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PHAM v. DO (2021)

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Appeals Court of Massachusetts.

Ich PHAM v. Long DO & another.1


Decided: October 04, 2021

By the Court (Massing, Kinder & Neyman, JJ.2)


The defendants, Long Do and Hilldo Inc. (Hilldo), appeal from a corrected judgment entered against them after a jury trial in the Superior Court. Their claims of error primarily concern the judge's handling of the recording of the verdict. We affirm.

Discussion. 1. Dismissal on statute of limitations grounds. The defendants’ assertion that a judge should have dismissed the plaintiff's complaint sua sponte as barred by the statute of limitations is untenable. Not only did the defendants fail to file a motion to dismiss on statute of limitations grounds, they also failed to plead the statute of limitations as an affirmative defense. See Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974). “The statute of limitations must be raised by a party to provide grounds for dismissal”; “[a] bare allegation ․ that the complaint fails to state a claim upon which relief can be granted,” without specific reference to the statute of limitations, is insufficient (citation omitted). Okoli v. Okoli, 81 Mass. App. Ct. 381, 386 n.6 (2012).3 Furthermore, the plaintiff alleged that he did not become aware of his removal as an officer of Hilldo until 2014. As the defendants both waived the defense and did not have a plausible claim for dismissal, no judge had any obligation to take the extraordinary step of raising the issue sua sponte.

2. Recording of the verdict. On the jury's first attempt to return the verdict, immediately after the clerk recorded the verdict but before the jury were discharged, the jury foreperson stated that she “must have misrecorded” the answer to the last question on the verdict slip and that “[t]he jury didn't agree with that.”4 The judge immediately asked the jurors to return to the jury room to “talk amongst yourselves, make sure there was an agreement of at least eleven.” Noting that the question to which the foreperson referred concerned the statute of limitations, the judge added, “There's two statutes of limitations[ ] [q]uestions, [six] and [nine], if that's what you were talking about. Make sure you've answered them the way the jury intended.” The jury returned within minutes and the verdict was affirmed and recorded for the second time. The only difference was that the jury changed the answers to both statute of limitations questions from “yes” to “no” (indicating that neither the plaintiff's claims nor Do's counterclaim was barred).

At no time before the jury were discharged did the defendants raise any objections to how the judge handled the issue. After the trial, prior to the entry of judgment, the defendants filed a motion for a mistrial or, in the alternative, for a new trial that was based largely on the jury's corrections to the special verdict answers and the judge's questions and instructions to the jury.5 The trial judge denied the motion in a thoughtful decision and order.

The defendants first contend that the judge improperly set aside the original verdict because it became final as soon as it was recorded. A judge's power to set aside a verdict is generally terminated when the verdict is affirmed by the jurors and recorded by the clerk. See Commonwealth v. Brown, 367 Mass. 24, 28 (1975). However, a well-established exception applies to allow juries to correct recording errors. See Latino v. Crane Rental Co., 417 Mass. 426, 430 (1994). The exception applies where jurors raise a recording mistake independently and promptly before there is an opportunity for outside influence or further deliberation between the jurors. See Brown, supra at 29; Lapham v. Eastern Mass. St. Ry., 343 Mass. 489, 492-493 (1962). In Brown, for example, the foreperson informed a court officer that the recorded verdict differed from the intended verdict -- after the jury had been discharged and left the courtroom, but before reaching the jury room. Brown, supra at 28. The Supreme Judicial Court concluded that the trial judge properly set aside the verdict and allowed the jury to correct their mistake in a second recorded verdict that accurately reflected their original intent. Id. at 27-29. Similarly, when “[f]aced with ambiguity on a matter of ultimate significance, the correct procedure is to decline to record the verdict (or, if the verdict has been recorded, to set it aside), call the jury's attention to their apparent misunderstanding of [the] instructions, and, after reinstruction, send the jury out for further deliberations.” Commonwealth v. Zekirias, 443 Mass. 27, 32 (2004).

The facts here present an even stronger case than in Brown for setting aside the original verdict. As in Brown, the foreperson raised the mistake independently before any opportunity for outside influence or further discussion among the jurors. Indeed, the foreperson called the judge's attention to the error immediately after the clerk recorded the verdict. As in Brown, the mistake concerned an inconsistency between the verdict the jury had actually agreed upon and the verdict recorded in the court room. The judge did not err in setting aside the original verdict and directing the jury to make sure that the verdict slip reflected their agreement.

The defendants further argue that the judge's comments to the jury regarding the two statute of limitations questions were impermissibly coercive. In questioning jurors about their verdicts and instructing them to return to the jury room, judges must take care that their words do not place undue pressure on the jury to return a particular verdict. See Commonwealth v. Quiles, 488 Mass. 298, 313 (2021). “[A] judge's questions or instructions must be neutral and not suggest that the jury should decide one way or the other.” Id. Judges should avoid any hints, even if subtle, as to their assumptions about the jury's intent, and merely instruct the jurors to clarify their actual intent. See Zekirias, 443 Mass. at 33-34.

The defendants contend that the judge asserted a subtle form of coercion by drawing the jury's attention to both statute of limitations questions even though the foreperson had referred to only one of them. We discern no hint of coercion. The judge's reference to the two questions was neutral and did not suggest a particular result. He did not, for example, “rephrase the verdicts in accordance with the foreperson's proffered correction,” Zekirias, 443 Mass. at 33, or indicate that he saw a problem with the original verdict or that the evidence clearly pointed to a particular result. See Commonwealth v. Hebert, 379 Mass. 752, 755 (1980) (judge's comments that “the evidence was clear and that he could see no problem with the case” improper). The judge's brief instructions to the jury were consistent with the procedures outlined in Zekirias and Quiles.

Corrected judgment entered July 16, 2020, affirmed.


3.   Moreover, merely pleading the affirmative defense of the statute of limitations is insufficient to raise the issue. As the defendants concede in their brief, no Massachusetts case has ever required trial judges to raise a statute of limitations defense sua sponte, and the one case they do cite in support of their contention explains that a sua sponte dismissal would have been erroneous unless the plaintiff was given notice and an opportunity to amend the complaint or to otherwise respond. See Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002).

4.   The judge also noted in his findings that during the affirmation process “[a]t least one juror was trying to get the foreperson's attention, or [the judge's], to raise a concern.”

5.   We assume without deciding that the defendants’ motion preserved their claims arising from the recording of the verdict, notwithstanding the lack of a contemporaneous objection.

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