text:
    SELECT PORTFOLIO SERVICING, INC. v. Nancy M. NEEDEL & another.
    17-P-632
    Appeals Court of Massachusetts.
    Entered: March 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      As agent for U.S. Bank National Association.

      Peter Needel.

   This is the third appeal in this case in which the plaintiff, Select Portfolio Servicing, Inc. (SPS), as agent for U.S. Bank National Association (U.S. Bank), seeks a declaration that an improperly documented mortgage (New Century mortgage) to New Century Mortgage Association (New Century) is equitably subrogated to a prior first mortgage on a property in Belmont (property) owned by the defendants, Nancy and Peter Needel. The prior first mortgage (Full Spectrum mortgage) was granted by both Nancy and Peter to Full Spectrum Lending, Inc. (Full Spectrum) and encumbered their interests in the property. On appeal, the defendants contend, inter alia, that because SPS has not shown that U.S. Bank is the assignee of the New Century mortgage, SPS lacks standing to seek equitable subrogation of the New Century mortgage to the Full Spectrum mortgage. Because the Land Court judge's finding that the New Century loan was assigned to U.S. Bank is not clearly erroneous and because U.S. Bank's ownership of the New Century loan is sufficient to give SPS standing to seek equitable subrogation of the New Century mortgage, we affirm.

Background. We briefly recite the pertinent background and procedural history. In 2000, the defendants borrowed $440,000 from Full Spectrum (Full Spectrum loan) and granted the Full Spectrum mortgage, which encumbered both of their interests in the property, in order to secure repayment of the Full Spectrum promissory note. In November, 2001, they refinanced the Full Spectrum loan. To do so, Nancy executed the New Century mortgage on the property, which secured repayment of a promissory note to New Century in the original principal amount of $485,000 (New Century loan). Peter did not execute the New Century mortgage. As part of the refinancing transaction, New Century disbursed funds to Full Spectrum to satisfy the Full Spectrum loan in full and to discharge the Full Spectrum mortgage.

Shortly thereafter (also in November, 2001), New Century executed an assignment in blank in which it purported to "assign [the New Century] mortgage and the Note and claim secured thereby." The assignment was subsequently altered to fill in the name of the assignee: U.S. Bank, as Trustee of the Asset Backed Securities Corporation Home Equity Loan Trust 2002-HE1 (trust). The assignment identifies the New Century loan by its loan number. The validity of the assignment is disputed.

In January, 2002, SPS and U.S. Bank, amongst others, entered into a pooling and servicing agreement (PSA) that created the trust. The PSA appointed U.S. Bank as trustee of the trust, and appointed SPS as servicer of the mortgage loans originated by New Century. The PSA, using language of present assignment, assigned a number of pooled and securitized mortgage loans to the trust. The assigned mortgage loans were "identified on the Mortgage Loan Schedule." Part A of that schedule identified the mortgage loans assigned to the trust that were originated by New Century and listed the New Century loan.

In September, 2003, the defendants ceased making payments on the New Century loan; in June, 2007, SPS commenced the present action. In the first appeal, we affirmed the allowance of SPS's motion for summary judgment that the New Century mortgage was equitably subrogated to the Full Spectrum mortgage; however, we remanded to the Land Court on the sole issue whether the New Century loan was included in the pool of New Century mortgage loans that SPS had established were transferred to U.S. Bank, as trustee of the trust. Select Portfolio Servicing, Inc. v. Needel, 83 Mass. App. Ct. 1130 (2013) (SPS I ).

On remand, the Land Court judge found, following a trial, that SPS had shown U.S. Bank owned the New Century loan, relying on (i) the disputed assignment to U.S. Bank, which preceded the formation of the trust, and (ii) the Mortgage Loan Schedule of the PSA, which listed the New Century loan as one of a pool of New Century loans transferred to U.S. Bank. In the second appeal, the defendants maintained, inter alia, that the assignment was invalid because it purported to assign the New Century loan to U.S. Bank as trustee of the trust, which was not formed until after the assignment. The Supreme Judicial Court transferred the case to itself sua sponte; however, before oral argument, SPS notified that court that the assignment had been executed in blank (as the defendants had contended) before it was completed with the name of U.S. Bank as the assignee. The Supreme Judicial Court remanded the case to this court; and, at the request of the parties, we remanded the case to the Land Court for it to determine, in the first instance, what effect, if any, the blank assignment had on the issues in the case. Select Portfolio Servicing, Inc. v. Needel, 88 Mass. App. Ct. 1113 (2015) (SPS II ).

On further remand, the parties filed cross motions for summary judgment regarding the effect of the blank assignment. The Land Court judge reaffirmed his factual finding (following the bench trial after the first remand) that SPS had shown that the New Century loan to the defendants was assigned to U.S. Bank. He relied on the mortgage loan schedule listing the New Century loan as among the pool of mortgage loans assigned to the trust. In addition, he ruled that the blank assignment did not affect the equitable subrogation of the New Century mortgage to the Full Spectrum mortgage, and that SPS, as agent for U.S. Bank, had standing to seek equitable subrogation. The Land Court judge denied the defendants' motion for reconsideration. A judgment after further remand entered.

Discussion. a. Standard of review. "In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party." Jane J. v. Commonwealth, 91 Mass. App. Ct. 325, 327 (2017), quoting from Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-371 (2015). To the extent the defendants challenge the Land Court judge's factual findings from the 2014 trial, which he reaffirmed upon further remand, we review for clear error, keeping in mind that factual findings of the Land Court "must stand if warranted on any view of the evidence and all reasonable inferences therefrom." Norton v. West, 8 Mass. App. Ct. 348, 350 (1979). Furthermore, we review the denial of the defendants' motion for reconsideration for an abuse of discretion. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995).

b. SPS interest in the New Century loan. On this third appeal, the defendants do not challenge that the New Century mortgage is equitably subrogated to the Full Spectrum mortgage. Instead, the defendants challenge SPS's standing on two grounds. First, the defendants contend that the Land Court judge erred in finding that U.S. Bank was assigned the New Century loan despite the blank assignment. We disagree. In reaffirming his finding that the New Century loan was included in the pool of mortgage loans assigned to U.S. Bank under the PSA, the Land Court judge relied on the PSA and the mortgage loan schedule. The New Century loan-identified by its loan number, servicing account number, and name of the borrower-was on the schedule. The Land Court judge credited the testimony of Diane Weinberger, director of SPS's default management department, who authenticated both the PSA and its mortgage loan schedule as records kept by and routinely accessed by and relied upon by SPS in the ordinary course of its business as servicer for the pool of mortgage loans assigned to U.S. Bank. The Land Court judge found that "[n]othing on the face of the [m]ortgage [l]oan [s]chedule or in the way it was handled or maintained casts doubt on this conclusion." The Land Court judge's finding that U.S. Bank owns the New Century loan is not clearly erroneous. See Norton, 8 Mass. App. Ct. at 350. Moreover, the judge did not abuse his discretion in denying the defendants' request for reconsideration of this finding. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. at 188.

