Opinion
No. 12–P–1801.
2013-10-8
Vincent L. DiCIANNI v. William M. ADAMS.
By the Court (COHEN, KATZMANN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this action brought by the plaintiff to collect attorney's fees owed by the defendant, the defendant appeals from a judgment against him of $109,397.76. He defendant maintains that his motions to amend his answer were improperly denied, his statute of limitations defense precluded judgment against him, the trial judge's findings were clearly erroneous, business records were improperly admitted at trial, and he was denied due process by the delay between the trial and the findings and judgment. We affirm.
1. Motions to amend. The complaint was filed in June, 2006, and the defendant answered it. The defendant moved to amend his answer three times. The first motion was filed in February of 2008, following a series of sanctions that were imposed against the defendant for defaults and discovery violations. Based on the undue delay and lack of justification for the lateness of the motion, the defendant's argument is without merit. See DiVenuti v. Reardon, 37 Mass.App.Ct. 73, 77–78, 637 N.E.2d 234 (1994). We do not substitute our judgment for that of the judge in such matters where so much depends on the conduct of the parties throughout the case, which the judge is in the best position to assess. Compare ibid. We cannot say on the record before us that the judges abused their discretion in denying the motions to amend. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 292–293, 361 N.E.2d 1264 (1977). As a result, there is no need to reach the question whether the defendant's statute of limitations defense would have been successful.
2. Judge's findings. Findings of fact made by a trial judge will not be set aside unless they are clearly erroneous or there is no evidence in the record to support them. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475, 961 N.E.2d 1055 (2012). We will not substitute our judgment for that of the judge as to either the weight of the evidence or the credibility of the testimony. See Commonwealth v. Ramirez, 49 Mass.App.Ct. 257, 263, 729 N.E.2d 295 (2000).
The finding that the defendant was personally liable for the legal fees was not clearly erroneous. Over the course of a six-day bench trial, the defendant testified to the effect that he was the sole officer and shareholder of at least ten corporations. Personal liability is supported by the judge's finding that the defendant paid bills for the corporations from whichever corporation had the money available at the time, and treated the corporations' money as his own money.
The defendant's argument that secondary evidence was admitted in violation of the best evidence rule is unavailing. “The best evidence rule provides that, where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction.” Commonwealth v. Ocasio, 434 Mass. 1, 6, 746 N.E.2d 469 (2001). In this case, the invoices, the time records, and the payments made by the defendant support the amount owed to the plaintiff, as found by the judge. Those records were not offered to prove the details of the fee agreement. Rather, they were offered to show the amount of legal fees that were owed.
3. Business records. The defendant argues that the judge erred in allowing the ledger reports in evidence under the business records exception to the hearsay rule. See G.L. c. 233, § 78. We conclude the judge did not abuse his discretion in admitting this evidence. See Poirier v. Plymouth, 374 Mass. 206, 210, 372 N.E.2d 212 (1978). “General Laws c. 233, § 78, states that a record made in the regular course of business ‘shall not be inadmissible because ... it is hearsay.’ “ Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406, 432 N.E.2d 474 (1982). “It is well established that the business records exception ‘should be interpreted liberally to permit the receipt of relevant evidence.’ “ Commonwealth v. Siny Van Tran, 460 Mass. 535, 548, 953 N.E.2d 139 (2011) (citation omitted). “Under the business records exception to the hearsay rule, a document is admissible as a business record if the judge finds that it was made (1) in good faith, (2) in the regular course of business, (3) before the action was begun, and (4) that it was the usual course of business to make the record at the time of the event recorded or within a reasonable time thereafter.” DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 105, 449 N.E.2d 1189 (1983).
At trial, the records and an accompanying affidavit of authentication by the keeper, see G.L. c. 233, § 79J, were marked as an exhibit and received in evidence without objection other than the defendant's attempted reservation as to their accuracy. The defendant's subsequent motion to strike the business records based on unspecified inaccuracies was denied by the judge. The judge admitted the records despite the defendant's belated contention that the records were not kept contemporaneously. “A judge's decision to admit the records implies these requisite findings under G.L. c. 233, § 78.” Beal Bank, SSB v. Eurich, 444 Mass. 813, 815, 831 N.E.2d 909 (2005). The defendant has not demonstrated that the judge abused his discretion. See Zucco v. Kane, 439 Mass. 503, 508, 789 N.E.2d 115 (2003).
4. Due process. “The fundamental requirement of due process is notice and the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ “ Matter of Angela, 445 Mass. 55, 62, 833 N.E.2d 575 (2005), quoting from Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). However, the defendant does not claim he was not heard at a meaningful time or in a meaningful manner. Rather, he argues that the trial judge's decision and order for judgment were not issued in a timely manner after the case was heard. The defendant offers no authority to support his alleged violation of due process. Compare Campiti v. Commonwealth, 417 Mass. 454, 456–457, 630 N.E.2d 596 (1994); Commonwealth v. Blake, 454 Mass. 267, 268, 909 N.E.2d 532 (2009). The record indicates that the judge was diligent in making detailed notes at the trial, and that his findings and rulings were informed by his memory aided by those notes.
5. Fees and costs. The plaintiff requests costs and attorney's fees. In accordance with G.L. c. 211A, § 15, and Mass.R.A .P. 25, as appearing in 376 Mass. 949 (1979), we find that the appeal was frivolous and allow double costs and attorney's fees. We grant the plaintiff leave to file a detailed request, along with supporting documentation, within fourteen days of the date of the rescript, in accordance with Fabre v. Walton, 441 Mass. 9, 10–11, 802 N.E.2d 1030 (2004). The defendant may file a response to the petition within fourteen days thereafter. See ibid.
Judgment affirmed.