Opinion
14-P-1433
10-07-2015
MARJORIE AAMODT v. MARK D. COOPER & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff, Marjorie Aamodt, appeals from a jury verdict for the defendants, Mark D. Cooper and Mark D. Cooper, Attorney at Law (collectively, Cooper). Upon review of her numerous claims of error, we affirm.
The claims against Lori C. Alexander were dismissed by agreement at a prior stage in the proceedings and are not at issue in this appeal.
1. Jury verdict. Aamodt first contends that the verdict is against the weight of the evidence. As she filed neither a motion for a directed verdict, nor a motion for a judgment notwithstanding the verdict, the issue was not preserved for appellate review. Hatton v. Meade, 23 Mass. App. Ct. 356, 361-362 (1987).
Although Aamodt filed a motion for a new trial, she did not appeal from the denial of that motion. Nor does she present an argument in her brief regarding the denial of the motion for new trial.
Regardless, Aamodt's claim has no merit. Cooper, an attorney, represented a widow in a worker's compensation action brought on behalf of her deceased husband. The action was based on a claim that the husband's death was related to the 1979 Three Mile Island nuclear accident. Cooper retained Aamodt to act as an expert in causation. The case proceeded at the Department of Industrial Accidents (DIA). On the day a hearing was scheduled before a DIA administrative judge, the parties reached a $22,000 settlement, with Aamodt to receive $5,000 of that sum. She orally confirmed her agreement to payment in that amount before the other parties and the DIA administrative judge. By letter dated the following day, Aamodt notified the DIA that her agreement was "forced" and "broken," and that she planned to file a lien against the amount of the settlement for her costs.
Aamodt subsequently filed the present action against the defendants in the Superior Court. A quantum meruit claim proceeded to trial. Based on the evidence before them, including Aamodt's assent to the $5,000 payment, the jury were justified in concluding that the defendants did not owe Aamodt any additional money. See Finard & Co., LLC v. Sitt Asset Mgmt., 79 Mass. App. Ct. 226, 229 (2011).
Aamodt's other claims were dismissed either pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974), or at the summary judgment stage.
2. Evidentiary issues. Aamodt argues that the judge erred in admitting in evidence a motion prepared for the DIA hearing by the husband's employer's insurer seeking to exclude Aamodt as an expert. The motion was properly admitted as relevant evidence tending to show why the parties in the DIA action chose to settle; the motion was also cumulative of other properly admitted, unchallenged testimony by the individuals involved in the settlement negotiations.
Aamodt's other evidentiary claims are waived for failure to include the relevant documents in the record appendix, or are likewise without merit. Of the documents she claims were improperly excluded during trial that do appear in the record, they are irrelevant to the quantum meruit claim that was before the jury. There was no error.
3. Jury instructions. Aamodt argues that the judge erred by informing the jury in his opening instructions that Aamodt received $5,000 from Cooper. The claim is waived due to Aamodt's failure to object at the end of the opening instructions. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 442-443 (2006). Regardless, there was no error, as the judge instructed the jury multiple times about their role as fact finders in the case. Nor did Aamodt dispute the terms of the settlement agreement at trial. Rather, her dispute centered on the total amount of money she was owed for the services rendered. The judge's quantum meruit instruction was likewise proper. See Finard & Co., LLC v. Sitt Asset Mgmt., 79 Mass. App. Ct. at 229.
To the extent that we have not addressed other specific or subsidiary claims made by Aamodt, they "have not been overlooked." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). We have considered them and found them to be without merit. See ibid.
Judgment affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 7, 2015.