62 Mass. App. Ct. 630 | Mass. App. Ct. | 2004
After a bench trial in the District Court, a judgment in the amount of $11,370 was entered in favor of the plaintiff. That general finding reflected $2,000 in compensatory
The trial judge’s brief memorandum and order does not constitute findings of fact under Mass.R.Civ.P. 52(c), as appearing in 423 Mass. 1408 (1996), from which the defendant may appeal, as the trial judge acknowledged in his memorandum and order. See Stigum v. Skloff, 433 Mass. 1011 (2001). From the evidence, the judge could have found as follows. In January, 1988, the plaintiff went to Diamond Jewelers (store) in Worcester, seeking to trade her fifty-two point marquise-shaped diamond ring toward a better diamond. There she spoke with the defendant, whose father and brother owned and operated the store. He showed her a larger diamond that he appraised as “F colour [grade] and a clarity grade of VVS1.” The defendant could appraise diamonds but was not qualified to certify the grade of the diamond, a speciality reserved to certain laboratories, a circumstance of which he failed to inform the plaintiff. His business card, which he gave to the plaintiff, stated: “Graduate Gemologists in Residence Gemological Institute of America.” It also stated that the store did appraisals. The plaintiff traded her fifty-two point marquise-shaped diamond ring plus $2,625 for the diamond that the defendant showed her.
Nearly ten years later, the plaintiff sought to trade in this diamond with a different jeweler, who informed her that it was not an F color grade, but a G color grade with a lower value.
1. Waiver of appeal. The sole issue of law argued by the defendant on this appeal is one of the sufficiency of the evidence
“In District Court proceedings, to obtain a ruling that the evidence is insufficient as a matter of law to permit a general finding in the opposing party’s favor, the requesting party shall file a written request for such ruling.”
Unlike a trial de nova, an appeal to the Appellate Division or any appellate court is restricted to issues properly raised in the trial court and preserved for appellate review. The burden for doing so is not onerous. Rule 64A sets forth not only the method, but also the specific language for a request for a ruling of law on the sufficiency of the evidence. All that is required is for the party to submit to the trial judge at the close of all evidence a written request on the following form: “The evidence does not warrant a finding for the [opposing party] and therefore a finding for [the requestor] is required as a matter of law.” Mass.R.Civ.P. 64A(b)(2). By his own admission, the defendant in the instant case failed to follow this simple procedure.
Our inquiry, however, does not end there. At least for a defendant, requests for rulings of law are not the only way to obtain appellate review of the sufficiency of the evidence. It has been suggested that a motion for involuntary dismissal pursuant to Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), may also be employed to raise and preserve the issue. Berlin & Connors, Civil Procedure in the Massachusetts District Court § 12.8, at 366 n.68 (3d ed. 2003).
Here, the defendant argues that he has properly preserved the issue by filing a motion for directed verdict pursuant to Mass.R. Civ.P. 50, 365 Mass. 814 (1974), at the close of the plaintiff’s case and at the completion of all the evidence. A directed verdict motion is an anomaly in a nonjury trial. However, we discern no reason why such a motion, when made by a defendant at a bench trial, may not be treated as a motion for involuntary
2. Liability of the defendant. Of the two remaining issues on appeal, only one deals with liability.
The misrepresentation, coupled with the defendant holding
The mere fact that the defendant was acting as an agent for his employer, the store, when he made the representations about the grade and color of the diamond ultimately purchased by the plaintiff does not insulate him from liability for the damages caused by his fraudulent misrepresentations. It is well established that an agent is liable in tort when he or she makes a negligent or fraudulent misrepresentation actionable within ordinary tort principles. See Jefts v. York, 10 Cush. 392, 395 (1852); Mendelsohn v. Holton, 253 Mass. 362, 367 (1925); Henry W. Savage, Inc. v. Friedberg, 322 Mass. 321, 324 (1948).
3. Treble damages and attorney’s fees. The defendant challenges that portion of the judgment that requires him to pay $6,000 in triple damages and $5,370 in attorney’s fees pursuant to G. L. c. 231, § 85J, and G. L. c. 93A.
The decision of the Appellate Division dismissing the defendant’s appeal is vacated. The judgment of the District Court, entered June 12, 2001, is to stand.
So ordered.
The defendant refers to the G. L. c. 93A claim as having been brought under § 11 and does not challenge its applicability. It appears that the plaintiffs allegations assert a claim under G. L. c. 93 A, § 9, but the point was not developed at trial or on appeal to the Appellate Division.
The test for a motion for directed verdict is “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which reasonable inference could be drawn in favor of the plaintiff.’ ” Brown v. Gerstein, 17 Mass. App. Ct. 558, 560 (1984), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). “Under Rule 41(b)(2), however, ‘a trial judge is not limited to that standard of proof required for a directed verdict. . . , [but] rather,... is free to weigh the evdience and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision.’ ” Perlin & Connor, Civil Procedure in the Massachusetts District Court § 9.36, at 289, quoting from Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689 (1979).
On appeal, the defendant also claims that the trial judge impermissibly deferred ruling on his motion for summary judgment until a completion of the trial. We need not address this issue because, generally, there is no right of review of a summary judgment motion where the case has proceeded to trial on the merits, see Deerskin Trading Post, Inc. v. Spencer Press, Inc. 398 Mass. 118, 126 (1986); American Country Ins. Co. v. Bernhard Woodwork, Ltd., 412 Mass. 734, 739-740 (1992); Johnson v. Massachusetts Bay Transp. Authy., 418 Mass. 783, 785 (1994); District Attorney for the Hampden Dist. v. 355 Publications, 35 Mass. App. Ct. 66, 67 (1993); Sturbridge v. McDowell, 35 Mass. App. Ct. 924, 926 (1993); Macksey v. Egan, 36 Mass. App. Ct. 463, 467 n.8 (1994), unless the summary judgment issue is on a different claim than was tried. See Bacon v. Federal Kemper Life Assur. Co., 400 Mass. 850, 851 n.3 (1987).
The judge appropriately tripled damages only once even though the evidence warranted violation of both statutes.