Opinion
No. 11–P–1681.
2012-05-18
Barbara WEIHRAUCH v. Richard LARIVIERE.
By the Court (VUONO, GRAINGER & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Barbara Weihrauch (Weihrauch or plaintiff), brought this action in the Superior Court seeking damages for intentional infliction of emotional distress after the defendant, Richard Lariviere, hired a “hit-man” to burn down her home and kill her.
Following trial, a jury returned a verdict awarding Weihrauch $2.5 million in damages. Lariviere raises several arguments on appeal, none of which has merit. We accordingly affirm the judgment.
The lawsuit was also brought by the plaintiff's husband, but his claims were dismissed on Lariviere's motion for summary judgment.
Background. The jury could have found that Lariviere was upset about his pending divorce and made arrangements to murder his soon to be ex-wife, who was friendly with the plaintiff. Additionally, Weihrauch's husband, Robert Weihrauch, is an attorney and had assisted Lariviere's wife in obtaining an abuse prevention order against Lariviere. Lariviere's resentment towards the Weihrauchs was such that when he hired John Vidovich to murder his wife, he also hired him to set the Weihrauch home on fire. Lariviere said it would be a “bonus” if the Weihrauchs died in the fire. However, unbeknownst to Lariviere, Vidovich disclosed the plot to the police and instead of aiding Lariviere, he cooperated in the investigation and recorded a conversation in which Lariviere made incriminating statements. Eventually, Lariviere was arrested and his plot was foiled.
Lariviere later pleaded guilty to attempted murder, attempted arson, solicitation to murder, solicitation to arson of a dwelling, and other related charges. At the change of plea hearing, a transcript of Lariviere's recorded conversation with Vidovich was read to the judge while Weihrauch was in the courtroom. About two months later, Weihrauch attended Lariviere's sentencing hearing for the purpose of giving a victim impact statement. See G.L. c. 258B, § 3( p,) inserted by St.1995, c. 24, § 5 (victim has the right “to be heard through an oral and written victim impact statement at sentencing or the disposition of the case against the defendant about the effects of the crime on the victim and as to a recommended sentence”). An audiotape of the recorded conversation was played at the hearing.
Discussion. Lariviere argues that the judge erred by admitting in evidence certain newspaper articles about his plan to murder his wife and burn Weihrauch's home. This argument is readily disposed of because, as counsel for Lariviere acknowledged during oral argument, the articles in question were never introduced and the jury did not see them.
Lariviere also contends that the judge erred by permitting Weihrauch to introduce the audiotape containing Lariviere's incriminating statements. Passing over several legitimate arguments justifying the admission of the audiotape, we reject the claim because it is waived for failure to object. Lariviere's counsel specifically stated that there was “no objection” when Weihrauch moved to have the audiotape admitted. See Camerlin v. Marshall, 411 Mass. 394, 398 (1991) (“[B]y failing to object the plaintiff has waived his right to appellate review of the issue”).
Even if the issue had been preserved, we discern no error of law or abuse of discretion especially in view of the fact that the audiotape was admitted for a limited purpose. The judge instructed the jury that the audiotape was “admissible as to the plaintiff's state of mind, nothing else. [It is] not proof of anything. For example, [it is] not proof that the defendant is a bad person.”
As to Lariviere's remaining arguments, including his belated claim that Weihrauch caused her own emotional distress by reading news articles about the investigation and attending Lariviere's criminal proceedings, they have not been overlooked. These claims are either waived for failure to raise them at trial, see Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000), or do not merit discussion.
Judgment affirmed.