Opinion
16-P-328
06-16-2017
KRULEWICH CASHER, PC & others v. Stefano PICCIOTTO & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendants Judith, Melita, and Athena Picciotto (Picciottos) appeal from a final judgment on a jury verdict, and from the trial judge's orders denying their motions for judgment notwithstanding the verdict and for a new trial. We affirm.
Background. The current appeal is yet another chapter in a dispute that we described almost a decade ago as having a "tortuous history." See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 144 (2008) (setting forth the background up to that point). The original litigation, which began in 1983, involved toxic tort and other claims brought against a manufacturer by the Picciottos, their family-owned business, and Juan Nunez (an employee of that business). In 1999, an insurer for the original defendant settled the claims against its insured through the payment into court of nine million dollars. Another round of litigation followed among various claimants to that fund, including the many sets of attorneys who had represented the Picciottos over the course of the underlying litigation.
The current round of litigation was brought against the Picciottos by Krulewich Casher, PC, the successor to the law firm that had brought the Picciottos' underlying case to settlement. In short, Krulewich Casher, P.C. was seeking the payment of additional legal fees that it claimed were owed to it pursuant to a fee retainer agreement. The Picciottos brought counterclaims against the law firm and the two named individual attorneys (collectively, Krulewich). These alleged breach of contract, legal malpractice and negligence, breach of fiduciary duty, fraud, deceit and misrepresentation, conversion, civil conspiracy, and violations of G. L. c. 93A. They also brought various claims against Nunez, and Athena Picciotto brought a claim against a second individual, Carole Bergeron, whom the Picciottos had hired during the course of the litigation. Bergeron filed a counterclaim, and all the claims were consolidated for trial.
Following a twenty-nine day trial in Superior Court, a jury issued a detailed special verdict in Krulewich's favor. The jury specifically found that the retainer agreement was the controlling document, and based on that agreement, they found that the Picciottos owed the law firm $738,104.59 in fair and reasonable legal fees. The jury found the firm not liable on the Picciottos' counterclaims.
The Picciottos had maintained that, as part of the settlement process in the prior litigation, the retainer agreement was superseded by an "allocation agreement" respecting the settlement proceeds. A related issue was the subject of a subsequent appeal involving some of the same parties. See Richardson v. Casher, 88 Mass. App. Ct. 1115 (2015). In that case, one of the Picciottos' former lawyers—who was not himself a party to the allocation agreement—claimed that he was owed money under that agreement as a third party beneficiary. Although he prevailed on that claim in Superior Court, we reversed on the ground that any duties that the defendants in that case had to the former lawyer under the allocation agreement were subject to a condition precedent that had not occurred.
The jury also ruled in Nunez's favor. Specifically, they found that Nunez was entitled to all of the settlement funds remaining in the custody of the Superior Court, and they found that he was not liable for any of the claims that the Picciottos brought against him (alleging breach of contract, conversion, and civil conspiracy). Similarly, the jury rejected Athena Picciotto's claim that Bergeron had assaulted her, and they found for Bergeron on her claim that Athena Picciotto had engaged in abuse of process, awarding Bergeron $25,000 in damages.
Discussion. We begin by addressing the state of the appellate record. The Picciottos have included almost none of the transcript from the twenty-nine day trial. Because of that, they are precluded from forging any arguments claiming errors in the jury's fact finding. See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999); Mass.R.A.P. 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998) (appellant's duty to furnish transcripts of recorded proceedings). See also Discover Realty Corp. v. David, 49 Mass. App. Ct. 535, 535 n.2 (2000) ("As the plaintiff has failed to provide this court with a transcript of the evidence presented at trial, we are unable to assess whether any of the findings were clearly erroneous, and we assume that the findings are adequately supported by the evidence"). To the extent that the Picciottos suggest that their failure to supply an adequate record is excused by infirmities in the recording or transcription process, such an argument fails, among other reasons, because the Picciottos made no attempt to settle any discrepancies in the trial court. See Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979).
The Picciottos appear to be arguing that various parties conspired to alter or delete recordings of the trial proceedings.
The Picciottos have not only failed to include necessary material in the record appendix, they have included a great deal of inappropriate material, such as affidavits and other material that were never offered in evidence at trial and that were never properly the subject of a motion for new trial. Based on this, Krulewich, Nunez, and Bergeron have filed multiple motions to strike improper material included in the record appendix, as well as arguments that are based on that material (or made without record citation at all). See Commonwealth v. Torres, 470 Mass. 1020, 1022 n.3 (2014). See also Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979) (requiring citations to the record). We allow those motions to the extent that they request that matter and arguments be stricken. As discussed further below, we deny those motions to the extent they seek the imposition of monetary sanctions.
