Opinion
No. 15–P–208.
10-03-2016
Alexander SCHMIDT v. Edward VOSHCHIN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendants from a judgment on a jury verdict for the plaintiff, Alexander Schmidt, on counts I and II of a complaint alleging fraud and misrepresentation by the defendants in connection with a real estate venture in Florida. We affirm.
We rely on the judge's characterization of the complaint, as a copy was not included in the appendix.
Three separate judgments were entered from the jury verdict. This appeal only pertains to the judgment entered for the plaintiff in the amount of $200,000 and interest on counts I and II of the complaint.
Briefly, the facts appear to be that the defendants approached the plaintiff about forming a company to purchase land in Florida. After forming the company, the defendants defrauded the plaintiff by forming a separate company on their own, buying a parcel of land, then selling it to the company formed with the plaintiff for a substantial profit. The defendants then professed a desire to leave the company and presented the plaintiff with a “release” that he eventually signed. This release purported to mutually release the plaintiff and the defendants from all claims against each other arising out of their venture. The plaintiff later discovered the underlying fraud and sued the defendants, with a jury returning a verdict in favor of the plaintiff.
On appeal, the defendants contend that the trial judge erred (1) in denying the defendants' motion for a directed verdict, and (2) in instructing the jury that there were questions of fact for them to resolve by answering special verdict questions relating to the release's effect on the plaintiff's claims.
Discussion. The standard of review ordinarily applied to a motion for a directed verdict is “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].’ “ O'Brien v. Pearson, 449 Mass. 377, 383 (2007), quoting from Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992). This review requires consideration of all the evidence presented at trial. Ordinarily we are unable to review such a claim of error without the complete record that was before the fact finder. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995) (court declined to consider claim of error in denial of motion for directed verdict as appellant had provided only excerpts of transcript); M.M. v. D.A., 79 Mass.App.Ct. 197, 207 (2011) (by failing to provide appellate court with complete transcripts, appellant cannot argue judge's finding is unsupported by the evidence). In this case, the defendants have provided us with only scant portions of the transcript from the three-day trial. While the supplemental appendix provided by the plaintiff supplies additional portions of the trial transcript, the lack of a complete record of the evidence heard by the jury prevents us from reviewing the judge's decision to deny the motion for a directed verdict.
To the extent the defendants' argument is presented as an issue of law, it is also without merit. The validity of the release was an issue at trial that was contested by the parties, namely, whether it was voidable as a product of fraud in the inducement, which we presume was the conclusion that the jury reached. In such a circumstance, the effect of the release is not a simple question of law, as the defendants argue, but instead is a contested issue of fact. Thus, as stated above, the lack of a complete record bars our review. See Cameron, supra; M.M., supra.
We next address the defendants' claim that the judge erred in his instructions and special verdict questions relating to the effect of the release. The defendants maintain that the interpretation and effect of the release was a question of law that entitled them to a directed verdict. The defendants also argue that the specific instructions given to the jury about the effect of fraud on the validity of the release were erroneous. However, apart from the fact that the defendants cite no relevant authority to support these propositions, the defendants acknowledge in their brief that there were no objections to the judge's instructions or the special verdict questions at the trial. To preserve a challenge to an instruction or a special verdict slip, a party must object at trial, and cannot raise the issue for the first time on appeal. Mass.R.Civ .P. 49(a) & 51(b). See Neagle v. Massachusetts Bay Transp. Authy., 45 Mass.App.Ct. 345, 348 (1998) ; Lee v. Mt. Ivy Press, 63 Mass.App.Ct. 538, 560–561 (2005), and cases cited. Therefore, the defendants' challenge to the jury's determination that the release did not affect the validity of the plaintiff's claims is deemed waived. Cormier v. Pezrow New England, Inc., 437 Mass. 302, 311 (2002).
Judgment on counts I and II of the complaint affirmed.