Opinion
No. 10–P–1657.
2011-10-12
Henry L. GUARINOv.Richard B. KENNEDY & another.1
By the Court (GRASSO, KATZMANN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a six-day trial in January, 2010, featuring fifteen witnesses, a jury found Richard B. Kennedy liable for defamation (slander), malicious prosecution, and intentional infliction of emotional distress; and found his wife, Antoinette Kennedy, liable for the latter two torts. After consideration of the arguments of the Kennedys' newly-retained appellate attorney, many of which were raised for the first time on appeal, we affirm the judgment.
1. Closing argument. We discern no abuse of the judge's considerable discretion in the denial of the Kennedys' motion for a new trial, which was based in part on allegedly improper closing argument by Guarino's attorney. See Gath v. M/A–COM, Inc., 440 Mass. 482, 492 (2003). First, the Kennedys' trial attorney failed to respond timely to the claimed improprieties, thereby waiving any objection. See Torre v. Harris–Seybold Co., 9 Mass.App.Ct. 660, 666 n. 3 (1980). Even if the misconduct issue were properly preserved, we agree with the judge that the statements of counsel were supported by the evidence or the reasonable inferences that could have been drawn therefrom. Finally, any possible harm was cured by the judge's standard instructions, which the jury are presumed to have followed. See Gath v. M/A–COM, Inc., 440 Mass. at 493.
The judge instructed the jury (1) “to be completely fair and impartial, and ... not be swayed by prejudice or sympathy, by personal likes or dislikes toward either side”; and (2) that the closing arguments of the attorneys were “not a substitute for the evidence.” She also repeatedly emphasized their duty to decide the facts based solely on a fair consideration of the evidence, and not suspicion or conjecture. The Kennedys' trial attorney failed to ask for additional or different instructions. See Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971).
2. Exclusion of evidence. The Kennedys contend that the judge abused her discretion in excluding the testimony of David and Jamie Redgrave, former abutters of Guarino. In an effort to focus the jury on the dispute at hand, the judge was entitled to limit the amount of collateral evidence that both sides sought to introduce. In any event, even assuming that the judge erred in her reasoning or ruling here, we conclude that in light of the evidence and references to Guarino's common plan or scheme of harassment, the Kennedys have made no plausible showing that the jury might have reached a different result if the Redgraves had actually testified. Cf. Cohen v. Liberty Mut. Ins. Co., 41 Mass.App.Ct. 748, 752–753 (1996).
3. Slander. For the first time on appeal, the Kennedys argue that the judge erred by instructing the jury that an accusation of homosexuality may constitute actionable defamation (on which he could prevail without proof of economic harm). By failing to object to the instructions, any claim of error was waived. See Hobbs v. TLT Constr. Corp., 78 Mass.App.Ct. 178, 179 n. 8 (2010).
Guarino's slander per se claims were originally predicated upon accusations of criminal behavior, including pedophilia, and threats to kidnap the Kennedy children and to place their pictures on the Internet. After listening to Rose Guarino's testimony about Richard Kennedy calling Henry Guarino a “faggot,” who “likes to suck cock,” the judge added the third basis to the claim without objection by the Kennedys' trial attorney.
Applying the proper standard of review, see O'Brien v. Pearson, 449 Mass. 377, 383 (2007), we conclude that the evidence justified the slander verdict against Richard Kennedy. Based upon this evidence, we cannot say that the damage award of $23,250 for the humiliating statements made to Guarino's family members was beyond permissible bounds.
Henry Guarino's brother, Luigi Guarino (Luigi), testified that Richard Kennedy regularly informed him that Henry Guarino was a pedophile and that Kennedy planned to have him arrested for threatening to abduct his children. According to Luigi, on one occasion, Richard Kennedy also spoke to Luigi's daughter about the “pedophile thing.” The fact that Luigi did not believe the accusations about his brother was not a valid defense to the slander claim.
On the element of damages, Henry Guarino testified that his experiences with the Kennedys affected him “[v]ery badly”; and that it was a “terrible thing to be accused of being a pedophile.” Anne Marie Spellman, his former girlfriend, testified about the negative impact upon their relationship caused by the different allegations and charges made by the Kennedys. These allegations, the jury could have inferred, included false accusations that Guarino was a pedophile who threatened to harm the Kennedys' children. The jury could also have considered Richard Kennedy's attempts to hold Guarino up to contempt, scorn, and ridicule in his sister's eyes, see note 3, supra.
4. Malicious prosecution. There was no error in submitting to the jury Guarino's malicious prosecution claims against Richard Kennedy, which were based upon one prior civil action and four criminal proceedings. For the first time on appeal, the Kennedys contend that the judge erred by failing to remove certain of these cases from the jury's consideration as possible malicious prosecutions because they did not terminate in favor of Guarino. Such a challenge comes far too late in the proceedings. At the trial, the Kennedys' attorney voiced no objection to the jury's consideration of all of these prior proceedings, expressly approving the form of the verdict slip that permitted the jury to consider both the prior civil and criminal proceedings in assessing Richard Kennedy's liability. By failing to object to the special questions or to the jury instructions accompanying them, the Kennedys waived any claim of error. See Goldbaum v. Weiss, 50 Mass.App.Ct. 554, 559 (2000).
We conclude that there was sufficient evidence from which the jury could have found that Richard Kennedy instituted one or more of the criminal proceedings. Admittedly, the mere act of reporting information bearing upon the guilt or innocence of a suspect to the police, leaving the decision whether to initiate criminal proceedings entirely to them, would not have supported an action for malicious prosecution. See Correllas v. Viveiros, 410 Mass. 314, 318–319 (1991). Here, however, there was evidence warranting the finding that Richard Kennedy passed along false information designed to influence the authorities' actions. See Burnham v. Collateral Loan Co., 179 Mass. 268, 273–274 (1901); Carroll v. Gillespie, 14 Mass.App.Ct. 12, 25–26 (1982). There was also evidence that Richard Kennedy encouraged the prosecutions, writing letters to the police and to the district attorney's office and meeting privately with the chief detective (a close friend) and the chief of police in order to discuss Guarino.
Where the Kennedys' trial attorney expressly approved the submission of all five prior proceedings as possible malicious prosecutions, and the arguments regarding the unfavorable terminations were not raised below, we cannot say that the judge abused her discretion by denying the motion for a new trial.
5. Damages. To the extent that the Kennedys maintain that the damage awards were duplicative, their trial attorney failed to raise the issue below. In any event, we are not persuaded that cumulative damages were awarded. Where, as here, claims were based upon different acts giving rise to different injuries, the overlap in the types of noneconomic damages recoverable did not render the awards cumulative. See Calimlim v. Foreign Car Center, Inc., 392 Mass. 228, 235–236 (1984).
Judgment on jury verdict affirmed.
Order denying motion for new trial affirmed.