Opinion
13-P-1973
12-17-2014
JAN BETH BOHRER, cotrustee,1 & another2 v. LEWIS ATKINS.
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 defendant, Lewis Atkins, appeals from a judgment that invalidated a quitclaim deed transferring real property in Stockbridge to him and from the denial of his motion for judgment notwithstanding the verdict or a new trial. A Superior Court jury found that the signature on the deed was not made by the owner of the property, who died shortly after the defendant recorded the deed. We affirm.
Background. Lynn Bohrer (the decedent) created a trust for her children that contained several assets at the time of her death. She was the trustee, and the plaintiffs were designated as cotrustees upon her death. The defendant maintained a relationship with the decedent, with whom he lived for several years. The defendant claimed that on July 24, 2010, the decedent traveled to New Jersey and signed a quitclaim deed that conveyed real property in Stockbridge to him. The defendant had the deed notarized by his daughter and recorded it on December 14, 2010. The decedent died on January 5, 2011. After discovering the existence of the deed, the plaintiffs claimed that the decedent had been bedridden in New York City on July 24, 2010, because of her terminal illness, and that the signature on the deed was not hers.
The plaintiffs filed a complaint on June 8, 2011, including counts of fraud, conversion, and cancellation of the deed. At trial, the defendant moved for a directed verdict twice and was denied. Two questions were sent to the jury: whether the plaintiffs proved that the decedent did not sign the deed, and if the answer was "no," whether they proved that she did not sign it in New Jersey. On April 24, 2013, the jury found that the decedent did not sign the deed and, as such, did not reach the second question. The court entered judgment on April 30, 2013. The defendant filed a motion for judgment notwithstanding the verdict or a new trial on May 3, 2013, which was denied. The defendant filed a notice of appeal on May 22, 2013.
The judgment dismissed the fraud and conversion counts of the complaint without written explanation. On the third count, the judgment declared as invalid the quitclaim deed pursuant to the jury verdict and cancelled the transfer of real property.
Discovery. The defendant argues that the judge improperly refused to extend discovery, in part because the defendant's attorney was sick for some period and because of alleged delays by counsel for the plaintiffs.
"The conduct and scope of discovery is within the sound discretion of the judge." Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation No. 1, 424 Mass. 430, 461-462 (1997), quoting from Solimene v. B. Grauel & Co., 399 Mass. 790, 799 (1987). Here, the court gave the parties sufficient time and opportunity.
Indeed, monetary sanctions were levied on the defendant and his counsel in a March 19, 2012, order for "numerous discovery abuses" and conduct that was "egregious" and "disgraceful."
Jury deliberations. The defendant claims that the judge erred in not allowing his motion for judgment notwithstanding the verdict or a new trial because the jury deliberated only for several minutes before reaching a verdict.
The transcript does not give any indication of how much time the jury spent deliberating.
The judge instructed the jury that they should feel no pressure or need to rush in deliberations. The jury are presumed to follow the judge's instructions. Carrel v. National Cord & Braid Corp., 447 Mass. 431, 451 (2006). Here, there is no indication that the jury misunderstood or ignored the judge's instructions.
Ineffective assistance of counsel. The defendant makes several arguments directed toward the lack of objection by his defense attorneys to remarks in the opening statement and closing argument of plaintiffs' counsel at trial, and the alleged failure of his attorneys to ask questions of witnesses and to introduce favorable evidence. The defendant also complains of the failure of his attorneys to request that he be allowed to sit at counsel's table to assist with his hearing disability.
"[T]here is no right to the effective assistance of counsel in civil cases." Commonwealth v. Patton, 458 Mass. 119, 124 (2010). We do not consider the merits of the defendant's numerous arguments directed toward the alleged deficiencies of his attorneys because the "sole recourse for his attorney's negligence is an action for malpractice." Ibid.
Taxes. Lastly, the defendant argues that the judge should not have allowed the plaintiffs' attorney to question him on cross-examination, over objection, about unpaid Federal taxes and tax liens, because this subject was irrelevant and prejudicial.
"Evidence is relevant if it has a rational tendency to prove a material issue. Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge." Commonwealth v. Dunn, 407 Mass. 798, 807 (1990) (citation omitted). Mass. G. Evid. §§ 401-403 (2014).
Here, the plaintiffs' attorney inquired into unpaid taxes within a context of determining whether the defendant was trying to hide money. The trial judge could reasonably have concluded that these questions were relevant to the plaintiffs' theory that the defendant forged the deed for financial gain. Allowing the questions was not an abuse of discretion. See Commonwealth v. Dunn, supra.
We have reviewed all of the arguments put forth and find them to be without merit.
For the reasons above, and for substantially those in the brief of the plaintiffs, we affirm the judgment and the order denying the motion for judgment notwithstanding the verdict or a new trial.
The plaintiffs' request for appellate attorney's fees and costs is allowed. The plaintiffs shall, within fourteen days of the date of the rescript, file and serve a petition for attorney's fees and costs incurred on appeal, supported by an affidavit detailing such fees and costs, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant will have fourteen days thereafter to respond.
So ordered.
By the Court (Kantrowitz,
The panelists are listed in order of seniority.
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Clerk Entered: December 17, 2014.