Opinion
14-P-1810
03-09-2016
LUCY WONG v. JAMES KWOK L. CHAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, James Kwok L. Chan, appeals from an amended judgment granting the plaintiff, Lucy Wong, $25,000 in equitable contribution for her payment of their jointly held debts. He raises several issues on appeal. We affirm.
To the extent that we do not address any claims of error by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
1. Evidence of the note assignments. The defendant complains that the plaintiff changed strategies shortly before trial and ambushed him with bank documents and testimonial evidence that showed the source of her payments of the jointly held loans in exchange for the note assignments. The defendant contends the judge erred in admitting evidence that had not been previously disclosed to him in violation of the parties' discovery obligations. We perceive no error.
A trial judge has extensive discretion "with respect to both the process of discovery and the admission of evidence." Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000). We afford "great deference" in this area to the rulings of the trial judge. Ibid. Moreover, we will "not interfere with the judge's exercise of discretion in the absence of a showing of prejudicial error resulting from an abuse of discretion." Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987).
Contrary to the defendant's protests, "absent here was the sort of unfair surprise which the discovery rules seek to prevent." Beaupre, supra at 485-486 (citation omitted). "[S]ubversive of [the] claim of unfair surprise or prejudice [is] the fact[] that the defendant[]," id. at 486, sought neither to compel the plaintiff's compliance with his discovery request or to obtain a continuance of the trial. Furthermore, the very nature of the plaintiff's claim for equitable contribution put the defendant on notice that she intended to establish (by way of testimonial or documentary evidence or both) that she had repaid the loans in exchange for the assignment of the notes. Accordingly, we discern no error.
The plaintiff's witnesses testified to the amount of the loans associated with the notes, the approximate date and amount of repayment, and the circumstances under which the notes were assigned to the plaintiff.
2. The judge's factual findings. The defendant challenges the judge's finding that the "the transactions [i.e., the payments and assignments of the notes] occurred precisely as [the plaintiff's brother] testified." To prevail on this claim, the defendant bears the heavy burden of establishing that the judge's factual findings are not supported by "any reasonable view of the evidence, including all rational inferences of which it was susceptible." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997) (citations omitted). We fail to see the merit of the defendant's contention.
The judge found the plaintiff's factual claims to be "entirely credible." The brother explained that the plaintiff left him in charge of her financial affairs and he used her funds to pay off the loans in exchange for the assignment to her of the loan notes. The existence in the record of contradictory testimony is of no consequence, as we leave credibility determinations to the trier of fact. In this regard, the trial judge is in the best position to make credibility determinations. Id. at 509-510. We have no "definite and firm conviction that a mistake has been committed," Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010), quoting from Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992), and we affirm.
3. Judicial estoppel. The defendant next asserts the judge incorrectly applied the doctrine of judicial estoppel. We disagree. Judicial estoppel is an equitable principle for which there is no simple formulaic test. Nevertheless, two fundamental principles have emerged: (1) "the position being asserted in the litigation must be 'directly inconsistent,' meaning 'mutually exclusive' of, the position asserted in a prior proceeding," Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640-641 (2005), quoting from Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004), and (2) "the party must have succeeded in convincing the court to accept its prior position." Otis, supra. "Application of the equitable principle of judicial estoppel to a particular case is a matter of discretion." Id. at 640. Therefore, we review for an abuse of such discretion. Ibid.
The defendant took the position on the plaintiff's amended complaint for equitable contribution that she had "paid nothing" for the assignment to her of the loan notes and, consequently, that she was not entitled to contribution. This differs from the assertion he made in the earlier proceedings on summary judgment. There he asserted, and the judge agreed (granting partial summary judgment in his favor), that the plaintiff could not prevail on her claim for payment of the promissory notes because she had paid for the notes in cash and extinguished them -- leaving her with the possibility of recovery only on the theory of equitable contribution. We agree with the judge that the defendant's assertion, on the one hand, that the plaintiff had paid off the notes and extinguished them is "directly inconsistent" with his assertion, on the other hand, that she paid nothing in exchange for the loan assignments. See Otis, supra at 640-641. As the trial judge stated, "This type of contradictory and mutually exclusive claim is a straightforward example of when judicial estoppel applies." In addition, here the judge also properly confined his application of the doctrine of judicial estoppel. While the defendant was precluded from denying that the plaintiff paid no consideration for the loan assignments, the plaintiff still bore the burden of proving the amount of consideration paid. As such, we discern no abuse of discretion.
4. Miscalculation of amount of interest due on notes. Finally, the defendant claims error in the calculation of the interest due on the notes. The defendant did not raise this issue until after the trial had concluded; his defense at trial was that the plaintiff did not make any payment on the notes. This issue was waived.
The defendant also suggests that the judge miscalculated the statutory interest. This argument lacks merit.
Amended judgment dated April 23, 2014, affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 9, 2016.