Wahlstrom v. JPA IV Management Co., Inc. , 95 Mass. App. Ct. 445 ( 2019 )

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17-P-1524 Appeals Court
KIRA WAHLSTROM vs. JPA IV MANAGEMENT COMPANY, INC., trustee,1 &
another.2
No. 17-P-1524.
Suffolk. November 9, 2018. - June 10, 2019.
Present: Rubin, Maldonado, & Lemire, JJ.
Practice, Civil, New trial, Conduct of counsel, Disqualification
of judge.
Civil action commenced in the Superior Court Department on
March 12, 2010.
The case was tried before Paul D. Wilson, J., and a motion
for a new trial, filed on November 19, 2015, was heard by him.
Patricia A. DeJuneas (Robert J. Cordy also present) for the
plaintiff.
Mark A. Aronsson for the defendants.
RUBIN, J. Following a four-week jury trial, a verdict was
returned in favor of the plaintiff in this case, which arose
1 Of the John Philopoulos Associates Trust.
2 JPA I Management Company, Inc.
2
when she was raped in a parking garage owned and operated by the
defendants. An employee of the defendants had been raped in the
same parking garage by the same man less than two weeks prior to
the rape that forms the basis of this lawsuit. The jury
concluded, among other things, that the defendants had failed to
take due care to protect the plaintiff, who was a customer of
the garage walking back to her car in the early morning hours of
May 1, 2009, after completing her work as a lighting technician
at a nearby nightclub in downtown Boston.
The defendants filed a postjudgment motion for a new trial.
In a detailed opinion, the trial judge concluded that there was
misconduct of plaintiff's counsel before the jury during trial
that was not remedied by the judge's curative instructions. The
details of what the judge found amounted to misconduct will be
spelled out infra in our discussion. The judge painstakingly
examined the events at trial. In assessing the motion, he
applied, as the defendants urged, the four-factor framework for
considering claims of prejudicial attorney misconduct that we
articulated in Fyffe v. Massachusetts Bay Transp. Auth., 86
Mass. App. Ct. 457, 472 (2014). Critically the fourth factor
articulated in Fyffe was "whether the error, in the
circumstances, possibly made a difference in the jury's
conclusion." Id., quoting Commonwealth v. Lewis, 465 Mass. 119,
130-131 (2013). Applying this test to each of four incidents of
3
what the judge concluded was attorney misconduct, and ultimately
"with great regret," he allowed the motion for a new trial.3,4
The standard applied by the judge in assessing the motion
for a new trial was the wrong standard. Consequently, the order
allowing the motion for a new trial was in error. Although a
remand for application of the proper standard by the judge who
was present during trial would ordinarily be the appropriate
disposition of a case such as this, there is in the trial court
a pending motion for disqualification of the trial judge in this
case. As we explain in part 2 of our opinion, we have concluded
the most prudent course, therefore, is to stay the appeal to
allow the judge to rule upon the plaintiff's pending motion for
his disqualification. Since we are in as good a position as any
judge who did not sit on the trial to assess the merits of the
new trial motion, this procedure will allow us to determine
whether a remand for reconsideration under the proper standard
is preferable to our simply reaching the merits ourselves.
First, though, we turn to the appropriate standard for a trial
judge's evaluation in a civil case of a posttrial motion for a
3 The judge also observed that the defendants had pointed to
many instances of alleged misconduct other than the four upon
which he rested his ruling.
4 The judge denied the defendants' pending motion for
remittitur as moot in light of his ruling on the new trial
motion.
4
new trial, something about which some confusion has arisen in
the trial courts, as exemplified by the instant case.
1. New trial standard. The standard a judge should apply
in determining whether to allow a motion for a new trial in a
civil case under Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974),
even one based on alleged attorney misconduct, is relatively
high. To begin with, if the motion is based upon claims of
error that were, or could have been, brought prior to verdict,
the judge need not even hear the motion. See Lonergan v.
American Ry. Express Co., 250 Mass. 30, 38 (1924). If, in the
judge's discretion, he or she does reach the merits, the
standard is the one we articulated in Evans v. Multicon Constr.
