Opinion
10-P-1589
10-04-2011
JOHN E. MCCLUSKEY, trustee, v. DONALD H. JACKSON, JR.
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
The defendant appeals from a judgment upon an assessment of damages following his default for failure to answer the plaintiff's complaint. We affirm.
Background. In 2001, Barbara G. Dunne retained the defendant, then a practicing attorney in the Commonwealth, to manage her financial assets. He accordingly obtained a durable power of attorney, became a successor trustee of the trust in which Dunne's assets were placed, and was named as an executor of her will. Dunne passed away in 2002. On September 26, 2006, the Supreme Judicial Court disbarred the defendant from the practice of law for his actions in relation to Dunne's trust and estate. Those actions included commingling and intentional conversion of the trust and estate funds, intentional misrepresentation in his probate accounts, and failure to safeguard and segregate, make timely distribution of, and maintain adequate records and accounts for all the funds.
On April 29, 2009, the plaintiff, as trustee of the Dunne Revocable Living Trust, filed a complaint in the present action alleging, inter alia, conversion, fraudulent conveyance, and (as alleged in the amended complaint) violations of G. L. c. 93A. A default was entered against the defendant on October 14, 2009. Following an assessment of damages hearing, a judge of the Superior Court ordered a summary judgment awarding the plaintiff $153,235 on the conversion count, double damages on the c. 93A count, and attorney's fees.
In a separate judgment dated March 18, 2010, which is not challenged by the defendant in this appeal, the judge also ordered the setting aside of fraudulent conveyances and the appointment of a receiver.
Discussion. On appeal, the defendant raises several evidentiary issues relating to the amount of damages awarded. We generally review evidentiary rulings only for palpable error. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006). Several of the claims raised have been waived due to the defendant's failure to object below. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). We address each in turn.
The defendant first argues that the judge erred in disallowing the testimony of Dorothy Brown, Dunne's sister and one of the beneficiaries of the trust. The argument is waived. The defendant did not subpoena Brown until several days after the first day of the hearing, and did not raise the issue until the start of the second day of the hearing. Having raised the issue, he did not press for enforcement of the subpoena, despite the judge's statement that he could do so. The defendant then failed to object, seek a continuance, or make an offer of proof at any point. Also, he did not raise the issue again until more than one month after the completion of the hearing when he sought, by letter, another hearing date for Brown's testimony.
The defendant next challenges the judge's exclusion of various checks and bank statements that he claims show his payments to or on behalf of Brown in her capacity as a trust beneficiary. According to the defendant, these payments should reduce the amount owed by him due to his conversion of the trust assets to his own use. Again, the claim fails. The defendant never produced the checks at issue during discovery, and no evidence was proffered either that the checks were issued by the defendant to Brown in her beneficiary status, or that they were ever cashed.
The defendant also argues that the judge erred in excluding from evidence 'the [t]rust instrument.' Although the judge allowed the defendant to submit a copy in evidence at the hearing, the defendant failed to do so. When the judge declared that the evidentiary portion of the hearing was completed, the defendant failed to object, and did not seek a continuance. After the hearing, the defendant attempted to submit various materials, which were properly rejected by the judge.
The only other submissions allowed by the judge were legal memoranda to be filed within seven days of the hearing.
The defendant lastly argues that the judge erred in declining to admit in evidence those bills for his legal services that were not yet paid by the trust, and which would presumably offset the amount he owed to the trust as a result of his conversion of trust assets. Again, the issue is waived. While the plaintiff twice objected to the defendant's attempted introduction of the bills in evidence, the defendant twice failed to object to their exclusion. At any rate, the exclusion was proper. There was nothing to indicate that the bills were for services to the trust, as opposed to services to Dunne personally or to her estate. Furthermore, the defendant sought payment of bills for his legal services to the same trust whose assets he converted to his own. See Kourouvacilis v. American Fedn. of State, County & Mun. Employees, 65 Mass. App. Ct. 521, 532 (2006).
The Superior Court judgment was well supported by the record and is affirmed. The appellant's arguments were unsupported and replete with misstatements. Therefore, we hold that the appeal is frivolous and award attorney's fees and double costs. The appellee may submit a petition for appellate attorney's fees and costs, together with supporting materials, within ten days of the date of the rescript. The appellant shall have ten days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),