Opinion
20-P-1091
07-26-2022
ROSANNE SLINEY v. ANN MARIE PREVITE, personal representative,[1] & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Rosanne Sliney, sued the defendant, her uncle Domenic A. Previte, Jr. (now deceased), in tort for sexually abusing her as a child. At trial, the defendant argued that the plaintiff had released all claims against him by signing settlement agreements in 1988 and 1991. The jury disagreed, finding on a special verdict form that both agreements were voidable because the defendant had materially breached the 1988 agreement and had obtained the plaintiff's agreement to the 1991 settlement by placing her in economic duress. They further found the defendant liable on the plaintiff's tort claims, and judgment entered in favor of the plaintiff. On appeal, the defendant argues that his motion for judgment notwithstanding the verdict and a new trial should have been allowed because the evidence of economic duress was insufficient as a matter of law to void the 1991 agreement. The defendant also argues that the trial judge abused his discretion by denying the defendant's motion to bifurcate the trial of the settlement agreement issues from the trial of the sexual abuse allegations and by admitting in evidence a photograph of the plaintiff from when she was five years old. We affirm.
The plaintiff also named ten unknown individuals as codefendants. Only the deceased participated in the litigation. During appellate proceedings, the personal representative of Previte's estate was substituted for the deceased. See Mass. R. A. P. 30 (a), as appearing in 481 Mass. 1661 (2019). For simplicity, we refer to the deceased as the defendant.
The case went to trial after the Supreme Judicial Court reversed an order dismissing the case on statute of limitations grounds. See Sliney v. Previte, 473 Mass. 283 (2015).
1. Economic duress.
We do not reach the merits of the defendant's argument about the sufficiency of the evidence of economic duress to negate the 1991 agreement because he failed to properly raise the issue at trial. "To challenge the sufficiency of the evidence underlying a jury verdict on appeal, a party must have moved for a directed verdict on those grounds at trial." Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986). Furthermore, the directed verdict motion must "state the specific grounds therefor." Matley v. Minkoff, 68 Mass.App.Ct. 48, 52 (2007), quoting Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974). "The requirement that a litigant state specific grounds in support of a motion for directed verdict is an important one. It allows the judge knowingly to rule on the question before him, and it allows the opposing party an opportunity to rectify any deficiencies in its case -- or, more precisely, an opportunity to seek leave from the court to do so." Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 34-35 (1991).
The defendant failed to satisfy rule 50 (a)'s specificity requirement as to the issue of economic duress. Although he filed motions for a directed verdict both at the close of the plaintiff's case and at the close of all the evidence, his motions focused on other issues concerning the enforceability of the 1991 agreement; the sufficiency of the evidence of economic duress was not one of them. His written motions instead argued that the evidence of the plaintiff's alleged mental incapacity at the time of formation was insufficient and that the statute of limitations barred her attempt to invalidate the agreement. His counsel focused exclusively on the same two issues during argument on the motion after the close of the plaintiff's case. In hearing that motion, the judge first considered and rejected the defendant's argument on the issue of mental capacity. He then asked whether there were "any other [issues]," to which the defendant's counsel responded, "There is another issue, actually. Statute of limitations issue." After hearing from both parties on that issue, the judge again rejected the defendant's arguments and denied the motion. He later denied the renewed motion for a directed verdict at the close of all the evidence without further argument because the defendant merely raised the "same two issues" as in his original motion.
Even though the defendant never specifically mentioned the issue of economic duress in arguing either of his motions for a directed verdict, he contends that he "properly preserved all issues concerning the enforcement of both the 1988 and the 1991 contracts" by a statement of counsel during argument on the motion at the close of the plaintiff's case. The judge asked, "What's the issue? The issue . . . that you're seeking . . . directed verdict is the competency issue?" Counsel responded, "To enforce this contract and to dismiss the plaintiff's claim." This response, however, was anything but specific in the context of this trial. Given that the defendant's liability turned almost exclusively on the enforceability of the settlement agreements, the statement is tantamount to "recit[ing] only that the evidence presented by [the plaintiff] 'does not warrant a finding on her behalf as a matter of law.'" Michnik-Zilberman v. Gordon's Liquor, Inc., 14 Mass.App.Ct. 533, 535 (1982). Such general statements do not satisfy rule 50 (a). See id.
The defendant's written motion for a directed verdict contained a similarly general assertion in a header -- namely, "There is insufficient evidence to invalidate the 1991 contract." The single paragraph following the header, however, discussed only the issue of mental incapacity.
Moreover, when the defendant moved for a directed verdict on mental incapacity and statute of limitations grounds, he was aware that the judge's proposed jury instructions contained a list of other issues related to the enforceability of the settlement agreements, including economic duress. Despite the judge repeatedly hinting at these "other issues" during argument on the first motion, the defendant never specifically raised them. To challenge the sufficiency of the evidence for these other issues on appeal, rule 50 (a) required the defendant to specifically assert each issue in a written or oral motion before the jury rendered their verdict. Cf. Kravetz v. Merchants Distribs., Inc., 387 Mass. 457, 460-461 (1982) (directed verdict motion that raised one ground for why defendant did not breach contract did not satisfy rule 50 (a)'s specificity requirement as to other grounds for absence of breach). Because he did not do so, the defendant's challenge to the sufficiency of the evidence of economic duress is waived.