Second, the defendants maintain that unless SPS can show that U.S. Bank was assigned the New Century mortgage (as distinct from the loan it secured), SPS lacks standing to seek equitable subrogation of the New Century mortgage. The defendants are correct that the assignment of the New Century mortgage in blank is void. See U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 652 (2011). However, contrary to the defendants' assertion, SPS is not required to show that U.S. Bank holds record legal title to the New Century mortgage in order to have standing (by virtue of the assignment by New Century to U.S. Bank) to seek a declaration that the New Century mortgage is subrogated to the Full Spectrum mortgage. See East Boston Sav. Bank v. Ogan, 428 Mass. 327, 329-330 (1998) (The doctrine of equitable subrogation "is a broad equitable remedy"); Restatement (Third) of Property (Mortgages) § 7.6 (1997) ("One who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment" and not also requiring that subrogee itself hold a mortgage); 73 Am. Jur. 2d Subrogation § 5 (2012) (listing criteria for equitable subrogation, including "(1) payment must have been made by the subrogee to protect his or her own interest; (2) the subrogee must not have acted as a volunteer; (3) the debt paid must have been one for which the subrogee was not primarily liable; (4) the entire debt must have been paid; and (5) subrogation must not work any injustice to the rights of other," but also not requiring subrogee to hold mortgage).

The defendants' argument confuses two different concepts-equitable subrogation of the New Century mortgage to the Full Spectrum mortgage, on the one hand, and SPS's standing to seek subrogation by virtue of New Century's assignment to U.S. Bank, on the other. The former has already been established in this case. See SPS I. All that is required for the latter is that SPS have "a definite interest in the matters in contention in the sense that [its] rights will be significantly affected by a resolution of the contested point." Bonan v. Boston, 398 Mass. 315, 320 (1986). See HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 200 (2013). Here, SPS, as the agent for U.S. Bank, which is the assignee of the New Century loan, has a definite interest in the sought resolution-namely, that the New Century mortgage be subrogated to the Full Spectrum mortgage.

Fees. The defendants' request for fees and costs in association with their appeal is denied.

Judgment after further remand affirmed.

      Because the defendants share the same last name, we will refer to them in this decision by their first names.

      The PSA was entered into by Fairbanks Capital Corporation, which is SPS's predecessor in interest.

      We also affirmed that SPS is the agent of U.S. Bank. See SPS I, supra.

      The defendants do not press this argument in the present appeal. Therefore, it is waived. See John Hancock Mut. Life Ins. Co. v. Banerji, 447 Mass. 875, 887 n.20 (2006) ; Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

      As noted above, in SPS I, while we remanded on the issue of SPS's standing, we affirmed the judgment of the Land Court in all other respects, including the ruling that the New Century mortgage is equitably subrogated to the Full Spectrum mortgage, which the defendants did not appeal.

      The Land Court judge did not abuse his discretion in admitting the loan schedule in evidence as a business record. See Beal Bank, SSB v. Eurich, 444 Mass. 813, 816-817 (2005).

      The defendants also maintain that the Land Court judge impermissibly limited the scope of the remand order in SPS I. We disagree. In SPS I, a panel of this court held that "[t]he attachments to the complaint establish that [SPS] is the servicing agent for all debt owed to U.S. Bank, and also that U.S. Bank is the assignee of a loan pool purchased from New Century. However, the inclusion of the Needels' loan in that pool remains undocumented in the record as it now stands ...." According, we vacated "[t]hat portion of the judgment determining that U.S. Bank has demonstrated its ownership of the debt" and otherwise affirmed the judgment. On remand, the judge correctly held a trial to determine whether the New Century loan was included in the pool of New Century mortgage loans transferred by New Century to U.S. Bank.

      With respect to the defendants' other arguments not addressed herein, "they have not been overlooked. 'We find nothing in them that requires discussion.' " Central Ceilings, Inc. v. Suffolk Constr. Co., 91 Mass. App. Ct. 231, 242 n.20 (2017), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Nicholas GRIMBILAS.
    17-P-27
    Appeals Court of Massachusetts.
    Entered: March 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Nicholas Grimbilas, was convicted of two counts of indecent assault and battery on a person over the age of fourteen. On appeal, he contends that the judge erred in (1) denying his motion for a mistrial, (2) admitting hearsay testimony in violation of the first complaint doctrine, (3) refusing to provide the jury with a "good faith mistake" instruction, and (4) denying his motion to dismiss pursuant to Mass.R.Crim.P. 36(b)(1), 378 Mass. 909 (1979). We affirm.

Background. On December 21, 2012, the defendant-the long-time boy friend of the victim's mother-held a party at his home. The victim, her mother, and the victim's two sisters, whom we shall call Karen and Beth, among others, attended. The defendant served food and drinks and became intoxicated. Over the course of about two hours, the victim drank two "very strong" martinis, one of which she did not finish. Around 11:30 P.M., a group, including the victim and the defendant, went to the basement to watch a movie. Everyone quickly fell asleep and, at some point, the victim awoke feeling sick. She went upstairs to the bathroom, shut the door, and began to throw up. Shortly thereafter, the defendant woke up, went upstairs, and heard the victim vomiting.

