Opinion
No. 11–P–2109.
2013-02-21
Morris BRESLOUF v. Richard J. BROW.
By the Court (CYPHER, BROWN & COHEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a judgment ordered by a Superior Court judge, who found him personally liable for defaulting on a nonrecourse promissory note. We affirm.
Background. The plaintiff and the defendant, both persons in business, unknowingly entered into a fraudulent investment scheme known as a life settlement. The transaction was performed by Joseph Gennaco, an insurance broker. The plaintiff funded the premium of the defendant's Pacific Life insurance policy for the first two years with a loan of $250,000, and interest of $69,225. A promissory note (note) was recorded on April 14, 2006. To secure the nonrecourse loan, an insurance trust was to be created with the plaintiff named as the independent trustee. Upon default, the plaintiff would have the power to sell the trust corpus and to use the proceeds to pay off the note. In conjunction with the note, the defendant signed a letter agreement (agreement), which among other things provided that the defendant's liability on the loan would be limited to the insurance policy as long as the defendant adhered to certain responsibilities, including executing documents necessary to carry out the terms of the agreement. The plaintiff became aware of impending criminal charges against Gennaco and inconsistencies regarding the trust. The defendant never received an insurance policy but was reassured by Gennaco that everything was fine. On November 30, 2007, Pacific Life informed the plaintiff that the Brow Family Insurance Trust did not own the policy. On December 12, 2007, the plaintiff's counsel sent the defendant a letter outlining steps that needed to be taken to protect the assets of the plaintiff and the defendant (December 12 letter).
The Brow Family Insurance Trust.
1. The defendant argues that the December 12 letter was erroneously admitted in evidence because it lacked foundation and, in the alternative, it was not received by the defendant.
Despite the defendant's objection to the December 12 letter being admitted in evidence, on two separate occasions at trial, the defendant and his counsel acknowledged receiving the letter. Contrast Lingis v. Waisbren, 75 Mass.App.Ct. 464, 470 (2009) (“No witness testified that the letter had been sent, received, or replied to, and there was no agreement that any of those events had occurred”). Although the defendant is correct that the December 12 letter was not produced during discovery or stipulated to in the agreed-upon exhibits prior to trial, the defendant has failed to demonstrate its inadmissibility. As noted by the trial judge, the defendant changed the theory of his case at the beginning of trial. Initially, the defendant did not claim he had not signed the note, rather he argued that he had complied with his responsibilities.
The defendant stated that he “probably did” receive the December 12 letter. Later, defense counsel stipulated to receipt of the letter.
2. The defendant argues, here, contrary to what he testified and stipulated at trial, that the lack of his signature on the return receipt slip demonstrates that he did not receive the December 12 letter. The absence of the defendant's signature alone does not persuade us that the trial judge erred. An objecting party's burden to show an abuse of discretion regarding the admission of relevant—albeit unfavorable—evidence is “a heavy one.” See Beaupre v. Cliff Smith & Assocs., 50 Mass.App.Ct. 480, 485 n. 10 (2000), quoting from Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985). Here, the trial judge made inquiries about the December 12 letter several times. We find no abuse of discretion in the allowance in evidence of the December 12 letter. See Zucco v. Kane, 439 Mass. 503, 507 (2003).
3. An issue before the trial judge was whether the defendant was protected by the nonrecourse language of the note. The evidence presented demonstrated that the defendant did not adhere to the requirements of the agreement. “Where the ‘judge makes one of several possible choices of what facts are supported by the evidence, the judge's choice is not clearly erroneous.’ “ Guardianship of Jackson, 61 Mass.App.Ct. 768, 774 (2004), quoting from W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 751 (1993). On the record before us, we cannot fairly conclude that the judge's findings are clearly erroneous.
Specifically, the judge stated, “I find and rule that the defendant was not in compliance with the Letter Agreement in at least the following respects: (1) failure properly to organize the contemplated Brow Family Trust, and arrange ownership of the Pacific Life policy in that entity; and (2) failure to execute documents necessary to carry out the terms of the Letter Agreement, in particular, the notification to Pacific Life requested by plaintiff's attorney in December 2007 (Exhibit 17)” (emphasis supplied).
4. We discern no abuse of discretion or other basis for disturbing the denial of the defendant's motion to dismiss, pursuant to Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974). See Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass.App.Ct. 738, 740 (1998).
5. We find no error in the denial of the defendant's posttrial motion for reconsideration. In order to prevail on a motion for reconsideration, the moving party “should specify ... ‘changed circumstances' such as ... newly discovered evidence or information.” Audubon Hill S. Condominium Assn. v. Community Assn. Underwriters of America, Inc., 82 Mass.App.Ct. 461, 470 (2012). New evidence generally is understood to mean evidence that the offering party could not have discovered by the exercise of reasonable diligence before the entry of final judgment. Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000). Here, many of the claims the defendant raised in the motion for reconsideration related to evidence that was introduced at trial and evaluated by the judge.
The belated submission of the Pacific Life documents also proves unavailing. As noted by the plaintiff, the defendant requested these documents during discovery. At the start of trial, Pacific Life had not yet complied with the request. At that juncture, the defendant did not attempt to postpone the trial or seek the judge's assistance in obtaining the documents. See Asian Am. Civic Assn. v. Chinese Consol. Benevolent Assn. of New England, Inc., 43 Mass.App.Ct. 145, 152 (1997) (no error in denying reconsideration where so-called newly discovered evidence was not previously unavailable and was product of afterthought stimulated by judge's decision).
6. As to the plaintiff's request for attorney's fees and double costs, we do not find that the defendant's arguments are devoid of any merit. See Love v. Pratt, 64 Mass.App.Ct. 454, 458–460 (2005). Therefore, we award only attorney's fees and costs for this appeal, as provided in the note. In accordance with Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the plaintiff should file, within fourteen days of the date of the rescript, his application and supporting documentation of the fees and costs requested; the defendant will have ten days thereafter to respond.
Judgment affirmed. Order denying motion for reconsideration affirmed.