Opinion
10-P-2061
11-16-2011
GREGORY J. DUARTE v. BOSTON EDISON COMPANY. [FN1]
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
After the entry of judgment for Gregory J. Duarte in a Boston Municipal Court collection action by Boston Edison Company (NSTAR) against him, Duarte began this action against NSTAR in Superior Court, alleging malicious prosecution, abuse of process, and unfair or deceptive practices. The jury returned a verdict for NSTAR on the first two counts. The judge allowed NSTAR's motion for a directed verdict on the G. L. c. 93A count. She denied Duarte's subsequent motion for a new trial. Duarte appealed.
1. Motion in limine. 'The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial matters from being admitted in evidence . . . .' Boston v. Board of Educ., 392 Mass. 788, 796 (1984), quoting from Commonwealth v. Hood, 389 Mass. 581, 594 (1983). Duarte's four-sentence motion, styled a 'motion in limine,' referenced res judicata and law of the case doctrines. At the hearing on the motion during the final pretrial conference, Duarte sought a ruling that all materials related to the Boston Municipal Court action would be admissible at the Superior Court trial.
On appeal, he argues that the 'trial judge committed error when she neither allowed nor rejected Duarte's motion in limine.' In fact, the judge agreed that the Boston Municipal Court judgment for Duarte was res judicata with respect to NSTAR's claims against Duarte. To the extent Duarte sought a ruling that the judgment in NSTAR's collection case was res judicata with respect to Duarte's abuse of process, malicious prosecution, and c. 93A claims in the Superior Court case, Duarte's counsel waived this claim and, at any rate, the judge properly rejected it.
Relying on a footnote in the background section of a memorandum of a different judge on NSTAR's motion to dismiss Duarte's complaint, where that judge indicated that she could consider the record of the Boston Municipal Court, Duarte argues that this footnote constituted the law of the case and that every single item related to the earlier case is part of the record of the Superior Court case. 'However, under the doctrine of the law of the case, a second judge is not obliged to follow an earlier ruling by another judge. . . . The trial judge has the power to revise the earlier ruling in any way that appears just and proper.' Martin v. Roy, 54 Mass. App. Ct. 642, 644 (2002).
At any rate, the parties agreed at the hearing to the admission of such materials as the Boston Municipal Court complaint, docket sheets, trial transcript, and judgment. With respect to other materials, the judge ordered the parties, who did not submit a pretrial memorandum by the time of the final pretrial conference and did not meet to discuss the proposed exhibits, to meet regarding the exhibits. She also ruled 'that to the extent the record in the [Boston Municipal] Court shows NSTAR's state of mind it's likely admissible.' Finally, not only does the record show that 621 pages of exhibits were admitted in evidence at trial, but Duarte does not identify a single item that he sought to introduce in evidence that was excluded by the trial judge and does not point to a single related objection by him. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001).
2. Peremptory challenges. Duarte appears to take issue with the dismissal of two out of six African-American jurors. After NSTAR challenged the two jurors, the judge sua sponte inquired about the reasons for the challenge. Following NSTAR's explanation that the two challenged jurors worked for the same employer as Duarte, the judge dismissed the jurors. First, Duarte did not object to the judge's action below and, therefore, did not preserve this claim for appellate review. See ibid. Second, his argument on the subject does not rise to the level of reasoned appellate argument. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).
3. Malicious prosecution and abuse of process counts. Duarte asserts that NSTAR should have been found liable for malicious prosecution and abuse of process. Where there was a lack of evidence; where the judge, only '[o]ut of an excess of caution,' denied NSTAR's motion for a directed verdict on these counts; and where the jury were instructed and received a special jury verdict form without any objections from Duarte, his disagreement with the jury verdict is without legal merit.
4. Chapter 93A count. Duarte alleged in his complaint that NSTAR engaged in unfair or deceptive business practices by initiating legal proceedings to collect money from him and by pressing its claim through trial. After the close of the evidence, the judge held a hearing on the c. 93A count. In ruling on NSTAR's motion for a directed verdict on that count, she stated, in part:
'I'm allowing the motion for a directed verdict on the 93A because it seems to me, as a matter of law, that from the evidence I've heard, NSTAR had only one purpose in filing that lawsuit at the [Boston Municipal Court], and that was to recover what it thought was its debt. . . . I heard evidence, which is uncontradicted and which I accept, that NSTAR had records, reviewed their records, reasonably thought there was a debt
. . . .'
Duarte's two-sentence assertion that the judge erred when she stated, in response to the comments of Duarte's counsel during the hearing on the c. 93A count, that if NSTAR misbehaved during the course of the litigation of its collection action, Duarte could have sought fees as a sanction in that court, does not rise to the level of reasoned appellate argument and is, in any case, without merit. Cameron v. Carelli, 39 Mass. App. Ct. at 85-86.
The judgment and the order denying Duarte's motion for a new trial are affirmed.
We deny NSTAR's request for appellate attorney's fees and costs.
So ordered.
By the Court (Kafker, Trainor & Meade, JJ.),