Opinion
14-P-1791
04-19-2016
AMOS FINANCIAL LLC v. MUNIYAPLA ESWARAPPA.
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
The defendant appeals from a judgment in the Superior Court on a jury's verdict awarding $94,999.88 (plus interest calculated by the court) to the plaintiff, Amos Financial LLC (Amos Financial), in its suit to recover on a commercial loan that the defendant took out on behalf of his now-defunct company, Clean Air Solutions, Inc., and for which he served as guarantor. We affirm.
Background. Amos Financial purchased the defendant's loan from the originating lender, Sovereign Bank. After filing suit to collect on the debt, Amos Financial twice moved for, and was twice denied, summary judgment. The case proceeded to trial and the jury verdict and judgment against the defendant from which he appeals.
Discussion. As best we can determine from his brief, the defendant raises two issues on appeal. First, he contends that he was denied due process when the sole witness he was planning to call at trial, Amos Financial's prior trial counsel Carmenelisa Perez-Kudzma, successfully quashed the trial subpoena and, he claims, he was not allowed to oppose the motion to quash. Next he contends that a remark by the plaintiff's attorney in closing argument requires reversal.
1. The quashed subpoena. It appears from the record that Perez-Kudzma was served with a trial subpoena on or about April 2, 2014, for a jury trial that had been scheduled by the court the preceding January to begin on April 14, 2014. Perez-Kudzma filed an emergency motion for a protective order and to quash the subpoena on April 10, 2014, which was granted, apparently ex parte, by a judge other than the trial judge on April 11, 2014. We review the motion judge's decision to quash the subpoena for abuse of discretion. See Roche v. Massachusetts Bay Transp. Authy., 400 Mass. 217, 222 (1987); Mass.R.Civ.P. 45, as amended, 470 Mass. 1401 (2015).
"Although there is some fragmentary authority for the handling of motions to quash [a subpoena] on an ex parte basis, the better practice is one in which the party seeking the subpoena has the opportunity to contest the motion to quash." Reinders Bros., Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d 44, 51-52 (7th Cir. 1980) (citation omitted). However, the defendant cannot show that he was prejudiced by the ex parte order in this case, even if it was procedurally improper as he asserts. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 122-123 (2000) ("In the absence of an offer of proof, [the plaintiff] has failed to show that he was prejudiced by the ruling [quashing his subpoena of certain witnesses, including defendant's general counsel]"). Thus, as in Reinders, supra at 52, the motion judge's "departure from the preferred practice in this case" in quashing the subpoena ex parte is "insufficient to alter the disposition of the case."
The defendant has not provided the motion to quash itself or a transcript of the ex parte hearing or any record by which we might evaluate the propriety of that action. Notwithstanding his pro se status, it is the defendant's burden to comply with the basic requirements of appellate procedure and provide this court with a record sufficient to show any error. See Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1998).
More importantly, the defendant has also failed both at trial and in his brief on appeal to identify any relevant, nonprivileged testimony that former counsel to the acquiring entity could have provided based on personal knowledge concerning the circumstances surrounding the loan's origination, which was the only live issue in the trial. See Mass. G. Evid. § 602 (2016) ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter"); Caron v. General Motors Corp., 37 Mass. App. Ct. 744, 749 (1994) (noting that testimony of ordinary witnesses, as opposed to experts, is "admissible because they have personal knowledge of facts in the case"). The defendant has, in fact, not put forward any plausible basis on which he should have prevailed in compelling the testimony of the attorney who represented Amos Financial when it commenced the instant action.
