Opinion
15-P-1113
08-17-2017
Suzanne D'AMOUR v. Richard A. GRAY & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, a judge of the Superior Court found the reach and apply defendant, Richard A. Gray, liable for civil conspiracy (count VI), and awarded the plaintiff, Suzanne D'Amour, monetary damages, including prejudgment interest and costs. , Gray appeals, arguing that there was insufficient evidence to prove that he was involved in a conspiracy with Richard G. Birchall and Charles Ransford to defraud D'Amour, the judge erred in allowing D'Amour to amend her complaint on the last day of trial, and Gray's motion for a new trial (or motion for judgment notwithstanding the findings) was erroneously denied. We affirm.
Counts I through V of D'Amour's six-count amended complaint were dismissed.
This matter stems from an underlying action brought by D'Amour to recover money she left in Richard G. Birchall's control as part of an "offshore asset protection plan" while she was on trial for murder and during her subsequent ten-year incarceration for perjury. Upon her release, D'Amour contacted Birchall seeking to reclaim her assets; he refused to return them, prompting D'Amour to file a civil suit against him in Superior Court. She prevailed, and a judgment entered against Birchall in the amount of $2,752,934, including interest and costs. After Birchall defaulted on payment, D'Amour initiated a supplementary process proceeding in the District Court; Birchall was held in contempt and jailed for approximately two and one-half years. It was during this incarceration that Birchall enlisted others, including Gray, to defy the court-issued injunction and hide from D'Amour funds Birchall held with Swiss Partners, a bank or banking agent in Switzerland (Swiss account). See Birchall, petitioner, 454 Mass. 837 (2009), for the facts of the companion supplementary process action and contempt proceedings against Birchall. In the present case, D'Amour filed suit against Birchall, Gray, and Ransford in a further attempt to recover her assets. Birchall eventually was dismissed, but a jury-waived trial proceeded against Gray and Ransford. Ransford was held not liable for the money Gray withdrew from the Swiss account; he is not a party to this appeal.
Sufficiency of evidence. Gray first argues that there was insufficient evidence to support a finding that he was liable for civil conspiracy. He also contends that, even if the evidence was sufficient, the claim was barred by the statute of limitations.
"To prove civil conspiracy, a plaintiff must show that two or more defendants acted in concert, and that ‘there was some peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had.’ " Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 837 (2015), quoting from DesLauries v. Shea, 300 Mass. 30, 33 (1938).
Here, there was more than enough evidence from which the judge could have found that Gray conspired with Birchall to hide from D'Amour the $1.5 million held in a Swiss account, see note 3, supra, and that Gray "knowingly and willingly fell in league with Birchall," who masterminded the deception. Gray does not challenge the judge's findings specifically and, as noted in his findings, the judge did not credit Gray's testimony; he found that Gray falsely testified at trial in explaining the origin of the $1.5 million in the Swiss account. Gray claimed that he sold a business for $150,000 and then invested that money with Birchall, which eventually grew (together with money deposited from other investors, including Ransford) into the $1.5 million held in the Swiss account. Gray provided no documentation to support the existence, or subsequent sale, of that business; Gray did not file suit against Birchall to recover his investment despite not receiving "a single dime"; he displayed at trial "some suspicious lapses of memory" regarding his dealings with Birchall and the "loss" of his $750,000 investment; and gave "dodgy answers" to questions posed during his testimony on behalf of Birchall in the District Court supplementary process action. In addition, Gray was a "conduit" for at least five separate withdrawals from the Swiss account totaling $41,865; Gray's personal bank statements show funds transferred by wire from the Swiss account into his account, and then disbursed for Birchall's benefit.
Excerpts of testimony from the District Court proceeding were admitted in evidence at this trial.
The judge found that the first two transfers, made prior to Birchall's incarceration for contempt, "are significant as clear evidence of Gray's intent to assist Birchall in hiding assets as early as January 2007."
Considered together, this evidence is sufficient to establish an "agreement" between Birchall and Gray to conceal the funds located in the Swiss account and remove them from D'Amour's reach. See Wodinsky, supra. See also Kurker v. Hill, 44 Mass. App. Ct. 184, 188-189 (1998) (coercion element of civil conspiracy not necessary, based on Restatement [Second] of Torts § 876 [1979], where "concerted action" of one individual imposes liability for tort of another).
In addition, D'Amour's conspiracy cause of action is not barred by the statute of limitations. A claim for civil conspiracy is "subject to the three-year limitations period for actions based on personal injuries." Pagliuca v. Boston, 35 Mass. App. Ct. 820, 823 (1994). See G. L. c. 260, § 2A. Although Gray argues that the limitations period began to run on June 18, 2007 (the date of the last withdrawal from his personal account of funds derived from the Swiss account), the judge found otherwise. "Where compliance with a statute of limitations is at issue, ‘factual disputes concerning when a plaintiff knew or should have known of [her] cause(s) of action are to be resolved by the [fact finder].’ " Clough v. Brown, 59 Mass. App. Ct. 405, 407 (2003), quoting from Patsos v. First Albany Corp., 433 Mass. 323, 329 (2001).