Corp., 6 Mass. App. Ct. 291, 295 (1978): "the judge should not
take it upon [herself or] himself to nullify a jury's verdict by
granting a new trial unless it appears on a survey of the whole
case that otherwise a miscarriage of justice would result."
The reasons this standard is used should be clear. Trial
has already been held, and a judgment has entered. Under our
adversary system, the losing party has been free during trial to
make before the trial judge whatever objections the party
thought were appropriate. The judge has already had a chance to
rule on these objections. Where he or she has sustained
objections, and, where appropriate, has had an opportunity to
attempt to cure errors that have taken place, the objecting
5
party has also had an opportunity to object to the adequacy of
those curative measures, or even to seek a mistrial. The losing
party thus has had a full bite of the trial court apple. And,
under our system, that party is now entitled to a full bite of
the appellate court apple.
In filing a motion for a new trial in the trial court on
the basis of trial error, then, the losing party seeks a second
bite at the trial court apple. And, in order to ensure justice
is done, he or she may, at the judge's discretion, be given it.
But it is in this light that the standard for allowance of a
motion for a new trial can be best understood. It is by no
means an impossibly high burden that is placed on the losing
party, and motions for new trial are with regularity
appropriately allowed by our trial court judges. But the new
trial motion is not a mechanism for addressing individual errors
at trial. It is an opportunity to allow the judge to take "a
survey of the whole case" to ensure that "a miscarriage of
justice" has not occurred. Evans, 6 Mass. App. Ct. at 295.
By contrast, Fyffe did not articulate a standard to be
utilized by trial judges in evaluating motions for a new trial.
Rather, it explicated an appellate standard of review, the
prejudicial error standard. Fyffe involved two consolidated
appeals, one from the denial of a motion for a new trial and one
from the underlying judgment. Fyffe, 86 Mass. App. Ct. at 459.
6
As we explained, although our review of the denial of the motion
for a new trial is limited to determining whether there was an
abuse of discretion, a very difficult standard for a complaining
party to meet, a less deferential standard is applicable when a
party on direct appeal seeks reversal and a new trial. See id.
at 470-471. In that circumstance, in a civil case we apply to
preserved claims of error the well-known "prejudicial error"
standard of review. Id. at 472. Under that standard, if there
has been an error, we will reverse and, where appropriate, order
a new trial unless we can "say with substantial confidence that
the error would not have made a material difference." DeJesus
v. Yogel, 404 Mass. 44, 49 (1989). Put another way, in the face
of error, an appellant can obtain a new trial unless the error
is "harmless." Comeau v. Currier, 35 Mass. App. Ct. 109, 112
(1993).5 And it is this standard that the defendants here asked
the judge to apply, arguing in reliance on Fyffe that, "When
considering . . . a motion [for a new trial based on attorney
misconduct], the courts apply the prejudicial error standard,
which requires that the error 'injuriously affected the
5 In the case of preserved constitutional error, in a
criminal matter at least, reversal is even more likely, as we
must conclude that the error was not only harmless but "harmless
beyond a reasonable doubt." Commonwealth v. Vinnie, 428 Mass.
161, 163, cert. denied, 525 U.S. 1007 (1998).
7
substantial rights of the parties.' [G. L.] c. 231, §§ 119,
132; Fyffe, 86 Mass. App. Ct. at 474."
As Fyffe indicates, however, the Fyffe factors are simply a
way of determining whether a preserved claim of error arising
out of attorney misconduct is prejudicial under the appellate
prejudicial error standard of review. See Fyffe, 86 Mass. App.
Ct. at 471 ("this case is also before us on direct appeal from
the judgment. Therefore, the deferential standard applicable to
review of the new trial motion does not relieve us of the duty
to examine the record to determine whether instructions that
were given or not given by the judge when a matter was properly
brought to her attention amounted to an error of law, and to
assess whether the error was prejudicial"). They have nothing
to do with the standard to be applied in trial courts on motions
for a new trial. Indeed, the prejudicial error standard of
appellate review in Fyffe did not even apply to our review of
the denial of the motion for a new trial, but only to our review
of the direct appeal from the judgment. The appropriate
standard to be used by a trial judge considering a motion for a
new trial is not an appellate standard of review at all.