Nor did the defendant object to including the economic duress issue in the jury instructions or special verdict form. When the judge asked the parties whether he should include economic duress questions on the special verdict form, the defendant's counsel said, "I really don't care." Where the defendant moves for a directed verdict on a specific issue and the motion is denied, the defendant need not object to the jury instructions on the issue to preserve appellate rights. See Freeman v. Planning Bd. of W. Boylston, 419 Mass. 584, 565 n.17 (1995); Brighetti v. Consolidated Rail Corp., 20 Mass.App.Ct. 192, 196 n.4 (1985). But here, where counsel did not raise the economic duress issue in the motion for a directed verdict, his acquiescence to the issue going to the jury -- which he candidly admitted was a calculated, strategic decision -- is further grounds for concluding that he waived the issue.
To the extent that the defendant argues on appeal that the jury's verdict was inconsistent, that issue is also waived because he did not "request the judge to instruct the jury to reconsider their verdict before they [were] discharged and when there [was] time to correct any inconsistency." Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 466 (2003). The doctrine of waiver applies with even greater force to the defendant's argument, raised for the first time on appeal, that the 1991 agreement was enforceable because the plaintiff had ratified it through the passage of time. The defendant did not plead ratification in his answer, request a relevant jury instruction, specifically assert the issue in a directed verdict motion, or raise it in a posttrial motion. See McHoul, petitioner, 445 Mass. 143, 157 (2005); Sharon v. City of Newton, 437 Mass. 99, 102 (2002).
Even if the defendant had not waived the issue, the evidence viewed in the light most favorable to the plaintiff, see Parsons v. Ameri, 97 Mass.App.Ct. 96, 105 (2020), supported a finding of economic duress. Indeed, the circumstances of this case closely resemble the paradigmatic examples of economic duress in which one party causes another financial hardship by breaching an existing contract and, in the aftermath, renegotiates a substantially more favorable contract for himself. See Restatement (Second) of Contracts § 175 illus. 5 & 8, at 477-478 (1981); id. § 176 comment e, at 485-486. See also International Underwater Contrs., Inc. v. New England Tel. & Tel. Co., 8 Mass.App.Ct. 340, 344-347 (1979). The defendant knew the plaintiff was generally in "really bad financial shape" in 1991 and his breach of the 1988 agreement saddled her with substantial, ongoing, and necessary medical expenses. At the same time, she was largely unable to work due to poor mental health and routine hospitalizations linked to the sexual abuse she experienced at his hands. The jury could reasonably infer that the defendant's conduct prevented the plaintiff from meeting her immediate financial needs and that her only practicable choice was accepting a modest lump-sum payment from him even though he likely would have owed her far more under their original 1988 agreement. See id.
The defendant's argument that breaching an existing contract cannot be the basis for an economic duress defense is illogical because an actual breach is inherently more coercive than a mere threat to breach. It is also directly contradicted by case law requiring the coerced party to show "that he has been the victim of a wrongful or unlawful act or threat" (emphasis added). Cabot Corp. v. AVX Corp., 448 Mass. 629, 637 (2007). Cabot Corp., on which the defendant heavily relies, is also readily distinguishable because it, unlike the present case, involved "sophisticated and substantial commercial parties . . . represented by highly competent counsel in their negotiations of a contract that was to govern their commercial relationship over the long term, and to settle their differences over the validity of prior agreements, purchase orders, and letters of intent." I_d. at 638.
2. Bifurcation of trial issues.
Prior to trial, the defendant moved to try the settlement agreement issues separately from the sexual abuse allegations on the ground that the sexual abuse allegations would unfairly prejudice the jury's adjudication of the settlement agreement issues. After careful consideration, the judge denied the motion, reasoning that it would be impossible to isolate the two issues and that two trials would, therefore, expend additional judicial resources unnecessarily. This was a sensible conclusion given the many inextricable links between the settlement agreements and the sexual abuse, including whether the plaintiff's mental health conditions caused by the abuse rendered her incompetent to enter into the agreements and whether the defendant materially breached the 1988 agreement by refusing to pay for psychotherapy treatment that the plaintiff claimed she needed because of the abuse. We discern no abuse of discretion in denying the defendant's motion for bifurcation. See Adams v. Adams, 459 Mass. 361, 392 (2011) .
3. Photograph of the plaintiff.
The defendant also challenges the admission, over objection, of a photograph of the plaintiff when she was five years old, which was admitted together with a photograph of the defendant from the same era. The photo's probative value, albeit minimal, was not substantially outweighed by unfair prejudice to the defendant. Cf. Commonwealth v. Cheng Sun, 490 Mass. 196, 211 (2022) (photograph of victim properly admitted as "humanizing evidence"). Having reviewed the photo, the potential for inflaming the jury and generating undue sympathy for the plaintiff was, at best, negligible, especially considering the judge's instructions to the jury not to "read anything into [the photo] other than that's what the parties generally looked like when" the alleged abuse started. We discern no abuse of discretion. See Commonwealth v. Tassinari, 466 Mass. 340, 349 (2013).
Judgment affirmed.
Order denying motion for judgment notwithstanding verdict and new trial affirmed.
The panelists are listed in order of seniority.