307 TRAPELO LLC v. DILLON (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants appeal from a judgment entered on a jury verdict in favor of the plaintiffs, 307 Trapelo LLC (Trapelo), and its sole member, Joseph P. White, Jr.⁴ The jury found on special questions that William held no ownership interest in Trapelo because the parties had not formed a common-law partnership, that William knowingly committed an unfair or deceptive act by filing paperwork with the Secretary of the Commonwealth identifying himself as a member of Trapelo, and that he converted $179,500.16 in company funds.⁵ William raises various issues on appeal and claims he is entitled to a new trial. We discern no cause to disturb the judgment, and affirm, addressing each of William's claims in turn.

As a threshold matter, we consider whether the claims raised by William on appeal were properly preserved; issues raised on appeal that were not preserved by objection are waived. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). Three of William's claims on appeal were not preserved and accordingly are waived.⁶ The remaining claims before us are without merit.

William makes two claims related to the jury's fact-finding role. First, he claims that the jury erred in finding that the parties did not form a partnership in Trapelo, either by agreement or through their actions. Second, he argues that the evidence was insufficient to support the jury's finding that he converted company funds.⁷ As to the formation of a partnership, the evidence did not include any written partnership agreement. Joseph White testified that he and William did not agree to enter into a partnership for the 307 Trapelo Road property, that William did not pay any portion of the cost to purchase 307 Trapelo Road, and that William did not agree to share in any losses for 307 Trapelo Road. That evidence alone was sufficient to support the jury's conclusion that the parties did not form a partnership. On the question of conversion, there was evidence to support a conclusion that William withdrew $179,500.16 more from 307 Trapelo's operating account than he and Matthew were entitled to receive from the proceeds of the sale of 192 Pleasant Street that had been transferred into 307 Trapelo's account. Though William suggests that other evidence could support a contrary conclusion, it is axiomatic that it is the role of the jury, after weighing the evidence, to make determinations of fact. See Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013).⁸

Finally, William's claim that the trial judge erred in allowing rebuttal testimony and documentary evidence showing that he received $250,000 from the plaintiffs as proceeds from a separate transaction is without merit. During his trial testimony, William asserted that the plaintiffs owed him $250,000 from the proceeds of the sale of Waltham Landing. To rebut this new evidence, the plaintiffs moved to admit testimony by Joseph White and documentary evidence showing that the defendant received the payment he asserted was still owed. We discern no abuse of discretion or error of law in the trial judge's decision to allow the plaintiffs to present White's rebuttal testimony (but not the documentary evidence), as it responded to a new theory raised by William's testimony, and it is well established that judges have “substantial discretion whether to permit presentation of rebuttal evidence.” Teller v. Schepens, 25 Mass. App. Ct. 346, 350 (1988), quoting Drake v. Goodman, 386 Mass. 88, 92 (1982).

Judgment affirmed.

FOOTNOTES

4.   Though both defendants joined the notice of appeal, only William P. Dillon filed a brief. Because William is not a member of the bar, he may not represent Matthew's interests in this appeal. See LAS Collection Mgt. v. Pagan, 447 Mass. 847, 849-850 (2006). Accordingly, any claims on behalf of Matthew Dillon on appeal are waived, and we consider only those pertaining to William.

5.   The jury also found that Matthew failed to exercise an option to purchase a fifty percent interest in the company.

6.   William raised no objection at trial to the opening statement or closing argument made by the plaintiffs' trial counsel; accordingly, his claim based on those arguments is waived. Similarly, though William now asserts that the question of conversion should not have been submitted to the jury, he raised no such objection at trial. Finally, William did not move for a new trial in the trial court, and he may not raise that request here for the first time. We note that, though William is proceeding pro se on appeal, he was represented by counsel at trial.

7.   To the extent that William contends that certain evidence concerning conversion should not have been admitted, the claim is waived by his failure to object when the evidence was presented at trial.

8.   We likewise discern no error of law in the conclusion by the trial judge in his posttrial order dated April 30, 2019, that William is not entitled to offset against the conversion damages found by the jury in the amount of $73,313.37; as the judge explained, that amount may properly be understood as consideration for the option for his son Matthew to purchase a fifty percent interest in the company, an option that was not exercised.