Opinion
13-P-243
11-25-2014
LEAH A. BAYER v. RAYMOND C. LANTZ, JR. & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal from a judgment of the Superior Court, finding for the plaintiff on claims of breach of contract, legal malpractice, violation of G. L. c. 93A, § 11, and corporate disregard. The defendant, Raymond C. Lantz, Jr. (Raymond), argues that the judge erred in denying without any findings Raymond's counterclaim for an accounting; that counsel for the plaintiff, Leah A. Bayer, misstated the law during his closing argument; and that the damages awarded to Bayer were unavailable under G. L. c. 93A, § 11. The defendants, Lantz Law, Inc., F. Tenney Lantz (Tenney), and Katherine Lantz (Katherine), also argue that judgments against them must be vacated if this court reverses the legal malpractice and G. L. c. 93A, § 11, judgments against Raymond. Finally, in a separate brief, Raymond and his trial counsel, John P. Long, seek review of an order for sanctions for their failure to comply with discovery requests. For the reasons outlined below, we affirm.
We use first names to distinguish among the various members of the Lantz family.
The jury found for the defendant David Stockard on all counts naming him. On appeal, Stockard seeks only to have funds in the Nantucket Employer Employee Housing Trust escrow account released to him. According to the record before this court, on August 12, 2011, Stockard sought release of the escrowed funds by a motion filed after the trial. The docket indicates that the motion was denied on October 28, 2011, "after hearing." Final judgment was entered on December 19, 2011. Stockard's notice of appeal, filed on May 4, 2012, was not timely, and we do not reach his arguments.
The record appendix is grossly inadequate. It includes transcripts of only four days of the eight-day trial, and eight volumes of appendix with no table of contents.
Request for an accounting. Raymond first argues that dismissal of his counterclaim for an accounting was prejudicial error; he maintains that the judge's failure to enter findings of fact and conclusions of law on that issue was erroneous, and that the dismissal resulted in the jury's awarding a disproportionate amount of damages to the plaintiff. A review of the trial docket reveals that, on April 25, 2011, Raymond filed a motion to allow closing statements regarding the accounting; on June 30, 2011, the judge endorsed the motion, "Moot. No accounting is sought." The defendant's brief does not indicate that he objected to that ruling, or even that he made an argument to the judge that the issue was not moot. Instead, he cites only the trial transcript for an exchange that occurred months earlier, on March 23, 2011, during which he stated that, at that time, he was not seeking to have "Count IV, which [sought] an accounting from" Bayer, dismissed. This issue therefore is waived. "[W]e cannot decide the appeal on a ground that is not properly documented in the record before us. See Adoption of Kali, 439 Mass. 834, 838 (2003)." Hull v. Massachusetts Port Authy., 441 Mass. 508, 519 n.22 (2004).
Closing arguments. Next, Raymond contends that Bayer's trial counsel, Michael Princi, misstated the law during his closing argument, thereby causing prejudice; he also argues that the judge failed to take appropriate corrective action to rectify the error. In his own closing argument, defending against the malpractice claim, Raymond's counsel, Long, had asserted that no attorney-client relationship existed between Bayer and Raymond. In support of that argument, Long said that Raymond could not have been Bayer's attorney because "there would have been a conflict" and because Bayer presumably would have pursued a complaint against Raymond with the Board of Bar Overseers (BBO), rather than filing the malpractice claim at issue. In response, Princi argued that, by the time the present case had begun, Raymond had resigned from the bar. After the jury instructions were given and before the jury were dismissed for deliberation, Long objected at sidebar to Princi's statement.
Princi made the following argument: "The question was asked why didn't Leah Bayer bring a BBO complaint? By the time she brought the complaint, [Raymond] had resigned. She couldn't bring a BBO complaint; he wasn't a lawyer anymore."
Raymond now argues that by stating, "he wasn't a lawyer anymore," during closing argument, Princi misstated the law, with the result that Raymond's credibility was undermined for the jury. First, because the record is incomplete, see note 5, supra, we are unable to determine whether evidence of Raymond's resignation in fact was admitted at trial. Second, the judge instructed the jury, both before and after evidence was presented, that closing arguments were not evidence, and Long did not request any additional or curative instructions on that point. "[J]urors are always presumed to follow the instructions they are given." Commonwealth v. McCaster, 46 Mass. App. Ct. 752, 764 (1999). Finally, we are not persuaded that this one statement, even if erroneous, would have had a significant effect on the jury. See Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 112 (2009); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 529 (1992) ("In civil cases, we have found few instances where a new trial was granted because of an overreaching closing argument").
G. L. c. 93A, § 11, claim. Raymond also argues that his relationship with Bayer was "intra-venture" and that internal disputes between parties in the same venture do not fall within the scope of G. L. c. 93A, § 11. As Bayer points out, nowhere in Raymond's brief is there any indication that this argument was made to the judge. In addition, the transcript of the judge's instructions to the jury does not indicate that Raymond made any objection to the lengthy instruction on G. L. c. 93A, § 11. For this reason, the argument is waived. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001) ("The consequence of the failure properly to object at trial is to waive the issue on appeal").
Because we do not reverse the malpractice and G. L. c. 93A, § 11, portions of the judgment, we do not need to reach the claims raised by Tenney, Katherine, and Lantz Law, Inc.
Sanctions. Finally, Raymond and Long argue that the sanctions imposed against them for failure to comply with discovery orders were an abuse of discretion. First, we recognize that "'a judge has wide latitude to make such orders in regard to the failure [to comply with a discovery order] as are just.' Mass.R.Civ.P. 37(b)(2)[, 375 Mass. 797 (1974)]." Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 224 (1999). "Findings of fact and conclusions of law are unnecessary." Ibid. See Mass.R.Civ.P. 37(b). The judge's decision must "not rest on whimsy, caprice, or arbitrary or idiosyncratic notions. Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986)." Atlas, supra at 225. See Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass. App. Ct. 426, 429 (1986). In addition, the defendants again have failed to provide us with record support for their argument, and we cannot glean from what has been provided whether there was sufficient evidence to justify the sanctions imposed. See Mass.R.A.P. 8(b), as amended, 430 Mass. 1603 (1999); Mass.R.A.P. 18(a) and (b), as amended, 425 Mass. 1602 (1997); Kunen v. First Agr. Natl. Bank of Berkshire County, 6 Mass. App. Ct. 684, 690-691 (1978); State Line Snacks Corp. v. Wilbraham, 28 Mass. App. Ct. 717, 720 (1990). Without a complete record of the proceedings, we cannot say that the judge abused his discretion.
Raymond and Long argue that the May 9, 2008, motion for sanctions was not filed with a memorandum of law supported by a sworn affidavit and contend that the omission was reversible error. However, the motion at issue clearly references the original motion to compel and for sanctions (filed February 29, 2008), which motion included, according to the docket, an accompanying memorandum of law and Superior Court Rule 9A compliance affidavit; the May 9, 2008, emergency motion was merely a notification to the judge of Raymond's and Long's continuing noncompliance with the previously entered discovery order compelling Raymond's presence at deposition and nonpayment of imposed sanctions. An additional memorandum of law on the continuing noncompliance issue was unnecessary. We see no error.
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Judgment affirmed.
By the Court (Grainger, Rubin & Hanlon, JJ.),
Clerk Entered: November 25, 2014.