Opinion
15-P-802
02-22-2017
Steven SURABIAN v. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Steven Surabian, pro se, claiming that he had not signed a certain mortgage on real property in Brewster that he coowned, sought damages based on an allegedly invalid foreclosure of his interest therein. In a Superior Court trial, the jury answered a special question by determining that he had signed the mortgage. Surabian appeals from the resulting judgment dismissing count III of his complaint, the order denying his motion for a new trial, and the pretrial dismissal of counts II and IV of the complaint. We affirm.
Count I was dismissed before trial and is not at issue here.
Background . Surabian and one Tigran Gichunts, as joint tenants with rights of survivorship, were the named signatories to a 2005 mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS), on real property known as 27 Walker Road, Brewster. The mortgage secured a $336,000 note signed by Gichunts. MERS assigned the mortgage to the defendant, Deutsche Bank Trust Company Americas, trustee for RALI 2005QA11 (Deutsche Bank).
Surabian filed a complaint and motion for preliminary injunction on March 31, 2010. The complaint consisted of four counts: count I against Gichunts for breach of an agreement; count II against Deutsche Bank seeking an order preventing foreclosure on the property; count III against Deutsche Bank for money damages; and count IV against Deutsche Bank, challenging Deutsche Bank's right to foreclose and asking that Surabian be awarded a clear title.
A summons and a short order of notice issued for a hearing on the motion for preliminary injunction to take place on April 27, 2010. Deutsche Bank did not appear, and a preliminary injunction entered, requiring Deutsche Bank to cease all foreclosure proceedings on the property.
In May, 2010, a default entered against Deutsche Bank due to its failure to respond to Surabian's complaint. Surabian moved for an assessment of damages and entry of a default judgment against Deutsche Bank. No action was taken on the motion but Deutsche Bank was ordered to show cause why it should not be held in contempt of the preliminary injunction. Deutsche Bank filed a response stating that it had never received notice of that injunction.
In July, 2010, Gichunts filed a suggestion of bankruptcy, leading this case to be stayed. Gichunts received a discharge of debt, and his bankruptcy case was closed in March, 2011. The discharge was docketed in the Superior Court on April 25, 2011.
Thereafter, this litigation resumed, and Deutsche Bank successfully moved to remove the default and then answered the complaint. In September, 2011, Deutsche Bank moved for judgment on the pleadings and to vacate the preliminary injunction. The motion was allowed, and a final judgment vacating the preliminary injunction and dismissing the case entered in October, 2011.
In July, 2011, a Superior Court judge allowed Surabian's and Gichunts's joint motion to dismiss count I, asserted only against Gichunts. Gichunts is not a party to this appeal. See note 2, supra .
Surabian appealed. While the appeal was pending, the record indicates that a foreclosure auction was held at the property on December 22, 2011. Deutsche Bank was apparently the high bidder at its own auction, purchasing the property for $192,000. Deutsche Bank later sold the property to a third party, who is not a party to this case.
In a memorandum and order issued pursuant to our rule 1:28, a different panel of this court reversed the judgment of dismissal and remanded the matter for further proceedings, but affirmed the order vacating the preliminary injunction. See Surabian v. Deutsche Bank Trust Co. Americas , 83 Mass. App. Ct. 1139 (2013) (Surabian I ).
On June 9, 2014, Deutsche Bank moved to continue the scheduled trial. A motion judge denied that motion, but stated:
"In his opposition to this motion, plaintiff states he is not seeking return of the property. His opposition is effectively a request for dismissal of Counts II and IV which this court accepts. Said counts are DISMISSED with prejudice (Rule 41[a][2] ). Count I was previously dismissed .... That leaves Count III, a cause of action for damages only, to be tried as scheduled 6/18/14."
Surabian's motion to reinstate counts II and IV was denied.
A jury trial was held on June 19 and 20, 2014. The jury returned a verdict for Deutsche Bank, answering "Yes" to the following question set forth on a special verdict form: "Did the Plaintiff, Steven Surabian, sign the mortgage at issue in this case?" On June 25, 2014, judgment on the verdict entered on count III, stating that Surabian took nothing against Deutsche Bank, and a judgment of dismissal entered on counts II and IV.
Surabian moved for a new trial, which the trial judge denied on July 21, 2014, stating that he had "conduct[ed] a survey of the whole case including this court's evidentiary rulings during the trial" and did "not find the jury verdict rendered in favor of the defendant was against the weight of the evidence, the product of bias, misapprehension or prejudice or ... inconsistent with substantial justice." Surabian filed a notice of appeal from the judgments and from the order denying his motion for new trial.
