Opinion
10-P-1734
02-17-2012
EDWARD J. SHAGORY & another. v. JEFFREY BUSTER & another.
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
In August of 1999 the plaintiffs, Edward J. Shagory and his law firm, Shagory & Shagory, P.C., commenced this action against their former clients, defendants Jeffrey Buster and Martha Jean Eakin, to collect unpaid legal fees. The defendants asserted counterclaims alleging legal malpractice and G. L. c. 93A violations. The matter was tried to a jury in 2005, which found for the plaintiffs on all of the contract claims, and assessed damages of $65,177. The jury also found for the plaintiffs on the defendants' legal malpractice claims. The judge made separate findings in favor of the plaintiffs on the defendants' G. L. c. 93A, § 11, counterclaims. On November 4, 2008, a motion judge, on a motion for reconsideration, ordered an attachment of the defendants' real estate in the amount of $125,000, which was calculated by adding statutory interest and costs to the original damages of $65,177. Years of contentious proceedings followed over, inter alia, the defendants' transcript obligations.
This case was previously before this court on the defendants' appeal from an order allowing the plaintiffs' motion to strike the appeal. Shagory v. Buster, 76 Mass. App. Ct. 1115 (2010). Due to the defendants' excusable failure at that time to present a full transcript, the order allowing the plaintiffs' motion to strike the appeal was vacated, and the appeal was reinstated. The case was remanded to the Superior Court for assembly of the record. Ibid.
The appeal from the underlying judgment is now before us. The defendants' appellate brief is wide-ranging to say the least, but the appeal essentially boils down to five arguments: (1) that the plaintiffs did not have standing to commence the underlying action; (2) that evidence at trial did not support the judge's ruling for the plaintiffs on the defendants' 93A counterclaims; (3) that said ruling was unsupported by law; (4) that the trial judge erred when he refused to allow evidence of Shagory's reprimand by the Board of Bar Overseers (BBO); and (5) that the interest on the judgment was improperly calculated, rendering the attachment order of $125,000 excessive.
Any of the defendants' twenty-nine issues designated for review that have not been addressed in the brief are deemed waived.
Discussion. There is no merit to the defendants' standing argument. The defendants admitted that the plaintiffs had standing to commence this action in 1999. Although Shagory & Shagory, P.C., was voluntarily dissolved pursuant to G. L. c. 156D, § 14.03, during the pendency of this appeal, its corporate existence continued for the purpose of winding up its affairs, including the collection of assets. See G. L. c. 156D, § 14.05(a). The dissolution of the corporation did not operate to require the abatement of this lawsuit or the relinquishment of the plaintiffs' right to legal representation. See G. L. c. 156D, § 14.05(b)(6) and comment to Mass. G. L. c. 156D, § 14.05, 25A Mass. Gen. Laws Ann., at 52 (West 2005) ('[S]uits by and against the corporation are not affected in any way [by voluntary dissolution]').
As the appellants, the defendants had the burden of furnishing this court with an adequate record supporting their four remaining claims on appeal. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S. C., 411 Mass. 807, 810-812 (1992). The defendants' failure to provide the transcript was previously discussed by this court. See Shagory v. Buster, 76 Mass. App. Ct. 1115 (2010). The defendants' pro se status did not relieve them of their duty to comply with this basic procedural requirement. See Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014 (1998). Nonetheless, the defendants have provided this court with fifty pages of hand-picked testimony from the six-volume trial transcript and only some of the exhibits. Key sections for the purposes of this appeal, such as the transcript of the 93A hearing and the transcript of the trial judge's exclusion of the reputation evidence, were not provided.
In order to address with finality the merits of the claims on appeal in this protracted litigation, we have exercised our discretion to obtain the transcripts directly from the Superior Court.
With regard to the G. L. c. 93A claims, the judge applied correct principles of law in rendering his decision in favor of the plaintiffs. See PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975). Further, there was ample evidentiary support for the judge's order, given the plaintiffs' presentation of expert testimony that Shagory's representation in the criminal proceedings met the requisite standard of care. This testimony was credited by the judge, and we discern no basis on which to question his careful review of the evidence presented at the 93A hearing. We affirm the judge's ruling on the 93A claims.
Next, with regard to the exclusion of evidence of Shagory's reprimand from the BBO, we conclude that the judge did not abuse his discretion in excluding the material in question. The defendants argue that this evidence should have been admitted as 'professional reputation evidence' under G. L. c. 233, § 21A. However, specific instances of misconduct such as a BBO reprimand, are generally not admissible to impeach the character of a witness or a party. See Mass. G. Evid. §§ 404(b) and 608(b) (2011). Moreover, reputation evidence is admissible only when relevant. See Thompson v. Boston Publishing Co., 285 Mass. 344, 353 (1934); Mailhiot v. Liberty Bank and Trust Co., 24 Mass. App. Ct. 525, 530 n.5 (1987). As we find no fault with the trial judge's determination that Shagory's legal reputation at the time of the alleged 93A violations was not relevant to the 93A claim, we need not consider the admissibility of the evidence under G. L. c. 233, § 21A. We also note that '[a] judge has discretion to exclude relevant evidence on the ground that its probative value is outweighed by the risk of confusion or unfair prejudice.' Commonwealth v. Rosario, 444 Mass. 550, 557 (2005). Even if the evidence of the reprimand was tangentially relevant to Shagory's motive, the trial judge was within his discretion to determine that it was nonetheless too prejudicial to admit in evidence.
Finally, we discern no abuse of discretion in the allowance of the plaintiffs' postjudgment motion to increase the amount of the real estate attachment to $125,000 in order to reflect the plaintiffs' entitlement to interest. Nor was there an abuse of discretion in the subsequent denial of the defendants' motions to reduce that amount. The purpose of interest in this context 'is to compensate a party for delay in obtaining his money.' Lyons v. Bauman, 31 Mass. App. Ct. 214, 215 (1991). Contrary to the defendants' assertion, the plaintiffs' failure to charge the defendants interest on the unpaid invoices did not deprive the plaintiffs of the right to statutory interest and costs as ordered by the court in the judgment. See G. L. c. 231, § 6C; G. L. c. 235, § 8; Mass.R.Civ.P. 54(f), as amended, 382 Mass. 822 (1980). As the date of the breach or demand here was not established, the interest was properly added from the date of the commencement of the action. G. L. c. 231, § 6C; Framingham Heavy Equip. Co. v. John T. Callahan & Sons, 61 Mass. App. Ct. 171, 180-181 (2004). The motion judge here was also the trial judge and was thus highly familiar with the record. He acted well within his discretion in finding that the attachment in the amount of $125,000 was reasonable and warranted.
Judgment affirmed.
Order allowing real estate attachment in the amount of $125,000 affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),