RASHID JAHM v. MALL AT LIBERTY TREE, LLC, & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-760
RASHID JAHM
vs.
MALL AT LIBERTY TREE, LLC, & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the close of evidence at a jury trial on his personal
injury claim, the plaintiff, Rashid Jahm, told the judge that he
did not want to proceed with closing arguments or let the case
go to a verdict. Following a lengthy discussion, the judge
entered a judgment of dismissal stating that "the plaintiff
ha[d] elected to proceed no further with his case and to
voluntarily dismiss his claims with prejudice." The plaintiff
appeals, arguing that justice was not done when his complaint
was dismissed with prejudice. Because the judge did not abuse
his discretion in dismissing the complaint with prejudice, and
because the plaintiff has not established on appeal that he was
entitled to any other relief, we affirm.
Background. The plaintiff brought this personal injury
action alleging that he was injured when he slipped and fell at
a shopping mall owned and operated by the defendant Mall at
Liberty Tree, LLC (Liberty Tree Mall). Over the course of three
days in May 2018, the plaintiff represented himself at a jury
trial in Superior Court. After the plaintiff rested, the judge
denied the defendant's motion for a directed verdict.1
During the charge conference, the judge informed the
plaintiff that because the jury had not heard evidence to show
that the plaintiff's fall on the defendant's property had caused
concussion or brain trauma injuries, he would instruct the jury
that they could not award damages on that basis, and the
plaintiff could not argue that theory in closing. After
discussion of a certain photograph that the plaintiff said he
"just forgot" to introduce in evidence, the plaintiff stated,
"I . . . will end my case right here, . . . instead of going
forward." The plaintiff told the judge that if he were not
permitted to argue in closing that the defendant's negligence
caused his neurological impairment, he would be "hold[ing] back
the truth." The judge explained that the plaintiff could argue
based on the evidence that he fell and hit his head on the
1 The judge later commented that he had intended also to deny any
directed verdict motion by the defendant at the close of
evidence.
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defendant's property and experienced pain afterwards, but was
not permitted to argue for damages related to any brain trauma.
The judge urged the plaintiff not to end his case, explaining
that if the plaintiff proceeded to a verdict that was
unfavorable, "you can appeal any ruling that I've made that you
think that I've gotten wrong." The judge told the plaintiff
that if he continued to a jury verdict, his appellate rights
would be fully preserved, but warned that if he chose to end the
trial "there's a substantial likelihood that . . . your
appellate rights may be waived because of the manner in which
you're ending this case."
Asked for his position on the matter, the defendant's
counsel argued that if the plaintiff was seeking "to voluntarily
dismiss the case, I would . . . request it has to be with
prejudice." The judge stated, "this is essentially a request by
[the plaintiff] at this stage to dismiss the case. And I would
only dismiss the case with prejudice. We're about to go to
closing arguments." The plaintiff replied that he understood
the judge's explanation that the claim would "go away forever,"
but stated that the word "voluntary" used by defendant's counsel
is "the wrong word to use."
The judge then engaged in a lengthy discussion with the
plaintiff, during which the judge mentioned two possible grounds
for appeal that the plaintiff might raise: the exclusion of a
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certain neurological report, and the judge's ruling that the
plaintiff could not argue that he sustained any neurological
impairment caused by his fall at the defendant's mall. The
judge repeatedly told the plaintiff that the case would be
dismissed with prejudice and explained that he "can never bring
this claim again against Liberty Tree Mall." The plaintiff
insisted repeatedly that he wanted to end his case. The judge
commented that the case was in a "very unusual procedural
posture" because the plaintiff "ha[d] vigorously pursued this
claim for a number of years, right up to the point where we are
about to go to closing arguments with our [thirteen] jurors who
are seated downstairs." The judge concluded that the
plaintiff's refusal to continue with trial at that stage was "a
variety of a dismissal for want of prosecution." After warning
the plaintiff that he would discharge the jury and enter a final
judgment dismissing the case with prejudice and giving the
plaintiff "one last opportunity" to reconsider and "proceed to
closing argument and verdict," which the defendant declined, the
judge entered a judgment on May 14, 2018, dismissing the case
with prejudice.
On June 11, 2018, the plaintiff filed a notice of appeal
from the judgment. The defendant moved to dismiss that appeal,
which another Superior Court judge (motion judge) allowed in a
judgment dated September 14, 2018. The plaintiff filed another
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notice of appeal (second notice of appeal) from that judgment.
The defendant moved to dismiss that appeal, which the trial
judge allowed, striking the second notice of appeal.
The plaintiff sought relief pursuant to G. L. c. 211, § 3,
from the Supreme Judicial Court, which vacated the order
striking the second notice of appeal. Jahm v. Mall at Liberty
Tree, LLC, 487 Mass. 1009, 1010 (2021) (Jahm I). The Supreme
Judicial Court noted that the plaintiff's appeal "will of course
be limited to the question whether the [motion] judge erred in
striking the first notice of appeal." Id. at 1010 n.1.