Of course, in one sense, the judge is permitted to engage
in a broader examination of the proceedings than we may even on
direct appeal. That is because, although unpreserved claims of
error that do not touch on jurisdiction are waived for purposes
8
of appeal in almost all circumstances in a civil case, Palmer v.
Murphy, 42 Mass. App. Ct. 334, 338-339 (1997), in the interest
of justice, a judge evaluating a motion for a new trial is
permitted to consider even unpreserved claims of error like some
of those raised in the motion here. See Lonergan, 250 Mass. at
38 ("While a judge may in his discretion permit such a question
to be presented on a motion for a new trial, he cannot be
required to consider it. It is discretionary with him whether
to consider it or not, having regard to all the requirements of
justice"). See also Cassamasse v. J.G. Lamotte & Son, Inc., 391
Mass. 315, 320 (1984) (same). But the question for the trial
judge is not whether there has been prejudicial error. Indeed,
it is not even whether the more stringent appellate standard of
review we utilize in criminal cases in which unpreserved claims
of error are raised on appeal has been met -- whether there has
been a "substantial risk of a miscarriage of justice." See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).6 The question is
6 We find a substantial risk of a miscarriage of justice
unless we are persuaded that an error did not "materially
influence[]" a guilty verdict. Alphas, 430 Mass. at 13, quoting
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). "In making
that determination, we consider the strength of the
Commonwealth's case against the defendant . . . , the nature of
the error, whether the error is 'sufficiently significant in the
context of the trial to make plausible an inference that the
[jury's] result might have been otherwise but for the error,'
and whether it can be inferred 'from the record that counsel's
failure to object was not simply a reasonable tactical
9
whether an actual "miscarriage of justice would result" if the
verdict were allowed to stand. Evans, 6 Mass. App. Ct. at 295.
And, as our discussion implies, the purpose of an order
granting a new trial motion is not to punish attorney
misconduct. If, because of attorney misconduct, "it appears on
a survey of the whole case that . . . a miscarriage of justice
would result" if the verdict were allowed to stand, such
misconduct may, of course, support an order allowing a motion
for a new trial. Id. But the new trial motion inquiry focuses
on the harmful impact of the errors. It is not the
egregiousness of, or the disrespect to the court shown by,
attorney misconduct that the new trial motion addresses. There
are other remedies for such misconduct available even in cases
where it has not influenced the jury's consideration of the case
to the extent that a miscarriage of justice has in fact
occurred.
Although the judge here did express a conclusion that a new
trial was warranted using the appropriate verbal formulation
found in Evans, 6 Mass. App. Ct. at 295,7 it is clear from the
judge's extended and precise discussion, described in more
decision.'" Id., quoting Commonwealth v. Miranda, 22 Mass. App.
Ct. 10, 21 (1986).
7 The judge did not cite Evans, but quoted an early
articulation of the same standard in Davis v. Boston Elev. Ry.
Co., 235 Mass. 482, 496 (1920).
10
detail infra, that his conclusion was based only on the
application of the "prejudicial error" standard as articulated
in Fyffe and argued by the defendants. This was in error.
2. Disposition of appeal. The plaintiff argues that, for
two independent reasons, we should not remand the case for
application of the appropriate standard.8 First, she argues that
the errors claimed by the defendants could not as a matter of
law support allowance of the motion under the proper standard.
Second, she argues that there would be no benefit to a remand.
There is a pending motion in the trial court to disqualify the
judge in this case, and she urges us to rule that he must be
disqualified. She posits that if the judge who was present at
trial must be disqualified, on a remand the motion would have to
be heard by a judge who did not sit on the case. She argues
that we are in as good a position as any such judge to assess
the merits of the motion under the proper standard, and that
rather than remanding we should do so and, she argues, conclude
that it should have been denied. We turn to those two arguments
in turn.
8 The defendants do not argue on appeal that, as a matter of
law, the attorney misconduct in this case created an actual
miscarriage of justice, but only that, if we find that the trial
judge employed the incorrect standard, we should remand for
reconsideration.
