCEDURAL HISTORY

Sahara Mart owned and operated two grocery stores in Bloomington, Indiana during the years at issue. (Pet'r Original Tax Appeal Pet. ("Pet.") ¶¶ 3, 4; Jt. Stip. Facts ¶¶ 3-5.) In May of 2016, after completing an audit, the Department determined that Sahara Mart had underreported its taxable sales during the years at issue and failed to remit the proper amount of sales tax to the State. (See Pet. ¶ 7.) The Department subsequently issued Proposed Assessments against Sahara Mart, including penalties and interest, totaling approximately $6.8 million. (Pet. ¶ 8, Ex. B.) The Proposed Assessments were based on gross annual sales figures the Department extrapolated from Sahara Mart's 2007 federal income tax return. (See Pet. ¶ 7.) (See also Pet., Ex. C at 2 (indicating that the Department requested actual business records and receipts from Sahara Mart during the audit to no avail).)

Sahara Mart protested the Proposed Assessments and provided the Department with copies of a federal audit report that documented its gross sales for the 2008 through 2011 tax years. (Pet. ¶ 9.) On January 13, 2017, the Department issued a Letter of Findings directing a supplemental audit in light of the federal report. (See Pet., Ex. C at 4.) After the supplemental audit was completed, the Department issued revised Proposed Assessments reducing Sahara Mart's total sales tax liabilities for the years at issue to approximately $1.5 million. (Pet. ¶¶ 11-12, Ex. F.) Believing the revised Proposed Assessments were still incorrect, Sahara Mart filed an original tax appeal on September 25, 2017.

On March 29, 2018, while the case was pending, the Department deposed Sahara Mart's majority owner, Mr. Javad Noorihoseini. During the deposition, Noorihoseini testified that Sahara Mart was generally operated by unpaid family members, friends, and other volunteers. (See Deposition of Javad Noorihoseini ("Noorihoseini Dep.") at 17:7-22:16, 23:15-19, 69:20-70:4, 78:11-78:23.) Noorihoseini further testified that while Sahara Mart occasionally paid for the services of independent contractors and consultants, it had no employees. (See Noorihoseini Dep. at 18:11-21:9 (stating unequivocally that Sahara Mart does not have, nor did it have during the years at issue, "any employees"), 27:16-29:5 (testifying that "sometimes we have to hire some people to consult with [our suppliers] on some levels if need be[ a]nd sometimes we contract people to do things for a period of time" like moving or preparing things), 187:4-10.) In addition, Noorihoseini testified that approximately 40% of the beer and alcohol Sahara Mart purchased annually for resale was never sold because it went bad and had to be destroyed. (See Noorihoseini Dep. at 203:9-205:6, 208:10-209:17.)

Questioning the veracity of Noorihoseini's deposition testimony, the Department launched an "independent" investigation. (See Resp't Corrected Br. Supp. Mot. Sanctions and Contempt ("Dep't Br.") at 6, 9 (stating that "it seemed highly unlikely a company could run two grocery stores each open seventy-six hours a week without any employees or that it would destroy huge amounts of alcohol on an annual basis rather than reducing its orders or otherwise adapting as a business").) During the course of its investigation, the Department secured affidavits from four individuals who averred that during the years at issue, they had been employed by Sahara Mart and were paid, mostly in cash, for each hour worked, and that they knew of other individuals who were, like them, Sahara Mart employees. (See generally Dep't Br. at 10-13 (citations omitted).) The affiants also stated that they never witnessed any destruction of alcohol by Sahara Mart. (See generally Dep't Br. at 14 (citations omitted).) Finally, several of the affiants stated that, after his deposition, Noorihoseini contacted them and attempted to secure their "cooperation" in the event they were contacted by the Department. (See generally Dep't Br. at 16-20 (citations omitted).) One affiant averred that Noorihoseini offered to pay her $1,000 "to cooperate." (See Dep't Br., Ex. 4 ¶¶ 18-20.)

On May 22, 2018, the Department filed its Motion, asserting that Sahara Mart and Noorihoseini were "engaged in a fraudulent scheme to avoid paying taxes" and had committed perjury and witness tampering. (See, e.g., Resp't Proposed Findings and Conclusions ("Dep't Findings") ¶¶ 10-12.) Consequently, the Department requested the Court find them in contempt and sanction them - pursuant to both the Court's inherent power and the power granted to it under Trial Rule 37 - by dismissing the case with prejudice and awarding the Department its attorney fees. (See Dep't Br. at 20-26.) (See also Dep't Findings ¶¶ 1, 3.) As support for its Motion, the Department submitted Noorihoseini's deposition, the affidavits of the four individuals who claimed they were Sahara Mart employees, and the affidavit of one of the Department's attorneys.

The Court conducted a show cause hearing on the Department's Motion on July 12, 2018. On August 6, 2018, the parties filed proposed findings of fact and conclusions of law. Additional facts will be supplied as necessary.

LAW

Contempt

Contempt involves a disobedience that undermines a court's authority, justice, and dignity. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). There are two types of contempt: direct contempt and indirect contempt.

Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010). Indirect contempt, which is at issue in this case, involves acts that occur outside the court's presence and personal knowledge. Id. Pursuant to Indiana Code § 34-47-3-3, a person is guilty of indirect contempt when he influences, or attempts to influence, a witness to give or abstain from giving testimony in a case before the court. See IND. CODE § 34-47-3-3 (2018). A party's failure to make or cooperate in discovery may also be regarded as an act of indirect contempt. See Ind. Trial Rule 37(B)(2)(d). These instances of indirect contempt are sanctionable by fines, imprisonment, or the payment of reasonable attorney's fees. See IND. CODE § 34-47-3-6(c) (2018) ; T.R. 37(B).

Discovery

"Discovery is the process by which the parties to an action ascertain the existence of material facts previously unknown." Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994) (citation omitted). Indiana's discovery rules are designed to allow a liberal exchange of information essential to litigate all relevant issues and to promote settlement. See Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012) ; Trost-Steffen v. Steffen, 772 N.E.2d 500, 512 (Ind. Ct. App. 2002), trans. denied. Pretrial discovery procedures are intended to " 'make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.' " Whitaker, 960 N.E.2d at 115 (citations omitted).

"Discovery is designed to be self-executing with little, if any, supervision of the court." Trost-Steffen, 772 N.E.2d at 512 (citation omitted). Nonetheless, Trial Rule 37 provides a court with broad latitude to sanction those who "[f]ail[ ] to make or cooperate in discovery[.]" T.R. 37(B). For instance, if a litigant fails to obey a court order to provide or permit discovery, Trial Rule 37 permits a court to treat the disobedience as contempt, prohibit the disobedient party from introducing designated matters into evidence, dismiss the action or proceeding or any part thereof, render a default judgment against the disobedient party, or require the disobedient party to pay the reasonable attorney's fees of his opponent. See T.R. 37(B)(2). Courts have construed the acts of producing forged documents, lying in depositions or in answering interrogatories, soliciting witnesses to lie in their depositions, and destroying evidence, as failures to make or cooperate in discovery under both Indiana Trial Rule 37 and its nearly identical federal equivalent, Federal Rule Civil Procedure 37. See, e.g., Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 650-51 (Ind. Ct. App. 2008) (citations omitted); Ramirez v. T & H Lemont, Inc., 845 F.3d 772, 775-76 (7th Cir. 2016) ; Brady v. U.S., 877 F.Supp. 444, 452-54 (C.D. Ill. 1994). See also Fed. R. Civ. P. 37.