On appeal from the dismissal of his initial notice of
appeal, this court concluded that the motion judge had abused
her discretion, and vacated the Superior Court order dismissing
the appeal from the May 14, 2018 judgment. Jahm v. Mall at
Liberty Tree, LLC, 101 Mass. App. Ct. 901, 903 (2022) (Jahm II).
This court noted that it did not reach the question whether the
plaintiff's voluntary dismissal of his complaint during trial
resulted in a waiver of his appellate rights. Id. at 902 & n.1.
Now before us is the plaintiff's appeal from the May 14,
2018 judgment dismissing his complaint with prejudice.2
2 More than six months after entry of the judgment dismissing the
complaint, the plaintiff moved for a mistrial, which the trial
judge denied. The plaintiff did not file a notice of appeal
from that denial. In his brief, the plaintiff mentions the
denial of his motion for a mistrial, but has not provided us
with a copy of the motion and does not argue that the denial was
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Discussion. 1. Dismissal of appeal from judgment and
striking of second notice of appeal. As best we can discern,
the plaintiff argues that the motion judge erred in dismissing
the appeal from the judgment, and the trial judge erred in
striking the second notice of appeal. We agree. Indeed, the
Supreme Judicial Court and this court have already resolved
those issues in the plaintiff's favor. See Jahm I, 487 Mass. at
1010; Jahm II, 101 Mass. App. Ct. at 902-903.
2. Waiver of appellate rights. As mentioned above, in
Jahm II, this court did not reach the question whether the
plaintiff waived his appellate rights by voluntarily dismissing
his complaint during trial. Jahm II, 101 Mass. App. Ct. at 902
& n.1. The plaintiff does not argue that issue, but we
nonetheless address it because it is dispositive of his claims
on appeal.
Before dismissing the plaintiff's complaint, the judge
cautioned that there was "a substantial likelihood that . . .
your appellate rights may be waived because of the manner in
which you're ending this case." Nonetheless, the plaintiff
insisted he would not continue participating in the trial, would
not make a closing argument, and would not submit the case to
error. In these circumstances, we "need not pass upon" that
issue. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019).
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the jury. In those circumstances, the plaintiff has not
preserved for appellate review any issues about the judge's
evidentiary rulings or his ruling that the plaintiff could not
argue to the jury that the plaintiff had sustained neurological
injuries as a result of the defendant's negligence. See Mass.
R. Civ. P. 46, 365 Mass. 811 (1974). See also Ciccarelli v.
School Dep't of Lowell, 70 Mass. App. Ct. 787, 799 (2007) (issue
not preserved for appeal where party failed to "lodge a specific
objection on the record" at trial). Even if we did consider the
issues that the plaintiff raises on appeal from the judgment
dismissing his complaint, we would conclude that they are
meritless for the reasons stated below.
3. Appeal from judgment dismissing complaint. The
plaintiff argues that justice was not done when his complaint
was dismissed with prejudice. Although we hold that he waived
this and other issues he raises on appeal, even if he had not
waived them, he would not be entitled to relief on appeal.
Rule 41 of the Massachusetts Rules of Civil Procedure
states: "an action shall not be dismissed at the plaintiff's
instance save upon order of the court and upon such terms and
conditions as the court deems proper. . . . Unless otherwise
specified in the order, a dismissal under this paragraph is
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without prejudice."3 Mass. R. Civ. P. 41 (a) (2), 365 Mass. 803(1974). See Evans v. Lorillard Tobacco Co., 465 Mass. 411, 462-
463 & n.23 (2013). See also Morgan v. Evans, 39 Mass. App. Ct.
465, 470 (1995). Because the plaintiff moved for dismissal, we
review the judge's allowance of that motion for an abuse of
discretion. See Ankiewicz v. Kinder, 408 Mass. 792, 795 (1990),
citing Flynn v. Church of Scientology of Cal., Inc., 19 Mass.
App. Ct. 59, 65-66 (1984). An abuse of discretion is "a clear
error of judgment in weighing the factors relevant to the
decision, such that the decision falls outside the range of
reasonable alternatives" (citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
In contrast to the facts of Flynn, 19 Mass. App. Ct. at 63,
66, before ruling on the plaintiff's oral motion to dismiss, the
judge gave the plaintiff multiple opportunities to withdraw his
motion, warning him repeatedly that the consequence would be
dismissal with prejudice and would likely result in forfeiture
of his appellate rights. Cf. Quest Sys., Inc. v. Zepp, 28 Mass.
App. Ct. 489, 497 (1990) ("if a court proposes to fasten
3 In circumstances not present here, such as those involving the
dismissal of a counterclaim, cross claim, or third-party claim,
parties could enter a written stipulation of dismissal pursuant
to Mass. R. Civ. P. 41(a)(1), but that must occur "before the
introduction of evidence at the trial," Mass. R. Civ. P. 41(c),
365 Mass. 803 (1974). See Evans v. Lorillard Tobacco Co., 465
Mass. 411, 463 n.23 (2013).
