HEIDI HACHE & Another v. WACHUSETT MOUNTAIN SKI AREA, INC. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-467
HEIDI HACHE1 & another2
vs.
WACHUSETT MOUNTAIN SKI AREA, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Heidi and Brian Hache brought a negligence action against
Wachusett Mountain Ski Area, Inc. (Wachusett), after their son
fell from a ski lift operated by Wachusett.3 Following a $3.275
million jury verdict in her favor, Hache filed a motion asking
the trial judge to enter a finding that Wachusett committed
fraud on the court in relation to certain falsified discovery
documents and to impose sanctions. The judge denied the motion,
but, on Hache's appeal, a panel of this court in an unpublished
decision vacated the denial and remanded for an evidentiary
hearing. See Hache v. Wachusett Mountain Ski Area, Inc., 99
1 Individually and as mother and next friend of Alexander Hache.
2 Brian Hache.
3 Brian Hache has not participated in this appeal; therefore, we
refer solely to Heidi Hache.
Mass. App. Ct. 1126 (2021).4 After holding that hearing, the
trial judge again denied Hache's motion, concluding that the
falsified discovery did not interfere with the court's
adjudication of the case or hamper Hache's presentation of her
claims. We affirm.
Background. The facts of the case are described in the
earlier panel decision, so we need not repeat them in full here.
In summary, Wachusett represented during discovery that its
employee Dylan Wilson, who was operating the lift on the day of
the incident, had completed an online training program in
November 2014 under a profile with the username "jshepard."
Corey Feeley, Wachusett's designee for the deposition of the
corporation, testified that the "jshepard" username was created
for a previous hire who never became an employee and that Feeley
assigned that username to Wilson. Contrary to this testimony,
Hache learned in July 2017 that the username belonged to a
previous Wachusett employee named Jacob Shepard. Hache deposed
Shepard, who testified that he completed the online training in
November 2014; he also provided payroll records and emails to
4 We decline to consider Wachusett's argument that this court
lacked jurisdiction to decide the first appeal. The panel
considered and rejected that argument, and, under the law of the
case doctrine, we will not "reconsider questions decided upon an
earlier appeal in the same case" except in limited circumstances
not present here (citation omitted). King v. Driscoll, 424
Mass. 1, 7-8 (1996).
2
prove his employment at Wachusett. Through additional discovery
in October 2018, Hache learned that Feeley had falsified the
training records and that Wilson did not complete the online
training until after the incident. Ultimately, as a result of
Feeley's misconduct, Wachusett conceded liability, and the case
proceeded to a jury trial solely on the issue of damages.
After the evidentiary hearing -- at which Wachusett's
president and chief executive officer, James Francis Crowley,
was the sole witness -- the judge found the following additional
facts. Crowley did not learn of Feeley's misconduct until
Wachusett's attorney, Matthew Sweet, informed him of it in
August 2017. In September 2017 Crowley and Sweet confronted
Feeley, who neither admitted nor denied what he had done. The
following month, Sweet wrote to Wachusett's insurer twice,
copying Crowley, describing Feeley's actions and providing an
analysis of liability and damages.
From the fall of 2017 to the summer of 2018, the parties
attempted to settle the case through mediation, which proved
unsuccessful. In August 2018 Sweet again wrote to Wachusett's
insurer, copying Crowley, suggesting the possibility of
stipulating to liability. While Sweet stated in the letter that
Wilson's training, or lack thereof, did not "correlate[] to the
happening of the subject incident," he also advised that any
appearance of a "cover up" could "have a negative effect on the
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perception and credibility of Wachusett and its employees at
trial."
Wachusett first sought to stipulate to liability at a
pretrial hearing in October 2018. After trial was delayed, the
stipulation was ultimately accepted by the court in July 2019.
Discussion. "The test as to whether an individual has
perpetrated a fraud on the court is stringent." Matter of the
Trusts Under the Will of Crabtree, 449 Mass. 128, 148 (2007).
Specifically, the party asserting fraud on the court has the
burden of establishing, by clear and convincing evidence, "that
a party has sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system's ability
impartially to adjudicate a matter by improperly influencing the
trier or unfairly hampering the presentation of the opposing
party's claim or defense." Rockdale Mgt. Co. v. Shawmut Bank,
N.A., 418 Mass. 596, 598 (1994), quoting Aoude v. Mobil Oil
Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). Put another way,
"[t]he doctrine embraces 'only that species of fraud which does,
or attempts to, defile the court itself, or is a fraud
perpetrated by officers of the court so that the judicial
machinery can not perform in the usual manner its impartial task
of adjudging cases that are presented for adjudication.'"
Paternity of Cheryl, 434 Mass. 23, 35-36 (2001), quoting Pina v.
McGill Dev. Corp., 388 Mass. 159, 165 (1983). See MacDonald v.
4
MacDonald, 407 Mass. 196, 202 (1990), quoting Lockwood v.