Power of the Court

A court has "the inherent power to punish parties in the course of 'maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior.' " City of Gary v. Major, 822 N.E.2d 165, 169 (Ind. 2005) (citing State v. Shumaker, 200 Ind. 623, 157 N.E. 769, 775 (1927) ). See also Prime Mortg., 885 N.E.2d at 651 (stating that " 'the inherent powers doctrine is most often invoked where a party commits perjury or destroys or doctors evidence' " (quoting Qantum Commuc'n Corp. v. Star Broad., Inc., 473 F.Supp.2d 1249, 1269 (S.D. Fla. 2007) ) ). Indeed, as the Indiana Supreme Court has explained, a court's inherent power to sanction both the attorneys and the parties appearing before it is a necessary precondition to the exercise of its independent judicial power:

To deny a court the power to enforce obedience to its lawful orders against parties who have been subjected properly to its jurisdiction in the first instance, is to nullify its effectiveness as an independent branch of our government. The power of a court to enforce compliance with its orders and decrees duly entered is inherent. No statutory sanction is needed. In both equity and law a court would be powerless to give effective relief were its arms tied by such requirements ... To protect the proper functioning of judicial proceedings, we also have imbedded this [inherent] power in numerous court rules [such as in Indiana Trial Rule 37 ]. Similarly, the judicial power encompasses the [inherent] ability to hold a litigant in contempt.

Noble Cty. v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001) (citations omitted).

ANALYSIS

During the show cause hearing, Sahara Mart was provided the opportunity to present evidence to show why it and Noorihoseini should not be held in contempt. See, e.g., IND. CODE §§ 34-47-3-5, -6 (2018); Holman v. Holman, 472 N.E.2d 1279, 1284 (Ind. Ct. App. 1985) (supporting the proposition that once the Court was informed of the facts alleged to constitute the perjury and witness tampering, Sahara Mart was to be given the opportunity to prove why it and Noorihoseini should not be held in contempt). Sahara Mart, however, did not deny, explain, or excuse the facts underlying the Department's contempt charge; rather, it moved to 1) dismiss the Motion on the basis that the Department violated Indiana Rule of Evidence 408, 2) strike Noorihoseini's deposition, and 3) strike the affidavits submitted by the Department. (See, e.g., Show Cause Hr'g Tr. at 13, 20, 28, 52.)

1. Indiana Rule of Evidence 408

At the outset, Sahara Mart argued that the Court should dismiss the contempt charge because the Department "violated Rule of Evidence 408" by twice referring in its written brief to a settlement conversation that occurred between the parties. (See Show Cause Hr'g Tr. at 20-21 (citing Dep't Br. at 3, 17).) Sahara Mart explained that the Department violated the Evidence Rule by "using [the] settlement conference as a preliminary step to proving witness tampering." (Show Cause Hr'g Tr. at 21-22, 41-42.) (See also Pet'r Findings Fact and Conclusions Law ("Sahara Mart's Findings") ¶ 34(3)(a)-(c).) Indiana Rule of Evidence 408, titled "Compromise Offers and Negotiations[,]" states as follows:

(a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a valuable consideration in order to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim. Compromise negotiations include alternative dispute resolution.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Ind. Evidence Rule 408.

The Department's two references only indicate that the Department notified Sahara Mart during the settlement conference that it had begun to contact individuals who claimed to be paid employees of Sahara Mart and that its settlement position would be informed by what it learned. (See Dep't Br. at 2-3, 17.) (See also Show Cause Hr'g Tr. at 30-31.) This information does not fall within Rule 408's evidentiary prohibition because the Department provided the references not to prove or disprove the validity of Sahara Mart's claim, but to inform the Court that it had notified Sahara Mart of its recent discovery activities. See Evid. R. 408. Moreover, the two references to the settlement conference were contained in the Department's brief, and as attorney statements, they do not constitute evidence. See, e.g., Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002) (stating that "it is universally known that statements of attorneys are not evidence"); Utilimaster Corp. v. Ind. Dep't of State Revenue, 967 N.E.2d 92, 95-96 (Ind. Tax Ct. 2012) (explaining that a concern about confusing the trier of fact with what is - or is not - evidence generally arises in the context of a jury trial rather than a bench trial). (See also Show Cause Hr'g Tr. at 26 (where the Court reminds an attorney that his argument does not constitute evidence).) The Court thus denies Sahara Mart's motion to dismiss the Department's Motion for a " Rule 408 violation."

2. Noorihoseini's Deposition

During the show cause hearing, Sahara Mart moved to strike the Noorihoseini deposition on the basis that it was "not authenticated by a court reporter's certification." (Show Cause Hr'g Tr. at 5-6.) More specifically, Sahara Mart has explained that

[the] deposition transcript [submitted to the Court w]as not [ ] signed by [Noorihoseini]. Although the Indiana Trial Rules provide procedures to allow the use of an unsigned deposition transcript, [the Department] did not even attempt to follow those procedures here. See T.R. 30(E)(4). Without a T.R. 30(E)(4) certificate, the Depo may not be used "with the same force and effect as though the original had been signed by the witness."

(Sahara Mart's Findings ¶ 34(2)(a)-(c).)

Indiana Trial Rule 30(E) requires that a deponent be permitted to read and sign her deposition and, if desired, change any answer given in the deposition. Ind. Trial Rule 30(E)(1)-(2). If, however, the deponent fails to either sign the deposition or return it entirely, the transcribing reporter must: 1) execute a certificate as to those facts; and then 2) deliver the certificate to the party who took the deposition. See T.R. 30(E)(3)-(4). The deposition may then be used by any party "with the same force and effect as though it had been signed" by the deponent. T.R. 30(E)(3)-(4).

Sahara Mart's complaint that the copy of Noorihoseini's deposition submitted to the Court does not contain a certificate from the transcribing reporter, however, is of no moment here. Indeed, Indiana Trial Rule 32(D)(4), titled "Effect of errors and irregularities ... As to completion and return of deposition[,]" provides:

Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under [Trial] Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been ascertained.

Ind. Trial Rule 32(D)(4). Accordingly, it was up to Sahara Mart to demonstrate during the show cause hearing that it had, with reasonable promptness, moved to suppress Noorihoseini's deposition, alleging a defect. See, e.g., S. Ind. Gas & Elec. Co. v. Robertson, 170 Ind.App. 655, 354 N.E.2d 348, 349-50 (1976) (explaining that a party's objection to an unsigned deposition was timely made the same day it received the deposition from the reporter).

Noorihoseini was deposed on March 29, 2018, and a copy of that deposition was sent to him for review on April 11, 2018. (See Show Cause Hr'g Tr. at 5-7; Resp't Notice Submission ("Dep't Notice") (filed Aug. 14, 2018), Ex. A.) Neither he nor Sahara Mart, however, moved to suppress the deposition or any part thereof before the show cause hearing held nearly three months later. This lack of promptness is further compounded by the fact that neither Sahara Mart nor Noorihoseini has ever presented an argument that there were inaccuracies in the substance of Noorihoseini's deposition testimony as transcribed. (See Show Cause Hr'g Tr.; Sahara Mart's Findings.) See also Dotson v. Stryker Corp., 108 N.E.3d 376, 381-84 (Ind. Ct. App. 2018) (finding that the deponent's failure to sign a deposition was not fatal when there were no claimed inaccuracies in the substance of the deponent's testimony). Accordingly, the Court may properly consider Noorihoseini's deposition and denies Sahara Mart's objection to its use.

3. The Affidavits

Finally, Sahara Mart argues that all five affidavits submitted by the Department should be stricken because each suffers from one or more infirmities that render it inadmissible. (See Show Cause Hr'g Tr. at 24.) Specifically, Sahara Mart explains that each of the affidavits should be stricken because they either: a) constitute hearsay; b) contain speculation and legal conclusions; c) were submitted with inadmissible attachments; or d) contain irrelevant information. (See Sahara Mart's Findings ¶ (1)(a)-(h).)

a) Hearsay

Sahara Mart has raised what it refers to as a "double hearsay" objection with respect to two of the affidavits. (See Show Cause Hr'g Tr. at 24, 47-48; Sahara Mart's Findings ¶ 34(1)(g).) Sahara Mart related its objection to specific statements made as proof of a fact within each of the affidavits and provided its reasons why these statements constituted inadmissible hearsay. (Compare Show Cause Hr'g Tr. at 24, 47-48 with Ind. Evidence Rule 801(a)-(c).) Accordingly, Sahara Mart's objection is sustained, and the Court strikes paragraphs 4 and 9 of the Stahl affidavit (Dep't Br., Ex. 5) and paragraphs 3, 4, and 5 of the Bartel affidavit (Dep't Br., Ex. 7). The striking of the specific portions of these affidavits does not, however, have an impact on the outcome of the Court's disposition of the Motion.