It is undisputed that, at that point, the defendant entered the bathroom and started rubbing her back. The victim had vomit on her clothing. The defendant unhooked her bra, continued rubbing her back, and "when [the victim] stopped throwing up, [they] leaned against the wall in the bathroom and [she] rested [her] head on his shoulder." The victim started to "doze off" and then "realized that [the defendant] was inappropriately touching [her]." He touched her chest, put his hands down her pants, underneath her underwear, "[a]nd then he was playing with [her] clitoris." The defendant then "took his hand out" and "started to try to put [the victim's] hand down [her] pants." The victim testified that "[she] resisted. [She] didn't say anything. [Her] eyes were not open. [She] was still-[she] was in a panic." When she resisted, "he kept trying for, like a little bit, but then he stopped." The victim kept her eyes closed during the assault because she was "scared" and "shocked."

The victim disclosed the assault to her sister, Karen, the next day, and also told her sister, Beth. The victim ultimately reported the defendant's conduct to the police in November, 2014, nearly two years after the incident. She contacted the police at that time because, due to her sister's engagement, she felt that she could no longer avoid the defendant. She had not seen the defendant since the night of the incident.

The main issues at trial were consent and witness credibility. On cross-examination of the victim, defense counsel elicited testimony that she put her head on the defendant's shoulder while he was rubbing her back, and that she did not verbally protest when the defendant undid her bra or touched her breasts. The defendant testified that the victim exhibited heavy breathing as he touched her abdomen and breasts, that there was a "flow" between them, and that she moved her hips as he rubbed her vagina. The jury convicted the defendant as charged. This appeal ensued.

Discussion. 1. Motion for mistrial. The defendant contends that the judge erroneously denied his motion for a mistrial because the prosecutor's opening statement contained prejudicial errors. The decision to allow or deny a mistrial is committed to the sound discretion of the trial judge, and "this court should defer to that judge's determination of whether the prosecutor committed prejudicial error, how much any such error infected the trial, and whether it was possible to correct that error through instruction to the jury." Commonwealth v. Thomas, 429 Mass. 146, 157 (1999).

The defendant first claims that the prosecutor misstated the victim's age in her opening statement. The prosecutor stated that the victim was "between the ages of [eighteen] and [nineteen] at the time" of the incident when she was nineteen at the time. To the extent that any mistake existed, it was inconsequential, particularly where the victim testified that she was nineteen years old at the time of the incident. Thus, the "minor and insignificant variation" in evidence was corrected and had no bearing on the jury's consideration of any relevant issues. Commonwealth v. Thomas, 44 Mass. App. Ct. 521, 525 (1998).

Next, the defendant argues that the prosecutor improperly told the jury that earlier on the night of the incident, the defendant leaned over to the victim's oldest sister, Beth, put his hand between her thighs, and whispered something to her. The defendant contends that this statement painted the defendant as a sexual predator and was prejudicial. We agree that the statement was in error, as the prosecutor had inadvertently failed to disclose the existence of this event. However, we discern no abuse of discretion in the judge's handling of the issue. First, prior to trial, the judge instructed that opening statements are not evidence. Second, upon the defendant's objection at the conclusion of the prosecutor's opening statement, the judge immediately provided a clear instruction, which reiterated three times that opening statements are not evidence. Third, after the defendant moved for a mistrial, the judge imposed the additional sanction of excluding from evidence any reference to the incident involving Beth. Fourth, the judge repeatedly emphasized, in his final charge, that opening statements are not evidence. Finally, in his closing argument, defense counsel referenced the prosecutor's promise to provide evidence of the defendant's touching of Beth's thigh, and chastised the Commonwealth for failing to deliver on that promise. He argued that this failure showed that the Commonwealth was not credible and that the "government" was "telling you things that didn't happen." The prosecutor objected to this argument. Although the judge agreed that defense counsel's statement was improper, he declined to strike the argument or provide a specific instruction to the jury regarding its impropriety. We agree that defense counsel's argument was improper. See Commonwealth v. Harris, 443 Mass. 714, 732 (2005). Accordingly, in the absence of a corrective instruction from the judge, the defendant materially benefited from this tactic, as his counsel used the combination of the prosecutor's error and the judge's sanction to gain a strategic advantage. See Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 568 (1983) (noting that exploitation of excluded evidence is "fundamentally unfair"). In conjunction with the judge's thorough instructions, defense counsel's argument mitigated any risk that the jury might have considered the prosecutor's statement as evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).

The defendant also claims that the prosecutor impermissibly informed the jury that after learning of the incident, the victim's sisters told the defendant to stay away from the victim. The defendant argues that this information was hearsay solely designed to cast him as a "monster." We disagree. As the judge found at trial, the statement, and the ensuing testimony of the victim's sister, Beth, was proper and admissible for the nonhearsay purpose of explaining "why certain actions did or did not happen," including the delayed disclosure of the indecent assault and battery to law enforcement. See Commonwealth v. Fales, 60 Mass. App. Ct. 102, 105 (2003). See also Commonwealth v. Breese, 381 Mass. 13, 17 (1980).

Finally, the defendant contends that the prosecutor impermissibly referenced "post-first complaint statements" by the victim to Beth, in violation of the first complaint rule. For the reasons discussed in section 2, infra, the judge acted within his discretion to admit this testimony, with concurrent and correct limiting instructions. Thus the prosecutor did not err in referencing this anticipated testimony in her opening statement.

2. First complaint. The defendant argues that the judge abused his discretion in permitting the victim to testify that in 2014, two years after the incident, she told her mother about it and reported it to the police. We disagree with the claim that this testimony violated the first complaint doctrine. The first complaint doctrine does not "prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible." Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). Here, the victim's testimony was independently admissible to explain the timing and reasoning underlying her delay in reporting the incident to law enforcement, and to explain her state of mind in a case where credibility and consent were at issue. See id. at 225 ("Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case"). See also Breese, supra; Commonwealth v. Richardson, 423 Mass. 180, 187-188 (1996) ; Commonwealth v. Hall, 66 Mass. App. Ct. 390, 393-394 (2006). The judge carefully weighed the testimony's probative and prejudicial value, and we discern no abuse of discretion in his ruling. See Commonwealth v. Aviles, 461 Mass. 60, 69 (2011).