Bowles, 46 F.R.D. 625, 631-632 (D.D.C. 1969) ("Courts have found
fraud upon the court only where there has been the most
egregious conduct involving a corruption of the judicial process
itself").
Here, the judge was within her discretion to conclude that
Hache did not meet her burden of proving fraud on the court.
See Pina, 388 Mass. at 166-167 (reviewing denial of motion
alleging fraud on court for abuse of discretion). The judge,
who was well familiar with the case, found that "the falsified
discovery did not impact the court's adjudication" or "cause it
to unnecessarily expend time or resources uncovering the
deception." This finding was squarely within the judge's
discretion. Indeed, Hache does not challenge it on appeal.
Hache does challenge, as clearly erroneous, the judge's
finding that the falsified discovery did not hamper Hache's
ability to present her claims. We see no error. Hache does not
contest that Feeley acted alone in falsifying the training
records; that she discovered the deception in July 2017, shortly
after Feeley's deposition; and that neither Sweet nor Crowley,
or anyone else in Wachusett's management, was aware of Feeley's
actions until August or September 2017. See M.C.D. v. D.E.D.,
90 Mass. App. Ct. 337, 342 (2016) (distinguishing between false
statement and "deliberate scheme . . . typically involving
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others in the court system, combined with a larger pattern of
harassment, that has been held to constitute fraud on the
court"). Soon after Wachusett learned of Feeley's actions, the
parties entered into mediation, which continued until the summer
of 2018; once mediation proved unsuccessful, Wachusett sought to
concede liability at a pretrial hearing in October 2018.
Between July 2017 and October 2018, there were no substantive
motions or other actions in the case aside from one motion filed
by Wachusett to compel an independent medical examination. In
light of this history, the judge properly determined that
Wachusett took reasonable steps to mitigate any damage from the
falsified records and "at no time was either party . . .
engage[d] in relevant motions practice or other relevant
proceedings before the court, believing the false discovery
responses to be true." The fraud, in other words, was not of
the type involving "a corruption of the judicial process
itself." MacDonald, 407 Mass. at 202, quoting Lockwood, 46
F.R.D. at 632.5
The judge also properly rejected Hache's claim that she was
entitled to be compensated for the expenses she incurred in
5 We agree with Hache that it was improper for Wachusett not to
turn over Shepard's employment records upon locating them in
August 2017. See Mass. R. Civ. P. 26 (e) (2), 365 Mass. 772(1974). Hache has failed to show, however, that the delay in
production hampered the presentation of her case.
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uncovering Feeley's misconduct. As the judge found, no
compensation was warranted because Hache's efforts resulted in
Wachusett's conceding liability and a "sizable verdict" in
Hache's favor. See Rockdale Mgt. Co., 418 Mass. at 598 ("judge
has broad discretion to fashion a judicial response warranted by
the fraudulent conduct"). We see no merit to Hache's assertion
that Wachusett's "last-minute attempts" to address the
misconduct "led to extensive motion practice that diverted
[Hache's] resources from the trial," as the "extensive motion
practice" to which she refers was a result of her own opposition
to Wachusett's attempts to concede liability.
Hache further suggests that Wachusett committed fraud on
the court by stating in a mediation overview that all of its
employees were "properly trained." But even if fraud during
mediation can constitute fraud on the court, Hache has not shown
that Wachusett's statement was false. As Crowley testified at
the evidentiary hearing, even though Wilson had not received the
online training at the time of the incident, Wachusett still
considered him to be "properly trained" because online training
was "above and beyond what most ski areas do." And in any
event, Hache has not shown that the purported false statement
hampered her presentation to the mediator given that she was
already aware of Feeley's misconduct by the time of the
mediation.
7
Finally, Hache devotes much of her brief to arguing that
Wachusett is responsible for Feeley's misconduct because
Crowley, and therefore Wachusett, "ratified" his actions. Hache
does not cite any case that has applied the concept of
ratification in the context of fraud on the court, but, even
assuming the concept has a part in the analysis, the judge
properly found that no ratification occurred. Ratification
"must be based upon full knowledge of all material facts"
(citation omitted). Licata v. GGNSC Malden Dexter LLC, 466
Mass. 793, 802 (2014). Here, the judge found that no one in
Wachusett's management knew of all the material facts until
August or September 2017 and that Wachusett thereafter disavowed
Feeley's actions and mitigated the harm by conceding liability.
More importantly, regardless of whether there was ratification,
the judge correctly recognized that, for there to be fraud on
the court, the underlying inquiry is whether the fraud
interfered with the court's adjudication or hampered the
presentation of the opposing party's case. For the reasons we
have stated, the judge was within her discretion in concluding
that Hache failed to make this showing by clear and convincing
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evidence.
The order dated March 30, 2022, denying Hache's motion for
a finding of fraud on the court and for sanctions, is affirmed.
So ordered.
By the Court (Henry, Shin &
Hodgens, JJ.6),
Clerk
Entered: April 21, 2023.
6 The panelists are listed in order of seniority.
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