Sahara Mart has further posited a broad and overarching hearsay objection to all the affidavits. Its entire argument supporting this general objection is as follows:

Each of the affidavits is a statement that: "(1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted." Evid. R. 801(c). The Affidavits, therefore, constitute inadmissible hearsay to which no exception applies. Holmes v. Nat'l Collegiate Student Loan Tr., 94 N.E.3d 722, 725 (Ind. Ct. App. 2018) ("Inadmissible hearsay contained in an affidavit may not be considered ....").

(Sahara Mart's Findings ¶ 34(1)(a).)

Sahara Mart did not provide the Court with anything more than the quoted definition of hearsay, see Evid. R. 801(a)-(c), and a case citation in the apparent belief that the Court would develop legal arguments on its own and relate them to specific statements within each affidavit. The Court is not an advocate and will not do Sahara Mart's work for it. Accordingly, the Court denies all of Sahara Mart's remaining hearsay objections.

b) Speculation and Legal Conclusions

The four affiants stated that during the years at issue, they were paid for their work at Sahara Mart, they were employees of Sahara Mart, and described when they worked at Sahara Mart, what their responsibilities were while they were working there, how they were paid, and how much they were paid. (See generally Dep't Br., Exs. 2-5.) Sahara Mart contends that the affidavits must be stricken because the " 'question of whether an individual is an employee ... is a legal conclusion' " and "a lay witness cannot provide a legal conclusion." (Show Cause Hr'g Tr. at 46-47; Sahara Mart's Findings ¶ 34(1)(c) (citation omitted).)

Indiana Rule of Evidence 704 states that witnesses (in this case, the affiants) may not testify to legal conclusions. Ind. Evidence Rule 704(b). Nonetheless, the Court's legal conclusion whether an individual is an employee derives from the existence of certain facts, including whether one believes herself to be an employee. See, e.g., Mortg. Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495-96 (Ind. 1995) ; Bauermeister v. Churchman, 59 N.E.3d 969, 974-76 (Ind. Ct. App. 2016) (citation omitted). Thus, the attestations of the affiants that Sahara Mart paid them for services rendered as employees is evidence that is properly considered by the Court. The Court therefore denies Sahara Mart's motion to strike the affidavits on the basis they contain inadmissible speculation and legal conclusions.

c) Affidavit Attachments

The Department attached to one of the affidavits at issue a copy of a text message conversation between Noorihoseini and that affiant. In this text message conversation, Noorihoseini asked the affiant to contact another alleged Sahara Mart employee because she would not respond to him, and he needed her "to cooperate." (See Dep't Br., Ex. 4 ¶ 25, Ex. A.) The Department attached to another affidavit both a Facebook "screenshot" of a comment by another alleged employee that stated Sahara Mart did "not treat [its] employees well" together with an additional text message conversation. (See Dep't Br., Ex. 7 ¶ 4, Exs. 1, 2.) During the show cause hearing, Sahara Mart moved to strike all three attachments because they were "incomplete." (See Show Cause Hr'g Tr. at 24, 49.) (See also Sahara Mart's Findings ¶¶ 15, 17.)

Pursuant to Indiana Evidence Rule 106, Sahara Mart should have, during the show cause hearing, followed up its objection by requiring "the introduction ... of any other part - or any other writing or recorded statement - that in fairness ought to be considered" with the submitted attachments. See Ind. Evidence Rule 106. It did not do so, and despite having a subsequent opportunity to provide that information in its findings of fact and conclusions of law, it failed to identify the additional information that would have made the evidence complete. (See Show Cause Hr'g Tr.; Sahara Mart's Findings.) Consequently, the Court denies Sahara Mart's objection to strike the affidavits on the basis that their attachments were incomplete.

d) Relevance

Finally, Sahara Mart has objected to the admissibility of the affidavits on the grounds that they are "full of" irrelevant information. (See Show Cause Hr'g Tr. at 23-25 (complaining about statements in the affidavits that Sahara Mart sold alcohol on Sundays, that its "z-tapes" were inaccurate, that Noorihoseini skimmed cash from the company, and that he authorized the creation of fake invoices), 49-50 (complaining about statements in the affidavits that Sahara Mart paid individuals in cash); Sahara Mart's Findings ¶ 34(1)(f).) Sahara Mart argues that these statements have nothing to do with whether or not Sahara Mart had employees or destroyed alcohol and are thus used for the sole purpose of "inflaming" the Court. (Show Cause Hr'g Tr. at 23, 49.)

Evidence is considered relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ind. Evidence Rule 401. Here, the Court must make a factual determination whether Sahara Mart through Noorihoseini 1) lied about not paying its workers and having no employees, 2) lied about destroying alcohol, and 3) attempted to influence a witness to give, or abstain from giving, testimony in the case. The affiants' challenged statements are relevant to the Court's factual determination because they will affect the probability of two consequential facts: whether Sahara Mart operated using volunteers not employees and whether it destroyed rather than sold certain alcohol. Accordingly, the Court denies Sahara Mart's objection to strike the affidavits on the basis that their content is irrelevant.

4. Perjury and Witness Tampering

The Department has presented several pieces of evidence to support its allegations that Sahara Mart and Noorihoseini committed perjury and witness tampering and are therefore in contempt of court. Rather than refute the facts presented in that evidence that underlies the Department's contempt charge, Sahara Mart chose to challenge the admissibility of the Department's evidence. Those admissibility challenges, however, have proven unsuccessful. After considering the admissible evidence, the Court holds that Sahara Mart - through Noorihoseini - has committed both perjury and witness tampering.

One commits perjury by making "a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true[.]" IND. CODE § 35-44-2-1 (2018). To support a finding of perjury, the evidence must show that the false statement attested to is material to the outcome of the case. See Pollard v. State, 218 Ind. 56, 29 N.E.2d 956, 958 (1940) ; Paschall v. State, 717 N.E.2d 1273, 1276 (Ind. Ct. App. 1999).

Here, Noorihoseini testified that one of the affiants, Brooke Henry, was never paid for her services, but she testified that she was paid by Sahara Mart for her services as a full-time nutritional adviser and alcohol purchaser at Sahara Mart for approximately 17 years. (Compare Noorihoseini Dep. at 20:3-11 with Dep't Br., Ex. 3.) Moreover, all the affiants swore they were paid during the relevant time periods. (See Dep't Br., Exs. 2-5.) Neither Noorihoseini nor Sahara Mart rebutted this evidence. Consequently, as finder of fact, the Court finds that Noorihoseini made false statements under oath that Sahara Mart workers were generally unpaid.

Noorihoseini's false statements are material to the outcome of the underlying case. For purposes of perjury, a material fact is one that is reasonably calculated to mislead an investigation. See Daniels v. State, 658 N.E.2d 121, 123 (Ind. Ct. App. 1995) (citations omitted). Noorihoseini's false statements about Sahara Mart operating with unpaid volunteers rather than employees was reasonably calculated to lead the Department to believe the so-called volunteers would not have evidence material to this matter. Sahara Mart's business practices and the manner and accuracy by which it kept its books and records - including its payment practices - are central to the claims and defenses in this matter. (See, e.g., Pet. ¶¶ 16-19 (alleging that because Sahara Mart had federal records to support its gross sales during the year at issue, it was unnecessary for the Department to do its own best information assessment).) Accordingly, the Court holds that Sahara Mart and Noorihoseini committed perjury.