In fact, it appears from the trial transcript that defendant's repeated attempts to call former and current counsel for Amos Financial as witnesses were attempts to subpoena a member or employee of Amos Financial itself. He explained that his real purpose was to obtain "witnesses or the documents" from "the bank." The defendant's appellate brief states that he subpoenaed his opponent's attorney "to find out information about their loan acquisition, among other things." He later elaborated that "I had one opportunity to question find out facts from the person who initially initiated this case and bought the case from the Sovereign Bank." There was obviously no basis for calling Amos Financial's former attorney to inquire about any of this. See Abramian, 432 Mass. at 123 ("[A] lawyer must not pursue a line of questioning when there is no reasonable expectation of being able to prove the matters to which the line refers"). The defendant's missteps here reflect an ongoing confusion about the distinction between the plaintiff entity, Amos Financial, and its attorneys. He writes in his brief: "It has never been clear as to who are the plaintiffs here, and who are the attorneys, whether they are one and the same?" He had earlier stated that it was "the attorney for the Plaintiff -- the Plaintiff itself I wanted to subpoena." The defendant has not come forward with any information to suggest that the attorneys were members or employees of Amos Financial.
He also asserts that "[a]nother point that needed clarification from the person subpoenaed was if there was any crime-fraud exception to the attorney-client privilege here." Our review of the transcript satisfies us that this point needed no clarification. Although the defendant raised what was essentially a defense of fraud in the inducement to Amos Financial's collection action, his allegations of fraud focused on the originating bank's conduct and did not implicate Amos Financial or its counsel in any way. Specifically, there was nothing to suggest that the "services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud." Purcell v. District Attorney for the Suffolk District, 424 Mass. 109, 112 (1997), quoting from Rule 502(d)(1) of the Proposed Massachusetts Rules of Evidence.
The only other apparent basis he had for calling Carmenelisa Perez-Kudzma was to cross-examine her about comments she made regarding her work in protecting the public from unscrupulous loans where, as the defendant sees it, "she has been a willing participant in the unjust/illegal loans liquidations." Obviously the defendant would not have been permitted to pursue that line of inquiry either.
In his appellate brief, the defendant repeatedly invokes his pro se status. However, the fact that the defendant is acting pro se is "of no significance because he is held to the same standards to which litigants with counsel are held." Solimine v. Davidian, 422 Mass. 1002, 1002 (1996). The cases he cites do not aid his cause.
If there were remaining doubt that the defendant has failed to show any prejudice from the ex parte decision on prior counsel's motion to quash, we note that he in fact had an opportunity to address the merits of the motion to quash not once but twice before the trial judge as he raised the issue at the outset of both days of trial. Although the trial judge indicated that he would not upset the motion judge's ruling with respect to Perez-Kudzma, the defendant's opportunity to be heard before the trial judge on the equally impermissible request to call Amos Financial's similarly situated then-acting trial counsel was sufficient. See Peate v. McCann, 294 F.3d 879, 884 (7th Cir. 2002) (concluding plaintiff was not prejudiced by trial court's granting of motion to quash subpoena despite "problems" arising from "court's initial handling of the motion, insofar as it acted ex parte, without providing [plaintiff] any opportunity to respond" where court "[e]ventually . . . entertained [plaintiff's] arguments about the material he was seeking").
2. Comment in closing argument. The defendant next claims that the trial judge erred in overruling his objection to a comment made by counsel for Amos Financial in closing argument that he was "not a civic person." The defendant contends that this comment was an improper attempt to assassinate his character and appeal to the emotions of the jury. However, the defendant does not point to any particular page of the transcript where this comment was made. Our independent review of Amos Financial's closing argument does not reveal any such comment. According to the trial transcript, plaintiff's counsel said, and the defendant objected to, the following: "Mr. Eswarappa is not a simple minded person, he's a clever person, but, unfortunately, he's trying to use that to try to get out of a promise that he made to pay back the money that he borrowed."
Again, it is the defendant's burden as the appellant to comply with the basic requirements of appellate procedure and sufficiently identify any claimed error. See Mass.R.A.P 16(a)(4), as amended, 367 Mass. 921 (1975); Buckmore, 427 Mass. at 1014; Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994). The defendant has not met that burden here. Because the defendant does not make any argument on appeal concerning the actual language to which he objected at trial, we do not address the issue further. Again, the cases he cites on this point are inapposite.
Judgment affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 19, 2016.