Surabian's motion to strike Deutsche Bank's brief is denied.
Discussion . Surabian's claims of error in six separate procedural rulings, all of which occurred before the judgment that led to the appeal in Surabian I , are foreclosed because he did not appeal from those rulings in his most recent notice of appeal. See Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999) ("The notice of appeal ... shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from"). See also Siles v. Travenol Labs., Inc ., 13 Mass. App. Ct. 354, 354 n.1 (1982). In any event, Surabian's brief does not show that any of those rulings constituted error or abuse of discretion or caused any unfair prejudice to his case. Moreover, Surabian's claims of error based on a purported violation of the preliminary injunction are foreclosed by the panel's ruling in Surabian I affirming the order vacating that injunction.
In his brief, Surabian claims that the various judges erred by: (i) failing to grant his motion for a default judgment and assessment of damages; (ii) not holding a show-cause hearing regarding possible contempt after the case was stayed due to the bankruptcy; (iii) allowing Deutsche Bank's motion to remove the default against it; (iv) proceeding without expressly vacating the stay that had entered due to the bankruptcy; (v) not returning Deutsche Bank's answer to it as late-filed; and (vi) denying his motion to strike the answer.
Next, there is no merit to Surabian's claim of error in the dismissal of counts II and IV of his complaint. In Deutsche Bank's motion that led to the ruling, it pointed out that the property had changed hands since the foreclosure, and the then-current titleholders and lienholders would have an interest in any adjudication related to the title—requiring the joinder of additional parties if the title were in issue. Surabian concedes that he objected to the joinder of additional parties because he "did not want his property any longer, but ... wanted the value of his property with punitive damages." In any event, the relief he requested in count II—an order requiring Deutsche Bank to cease and desist from foreclosing—was no longer available, because the preliminary injunction had been vacated and the foreclosure had been completed. And the relief he requested in count IV—that the "Court award the plaintiff a clear title" and that Deutsche Bank be ordered to "discharge" the note and mortgage—plainly was not available without the addition to the case of other parties.
As a threshold matter, we need not consider his conclusory arguments, which are devoid of legal citation. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kellogg v. Board of Registration in Med ., 461 Mass. 1001, 1003 (2011).
Although Surabian sought discharge of the note, he was not a party to it and thus had no standing to seek such relief. See Surabian I , supra .
Moreover, Surabian told the trial judge that he was seeking money damages and specifically did not want Deutsche Bank to be able to avoid such damages by claiming that no valid foreclosure had occurred. He stated that testimony about whether a foreclosure occurred would be confusing to the jury. Rather, he said, the questions for the jury were, "Was the mortgage valid? And if not, then what were the damages?" Surabian thus abandoned any claim he may have had for restoration of his title as sought in count IV.
Surabian's argument related to the make-up of the jury is unavailing for the simple reason that he expressly agreed, at the end of empanelment, that he was content with the jury as constituted.
As for Surabian's challenges to various evidentiary and related midtrial procedural rulings, we have reviewed the trial transcript for any abuse of discretion or error of law by the trial judge and have found none. See N.E. Physical Therapy Plus, Inc . v. Liberty Mut. Ins. Co ., 466 Mass. 358, 363 (2013) ("We review a trial judge's evidentiary decisions under an abuse of discretion standard"). Nor does Surabian's brief identify any prejudice to him as a result of those rulings.
Surabian's claim related to the definition of the word "forgery" does not rise to the level of appropriate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, we have reviewed the cited passages of the transcript of pretrial discussions, as well as the jury instructions, and see no error. Nor has Surabian identified how he was prejudiced by the trial judge's understanding of the term, or his explanation of the case to prospective jurors.
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Finally, we discern no prejudice to Surabian from his Friday morning request to continue the trial to the following Monday because he felt ill. The trial judge was entirely accommodating to Surabian's need to take breaks, and the transcript demonstrates that he was fully able to participate in the trial and to cross-examine Deutsche Bank's witnesses. Surabian cannot now claim that he did not have a meaningful opportunity to testify because, although admittedly not feeling well, he voluntarily and expressly declined that opportunity, stating, "I think the Defendants have proved satisfactory to what I was looking for," and then resting. Moreover, he did not identify to the trial judge, nor has Surabian identified to us, any specific evidence that he would have offered had he testified, let alone anything that could have materially aided his case. See Commonwealth v. Miles , 420 Mass. 67, 85 (1995) ("The decision whether to grant a motion to continue lies within the sound discretion of the trial judge [, and a] denial of a continuance will not constitute error absent an abuse of that discretion").
Judgments affirmed .
Order denying motion for new trial affirmed .