The evidence also shows that Sahara Mart and Noorihoseini engaged in witness tampering. Indeed, the Department submitted two affidavits into evidence demonstrating that Noorihoseini attempted to influence potential witnesses into saying something that was not true and even offered to pay for such false statements. (Compare Noorihoseini Dep. at 20:3-11 with Dep't Br., Ex. 3 ¶ 18, Ex. 4 ¶¶ 19-26.) Again, Sahara Mart and Noorihoseini did not attempt to rebut the substance of this evidence. The Court therefore finds that Sahara Mart - through Noorihoseini - was also engaged in witness tampering.

5. Sanctions

Having found that Sahara Mart and Noorihoseini committed perjury and witness tampering, the Court finds them in contempt and that sanctions are appropriate. Sanctions must be "just" in light of the particular circumstances of the case. See, e.g., T.R. 37(B)(2); Prime Mortg., 885 N.E.2d at 649 (" 'The only limitation on [a] court in determining an appropriate sanction is that the sanction must be just' " (citation omitted) ). See also Smith v. Borg-Warner Auto. Diversified Transmission Prods. Corp., No. IP 98-1609-C-T/G, 2000 WL 1006619, *7 (S.D. Ind. July 19, 2000) ("The measure of sanctions to be imposed, if any, must be proportionate to the conduct and circumstances justifying sanctions" (citation omitted) ). To that end, many other courts have explained that "[a]s a fraud on the court, perjury may warrant the sanction of dismissal[.]" See, e.g., Montano v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008) ; Brady, 877 F.Supp. at 453 (" 'False testimony in a formal proceeding is intolerable' " (citation omitted) ). Moreover, because "witness tampering is among the most grave abuses of the judicial process ... it warrants a substantial sanction." Ramirez, 845 F.3d at 782 (citations omitted).

a) Dismissal

In light of the evidence before the Court, the Department suggests that dismissal of Sahara Mart's case with prejudice is an appropriate sanction. Dismissal is a severe sanction given its finality, but the Court finds that the contempt detailed in this opinion is so egregious that it warrants just such a result.

During his deposition, Noorihoseini abused the discovery process by attempting to hide from the Department the identity of individuals who were paid for regular and continuous services to Sahara Mart and thus had knowledge about Sahara Mart's business practices. This deception not only impeded overall trial preparation, but also prejudiced the Department, which had to expend time and money gathering and presenting evidence of the perjury at the show cause hearing. Upon learning that the Department discovered and interviewed several of these individuals, Noorihoseini abused the judicial process further by asking several of the individuals to provide - or conceal - certain information, even offering money in exchange for their "cooperation." The Court will not tolerate Sahara Mart's blatant attempts to deceive both its opponent and this Court. Accordingly, the Court exercises its authority under both Trial Rule 37 and the Court's inherent power by imposing the just sanction of dismissal of this case with prejudice.

b) Attorney's Fees

Once a party has been found in contempt of court, reasonable attorney fees may be awarded to the opposing party. See I.C. § 34-47-3-6(c) ; T.R. 37(B). See also Crowl v. Berryhill, 678 N.E.2d 828, 831 (Ind. Ct. App. 1997) (stating it is within a court's inherent power to award attorney's fees for civil contempt). Accordingly, the Department seeks attorney's fees "incurred in defending this action, taking [Noorihoseini's] Deposition, investigating the false claims made therein, calling and interviewing non-disclosed, non-party witnesses and bringing this Motion before the Court." (Show Cause Hr'g Tr. at 19, 57; Dept's Findings ¶ 37.) In support of that request, the Department submitted the affidavit of its attorney, Hamish S. Cohen, to show that it incurred $65,270.70 in expenses between December 20, 2017 (the date the Department filed its appearance in the case) and July 12, 2018 (the date of the show cause hearing). (See Aff. Hamish S. Cohen, Ex. A (filed July 16, 2018).)

In response, Sahara Mart contends the Department's request is unreasonable. Specifically, it states

[t]hey're not entitled to fees from Day 1.... [Instead,] it would be solely related to the month of May of 2018, perhaps into June[.] ... And by the way, about half of the fees in the invoice for May are totally unrelated to [Noorihoseini's] deposition[.]

(Show Cause Hr'g Tr. at 25-26.) (But see also Sahara Mart's Findings ¶ 36 (acknowledging that it "has likely engaged in inappropriate conduct by attempting to influence the testimony of a potential witness" and that a sanction of $5,000 would therefore be reasonable).)

The Court finds the guidance provided in the plain language of Trial Rule 37 that limits attorney's fees to those incurred as a result of the other party's discovery violation/failure instructive. T.R. 37(B). See also Popovich v. Ind. Dep't of State Revenue, 50 N.E.3d 407, 413-14 (Ind. Tax Ct. 2016). Accordingly, the Court finds that the appropriate reimbursement period in this case began on March 30, 2018, the day after the Department took Noorihoseini's deposition in which he lied, through July 12, 2018, the day of the show cause hearing. Indeed, it was during this time period that the Department had to adjust its entire approach in handling the case to account for the newly-discovered deceptive efforts of Sahara Mart and Noorihoseini. Upon review of the Department's evidence as to this time period, the Court finds the Department's expenses of $45,000.00 to be reasonable.

CONCLUSION

At the outset of the show cause hearing, Sahara Mart informed the Court that it took the charges against it seriously and that it "d[idn't] come to th[e] courtroom throwing whatever [it] c[ould] at the wall to see what st[uck.]" (Show Cause Hr'g Tr. at 13-14, 20, 50-51.) But as described throughout this opinion, that is exactly what Sahara Mart did: it came to Court and attempted to avoid the charges of perjury and witness tampering merely by making a series of poorly-developed - and ultimately unsuccessful - evidentiary objections. Accordingly, the Court GRANTS the Department's Motion.

The Court hereby ORDERS this cause DISMISSED with prejudice. The Court also ORDERS Sahara Mart to pay the Department's reasonable attorney's fees in the amount of $45,000.00.

SO ORDERED this 26th day of October, 2018.

      The Department produced an affidavit by Amanda Christophel, who also claimed to be a Sahara Mart employee, but she did not sign her affidavit. While the Department contends the affidavit was signed electronically, it did not submit a copy of the affidavit that comports with the electronic signature provisions contained in Indiana Trial Rules. (Compare Resp't Proposed Findings and Conclusions ("Dep't Findings") ¶ 29 with Ind. Trial Rule 86(I)(1) (indicating that Indiana's E-Filing system requires electronic signatures be indicated by either a graphic image of the handwritten signature or "/s/" followed by the person's name).) Consequently, the affidavit will not be considered.

      Contempt proceedings may also be generally categorized as civil or criminal, according to the nature and purpose of the sanction imposed. Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006), trans. denied. A civil contempt is a violation of a court order resulting in a proceeding for the benefit of the aggrieved party. Id. In other words:
      It is not an offense primarily against the dignity of the court, but rather is for the benefit of the party who has been injured or damaged by the failure of another to conform to a court order issued for the private benefit of the aggrieved party. Therefore ... the primary objective of a civil contempt proceeding is not to punish the defendant, but rather to coerce action for the benefit of the aggrieved party.... [Thus, i]n a civil contempt action [any] fine is to be paid to the aggrieved party, and [any] imprisonment is for the purpose of coercing compliance with the order.
      Duemling v. Fort Wayne Cmty. Concerts, Inc., 243 Ind. 521, 188 N.E.2d 274, 276 (1963). "By contrast, a criminal contempt is an act directed against the dignity and authority of the court that obstructs the administration of justice and tends to bring the court into disrepute." Jones, 847 N.E.2d at 199. "Accordingly, a criminal contempt sanction is punitive in nature because its purpose is to vindicate the authority of the court, and it benefits the State rather than the aggrieved party." Id. See also Duemling, 188 N.E.2d at 276 (stating that "[p]unishment in the form of imprisonment or a fine levied against the defendant, which goes to the State and not to the injured party, is characteristic of a criminal proceeding").

