Opinion
No. 11–P–725.
2012-06-26
Virginia REIMELS v. Corey W. FARCAS, administrator & others ; Penny Lee Cavaco, third-party defendant.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This action arose out of the unexpected death of Wayne Wesley Williams. Virginia Reimels, Williams's long-term companion, brought this action against Williams's son, Corey W. Farcas, in his representative capacities, and two of Williams's businesses (defendants), seeking compensation for seven discrete loans she made over the years as well as the return of personalty wrongfully withheld by Farcas. Following a five-day trial in November, 2010, a jury, answering thirty-four special questions, found in favor of Reimels on every claim submitted. Represented by new counsel, the defendants appeal from the judgments on the directed verdicts and the jury verdict. We affirm.
1. General Laws c. 233, § 65. To the extent that the defendants claim prejudicial error in the judge's failure to make the necessary preliminary findings prior to the admission of the decedent's statements and to hold a hearing during the trial, the issue was not properly preserved below.
See Ducharme v. Hyundai Motor Am., 45 Mass.App.Ct. 401, 409 n. 8 (1998). In any event, it is well established that the admission of the statements implicitly imported the required findings of good faith and personal knowledge.
Addressing the defendants' motion in limine to exclude Williams's statements, the trial judge agreed to conduct individual voir dires during the trial as the need arose. At no time during the ensuing trial did the defendants' attorney request a voir dire or renew his motion. The defendants' attorney also failed to object to any of the statements now challenged as improperly admitted.
See Demoulas v. Demoulas, 428 Mass. 555, 564 n. 9 (1998); Mitchell v. Hastings & Koch Enterprises, Inc., 38 Mass.App.Ct. 271, 275 (1995). The judge was not required under Massachusetts law to instruct the jury to scrutinize carefully the declarations of the decedent. Where, as here, the defendants' attorney failed to request a cautionary instruction and failed to object to the charge, any claim of error in the instructions was waived.
In fact, during his pretrial colloquy with the attorneys, the judge demonstrated an awareness of his obligations and expressly promised to make the threshold findings required by the statute. We also note that most of the statements objected to by the defendants (concerning Williams's alleged requests to borrow funds, the purposes and terms of the loans, and his promises to repay) were not hearsay and were admissible under the “operative words” doctrine. See Commonwealth v. Purdy, 459 Mass. 442, 452–453 (2011).
2. Denial of defendants' motion for a directed verdict on counts II and III.
The jury's liability finding on count II was supported by the testimony of Reimels and Nancy Richmond, the office manager.
The defendants' claim of error with respect to count III was dependent upon a finding that Williams's statements were improperly admitted. Our conclusion in section one of this decision is fatal to that argument.
The Statute of Frauds was inapplicable to this oral agreement. First, the alleged “joint venture agreement,” as the defendants described it, was a contract that fell outside the scope of the statute. See First Pa. Mort. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 625 (1985). Second, the agreement did not involve the sale of land. Third, although the time between the making of the contract and actual performance spanned more than one year, there was no evidence that full performance was not possible within one year. See Coady v. Wellfleet Marine Corp., 62 Mass.App.Ct. 237, 248 (2004).
Reimels testified that she lent Williams $94,000 to enable him to purchase a single-wide mobile home from Kenneth MacDonald and that in consideration for her loan, Williams promised to repay the principal and to give her one-half of the profits on the sale of a new double-wide mobile home to be set up in place of the old home. Richmond corroborated the terms of this agreement and indicated that at Williams's request, she had noted the transaction on the green ledger she maintained to keep track of the loans from Reimels to Williams.
On the issue of damages, there was sufficient evidence to warrant the submission of the claim to the jury and to support the resulting $150,500 damage award. The defendants concede that the evidence supported a portion of this award ($52,000) for the balance due on the loan at the time of Williams's death. We conclude that the jury's award of $98,500 for Reimels's one-half of the profits realized on the sale fell within the range of the probative evidence. Reimels offered proof that Farcas sold the double-wide home for $274,000 and that she did not see any part of that profit. She frankly admitted that the defendants would be entitled to a credit for their expenses, a topic on which Farcas was singularly unhelpful .
Presented with a ceiling on possible lost profit awards, the jury chose to make some deductions for the expenses incurred. The element of uncertainty in the damage calculation does not require reversal. See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 413 (2003). A reasonable approximation of damages is sufficient where, as here, the jury could have found that Farcas knowingly withheld evidence solely in his control. See A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass.App.Ct. 635, 642–643 (2011).
Asked by Reimels's attorney about the actual cost of the double-wide mobile home, Farcas testified that he did not buy it and that he had not located any record of the purchase. It was undisputed that on the date of his father's death, Farcas called police and locked Reimels out of the business office; the green ledger last seen by Richmond a few days before Williams's death mysteriously went missing, and that Farcas failed to accept Richmond's offers to help clear out the office. Although he was directly involved in the finish work, Farcas claimed that he was unable to provide Reimels with a total of expenses. He did testify regarding $30,000 in certain expenses incurred and some other specific costs for which he did not provide any estimates.
3. Directed verdicts on the counterclaims and the third-party complaint. Any error in the directed verdicts on the counterclaims and third-party claims was harmless. In finding in favor of Reimels on count III, the jury necessarily found that Reimels was the true legal and equitable owner of 39 Rhode Island Road in Lakeville at all times relevant.
As the owner of the property, Reimels had the absolute right to subdivide it into two parcels, to sell one parcel, and to transfer the second parcel to her daughter, Penny Lee Cavaco. As matter of law, the defendants could not have prevailed on their counterclaims and third-party claims, which were based on a factual predicate rejected by the jury.
Reimels testified that the property was always hers and that she had no agreement with Williams to hold it for his benefit. In support of her claim of ownership, Reimels presented a paper trail from which it could have been found that not only did she hold title to the property, she provided the majority of the funds used to purchase the property. She also testified that any contribution by Williams toward the purchase price was intended to “make them square.” Reimels further testified that she mortgaged the property in the largest amount she could obtain at Williams's request in order to help him resolve some tax problems, and that Williams promised to make the monthly mortgage payments until the loan amount was paid off. Corroborating Reimels's testimony, office manager Richmond testified that she was familiar with the property, knew that it was Reimels's house, and that on Williams's instruction, she made the monthly mortgage payments. Reimels also provided a written agreement signed by Williams in which he agreed to repay the $234,218.85 (the full amount of the mortgage), an act that would have been inconsistent with his ownership of the property. The jury awarded $236,307 to Reimels in connection with this claim.
4. Evidence relating to the equitable causes of action. The defendants' attorney expressly agreed to allow the jury to hear all the evidence in the case pertaining to both the legal and equitable claims and further agreed to the submission of all factual issues to the jury. After acquiescing, the defendants, on appeal, cannot claim error in the procedure.
5. Conclusion. Far from being the product of jury speculation, the special verdict was amply supported by the testimonial and documentary evidence. Nothing in G.L. c. 211A, § 5, permits this court to ignore jury findings that were supported by the evidence. On the view of the evidence taken by the jury, the result was not inconsistent with the interests of justice.
Judgments affirmed, with double costs on appeal.