3. Good faith mistake instruction. The defendant contends that the judge erred in refusing to provide a "good faith mistake jury instruction." To date, Massachusetts courts have not required a mistake of fact instruction in the context of an indecent assault and battery prosecution, but the Supreme Judicial Court has held open the possibility that such an instruction "may be an appropriate and fair defense" in certain cases. Commonwealth v. Kennedy, 478 Mass. 804, 811 (2018), citing Commonwealth v. Lopez, 433 Mass. 722, 732 (2001). On these facts, the defendant was not entitled to such an instruction because his claim of a reasonable mistake of fact was not "arguably supported by the evidence." Lopez, supra. Indeed, the overwhelming and uncontradicted evidence showed that the victim was highly intoxicated, and that the sexual assault occurred immediately after she had thrown up, while she still had vomit on her clothing. The victim also testified that she resisted the defendant's advances, but he "kept trying." After review of the entire trial record, we conclude that the defendant's claim of a reasonable mistake of fact is not supported by the evidence here within the meaning of Lopez, supra, and Kennedy, supra. Accordingly, he was not entitled to the requested instruction.

4. Rule 36 motion. The defendant contends that the judge erred in denying his motion to dismiss pursuant to Mass.R.Crim.P. 36(b)(1), because he was arraigned on December 3, 2014, but not brought to trial until January 26, 2016, more than 365 days later. The argument is unavailing.

"Delay in which the defendant acquiesces or from which he benefits should be excluded in measuring the length of any delay.... A failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994). See Commonwealth v. Lauria, 411 Mass. 63, 70-71 (1991). Our review of the District Court docket, clerk's entries thereon, and trial and appellate records, reveals that the relevant continuances in this case occurred without objection by the defendant. See Tanner, supra ("The record does not show any objection by the defendant to continuances"). See also Commonwealth v. Roman, 470 Mass. 85, 93 (2014), citing Barry v. Commonwealth, 390 Mass. 285, 289 (1983) ("For purposes of a rule 36 calculation of excludable periods, the docket and the clerk's log are prima facie evidence of the facts recorded therein"). The Commonwealth thus sustained its burden of justifying the alleged delay, and we discern no error in the judge's denial of the motion.

Judgments affirmed.

      The panelists are listed in order of seniority.

      On the date of the incident, the victim was nineteen years old and not a regular drinker. The defendant was in his late forties.

      Karen corroborated the victim's testimony and testified that "[the victim] ultimately told me that [the defendant] touched her chest-took her bra off ... stuck his hand down her pants, and then put his hand-tried to get her hand along with his to put down her pants." The judge provided a first complaint instruction at the time of Karen's testimony, and again in the final charge to the jury.

      The judge found, on the record, that the discovery violation involving the defendant's conduct toward Beth was inadvertent. Furthermore, defense counsel confirmed at trial and on appeal that the failure to disclose the incident involving Beth was inadvertent. We acknowledge defense counsel's candor in this regard.

      Regarding the Commonwealth's purported failure to deliver on promises made in the prosecutor's opening statement, defense counsel argued as follows:
      "How about looking at what the government promised to tell you in the beginning of this trial? They made certain promises to you when they said ... you will hear evidence about [the defendant] putting his hand between the thigh of [Beth]. Or-yeah. You didn't hear any of that. They made you a promise and then they don't deliver. How credible is the government when they make these promises, you're going to hear this horrible evidence, and then you don't get it? They're telling you things that didn't happen."

      Beth testified, over objection, that after learning of the incident she and her sister, Karen, confronted the defendant and told him that "[he] and [the victim] are not to see each other anymore." The judge had ruled earlier that the Commonwealth was entitled to "explore" the reasons for the victim's two-year disclosure delay, and found that Beth's statement was relevant to "the state of mind of a witness or witnesses and to explain why certain actions were or weren't taken."

      The defendant objected at trial to some, but not all, of the victim's testimony concerning the circumstances of her delayed disclosure to her mother and law enforcement. To the extent that some of the victim's testimony is now challenged for the first time on appeal, our review is arguably limited to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). However, because we conclude that the judge did not err or abuse his discretion in admitting the testimony, we need not dwell on the appropriate standard of review.

      The defendant submitted a written motion, containing proposed language, in support of his request for a good faith mistake jury instruction. His proposed instruction read as follows:
      "If you find beyond a reasonable doubt that [the victim] did not consent to the man[ner] in which she was touched by [the defendant], it is the Commonwealth's burden to prove beyond all reasonable doubt that [the defendant] knew that the [victim] did not consent to the way in which [the defendant] was touching her. If, from all the evidence, you have a reasonable doubt whether the [defendant] reasonably and in good faith, believed that [the victim] voluntarily consented to the way in which he was touching her, you must give [the defendant] the benefit of that reasonable doubt, and acquit him of this charge."

      The jury could have inferred that the defendant had a paternalistic relationship vis-à-vis the victim and her sisters. The defendant testified, for example, that he saw them at his house for sleepovers, had cooked for their friends, and had given them money for prom dresses.


text:
    The CADLE COMPANY v. James J. LYONS, Jr.
    17-P-621
    Appeals Court of Massachusetts.
    Entered: March 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      As successor in interest to Coolidge Bank & Trust Company.

   Following a Superior Court judge's 2013 renewal of a 1992 judgment against James J. Lyons, Jr., The Cadle Company (Cadle), assignee of the successor plaintiff in the case, sued Lyons and his employer, the Commonwealth of Massachusetts, to enforce the judgment. Lyons moved for dismissal, claiming that Cadle was not the proper party. A District Court judge denied Lyons's motion to dismiss and later ordered the entry of summary judgment in favor of Cadle. The Appellate Division of the District Court Department dismissed Lyons's appeal. On appeal here regarding his dismissal motion, Lyons maintains his claim that Cadle was not the proper party, and that the District Court lacked jurisdiction to hear the case. We affirm.

We review the denial of a motion to dismiss de novo and "accept[ ] as true the factual allegations of the complaint, and supporting inferences that may be drawn from those alleged facts." Boxford v. Massachusetts Hy. Dept., 458 Mass. 596, 598 (2010), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008).