      During the show cause hearing, Sahara Mart's counsel also claimed that the contempt charge should be dismissed because the Department "violated Disciplinary Rules 3.3(c) and (e)." (Show Cause Hr'g Tr. at 20.) Because Sahara Mart did not develop this allegation any further (see generally Show Cause Hr'g Tr.; Pet'r Findings Fact and Conclusions Law ("Sahara Mart's Findings") ), the argument is waived.

      On August 10, 2018, the Department moved to strike Sahara Mart's Trial Rule 30(E)(4) objection as "untimely." The Department's motion to strike is denied.

      In its findings of fact and conclusions of law, Sahara Mart also referred to the attachments as "uncertified[ ] and unauthenticated[.]" (Sahara Mart's Findings ¶ 34(1)(d).) Because Sahara Mart provided no further explanation or analysis for this claim, the Court will not address it.

      Sahara Mart claims there can be no witness tampering here because the affiants were not, at least yet, named as witnesses. (See Show Cause Hr'g Tr. at 43.) The Court does not find this claim persuasive given the plain language of Indiana Code § 34-47-3-3. See Ind. Code § 34-47-3-3 (2018) (indicating by its language that it also applies to improper influence directed toward potential witnesses).

      Witness tampering is "[t]he act or an instance of obstructing justice by intimidating, influencing, or harassing a witness before or after the witness testifies[.]" Black's Law Dictionary 1840 (10th ed. 2014).


author: CYPHER, J.

text:
    Susan CIANI v. Brenda L. MACGRATH & others.
    SJC-12531
    Supreme Judicial Court of Massachusetts, Worcester..
    Argued September 6, 2018. Decided January 8, 2019.
    Francis J. Russell, Worcester, for the plaintiff.
    Maria L. Remillard for the defendants.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Clay H. Ciani, John J. Ciani, and William R. Ciani.

   CYPHER, J.

This case presents reported questions from a judge in the Probate and Family Court Department pursuant to G. L. c. 215, § 13, in connection with the judge's denial of the parties' competing motions for summary judgment. At issue is the meaning of a particular provision of G. L. c. 191, § 15 ( § 15 ), the Commonwealth's elective share statute.

Section 15 is intended to prevent spousal disinheritance, either by inadvertence or design. See Bongaards v. Millen, 440 Mass. 10, 32, 793 N.E.2d 335 (2003). See generally Restatement (Third) of Property: Wills and Other Donative Transfers § 9.1 comment b (2003); 2 T.H. Belknap, Newhall's Settlement of Estates and Fiduciary Law in Massachusetts § 20:1 (5th ed. 1994). To that end, the statute provides a mechanism by which a dissatisfied surviving spouse can waive the provisions of a deceased spouse's will and take a statutorily prescribed share of the decedent's estate, with "the fractional portions and the nature of the interest depending on the presence or absence of issue and other kindred." Bongaards, supra at 20, 793 N.E.2d 335. For example, if the decedent left issue, then the surviving spouse is entitled to one-third of the decedent's real property and one-third of the decedent's personal property, except that

"if he or she would thus take real and personal property to an amount exceeding [$25,000] in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life" (emphases added).

G. L. c. 191, § 15. The dispute in this case centers on the nature of a surviving spouse's interest in a deceased spouse's real property where the income-only limitation applies, i.e., where a surviving spouse's shares of a deceased spouse's personal and real property, taken together, exceed $25,000 in value. We conclude that, to the extent a surviving spouse's shares of the decedent's estate exceed $25,000, § 15 reduces his or her interest in the real property from outright ownership to a life estate. As a result, we vacate the judge's denial of the parties' competing motions for summary judgment and remand for reconsideration consistent with this opinion.

Background. The following facts are undisputed. Raymond Ciani died testate in 2015. He was survived by his wife, Susan Ciani, and his four adult children from a previous marriage, one of whom is also the personal representative of his estate.

Raymond did not make provisions for Susan in his will. Susan timely claimed her elective share of Raymond's estate in accordance with § 15. She then filed three petitions for partition in the Probate and Family Court, seeking to force the sale of three separate parcels of real property Raymond had owned at the time of his death.

In these petitions Susan represented to the court that she held a life estate in an undivided one-third of each property and that Raymond's children were tenants in common subject to her life estate. Raymond's children sought dismissal of the petitions as well as a declaration of the judge that, among other things, Susan does not have a right to petition for partition because § 15 does not afford Susan a life estate. Thereafter, they moved for summary judgment, asserting that the only contested issue was one of statutory interpretation. Susan cross-moved for summary judgment and sought a similar declaration providing that she does have a right to petition for partition because § 15 does afford her a life estate in an undivided one-third of Raymond's real property.

The judge denied both motions, stating that an absence of edifying case law interpreting the specific provision of § 15 at issue precluded her from determining whether either side was entitled to judgment as a matter of law. The judge then reported that ruling to the Appeals Court in accordance with G. L. c. 215, § 13, and framed three additional questions:

"1. Whether a Surviving Spouse has standing to bring an action for petition for partition of real estate, when her sole interest in the subject property originates from G. L. c. 191, § 15 ?
"2. What benefits and/or obligations does the phrase 'vested in him or her for life' as contained in G. L. c. 191, § 15, convey to the Surviving Spouse? Specifically, is a one-third life estate in the real estate created in favor of the Surviving Spouse; and, does the Surviving Spouse have a duty to contribute to the expenses of real estate during her lifetime?
"3. Upon the sale of real estate of which the Surviving Spouse holds an interest pursuant to G. L. c. 191, § 15, what portion of the proceeds, if any, should be distributed to her free from trust?"

We took up the matter on direct appellate review.

Discussion. 1. Standard of review. This matter comes to us in an unusual posture, in that both motions for summary judgment were denied notwithstanding an undisputed factual record. Indeed, where the single issue raised was one of statutory interpretation, one of the parties was entitled to judgment as a matter of law. Modica v. Sheriff of Suffolk County, 477 Mass. 102, 103, 74 N.E.3d 1233 (2017). In addition, although G. L. c. 215, § 13, permits a judge to report specific questions of law in connection with an interlocutory finding or order, the basic issue to be reported is the correctness of that finding or order. Commonwealth v. G.F., 479 Mass. 180, 189 n.9, 93 N.E.3d 816 (2018). The reported ruling in this case did not resolve the parties' issue one way or the other, leaving us little to review. This is not an appropriate use of G. L. c. 215, § 13, and we do not encourage it. Nevertheless, we will endeavor to answer the reported questions, anticipating that our discussion will provide some much-needed guidance in this area.

As an initial matter, the parties agree that § 15 affords Susan an interest in one-third of Raymond's personal property and one-third of his real property. They also agree that, taken together, Susan's shares of Raymond's property exceed $25,000 in value and that, thus, she is entitled to take $25,000 outright. The agreement ends there. Raymond's children propose that, to the extent Susan's shares of Raymond's property exceed $25,000, § 15 reduces her interest in the real property from an outright ownership interest to an interest in the income produced by the property for her life. Susan posits that, to the extent her shares of Raymond's property exceed $25,000, § 15 reduces her interest in the real property from an outright ownership interest to a life estate. In our view, the resolution of this dispute will in effect provide the answer to all the reported questions.

We interpret a statute according to the intent of the Legislature, which we ascertain from all the statute's words, "construed by the ordinary and approved usage of the language" and "considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished" (citation omitted). Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006). See generally G. L. c. 4, § 6, Third. "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent" (citation omitted). Sharris v. Commonwealth, 480 Mass. 586, 594, 106 N.E.3d 661 (2018). That said, we will not adopt a literal construction of a statute if the consequences of doing so are "absurd or unreasonable," such that it could not be what the Legislature intended. Id., quoting Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439 N.E.2d 770 (1982). Where the language is not conclusive, "we may turn to extrinsic sources, including the legislative history and other statutes, for assistance in our interpretation" (quotation and citation omitted). Commonwealth v. Wynton W., 459 Mass. 745, 747, 947 N.E.2d 561 (2011). See Commonwealth v. Gernrich, 476 Mass. 249, 252, 67 N.E.3d 1196 (2017). Our principal objective is to ascertain and effectuate the intent of the Legislature in a way that is consonant with sound reason and common sense. Commonwealth v. Curran, 478 Mass. 630, 633-634, 88 N.E.3d 862 (2018).