11
a. The plaintiff argues first that the four claimed errors
relied upon by the judge, even combined with several other
claimed errors on which the judge did not rely, could not
support a claim under the appropriate standard that the verdict
reflects a miscarriage of justice.
The judge, employing all four Fyffe factors, first
concluded that a reference in the opening statement by
plaintiff's counsel to a discussion he had with the rapist, the
contents of which the judge had already ruled were inadmissible
as hearsay, violated the "spirit" but not the "letter" of his
ruling.9 The judge reasoned as follows: "First, there was a
defense objection" (see Fyffe, 86 Mass. App. Ct. at 472 ["(1)
whether the defendant seasonably objected" (quotation
omitted)]); "Second, the issue of whether [the] [d]efendants
should have taken additional security measures after the first
rape was at the very heart of the case" (see id. ["(2) whether
the error was limited to collateral issues or went to the heart
9 Plaintiff's counsel told the jury,
"[B]efore we came to trial, we had to consider whether [the
rapist] could have been stopped, whether added security
guards or increased lighting or cameras on each floor, or
any combination thereof, would have made a difference, so
we decided to ask the guy who did it. So we met with him,
as uncomfortable as that was, but that's all I'm allowed to
tell you about that right now. We wanted him to testify
before you, but he is incarcerated for fifteen years, and
it is safer if he stays where he is."
12
of the case"]); "Third, while I did instruct the jury that
[they] should ignore what [plaintiff's counsel] had said, I
should have gone further . . ." (see id. ["(3) what specific or
general instructions the judge gave to the jury which may have
mitigated the mistake"]); and "Fourth, . . . the improper
statement may well have made [a] difference in the jury's
conclusion" (see id. ["(4) whether the error, in the
circumstances, possibly made a difference in the jury's
conclusion"]).
There was an objection to this aspect of the opening by the
third defendant at trial, LAZ Parking Limited LLC (LAZ), which
the jury later found not liable, and the judge gave a curative
instruction, telling the jury to "put out of your mind anything
that [plaintiff's counsel] said about talking to [the rapist]
and anything that he may or may not have said." The plaintiff
points out that whether that instruction was or was not
effective, the subject matter of the hearsay itself –- the
rapist's statement that he "went back to the property because he
didn't see any security" -- was elicited by the defendants'
counsel in the cross-examination of the plaintiff's criminology
witness, was not the subject of a motion to strike, and was not
the basis for any claim of error in the motion for a new trial.
She argues the reference in plaintiff's counsel's opening was
13
thus in any event cumulative of evidence that was before the
jury.
Next, the judge relied on several instances in which the
plaintiff's lawyer, in seeking to introduce a security video
recording (video) which was not admitted, made reference to the
contents of that video, saying that it would impeach the
security guard's testimony that he did not see the rapist on the
night of the first rape. The judge, again utilizing all four
Fyffe factors, wrote, "This behavior raises a serious problem
under the four Fyffe factors. First, the [d]efendants did
object, and strenuously. Second, while the issue of whether the
[d]efendants could have prevented the first rape was not central
to this case as a matter of law, [plaintiff's counsel]
nonetheless attempted to make it so in the face of my pretrial
ruling to the contrary. Third, I failed to instruct the jury
that [they] should ignore what [plaintiff's counsel] had said
about the contents of the video contradicting the witness's
testimony. Finally, I fear that the jury's possible
misapprehension about the contents of the video may well have
made [a] difference in the jury's conclusion." See Fyffe, 86
Mass. App. Ct. at 472 (listing the four factors).
But, the plaintiff points out, because the transcript was
not finalized, the judge misunderstood the plaintiff's attorney
to have said that the video showed the guard "visualizing the
14
rape" of the hotel employee -– words the judge quoted and which,
the judge recognized, would not just be false, but inflammatory.
In fact, however, the attorney said that the video showed the
guard "visualizing the rapist" (emphasis added). We have
examined the video ourselves, which was marked for
identification before the trial judge, and the video does show a
silhouette of a guard in the same frame as the rapist for
several seconds, although it does not show which direction the
guard was looking at the time. The plaintiff also points out
that defense counsel did not request a curative instruction.