1. Proper party. Lyons claims that Cadle was not a proper party to bring suit to enforce the judgment because it was never properly substituted as the plaintiff in the 1992 suit. In fact, a Superior Court judge denied Cadle's motion to substitute itself as the plaintiff for Ninth RMA Partners, L.P., which succeeded the original plaintiff, the Federal Deposit Insurance Corporation as liquidating agent/receiver for the Coolidge Bank & Trust Company. Lyons acknowledges the general rule that an assignee may bring suit in its own name or in the name of the assignor. Rubenstein v. Royal Ins. Co. of America, 45 Mass. App. Ct. 244, 246 (1998). However, Lyons asserts that Cadle's complaint was deficient because Cadle sued in its own name and called itself "Successor to Coolidge Bank & Trust Company," rather than claiming it was an assignee. We disagree.

"It is a general principle governing the rights of an assignee of a chose in action that the assignee ought to be in as good but in no better position than his assignor would have been without the assignment." Goldman v. Noxon Chem. Prod. Co., 274 Mass. 526, 529 (1931). It is undisputed here that Ninth RMA Partners, L.P., properly assigned, in writing, its interest to Cadle. Despite the wording of Cadle's complaint, nothing suggests that using "successor" in interest rather than "assignee" is fatal to the assertion of a claim. See Peladeau v. Fred Gillespie Lumber Co., 285 Mass. 10, 13 (1933) ("Peladeau is the successor in interest of the claim of the corporation who was the original party, and he may be substituted where, as here, the change in interest is occasioned by an assignment" [emphasis supplied] ). Furthermore, Lyons does not dispute that the judgment has not been satisfied. Therefore, because Cadle is the only remaining real party in interest, as an assignee, it may bring suit to enforce the judgment in its own name. See Mass.R.Civ.P. 17(a), 461 Mass. 1401 (2011).

2. Jurisdiction. For the first time on appeal, Lyons also claims that the District Court lacked jurisdiction over Cadle's complaint against both Lyons and the Commonwealth because only the Superior Court has jurisdiction over cases against the Commonwealth and cases against a public employer. See G. L. c. 212, §§ 1, 3 ; G. L. c. 258, § 3. He further alleges that this complaint improperly summoned the Commonwealth as a trustee under trustee process and, therefore, was precluded by the doctrine of sovereign immunity. We disagree.

First, this action was not a "case against the Commonwealth" or "against a public employer" as Lyons alleges. We look to the substance of the complaint rather than the labels assigned by the parties. See Mass.R.Civ.P. 8, 365 Mass. 749 (1974). See also Lambley v. Kameny, 43 Mass. App. Ct. 277, 280 (1997). A "trustee is not, in fact, a traditional defendant in the suit commenced, but rather a stakeholder, ... and is not liable to the plaintiff under the facts alleged in the complaint." Shapiro, Perlin, & Connors, Collection Law § 5:71 (4th ed. 2015). See Cavanaugh v. Merrimac Hat Co., 213 Mass. 384, 386 (1913) (The trustee "is a stakeholder, having no interest in the action in which he is summoned as trustee").

Second, we are not persuaded that the inclusion of the Commonwealth as a nominal party affects the District Court's jurisdiction to hear the case. As a trustee, the Commonwealth was not required to be named as a party to the action at all. See Mass.R.Civ.P. 4.2(a), 365 Mass. 740 (1974). When named, however, a trustee is a nominal party and "is not a real party in interest as required under Mass.R.Civ.P. 17 [, 365 Mass. 763 (1974) ]." Shapiro, Perlin, & Connors, Collection Law § 5:71. See Eastern Fur & Skin Co. v. Sternfeld, 233 Mass. 210, 212 (1919). Its inclusion cannot supply the basis for jurisdiction, nor can its mere presence strip a court of jurisdiction. Compare Town Bank & Trust Co. v. Eaton, 358 Mass. 346, 350 (1970) ("neutral" stakeholder has no standing to assert issues).

Furthermore, the Commonwealth's interest in the case was essentially dismissed when the District Court judge denied Cadle's postjudgment motion to garnish Lyons's wages. Notwithstanding our brief discussion on the matter, we consider the issue moot. See Boston Edison Co. v. Massachusetts Water Resources Authy., 459 Mass. 724, 730 n.6 (2011) (subsequent allowance of motion for remittitur rendered moot appellate argument challenging denial of motion for remittitur).

Decision and order of Appellate Division affirmed.

      The 1992 judgment was entered in the amount of $64,000. The execution was entered in 1998 in the amount of $66,560. In its District Court complaint to enforce the judgment, Cadle demanded $237,013.33, which included unpaid interest due and postjudgment costs, and gave credit for any payments as of June 4, 2015. The District Court judge ordered the entry of judgment for Cadle in the amount of $261,427.02.

      Although this argument was not made in the District Court, subject matter jurisdiction may be raised anytime. See Jamgochian v. Dierker, 425 Mass. 565, 567 (1997).

      We note that Cadle's appeal of this order remained pending at the time the parties' briefs to this panel were filed.


text:
    COMMONWEALTH v. Justin C. WARD.
    16-P-1337
    Appeals Court of Massachusetts.
    Entered: March 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The defendant states that he has legally changed his name to Elijah Jordan O'Ward. As is our practice, we use the name that is in the indictment.

   After a jury trial in 1995, the defendant, Justin C. Ward, was convicted of murder in the first degree and illegal possession of a firearm. On direct appeal from the murder conviction, the Supreme Judicial Court reduced the conviction to murder in the second degree based on the trial judge's failure to "include[ ] a requested jury instruction on the relevance of the defendant's mental impairment to his ability to engage in deliberate premeditation." Commonwealth v. Ward, 426 Mass. 290, 297 (1997). In 2010, the defendant filed a motion for new trial on the basis of newly discovered evidence that, in an unrelated matter, the Commonwealth's intoxication expert had testified inconsistently with her trial testimony in this matter. The motion for new trial was denied after an evidentiary hearing. The defendant now appeals. We affirm.