2. Statutory language. Section 15 provides that where the decedent has left issue, the surviving spouse's statutory share is "one third of the personal and one third of the real property," except that

"if he or she would thus take real and personal property to an amount exceeding [$25,000] in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life" (emphasis added).

The statute further instructs that

"the [$25,000], above given absolutely shall be paid out of that part of the personal property in which the husband or wife is interested; and if such part is insufficient the deficiency shall ... be paid from the sale or mortgage in fee ... of that part of the real property in which he or she is interested. Such sale or mortgage may be made either before or after such part is set off from the other real property of the deceased for the life of the husband or widow" (emphasis added).

The parties have suggested competing interpretations. Raymond's children maintain that the phrase "only the income during his or her life" modifies both "personal property to be held in trust" and "real property vested in him or her for life" such that we must read the income-only limitation this way: the surviving spouse has a right to the income generated by the trust that holds the personal property and a right to the income generated by the real property, which is vested in the surviving spouse for life. This formulation, while not wholly inconsistent with our rules of statutory or grammatical construction, see Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231, 431 N.E.2d 225 (1982) (construction of modifying clauses), raises some concerns.

First, there is no impetus for the Legislature's specific instruction that the right to the income from the real property be "vested" in the surviving spouse "for life," as the Legislature already stated as much in the immediately preceding clause. The unavoidable result is that the words "vested" and "for life" are rendered superfluous. This runs contrary to the basic tenet of statutory construction that we must strive to give effect to each word of a statute so that no part will be inoperative or superfluous. See Commonwealth v. Gardner, 480 Mass. 551, 560, 106 N.E.3d 642 (2018) ; Camargo's Case, 479 Mass. 492, 498, 96 N.E.3d 673 (2018). Had the Legislature intended that the surviving spouse's interest in each type of property be limited in precisely the same manner, its instruction that the surviving spouse may take "only the income during his or her life of the excess of his or her share" would have sufficed for that purpose. That the Legislature provided additional instruction regarding each type of property and in so doing chose to use different words strongly suggests that it intended to convey a different meaning. Commonwealth v. Williamson, 462 Mass. 676, 682, 971 N.E.2d 250 (2012) (Legislature's use of different language strongly suggests intent to convey different meaning). See MacLaurin v. Holyoke, 475 Mass. 231, 240, 56 N.E.3d 1254 (2016) (differences in common meaning underscore that Legislature did not intend terms to be functionally synonymous).

Second, this construction cannot be reconciled with the Legislature's subsequent instruction:

"the [$25,000], above given absolutely shall be paid out of that part of the personal property in which the husband or wife is interested; and if such part is insufficient the deficiency shall ... be paid from the sale or mortgage in fee ... of that part of the real property in which he or she is interested. Such sale or mortgage may be made either before or after such part is set off from the other real property of the deceased for the life of the husband or widow" (emphasis added).

G. L. c. 191, § 15. If the Legislature in fact intended for a surviving spouse to have only a fractional interest in the income produced by the real property, then it would be of no consequence what portion of the real property made up the surviving spouse's share. Indeed, there would be no need to set off the surviving spouse's share for his or her life. The fact that the statute anticipates that the surviving spouse's physical share of the real property will be "set off" at some point seriously undermines this construction. See Matter of E.C., 479 Mass. 113, 118, 92 N.E.3d 724 (2018) (statute should be read as whole to produce internal consistency); Felix F. v. Commonwealth, 471 Mass. 513, 516, 31 N.E.3d 42 (2015) (same).

We are not inclined to adopt a construction that results in surplusage and internal inconsistency. Consequently, we read the statute this way: the first clause ("only the income during his or her life") limits the surviving spouse to an interest in the "income only," and the second clause ("the personal property to be held in trust and the real property vested in him or her for life") describes how that limitation is to be achieved for each type of property -- the personal property is to be held in trust and the real property is to be vested in the surviving spouse for life.

Read in this way, the phrase "vested in him or her for life" is significant rather than surplusage. It directs how the surviving spouse's share of the real property is to be held: by the surviving spouse, for life. The phrase "for life" connotes an ordinary life estate. See, e.g., Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 87-88, 891 N.E.2d 194 (2008), and cases cited therein. See also Blanchard v. Blanchard, 1 Allen 223, 225, 83 Mass. 223 (1861) (testamentary gift of income of real estate "for life" construed as conveying life estate); Larned v. Bridge, 17 Pick. 339, 342, 34 Mass. 339 (1835) (testamentary gift of "use and benefit" of real estate for life construed as vesting estate for life); H.J. Alperin, Summary of Basic Law § 14.9, at 671-672 (5th ed. 2017) (construction "to B for life" sufficient to create life estate in B); Restatement (Third) of Property: Wills and Other Donative Transfers § 24.5 (2011) (same). In addition, the word "vest" is commonly understood to confer property ownership. See Black's Law Dictionary 666, 1794 (10th ed. 2014) (defining "vest" as verb meaning "[t]o confer ownership [of property] on a person ... [t]o invest [a person] with the full title to property ... [t]o give [a person] an immediate, fixed right of present or future enjoyment ... [t]o put [a person] into possession of land by the ceremony of investiture" and "vested estate" as "[a]n estate with a present right of enjoyment or a present fixed right of future enjoyment"). The fact that the Legislature used the words "for life" and "vested" with respect to the surviving spouse's interest in the real property (and did not use the same words with respect to his or her interest in the personal property) supports the conclusion that the Legislature intended for the surviving spouse to have an ownership interest in the real property for life, not merely an interest in the income produced by the real property. See MacLaurin, 475 Mass. at 241, 56 N.E.3d 1254 ; Williamson, 462 Mass. at 682, 971 N.E.2d 250.

We also note that it is not unusual for a life estate to arise as a matter of law. See Alperin, supra at § 14:9, at 671 (life estates may be created by deed or will, or come into existence by operation of law). See, e.g., G. L. c. 189, § 1, repealed by St. 2008, c. 521, § 6 (surviving spouse who has elected to take dower shall hold "for life" one-third of real property owned by deceased spouse at death). See also Sears v. Sears, 121 Mass. 267, 268 (1876) (operative intestacy law providing widow one-half of decedent's real property "during her natural life" conveyed life estate).

In fact, the Legislature's use of the phrase "for life" to convey a life estate in a separate but related statute regarding tenancy by dower supports the conclusion that the Legislature intended for § 15 to convey a life estate also. See Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 217, 93 N.E.3d 840 (2018) ; Meikle v. Nurse, 474 Mass. 207, 211, 49 N.E.3d 210 (2016). In short, the Legislature is not unfamiliar with life estates, their unique characteristics, and the words which are commonly used to convey them. See, e.g., G. L. c. 189, § 1, repealed by St. 2008, c. 521, § 6 (surviving spouse who has elected to take dower shall hold "for life" one-third of real property owned by deceased spouse at death); G. L. c. 241, § 1 (life tenant is entitled to partition for so long as his or her estate endures); G. L. c. 242, § 1 (successors may maintain action against life tenant for waste). As such, we are confident that the Legislature chose its words carefully and with knowledge of their significance in this context.

This construction also promotes internal consistency. If the Legislature intended for the surviving spouse to take a life estate, which entails a right of possession as well as a right to income and profits, then it is of consequence what portion of the real property makes up the surviving spouse's share. The fact that the statute anticipates that the surviving spouse's physical share of the real property will be set off supports the conclusion that the Legislature intended for the surviving spouse to take a life estate. See Matter of E.C., 479 Mass. at 118, 92 N.E.3d 724 ; Felix F., 471 Mass. at 516, 31 N.E.3d 42.