Thirdly, the judge further concluded, again using the Fyffe
factors, that references by plaintiff's counsel to cross claims
in which the defendants and LAZ accused each other of
negligence, and referred to the rape of the plaintiff merely as
an "alleged rape," supported a new trial. The judge explained,
"Application of the Fyffe factors suggests that this, too,
was a serious matter. First, . . . the [d]efendants
objected at trial when [p]laintiff's counsel violated the
pretrial order [precluding reference to the cross claims].
Second, I failed to issue adequate curative instructions.
Third, the rape was the central fact in the case, and
therefore any suggestion that [the] [d]efendants denied its
occurrence, or accused each other of negligence that caused
the rape, was not a collateral matter. Fourth, these
multiple statements by [p]laintiff's counsel . . . raise a
serious danger that the jury's verdict was influenced by
those statements."
See Fyffe, 86 Mass. App. Ct. at 472 (listing the four factors).
The plaintiff points out that there was a curative instruction
15
with respect to the references to the cross claims and that the
witness who was asked if she thought the rape was merely an
"alleged rape" flatly said she believed the plaintiff had been
raped.
And finally, with respect to an improper question by
plaintiff's counsel asking a witness if the sale price of the
defendants' hotel to which the garage was attached was 143
million dollars, the judge, who sustained an objection and
instructed the jury to disregard the question before it was
answered, acknowledged that, given that the verdict was lower
than that sought by the plaintiff, the error might not have made
a difference in the jury's conclusion. Nonetheless, in
concluding that the Fyffe analysis of this misconduct favored a
new trial, the judge reasoned that "in the final analysis, [the]
[p]laintiff's decision to put the sale price of the hotel before
the jury is unconscionable."
But the plaintiff argues correctly that, as we have
explained supra, egregiousness of misconduct absent an effect
upon the jury is not a basis for finding the type of miscarriage
of justice that warrants nullifying the jury's verdict.
Whatever the strength of the plaintiff's arguments,
however, the trial judge remains in the best position to assess
the claim that there has been a miscarriage of justice. We
therefore would ordinarily simply vacate the order allowing the
16
motion for a new trial and remand to allow the judge to rule
upon the motion applying the correct standard. As we have
described, in evaluating the motion, the judge must examine the
entire course of the proceedings, and the trial judge is in the
best position to do so in the first instance.
b. The plaintiff, however, argues secondly that a remand
would be "futile" because of a pending motion to disqualify the
trial judge based on remarks he has made about the trial, the
attorneys who appeared before him, and his ruling on the new
trial motion. The plaintiff urges us to decide that there has
been at least an "appearance of partiality," and to disqualify
the judge. And, if the judge who sat on the trial is
disqualified, the plaintiff argues, we are in as good a position
as any judge to whom the case might be reassigned to assess the
defendants' motion.
Because the case has been in this court, the motion for
disqualification has not yet been ruled upon. Although we agree
that, if it were allowed, we would be in as good a position as
any other judge to whom the case might be assigned to assess the
claim made in the new trial motion, we decline the plaintiff's
invitation to decide the motion to disqualify in the first
instance. Motions for recusal are "generally left to the
discretion of the trial judge." Haddad v. Gonzalez, 410 Mass.
855, 862 (1991). Accord id. ("When faced with 'a question of
17
his capacity to rule fairly, the judge [must] consult first his
own emotions and conscience' [and] then [is] required to attempt
an objective appraisal of whether this was a proceeding in which
'his impartiality might reasonably be questioned'" [citations
omitted]).
Therefore, while expressing no view on the motion pending
before the trial judge, we stay this appeal in order to allow
the motion to disqualify to be litigated and decided forthwith.
If it is allowed, we will assess the motion for a new trial
under the appropriate standard. If it is denied, we will vacate
the order allowing the new trial motion and remand the case as
described supra.10 The parties shall submit a status report to
this court in sixty days.
So ordered.
10We note that the defendants did not argue in their
memorandum below that they were entitled to a new trial under
the appropriate standard.