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Wahlstrom v. JPA IV Management Co., Inc.

Appeals Court of Massachusetts, Suffolk

June 10, 2019

JPA IV MANAGEMENT COMPANY, INC., trustee [1] , & another [2].

          Heard: November 9, 2018.

         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.

          Present: Rubin, Maldonado, & Lemire, JJ.

          RUBIN, J.

         Following a four-week jury trial, a verdict was returned in favor of the plaintiff in this case, which arose 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 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 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 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. 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." Comeauv.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 ...

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