Finally, we note that affording the surviving spouse a life estate is consistent with the cause of § 15's enactment and the main object to be accomplished. A life estate is a well-established real property ownership interest with clearly defined rights and obligations, as well as an ascertainable value. The income interest suggested by the children is not an ownership interest at all. It is not readily apparent, and the children do not endeavor to explain, what such an interest would entail. For example, if the property did not produce income, as is the case in many instances, we do not see that the surviving spouse would have any meaningful recourse. The statute does not oblige the owners of the real property to use the property in a way that generates income, and, in stark contrast to those provisions related to the personal property, it does not call for the property to be held in trust. The value of the surviving spouse's interest would be at the mercy of the property owners, in this case the children, who would exert total control over the property. This cannot be what the Legislature intended. Indeed, it would be inconsistent to prevent one spouse from disinheriting the other as a matter of public policy, but allow the offending spouse's heirs to do what he or she could not.

3. Legislative history. The statute's legislative history also bolsters the conclusion that § 15 conveys a life estate. See Kain v. Department of Envtl. Protection, 474 Mass. 278, 286, 49 N.E.3d 1124 (2016), quoting Oxford v. Oxford Water Co., 391 Mass. 581, 588, 463 N.E.2d 330 (1984) ("our interpretation of statutes is not restricted to determining only their 'simple, literal or strict verbal meaning' but also considers their 'development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part"). See also Spencer, 479 Mass. at 216, 93 N.E.3d 840 ("time and again we have stated that we should not accept the literal meaning of the words of a statute without regard for that statute's purpose and history" [citation omitted] ).

The first conception of the elective share statute simply stated a widow's right to waive the provisions made for her in her husband's will and claim her dower instead, which afforded her a life estate in a prescribed portion of her husband's real property. St. 1783, c. 24, § 8. See St. 1783, c. 36, § 4; Peabody v. Minot, 24 Pick. 329, 333, 41 Mass. 329 (1834) (one-third of decedent's real estate subject to widow's dower). See also St. 1833, c. 40; R.S. (1836), c. 60, § 11. In 1854, the Legislature reworked the statute entirely to allow a widow, upon waiver of the provisions of her husband's will, to take

"such portion of the real and personal estate as she would have been entitled to if her husband had died intestate: provided, however, that [she] shall not, in any such case, be entitled to receive more than [$10,000] out of the personal estate" (emphasis added).

St. 1854, c. 428. See Atherton v. Corliss, 101 Mass. 40, 46 (1869). See also, e.g., Sullings v. Richmond, 13 Allen 277, 280, 95 Mass. 277 (1866) ; Brigham v. Maynard, 9 Gray 81, 81-82, 75 Mass. 81 (1857). The $10,000 limit was eliminated in 1860, St. 1860, c. 24, only to be revived in a different form in 1861:

"if the share of the personal estate to which she would thus become entitled shall exceed the sum of [$10,000], she shall in such case be entitled to receive in her own right the said amount of [$10,000], and to receive the income only of the excess of said share above said sum of [$10,000], during her natural life" (emphasis added).

St. 1861, c. 164, § 1. See Plympton v. Plympton, 6 Allen 178, 181, 88 Mass. 178 (1863). See also Cochran v. Thorndike, 133 Mass. 46, 47 (1882) (waiver statute entitled widow to "life interest only in the excess" of her share); Pollock v. Learned, 102 Mass. 49, 54 (1869) (intent of waiver statute's proviso is to give life estate in excess of share rather than absolute title). The Legislature did not include a requirement that the personal property be held in trust at this time; however, the Legislature did enact a subsequent section that provided that the probate court may appoint one or more trustees to "receive, hold and manage, during the lifetime of the widow," the excess of her share of the personal estate (if any). St. 1861, c. 164, § 2. That section remains substantively the same as the one in effect today. Compare St. 1861, c. 164, § 2, with G. L. c. 191, § 16.

At the turn of the Twentieth Century, the statute took on much the same form as that in effect today. St. 1900, c. 450, § 7. Upon waiver of the will, a surviving husband or widow was entitled to

"the same portion of the estate of the deceased, real and personal, that he would have been entitled to if the deceased had died intestate; except that if he would thus become entitled to real and personal estate to an amount exceeding [$10,000] in value, he shall receive in addition to that amount only the income during his life of the excess of his share of such estate above that amount, the personal estate to be held in trust and the real estate vested in him for life, from the death of the deceased .... The amount not exceeding [$10,000] above given absolutely shall be paid out of that part of the personal estate in which the husband or widow is interested; and in case it is insufficient the remainder shall be paid from the sale or mortgage in fee ... of that part of the real estate in which he is interested, to be made either before or after it is set off for his life from the other real estate of the deceased."

Id. This version of the statute was codified in the General Laws in substantively the same form in 1921. See G. L. (Ter. Ed.) c. 191, § 15. See also R.L. 1902, c. 135, § 16; St. 1918, c. 257, § 384; St. 1919, c. 5; St. 1920, c. 2. It was not amended again until 1956, when the Legislature removed all reference to a surviving spouse's intestate share and provided instead that where a deceased spouse left issue, a surviving spouse would be entitled to take "one third of the personal and one third of the real property." St. 1956, c. 316, § 2. In 1964, the Legislature increased the threshold amount from $10,000 to $25,000. St. 1964, c. 288, § 1.

This history reinforces that the Legislature intended to treat personal and real property differently from the outset. Indeed, the income-only limitation first applied to the decedent's personal property only. St. 1861, c. 164, § 1. It was several decades before the Legislature saw fit to correspondingly limit the surviving spouses' rights with respect to the decedent's real property. St. 1900, c. 450, § 7. At the time of that amendment, there was already a provision permitting the probate court to appoint one or more persons to hold the personal property in trust and manage the trust for the benefit of the surviving spouse. St. 1861, c. 164, §§ 1, 2. The fact that the Legislature did not enact an analogous provision for the management of the real property but instead instructed that the excess of the surviving spouse's share thereof would be "vested" supports the conclusion that the Legislature intended for the surviving spouse to take an ownership interest in the excess. Moreover, the fact that the Legislature simultaneously anticipated that the surviving spouse's share would be "set off" for the duration of his or her life supports the conclusion that the Legislature intended to convey a life estate.

In sum, we conclude that where a surviving spouse elects to waive the provisions of a deceased spouse's will in accordance with § 15 and the decedent left issue, the surviving spouse is entitled to one-third of the decedent's personal property and one-third of the decedent's real property subject to the following limitation: if the surviving spouse's shares of the real and personal property together exceed $25,000 in value, then the surviving spouse takes $25,000 absolutely (first, from his or her share of the personal property, and then, if it is insufficient, from his or her share of the real property in the manner described therein) and a life estate in any remaining real property. In addition, any remaining personal property must be held in trust for the duration of the surviving spouse's life with the surviving spouse entitled to the income therefrom. This interpretation furthers the aim of the statute generally and best effectuates the Legislature's intent as we have ascertained it. 4. Remaining questions. We turn now to the remaining questions posed by the Probate and Family Court. Susan, as a life tenant, has standing to petition for the partition of her share for as long as her estate endures. G. L. c. 241, § 1. Indeed, she holds an estate in possession, for life, in her share of the real property, and Raymond's children hold an estate in possession, absolutely, in the remaining property, as well as an estate in remainder in Susan's share. As a result, the parties are tenants in common as to their estates in possession and each has a right to a partition. See, e.g., Allen v. Libbey, 140 Mass. 82, 83, 2 N.E. 791 (1885) ; Sears, 121 Mass. at 269.