Discussion. In reviewing the denial of a motion for new trial, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting from Commonwealth v. Wright, 469 Mass. 447, 461 (2014). "When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Hudson, 446 Mass. 709, 714 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

On appeal, the defendant argues that he is entitled to a new trial based on the inconsistent testimony of Nancy Burns, the Commonwealth's intoxication expert at a subsequent hearing in an unrelated case. At trial, the Commonwealth presented evidence that the defendant would drink one-half gallon of alcohol daily and that he was drinking alcohol the night of the killing. Ward, supra at 293 ("At trial, evidence was presented that the defendant was a heavy drinker and had consumed up to one-half a gallon of alcohol a day for many months prior to April 1, 1994"). Nancy Burns, a toxicologist employed by the Department of State Police, office of alcohol testing, testified at Ward's trial that the cognitive functions of an individual with chronic alcohol tolerance would be the least of the body's functions to be affected by alcohol and, after coordination and perception, the last functions to be lost because of drinking. Five years later, in a hearing on an unrelated case, Burns testified essentially to the opposite: that cognitive functions are the first to be affected by alcohol, and that in a chronic tolerant alcoholic, cognitive ability would be more affected than other functions. She testified that an individual's failure to exhibit obvious signs of intoxication does not mean that the person's cognitive functioning is unimpaired. During cross-examination at that hearing, Burns was confronted with her testimony in the case at bar. She then testified that her opinion had changed after Ward's trial based on her reading of additional literature in the field.

To prevail on a motion for new trial on the basis of newly discovered evidence, the defendant must satisfy a two-prong test. First, he must demonstrate that the evidence was unknown and not reasonably discoverable at the time of trial. Commonwealth v. Shuman, 445 Mass. 268, 271 (2005). As the Commonwealth concedes, Burns's subsequent testimony indeed constitutes "newly discovered" evidence, and so this prong is satisfied.

Second, where the new evidence at issue invalidates inculpatory evidence presented at trial, a defendant must demonstrate that the inculpatory evidence "likely was a 'real factor' in the jury's deliberations such that its elimination would cast real doubt on the justice of the defendant's conviction" (emphasis omitted). Commonwealth v. Cowels, 470 Mass. 607, 618 (2015), quoting from Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014). We agree with the motion judge that here, where the defendant conceded manslaughter at trial, the relevant question is whether Burns's testimony on the effects of intoxication would likely have been a real factor in the jury's efforts to distinguish murder in the second degree from involuntary manslaughter. We conclude that it would not have been.

Murder in the second degree is an unlawful killing with malice. Commonwealth v. Sires, 413 Mass. 292, 296 (1992). Involuntary manslaughter is an "unintentional, unlawful killing caused by wanton or reckless conduct." Commonwealth v. Earle, 458 Mass. 341, 347 (2010). "The difference between the elements of the third prong of malice and wanton and reckless conduct amounting to involuntary manslaughter lies in the degree of risk of physical harm that a reasonable person would recognize was created by particular conduct, based on what the defendant knew." Sires, supra at 303 n.14. For purposes of third prong malice a jury must consider whether, "in the circumstances known by the defendant, a reasonably prudent person would have recognized that [his] conduct would create a plain and strong likelihood of death." Commonwealth v. Sama, 411 Mass. 293, 298 (1991). A jury may consider evidence of a defendant's intoxication, as it impacts "the defendant's ability to possess the requisite knowledge of the circumstances in which he acted." Ibid.

"The likelihood of death ensuing when a loaded weapon is aimed at a person ... and then intentionally discharged is plain and strong indeed." Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 244 (2016), quoting from Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 7 (2006). "Absent some evidence that the defendant's knowledge was impaired, intentionally discharging a firearm in the direction of another person creates a plain and strong likelihood of death." Commonwealth v. Mack, 423 Mass. 288, 290 (1996) (footnote omitted).

Here, as the motion judge found, there was "abundant evidence" to demonstrate the defendant's knowledge that he was firing a loaded gun in the direction of the victim, and no probability that Burns's testimony would have been a real factor in the jury's deliberations on that point.

As the Supreme Judicial Court summarized on the defendant's direct appeal, the gun in question required "a continuous 'heavy pull' on the trigger to fire; it did not have a hair trigger, and it could not be precocked." Ward, 426 Mass. at 292. After the killing, the gun contained one live round, but no spent shells, "suggesting that the gun had been emptied before the police arrived." Ibid. "Forensic evidence indicated that the gun was at least two to three feet away from the victim when it was fired ...." Ibid. "The evidence also showed that the defendant had a familiarity with guns and had pointed guns at various acquaintances on several occasions in the months prior" to the killing. Id. at 293.

In the hours immediately before the defendant shot the victim, there was evidence that the defendant sought to engage in and did in fact engage in "Russian roulette" gunplay, that he was able to load the gun, and that he responded appropriately and understandably to questions. Id. at 291-292. There also was evidence suggesting that at some point during the evening, the defendant marked his graffiti tag on the walls of the apartment he shared with the victim, as well as on the abdomen of the victim herself, and unloaded the gun. Id. at 293.

Immediately after shooting the victim, the defendant was able to intelligibly seek help from a neighbor and call 911. At the police station where the defendant was detained, he was able to converse lucidly with officers, "behaved calmly, and seemed aware of his circumstances." Id. at 295. Many hours after his initial interview with police, the defendant was interviewed again, and responded consistently with his first interview. Id. at 293.

In short, the overwhelming weight of the evidence at trial suggested that at the time of the shooting, the defendant knew that he was pointing a loaded gun at the victim, and that he was firing it. In light of our "full and reasonable assessment of the trial record," Burns's brief testimony could not have "played an important role in the jury's deliberations and conclusions." Cowels, 470 Mass. at 623, quoting from Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992). Accordingly, the defendant's motion for new trial was properly denied.

Order denying motion for new trial affirmed.

      The defendant has not contested his conviction for illegal possession of a firearm.

      The reduction was in lieu of granting a new trial, based on the Commonwealth's representation that it would not retry the defendant on the charge of murder in the first degree. Commonwealth v. Ward, 426 Mass. 290, 298 (1997).

      We note that the motion judge was not the trial judge.

      We note that the jury here were instructed to consider evidence of the defendant's intoxication on the issue of third prong malice.


text:
    Wesley OPRZEDEK, trustee v. CITY OF BEVERLY.
    17-P-575
    Appeals Court of Massachusetts.
    Entered: March 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the Oprzedek Realty Trust, doing business as Greycroft Inn.