The judge concluded that Gray committed tortious overt acts in furtherance of the "grand scheme" as late as 2010 and 2011. Specifically, on September 20, 2010, Gray testified on Birchall's behalf in the District Court supplementary process action, providing "dodgy answers" to questions posed by D'Amour's counsel. In addition, in June, 2011, Gray filed a frivolous civil action against D'Amour and her attorney and later, in this matter, continued the charade by providing "audacious testimony" at the trial in 2014. These actions by Gray, occurring well after June 18, 2007 (the last date he claims D'Amour may have been harmed), continued to cause damage to D'Amour. We see no error in the judge's findings, and we conclude that D'Amour's initiation of this action, within a few days of Gray's continuously conspiring conduct, was well within the three-year statute of limitations period. See G. L. c. 260, § 2A.
On June 13, 2011, Gray filed a tort action in Superior Court against D'Amour and her attorney alleging false arrest, false imprisonment, and intentional infliction of emotional distress resulting from a capias issued against Gray in connection with his failure to appear as a witness in the District Court supplementary process proceeding. Ultimately, the case was dismissed pursuant to the anti-SLAPP statute, and attorney's fees were awarded.
Amended complaint. Gray next argues that it was error to allow, over objection, D'Amour to amend her complaint to conform to the evidence on the last day of trial by adding a claim for civil conspiracy (count VI). He contends that, because he relied strictly on pleadings stemming from the original complaint in preparing his defense, the late-added claim, which was the sole count on which the judgment was awarded, severely prejudiced him. We are not persuaded.
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues." Mass.R.Civ.P. 15(b), 365 Mass. 761 (1974).
After review of the record, we conclude that the judge acted well within his discretion in allowing D'Amour's motion to amend her complaint. D'Amour's original complaint alleges that Birchall and Gray, on various occasions, "act [ed] in concert" and "colluded" to conceal the roughly $1.5 million held in the Swiss account under the name "Brickmountain," with Birchall the sole beneficial owner; these facts were likewise included in the amended complaint. During day two of the trial, D'Amour sought to add the conspiracy count (count VI) for the purpose of clarifying the causes of action pleaded (rather than one general claim under count I alleging fraud, misrepresentation, and deceit), emphasizing to the judge that she added no additional facts and that "[t]he complaint is [otherwise] exactly the same." "[I]t is worthy of note that [Gray] did not move to continue the ongoing jury-waived trial after the complaint was amended." Reddish v. Bowen, 66 Mass. App. Ct. 621, 631 (2006). The evidence required to establish civil conspiracy was no different from what D'Amour alleged in her complaint as the basis for her count I claim of fraud, misrepresentation, and deceit. See Ritter v. Bergmann, 72 Mass. App. Ct. 296, 303 (2008), quoting from Reddish, supra at 629-630 (amendment was not prejudicial where it alleged no new facts but "merely recited facts already well rehearsed between the parties and asserted that those facts also amount to a violation of G. L. c. 93A by operation of G. L. c. 142A, § 17").
We are satisfied, based on this record, that the parties impliedly consented to try the conspiracy issue. Gray did not object to the admission of evidence establishing the concerted actions he took to assist Birchall in carrying out his scheme to hide the $1.5 million in the Swiss account. "Consequently, when issues not raised by the pleadings are tried by express or implied consent of the parties, [we treat them] in all respects as if they have been raised in the pleadings." Jensen v. Daniels, 57 Mass. App. Ct. 811, 816 (2003) (quotation omitted). Thus, the judge's decision on the last day of trial to allow D'Amour to amend her complaint in order to conform to the evidence was not unfairly prejudicial to Gray.
Motion for a new trial. Gray finally argues that the October 29, 2014, denial of his motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial, was erroneous. Because reference to this order was not included in the timely filed notice of appeal, in accordance with Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999), the order is not properly before us.
Rule 3(c) provides: "The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from."
A notice of appeal from a judgment, filed after resolution of a postjudgment motion, that does not mention the order denying the motion, does not bring that order before the appellate court. In that circumstance, the only appeal properly before us is the appeal from the judgment. See Rothkopf v. Williams, 55 Mass. App. Ct. 294, 295 n.2 (2002) ; Visnick v. Hawley, 69 Mass. App. Ct. 901, 902 (2007).
D'Amour's motion for attorney's fees is denied, as we do not see the appeal as frivolous.
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Judgment affirmed.