Specifically, we allow the motions to strike included in the following docket entries: #30 and #46 (to the extent that they request certain portions of the record appendix be stricken), #31, #40, #41, #44, and #48. We deny Athena Picciotto's motions to supplement the record #41.1 and to file a supplemental appendix #51.
The errors of law claimed by the Picciottos require little discussion. We discern no abuse of discretion in the pretrial ruling excluding one of their expert witnesses. See Palandjian v. Foster, 446 Mass. 100, 104 (2006) ("The decision to exclude expert testimony rests in the broad discretion of the judge and will not be disturbed unless the exercise of that discretion constitutes an abuse of discretion or other error of law"). As reflected in the expert disclosure on which the pretrial ruling was based, the Picciottos sought to have the expert speak directly, and in a conclusory fashion, to ultimate issues of law (such as whether the allocation agreement modified or replaced the fee retainer agreement). Compare Simon v. Solomon, 385 Mass. 91, 105 (1982) (recognizing that proper expert witness testimony may "touch[ ] on" ultimate issues in dispute). As Krulewich highlights, the Picciottos had over a year to try to reformulate how the expert would be used but did not do so.
The Picciottos argue that the judge inconsistently allowed Krulewich's expert to testify to the very matter on which their own expert was excluded. This contention fails for the reason, if no other, that—without an adequate record—we have no means of assessing what the admitted testimony was or whether the Picciottos timely preserved an objection to it. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 n.2 (1998) ("An appellate court is free to disregard argument based on transcript not furnished to the court").
Similarly, there was no error in the trial judge's refusal to take judicial notice of facts that they allege were "found" in related cases. See Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011) ("Although we may take judicial notice of the docket entries and papers filed in separate cases, we may not take judicial notice of facts or evidence brought out in those separate actions").
Nor have the Picciottos demonstrated that it was error to leave it to the jury to determine whether the allocation agreement modified or replaced the fee retainer agreement. In fact, although the record does document that the Picciottos unsuccessfully pursued a pretrial motion in limine seeking a ruling that, as a matter of law, the fee retainer agreement no longer applied, we have no means of determining whether the Picciottos preserved the claim of error at trial.
As noted, the import and enforceability of the allocation agreement came up in a subsequent case. See note 3, supra. To the extent that the Picciottos seek to rely on rulings made by Superior Court judges in that case, we note that those rulings did not survive on appeal. See Richardson v. Casher, 88 Mass. App. Ct. at 1115. Moreover, as we observed in that case, the issue was not whether the terms of the allocation agreement were ambiguous, but whether the condition precedent on which the enforceability of the agreement depended had been satisfied.
For example, we cannot determine whether the Picciottos raised relevant objections to the special verdict questions.
Athena Picciotto has not demonstrated any error of law in the jury's consideration of Bergeron's abuse of process claim. An abuse of process claim does not require proof of malice, and the judge properly instructed the jury on the requisite elements. Whether or not Athena acted with malice is immaterial for these purposes.
That issue would have bearing on Bergeron's separate malicious prosecution claim, but the jury ruled against Bergeron on that claim. There is no merit to Athena Picciotto's suggestion that she somehow is protected against an abuse of process claim on the grounds that the judge allowed her to file an amended complaint.
To the extent that we have not expressly addressed any additional arguments made by the Picciottos, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Sanctions. All three plaintiffs request "costs of having to defend the appeal." These requests were made in passing, and none plainly requests attorney's fees. Some of the six pending motions to strike separately request monetary sanctions (of various types). To the extent that sanctions have been requested, the appropriateness of issuing them presents a close question. In this regard, we note that the Picciottos' flouting of the appellate rules is not excused by the fact that they are now representing themselves. See Solimene v. Davidian, 422 Mass. 1002, 1002 (1996) (self-represented litigants are "held to the same standards to which litigants with counsel are held"). Nevertheless, having considered all relevant factors, the panel has decided not to impose sanctions for the missteps that the Picciottos have made to date in the current appeal.
In addition to other factors, we have considered the equitable considerations raised by the size of the fees that Krulewich obtained (as compared to the damages recovered for their clients). Although Nunez and Bergeron stand on a somewhat different footing, the current appeal has little to do with them.
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Judgments affirmed.
Order denying motion for judgment notwithstanding the verdict affirmed.
Order denying motion for new trial affirmed.