   At issue before us is whether the denial of the plaintiff trustee's application for a lodging license amounts to an unconstitutional regulatory taking in violation of the Fifth and Fourteenth Amendments to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. We conclude that it does not.

Background. We draw the facts from the summary judgment record and note where they are disputed. When Wesley Oprzedek, as trustee of the Oprzedek Realty Trust, purchased 68 Dane Street in the city of Beverly (city) in 2009 for $875,000, the property had been operated as a lodging house, authorized by annually renewed licenses since 1939. The trustee continued to operate the property as a lodging house and applied to the city for and was granted the required annual lodging licenses for 2010, 2011, and 2012. He spent in excess of $250,000 to renovate and repair the premises.

The parties agree that "[a]t the time the [t]rust invested in the [the property], [the trustee] reasonably believed that [he] would be able to continue to use the property for the purpose intended and for which it had been used for a [seventy-five] year period, specifically a rooming house." When, in November, 2012, the trustee applied for a lodging license for 2013, the city renewed the license for only ninety days even though the applicant was in "general compliance with building, health and [e]lectrical requirements." His subsequent application dated February 28, 2013, was denied on March 25, 2013. The trustee did not appeal from that decision.

On July 16, 2014, the trustee reapplied for a lodging license but after a hearing on October 14, 2014, the city denied the application. The trustee's complaint alleges on information and belief that the denial was the result of political and neighborhood pressure. The minutes of the city council meeting note that councilors "were opposed to issuing a license due to past issues" and that the owner had not complied with CORI and SORB checks of tenants. The city's committee on legal affairs recommended that the city council deny the license.

The trustee alleges that he explored other potential uses of the property but they were not viable. He alleges that the value of the property with a lodging house license was $950,000. On October 7, 2015, the trustee sold the property for $659,000. Before the sale was completed, the city granted the new owner a lodging license.

The trustee did appeal from the 2014 denial pursuant to G. L. c. 140, § 30, and included a regulatory taking claim and an interference with existing and prospective contractual relations claim. A Superior Court judge granted summary judgment to the city. In his summary judgment memorandum, the judge noted that the trustee disputes the allegations regarding his noncompliance with SORB and CORI checks, and the judge therefore did not consider those allegations for summary judgment purposes. He dismissed the claim under G. L. c. 140, § 30, as moot because it sought an order compelling the board to issue a lodging license to the trustee but he had sold the property. Applying the analysis set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (Penn Central ), the judge also denied the taking claim. He concluded that (i) the summary judgment record did not establish a sufficient decrease in value to support a regulatory taking claim, (ii) the trustee's expectation of receiving a renewed license each year did not give rise to vested rights in a license and, therefore, he was entitled only to fair treatment; and (iii) the character of the governmental action consisted of a discretionary denial of a requested license and was not a physical invasion of the property.

Discussion. On appeal, the trustee does not challenge the motion judge's conclusion that his G. L. c. 140, § 30, appeal from the denial of a lodging license is moot because the property has since been sold, and he does not pursue the license denial issue. The only issue before us, therefore, is whether denial of the trustee's license applications constituted a regulatory taking.

It is not entirely clear that the trustee has a property interest compensable under the takings clause of the Fifth Amendment and art. 10 in the renewal of a lodging license that must be renewed annually and is nontransferable. See Carney v. Attorney Gen., 451 Mass. 803, 816 (2008), quoting from Members of the Peanut Quota Holders Assn. v. United States, 421 F.3d 1323, 1331 (Fed. Cir. 2005), cert. denied, 548 U.S. 904 (2006) (compensable taking of intangible interest "is indicated by the absence of express statutory language precluding the formation of a property right in combination with the presence of the right to transfer and the right to exclude"). See also Liggett Drug Co. v. Board of License Commrs. of N. Adams, 296 Mass. 41, 52-53 (1936) (licenses were "mere permissions and in no sense property"; petitioners had no right to renewal, only "fair treatment"). But even if we assume the trustee has potentially identified a compensable property interest, we agree with the motion judge that there was no taking.

First, "[o]ne of the principal purposes of the Takings Clause is 'to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' " Dolan v. Tigard, 512 U.S. 374, 384 (1994), quoting from Armstrong v. United States, 364 U.S. 40, 49 (1960). Here, the city made a determination to deny this particular applicant a license. It did not enact a city-wide prohibition of lodging houses or prohibit any other owner of this property from obtaining a license. We have said in the context of college dormitories, which fall within the definition of "lodging houses" in G. L. c. 140, § 22, that "[a] dormitory license may be denied because the facilities are physically inadequate, because the applicant institution has a bad record in running dormitories, or because supervisors are unqualified, or of bad character." Trustees of Boston Univ. v. Licensing Bd. of Boston, 24 Mass. App. Ct. 475, 477 (1987), quoting from Newbury Jr. College v. Brookline, 19 Mass. App. Ct. 197, 207 (1985). In the absence of an active appeal of the denials, we must assume the denials of the trustee's license applications were legally valid, based on permissible considerations such as the foregoing. In these circumstances, the record reveals no reason the public as a whole should bear the burden of the applicant's denial which may well have been based on his personal history of operating the lodging house.

Moreover, the trustee fares no better if we apply the multi-factor inquiry outlined in Penn Central, supra, to determine whether, on the facts before us, the lodging house regulation has gone too far and amounts to a taking. "To determine whether there has been a compensable regulatory taking, we look to: '(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.' " Fitchburg Gas & Elec. Light Co. v. Department of Pub. Util., 467 Mass. 768, 783-784 (2014), quoting from Daddario v. Cape Cod Commn., 425 Mass. 411, 416, cert. denied, 522 U.S. 1036 (1997). "We have previously noted that the mere fact that owners could make a more profitable use of the property and had intended to do so is not sufficient interference with investment-backed expectations." Fitchburg Gas & Elec. Light Co., 467 Mass. at 784, citing Flynn v. Cambridge, 383 Mass. 152, 159-160 (1981). Use restrictions that diminish property value do not alone establish a taking. Flynn, 383 Mass. at 160-161. See also Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 19 (1979) (regulation "may deprive an owner of a beneficial property use-even the most beneficial such use-without rendering the regulation an unconstitutional taking").