In addition, Susan must refrain from committing waste and contribute to the usual expenses attributable to life tenants in proportion to her share. See G. L. c. 242, § 1 ; Delano v. Smith, 206 Mass. 365, 370, 92 N.E. 500 (1910) (life tenants obligated "to treat the premises in such manner that no harm be done to them and that the estate may revert to those having an underlying interest undeteriorated by any wilful or negligent act"). See, e.g., Matteson v. Walsh, 79 Mass. App. Ct. 402, 406, 947 N.E.2d 44 (2011) (life tenant committed waste by failing to maintain property and failing to pay property taxes); Stigum v. Johnson, Mass. Land Ct., No. 05 MISC. 308150, 2013 WL 773069 (Feb. 28, 2013) (life tenants obligated to pay proportionate share of property taxes and "all repairs necessary to keep the property in weathertight, undamaged condition").

Finally, Susan must be compensated for the value of her interest in any properties that have already been sold, whether from the proceeds of each sale or some other source. The value of her interest may be determined by reference to actuarial tables or by any other method preferred by the court making partition. See, e.g., In re Peirce, 483 B.R. 368, 375 (Bankr. D. Mass. 2012), and cases cited. Alternatively, the judge may, upon petition of either party, appoint a trustee to manage and invest the proceeds of the sale of Susan's share and pay the annual income to Susan for her life. See G. L. c. 241, § 35.

Conclusion. We vacate the Probate and Family Court judge's order denying the parties' respective motions for summary judgment and remand for reconsideration consistent with this opinion.

So ordered.

      We refer to the parties by their first names to avoid confusion.

      We agree that, though some version of G. L. c. 191, § 15 (§ 15 ), has been in effect for well over 200 years, guidance apposite to the specific issue raised in this case appears to be virtually nonexistent.

      General Laws c. 215, § 13, permits a judge of the Probate and Family Court to report in two instances: "(1) where 'a case or matter is heard for final determination,' the judge 'may reserve and report the evidence and all questions of law therein for consideration of the appeals court, and thereupon like proceedings shall be had as upon appeal'; and (2) if after making an interlocutory ruling, the judge 'is of opinion that it so affects the merits of the controversy that the matter ought, before further proceedings [in the trial court], to be determined by the appeals court,' the judge may report his or her interlocutory ruling for immediate appellate review." Guardianship of D.C., 479 Mass. 516, 521 (2018), quoting G. L. c. 215, § 13. "The first path places an undecided case before the appellate court and puts the appellate court in a position to enter, or order the entry of, the final judgment in the first instance; the second path places before the appellate court the issue of the correctness of a significant interlocutory ruling made by a Probate and Family Court judge." Guardianship of D.C., supra.

      If the decedent left kindred but no issue, the surviving spouse is entitled to $25,000 and one-half of the remaining personal and one-half of the remaining real property, subject to the income-only limitation. G. L. c. 191, § 15. If the decedent left neither issue nor kindred, the surviving spouse is entitled to take $25,000 and one-half of the remaining personal and one-half of the remaining real property absolutely. Id.

      In 2008, the Legislature overhauled the law governing the probate process by adopting nearly the entire Uniform Probate Code (code). See St. 2008, c. 521; G. L. c. 190B. In so doing, the Legislature did away with the provisions providing for tenancy by dower. See G. L. c. 189, § 1, repealed by St. 2008, c. 521, § 6. The Legislature declined to adopt the code's extensive spousal share provisions, however, electing instead to leave G. L. c. 191, §§ 15 -16, intact.

      The owner of a life estate in real property, as that term is commonly understood, has a right to possess the property as well as a right to all of the income generated by the property during his or her lifetime. See Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 88 n.20, 891 N.E.2d 194 (2008) ; Hinckley v. Clarkson, 331 Mass. 453, 454-455, 120 N.E.2d 285 (1954). See also Johnson v. Johnson, 7 Allen 196, 198, 89 Mass. 196 (1863) (life tenant was "in lawful possession" and had "the pernancy of the rents and profits of the entire estate"). See generally H.J. Alperin, Summary of Basic Law § 14.9, at 674 (5th ed. 2017) (life tenant is entitled to beneficial use of property and to rents, income, and profits from such use for duration of life estate).

      It was not until 1833 that the same statute afforded widows a limited claim to their deceased husband's personal property. See St. 1833, c. 40.

      In 1899, the Legislature expanded the scope of the statute to apply to surviving husbands in addition to surviving wives. St. 1899, c. 479, § 10.

      The statute was amended once more in 1992, but this amendment is of no consequence to our analysis.

      In Kramer v. Crosby, 266 Mass. 525, 530, 165 N.E. 686 (1929), this court noted that where a widow had waived the provisions of her deceased husband's will in accordance with R.L. 1902, c. 135, § 16, a precursor to § 15, and he had left kindred but no issue, she took no "interest in fee" in his real property; rather, she took "only a life estate which ended with her death." In that case, the judge had ordered, and the widow had assented to, partition of the decedent's estate. Id. at 528-529, 165 N.E. 686. The widow received $10,000 from the personal property, less an inheritance tax. Id. at 528, 165 N.E. 686. In addition, one-half of the real property, i.e., the widow's intestate share, was "assigned and set off" to her "for life." Id. Upon the widow's death, the sole taker under her will sought to challenge that partition on the ground that the widow's waiver was invalid. Id. at 529, 165 N.E. 686. We declined to disrupt the partition, in part, because the widow had assented to it. Id. at 531, 165 N.E. 686. Therefore, the nature of the interest that she took in the decedent's real property was not squarely in issue. Nonetheless, the discussion therein informs and is consistent with our conclusion in this case.

      As a practical matter, § 15 is unwieldly and perplexing to apply in most instances. See 2 T.H. Belknap, Newhall's Settlement of Estates and Fiduciary Law in Massachusetts § 20:2 (5th ed. 1994), and examples provided therein. In addition, it is "woefully inadequate to satisfy modern notions of a decedent spouse's obligation to support the surviving spouse or modern notions of marital property," Bongaards v. Millen, 440 Mass. 10, 21, 793 N.E.2d 335 (2003) ; see Sullivan v. Burkin, 390 Mass. 864, 873, 460 N.E.2d 572 (1984), and, although not visited in detail here, the history of the statute leaves no doubt that it is decidedly gendered. See Note, Marital Property Reform in Massachusetts: A Choice for the New Millennium, 34 New Eng. L. Rev. 261, 266, 303, 339 (1999). In short, the statute is in desperate need of an update and we urge the Legislature to do so.

      Susan has requested that the properties subject to her petitions be sold; however, we note that physical division is the primary and favored method of partition. See Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333, 337, 599 N.E.2d 250 (1992), S.C., 43 Mass. App. Ct. 307, 682 N.E.2d 927 (1997) and 59 Mass. App. Ct. 439, 796 N.E.2d 434 (2003). If the judge, upon careful findings, determines by a preponderance of the whole evidence that the property cannot be divided advantageously and without great inconvenience to the owners, then the governing statutes provide two additional means of resolving the matter. Id. at 338-339, 599 N.E.2d 250, citing Mello v. Mello, 322 Mass. 68, 69, 76 N.E.2d 9 (1947) (although task may be formidable, difficulty and complexity of just and equitable division do not alone justify resort to sale). First, the judge may "set off to any one or more of the parties, with his or their consent," "the whole or any part" of the co-owned property "upon payment by him or them to any one or more of the others of such amounts of money" to make the partition just and equal." G. L. c. 241, § 14. Second, the judge may order a public auction or private sale of "the whole or any part of the land," followed by a distribution of the proceeds so as to make the partition "just and equal." G. L. c. 241, § 31. See Delta Materials Corp., supra ("A sale is not simply an equally available alternative to a physical division; it may be ordered only after the court determines, upon careful findings, that advantageous division cannot be made"). To those options, we add another: private settlement. Indeed, "[m]any partition cases end that way." Duangpratheep v. Calnan, Mass. Land Ct., No. 17 MISC. 000246, 2018 WL 5621768 (Oct. 26, 2018) (order establishing terms of setoff).