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conditions on dismissal that the plaintiff finds too onerous,
the plaintiff need not accept them and is entitled to go forward
with his case"). Even so, the plaintiff chose dismissal with
prejudice.
In dismissing the complaint during trial, the judge did
what the plaintiff asked him to do. On appeal, the plaintiff
does not state what the judge should have done differently. He
does not argue that the judge should have denied his motion to
dismiss the case during trial, and instead declared a mistrial.
Nor does he state what remedy he seeks from this court. He does
not argue, for example, that we should order a new trial. Even
if the plaintiff had valid claims that he could have pursued to
a jury verdict, it would be "improper" for an appellate court
simply to enter judgment in the plaintiff's favor on those
claims. Jahm I, 487 Mass. at 1010. In these circumstances, we
cannot discern how the judge could be said to have abused his
discretion in granting the plaintiff's oral motion to dismiss
his complaint when faced with the plaintiff's insistence that he
would not go forward.
Moreover, by failing to comply with Rule 16(a), the
plaintiff has not provided us with a factual record or citation
to legal authority that would allow us to conclude that the
judge's ruling to dismiss the complaint was wrong. See Mass. R.
A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)
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(appellant's brief must contain "citations to the authorities
and parts of the record on which the appellant relies"). "The
fact that the plaintiff represents himself does not excuse his
noncompliance with procedural rules."4 Brossard v. West Roxbury
Div. of Dist. Court Dept., 417 Mass. 183, 184 (1994).
The plaintiff's brief states that "my ne[u]ro[logical]
report was not allowed for jury to consider in exhibit," and
that the trial judge "did not want [me] to say anything about my
concussion . . . in my closing statement." But the plaintiff
does not state that those rulings were legally incorrect or
explain how the judge erred.5 Thus those statements do not
suffice as appellate argument. See Zora v. State Ethics Comm'n,
415 Mass. 640, 642 n.3 (1993) ("bald assertions of error,
lacking legal argument and authority," do not rise to level of
appellate argument); Donovan v. Gardner, 50 Mass. App. Ct. 595,
602 (2000) (conclusory statements in brief do not rise to level
of appellate argument).
4 Contrary to the plaintiff's argument, the fact that he
represented himself at trial did not mean that the defendant's
counsel had an obligation to help him prove his case, or to call
an expert so that he might elicit helpful evidence on cross-
examination.
5 The addendum to the plaintiff's brief contains medical records,
some of which describe events and symptoms long predating the
plaintiff's fall at the defendant's property. The plaintiff
does not state which -- if any -- of those records was the
report that he sought to admit at trial, nor does he explain how
they would have shown that the defendant's negligence caused him
brain trauma.
10
The plaintiff does raise two claims with respect to the
wording of the judgment dismissing his complaint. First, in his
notice of appeal from the judgment dismissing his complaint, the
plaintiff took issue with the judgment's use of the word
"voluntarily." We conclude that the judge did not abuse his
discretion by stating in the judgment that the plaintiff
"voluntarily" refused to proceed further in his case. Our
review of the transcript supports the judge's conclusion that
the plaintiff chose of his own volition not to proceed further
with trial even after the judge warned multiple times that the
plaintiff could never again bring his claim against the
defendant and was likely forfeiting his appellate rights. And
the fact that the plaintiff's decision to move to dismiss may
have been influenced by the omission of certain evidence that
might have been favorable to him -- either because he forgot to
introduce it, or the judge ruled to exclude it -- did not render
his decision to move to dismiss involuntary. The trial judge
saw the plaintiff and had the opportunity to assess the
voluntariness of his choice after an extensive discussion; we
will not second guess the judge's assessment.
Second, the plaintiff argues that the wording of the
judgment of dismissal was a "legal fatal mistake," because
although the judge discussed Mass. R. Civ. P. 41 at the hearing,
the judgment "never said a word about" that rule. This argument
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is without merit. The judgment was a "separate document"
setting forth the relief granted or denied, as required by Mass.
R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977). Because
"no confusion can exist concerning its import," the judgment was
not required to include "clerical niceties" such as citations to
procedural rules. Lewis v. Emerson, 391 Mass. 517, 520 (1984).
We further conclude that the judge did not abuse his
discretion by entering the dismissal with prejudice, as
permitted by Mass. R. Civ. P. 41 (a) (2). That is particularly
so here, where except for closing arguments and jury
deliberations, the trial was over. See Evans, 465 Mass. at 462-
463 & n.23 (during jury deliberations, judge acted within her
discretion in allowing with prejudice plaintiff's oral motion to
dismiss claim).
By moving during trial to dismiss the complaint with
prejudice, the plaintiff waived the issues he seeks to raise on
appeal. If we were to consider them, we would discern no abuse
of discretion by the trial judge.
Judgment dated May 14, 2018,
affirmed.
By the Court (Neyman, Grant &
Hershfang, JJ.6),
Clerk
6 The panelists are listed in order of seniority.
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Entered: July 3, 2023.
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