Opinion
13-P-707
02-19-2015
MARGUERITE N. COCCO v. LJM INSURANCE AGENCY, INC.
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
1. Background. The plaintiff, Marguerite N. Cocco, owned and operated an insurance agency. In 2002, Cocco verbally contracted with the defendant, LJM Insurance Agency, Inc. (LJM), to refer customers to it in exchange for fifty percent of all commissions received from Cocco's referrals. LJM, after years of fulfilling the agreement, reduced the percentage of commissions paid and then abruptly ceased paying commissions to Cocco.
Cocco appeals from a judgment entered after a jury-waived trial in her favor. On appeal, she argues that the trial judge erred by excluding any claims that preceded six years from the date the complaint was filed and by offsetting the judgment with a $2,000 prior payment by LJM.
The plaintiff filed a timely notice of appeal from the original judgment. After the appeal was entered in this court, we gave the plaintiff leave to file a motion pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct the judgment. The judge allowed the motion in part, correcting calculation errors and amending the judgment to reflect the correct figures. The order on the rule 60(a) motion was docketed on March 20, 2014, and the amended judgment was entered on April 11, 2014. A review of the trial court docket reveals that no new notice of appeal was filed from the amended judgment, nor from the partial denial of the rule 60(a) motion. No party raises any issue concerning the propriety of this appeal.
Cocco commenced an action against LJM on August 13, 2010, alleging breach of contract, unjust enrichment, conversion, and G. L. c. 93A violations. At a pretrial proceeding LJM moved to preclude any evidence of unpaid commissions owed prior to August 13, 2004, based on the six-year statute of limitations set out in G. L. c. 260, § 2. The motion was allowed. At the end of a jury-waived trial, a Superior Court judge found in favor of Cocco on her breach of contract claim and awarded her damages in the amount of commissions due from August, 2004, through 2009.The judge then offset the amount due by $2,000 on the ground that the defendant testified credibly that he had "paid $2,000 toward the sum," on August 26, 2008.
The judge's decision awards damages for the breach of contract count and declines, in a footnote, to find a c. 93A violation. No mention is made of the unjust enrichment and conversion counts. The parties raise no appellate issue in this regard.
On appeal, Cocco contends that the trial judge erred in precluding evidence of commissions earned prior to August 13, 2004, and by offsetting the damages award to her by crediting LJM's 2008 payment. There was no error.
2. Discussion. a. Commissions prior to August, 2004. Cocco asserts that the judge erred in finding that any evidence of commissions owed prior to August 13, 2004, was time barred. Specifically, she argues that under Our Lady of the Sea Corp. v. Borges, 40 Mass. App. Ct. 484, 490-492 (1996), LJM's 2008 payment reset the statute of limitations. It appears from the record that Cocco makes this argument for the first time on appeal. "An issue not raised or argued below may not be argued for the first time on appeal." Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting from Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). Therefore, we need not reach the merits of Cocco's assertion, as the argument is deemed waived. In any event, the argument is inapposite, as nothing in the record would support a fact finder's inference that LJM's 2008 payment was intended to renew his promise to Cocco. See DiCarlo v. Lattuca, 60 Mass. App. Ct. 344, 349 (2004), quoting from Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171 (1942) ("[C]ircumstances attending the part payment must be such as to support a fair and reasonable inference that the debtor intended to renew his promise of payment").
A transcript of the motion in limine hearing was not provided.
b. 2008 payment. Cocco also argues that the judge erred in crediting the defendant with the 2008 payment of $2,000 to offset the damages awarded to her. She contends that LJM's 2008 payment should have been applied to payments due prior to August, 2004. The plaintiff first raised this argument in her motion for relief from judgment pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974); that motion was denied in part. See note 1, supra. The judge made clear in his partial denial of the motion that the decision to apply the $2,000 payment to the total damages owed "was not a clerical error, but rather a decision by the court that the value of the payment should be deducted from the amount owed." The plaintiff did not appeal from the order on the rule 60(a) motion, and since the argument was not raised at trial, it too is deemed waived. In any event, Cocco's contention fails because, as the judge excluded all evidence of debts prior to 2004 on statute of limitations grounds, there was no evidence properly before the court of debts prior to August, 2004.
Accordingly, based substantially on the authorities set out in the defendant's brief, we affirm the amended judgment.
So ordered.
By the Court (Trainor,
The panelists are listed in order of seniority.
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Clerk Entered: February 19, 2015.