Opinion
14-P-799
05-01-2015
FSL ASSOCIATES, INC. v. CYNTHIA GOLDBERG.
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
FSL Associates, Inc. (FSL), brought suit alleging fraud, conversion, and breach of contract against the defendant, Cynthia Goldberg, FSL's former bookkeeper. With leave of the court, FSL filed an unopposed motion for summary judgment. The motion judge allowed FSL's motion, held a hearing on damages, and entered final judgment against the defendant. The defendant, who appears pro se, appeals from the final judgment. For the reasons set forth below, we affirm.
Summary judgment. FSL contends that the defendant waived all arguments regarding liability because she failed to submit an opposition to its motion for summary judgment. The defendant asserts that FSL served the summary judgment motion to a known improper address, and that she was prejudiced by the improper mailing.
FSL mailed the motion for leave and the motion for summary judgment on May 2 and May 4, 2012, respectively. The motions were mailed to the Massachusetts Correctional Institution at Framingham, the defendant's previous prison address. FSL was made aware of the defendant's change of prison address in March of 2012. Despite the improper service, the defendant received FSL's motion for leave to file summary judgment by May 15, 2012, and FSL's motion for summary judgment on or about Monday, May 14, 2012.
In filing the unopposed motion for summary judgment, FSL made a representation that service was properly made. Service was not properly made. See Mass.R.Civ.P. 5(d), as amended, 404 Mass. 1401 (1989). On appeal, FSL fails to acknowledge or address the consequences of its error.
The motion judge's May 30, 2012, margin endorsement on the motion for leave to file stated that the defendant's response was due in accordance with Superior Court Rule 9A. By this time, the rule 9A period had elapsed. The margin order was mailed to the correct prison address on June 6, 2012, and summary judgment was entered on June 12, 2012. At this juncture, however, the judge was unaware of the improper service.
The due dates for a response to the motions under Superior Court Rule 9A (rule 9A) were May 26 and 28, 2012, respectively. The defendant was required to file a response or make a timely motion to extend the deadline for submission of an opposition to FSL's summary judgment motion by the respective due dates. See Mass.R.Civ.P. 6(b), 365 Mass. 747 (1974). See also Baker v. Monga, 32 Mass. App. Ct. 450, 452-453 (1992). Accordingly, we may consider any argument as to liability to be waived. Cf. Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (failure to put judge on notice of argument waives argument on appeal). However, while summary judgment was allowed without opposition from the defendant, the motion judge nevertheless considered and rejected the defendant's substantive arguments opposing summary judgment in a motion submitted approximately three months after summary judgment was allowed. Since service was improper and the motion judge considered defendant's late-filed motion, we exercise our discretion to review the defendant's arguments on the merits.
The defendant submitted a motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). At that time, no judgment had entered and a hearing on damages was pending. The motion was thus premature under rule 60(b) and untimely under Mass.R.Civ.P. 59, 365 Mass. 827 (1974). Despite this procedural defect, it appears that the motion judge treated the defendant's substantive arguments as a motion for reconsideration, and considered the arguments on the merits.
"We review a grant of summary judgment de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, . . . the moving party is entitled to a judgment as a matter of law.'" Go-Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass. 50, 54 (2012), quoting from Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Summary judgment may be appropriate where there is no genuine issue as to any material fact. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002).
The defendant argues that the judge mistakenly relied on FSL's representation that she was convicted of credit card fraud, and that the error had had an impact on the disposition of the summary judgment motion. The mistaken reference was immaterial. See Commerce Ins., Inc. v. Gentile, 85 Mass. App. Ct. 67, 71 (2014) (appellate court may affirm on any basis presented by the record). As the motion judge noted in her decision, the defendant was also convicted of multiple counts of larceny over $250 and multiple counts of making false entries, all arising out of the same facts as the tort allegations in the civil case. See G. L. c. 266, §§ 30(1), 67; Costa v. Fall River Hous. Authy., 71 Mass. App. Ct. 269, 283 (2008) ("A finding of guilt by trial is conclusive of the same factual issues in any later civil litigation"), S.C., 453 Mass. 614 (2009). These convictions establish the defendant's intent to defraud FSL by converting its property and making false entries in FSL's books. The defendant's convictions for larceny and false entry estop her from relitigating liability for fraud, conversion, and breach of contract in the current civil action. See Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985) ("[A] party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution").
FSL repeatedly stated in court documents and the trial judge noted once (in her findings on the plaintiff's motion for assessment of damages) that the defendant was convicted of three counts of fraudulent use of a credit card under G. L. c. 266, § 37C. The defendant was acquitted of these charges of larceny.
The defendant contends, in the alternative, that the criminal convictions do not correspond in all respects to the claims in the civil case, and that collateral estoppel therefore does not apply to all the claims. The civil claims do in fact cover a broader time span (i.e., the time period between 1999 and 2002) than the criminal complaint, a difference attributable to the distinctions between the criminal and civil statute of limitations. With respect to the 1999-2002 time period, the defendant filed an affidavit in connection with her late filed request for reconsideration containing various representations that are irrelevant and immaterial to the issue of fraud. She also appears to claim that some payments made to her and recorded on the general ledger were replacement checks for compensation due. The defendant, however, has selectively presented the record on appeal, omitted virtually all of the supporting affidavits, documents, and testimony filed by the plaintiff with the rule 9A statement of undisputed facts, and failed to comply with the requirements of rule 9A(b)(5). It is the appellant's burden "to furnish a record that supports [her] claims on appeal." Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). Error will not be presumed on the basis of an inadequate, incomplete, or misleading record. See Connolly v. Connolly, 400 Mass. 1002, 1003 (1987).
We reject as groundless the defendant's arguments that the plaintiff received tax benefits associated with certain cash transfers made by her, and that irregularities in the operation of the business also resulted in beneficial tax treatment. Nor may the defendant claim an offset for any monies owed by joint tortfeasors, in the absence of a showing that all monies have been repaid and that no third party reimbursements are due.
The defendant also contends that the allowance of summary judgment violated due process because, as an incarcerated defendant, she did not have adequate access to computers to examine the "voluminous" "bank statements, credit card statements, and the associated digital spreadsheets" that she claims would be integral to her defense. Pursuant to the Department of Correction regulations, inmates must receive assistance in preparing and filing legal papers and access to correctional facility libraries as scheduled and coordinated by the librarians on staff. 103 Code Mass. Regs. §§ 478.11(1), (3) (2004). The defendant's argument fails to demonstrate what, if any, actual harm she suffered as a result of this allegedly limited access. See Puleio v. Commissioner of Correction, 52 Mass. App. Ct. 302, 311 (2001). The argument does not rise to the level of reasoned appellate argument as contemplated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Adams v. Adams, 459 Mass. 361, 392 (2011).
The defendant also contends that her due process rights were violated because the judge's orders, see n.4, did not allow her time to respond to the motion for summary judgment and because she did not receive notice of the consequences of failing to oppose the motion for summary judgment. We need not reach these arguments, having addressed the defendant's substantive contentions with respect to the allowance of the motion for summary judgment.
The defendant does not explain what aspect of her access was insufficient, or how her defense was compromised.
Assessment of damages. The judge scheduled a hearing on assessment of damages, entered findings, and awarded damages in the amount of $1,013,669.70. "[A]n award of damages must stand unless to make it or to permit it to stand was an abuse of discretion on the part of the court below, amounting to an error of law. Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 822 (1984), quoting from Bartley v. Phillips, 317 Mass. 35, 43 (1944)." Wyman v. Ayer Properties, LLC, 469 Mass. 64, 72 (2014).
The motion judge held a hearing on the assessment of damages on October 10, 2012, and ordered the defendant's presence at the hearing. See Mass.R.Civ.P. 52, as amended, 423 Mass. 1408 (1996). The defendant appeared and submitted an opposition to FSL's assessment of damages after the hearing. The judge credited FSL's damages as documented in its motion, affidavit, and supporting papers and adopted the affidavit of the principal of FSL as findings on the amount of damages. The motion judge acted within her discretion in adopting the affidavit. Cf. Hermanson v. Szafarowicz, 457 Mass. 39, 49 n.14 (2010) (a motion judge has discretion to adopt an affidavit where the affidavit clearly sets forth the damages sought and is consistent with the claims). The record before us fails to demonstrate any abuse of discretion or error of law in the judge's findings on damages.
The defendant's argument that the amount awarded violates Mass.R.Civ.P. 54(c) because it differs from the amount in the complaint is without merit, as the judgment was not entered on a default. See G. L. c. 231, § 13B; Hermanson v. Szafarowicz, supra at 45 (§ 13B supersedes Mass.R.Civ.P. 54[c]). Even if we treated the proceeding as one akin to a default, Hermanson v. Szafarowicz, supra, holds that the provisions of G. L. c. 231, § 13B, supersede rule 54(c).
The defendant's remaining arguments were not raised in her opposition to FSL's motion for leave or in her motion for relief from the allowance of summary judgment. As these arguments are raised for the first time on appeal, we deem them waived. West Broadway Task Force v. Boston Hous. Authy., 414 Mass. 394, 397 n.2 (1993).
These arguments included: (1) that the judgment reflected an amount greater than the amount the plaintiff would have received had the employment contract been performed; (2) that the motion judge did not consider the defendant's pro rata contribution; and, (3) that the motion judge did not account for the financial benefit the plaintiff received.
FSL's motion for fees and double costs is denied.
Judgment affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 1, 2015.