Moreover, while the trustee may have had reasonable investment-backed expectations in continued operation of a lodging house, he could not have had an expectation that his use could continue if he did not qualify for a license. See Leonard v. Brimfield, 423 Mass. 152, 155, cert. denied, 519 U.S. 1028 (1996) ("A property owner's investment-backed expectations must be reasonable and predicated on existing conditions"). The trustee was well aware that continued operation of a lodging house was dependent on qualifying for a license; that under existing conditions he did not qualify for a license does not convert the denial into a taking. Finally, the character of the government action, a valid discretionary denial of a license application, "is the type of limited protection against harmful private land use that routinely has withstood allegations of regulatory takings." Gove v. Zoning Bd. of Appeals of Chatham, 444 Mass. 754, 767 (2005).

Judgment affirmed.

      Criminal Offender Record Information.

      Sex Offender Registry Board.

      Though the record is not clear whether the sale was contingent on the buyer obtaining a lodging house license or whether the license affected the price, because this was a motion for summary judgment, we will review the record in the light most favorable to the plaintiff, the nonmoving party, and assume that the lack of license reduced the price.

      The trustee filed the original complaint in the Housing Court. The case was transferred to the Superior Court and then the city removed it to the United States District Court, where the trustee filed a four-count amended complaint, adding a due process count. The Federal judge dismissed the trustee's due process and interference with contractual relations claims and remanded the remaining two counts back to the Superior Court.

      Although the record is unclear, we assume the trustee claims the 2013 and 2014 denials, collectively, amount to a taking.

      The city contends that the trustee failed to exhaust his administrative remedies by not appealing from the 2013 denial and by failing to continue pursuing his appeal of the 2014 denial and, therefore, should be precluded from bringing a takings claim. The purpose of the exhaustion requirement is to ensure that the administrative agency has made a final determination such that a reviewing court can assess whether the agency has gone "too far." Commonwealth v. Blair, 60 Mass. App. Ct. 741, 746-747 (2004) (quotation omitted). Here, the city has twice rejected the trustee's application for a license. The city does not suggest that it had not "arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question." Williamson County Regional Planning Commn. v. Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985). See Hamilton v. Conservation Commn. of Orleans, 12 Mass. App. Ct. 359, 372-374 (1981) (if plaintiff accepts correctness of department's decision, no need to pursue administrative appeal before commencing suit alleging taking). While we conclude that the trustee's decisions to not pursue appeals from the denials does not preclude his takings claim, the trustee is prohibited from arguing that the city invalidly denied his application for reasons that could have been raised in a licensing appeal. See ibid. A takings claim is not a substitute for an administrative appeal.

      This is not an issue that raises a question of material fact rendering summary judgment inappropriate. Rather, the trustee has simply waived an argument that the denials were invalid by failing to appeal from the 2013 denial and not arguing the merits of the 2014 denial.


text:
    COMMONWEALTH v. Jaime D. KIMENKER.
    17-P-1070
    Appeals Court of Massachusetts.
    Entered: March 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28.
   The defendant was convicted of negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24(2)(a ), and now appeals from the denial of her motion for new trial. Her principal claim is that G. L. c. 90, § 24(2)(a ), is unconstitutionally vague. We affirm.

Background. We summarize the relevant facts as the jury could reasonably have found them. On December 18, 2014, a Weymouth police officer observed a Toyota 4Runner driving northbound on Route 3A, a heavily-traveled four-lane road. He witnessed the car swerve back and forth, cross the double yellow center line, and at one point, abruptly move from the left lane all the way over to the right lane, nearly striking the curb, before moving back to the left. As there were other vehicles traveling on the road, the officer feared that the 4Runner might cause an accident; accordingly, he activated his cruiser lights and pulled it over. When he approached the car, he detected a strong odor of alcohol. He testified that the defendant's "speech was slurred and thick-tongued" and that "her eyes were glassy and bloodshot." Suspecting that the defendant was under the influence of alcohol, the officer asked her if she would consent to field sobriety tests. When the defendant performed these tests unsatisfactorily, the officer formed the opinion that she was intoxicated and arrested her.

The defendant was charged with operating under the influence of alcohol (OUI), in violation of G. L. c. 90, § 24(1)(a )(1) ; negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24(2)(a ) ; and a marked lanes violation, in violation of G. L. c. 89, § 4A. A District Court jury acquitted the defendant of the OUI charge, but convicted her of negligent operation of a motor vehicle. The trial judge also found the defendant responsible for a marked lanes violation. The defendant appealed her conviction and filed a motion for new trial, arguing that the negligent operation statute is unconstitutional and that the jury instructions given at trial were erroneous. The motion judge, who was also the trial judge, denied the motion after a hearing. The defendant appealed.

Discussion. In reviewing the denial of a motion for new trial, we look to see whether the motion judge committed "a significant error of law or other abuse of discretion." Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting from Commonwealth v. Forte, 469 Mass. 469, 488 (2014). We give "special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

A conviction of negligent operation of a motor vehicle requires the Commonwealth to "prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant takes issue with the third element, arguing that the determination of what sort of conduct might endanger the public permits arbitrary enforcement and is too vague to put an ordinary person on notice of what is proscribed. Specifically, she contends that the statute should require that the operation occur in proximity to the public; otherwise, she maintains, the line between civil traffic infractions and violations of G. L. c. 90, § 24(2)(a ), cannot be drawn with adequate certainty.

"A penal statute must 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.' " Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting from Kolender v. Lawson, 461 U.S. 352, 357 (1983). However, a statute's language "need not be afforded 'mathematical precision' in order to pass constitutional muster." Commonwealth v. St. Louis, 473 Mass. 350, 355 (2015), quoting from Commonwealth v. Reyes, 464 Mass. 245, 249 (2013). A statute is not void for vagueness "if it requires a person to conform [her] conduct to an imprecise but comprehensible normative standard." Commonwealth v. McGhee, 472 Mass. 405, 414 (2015), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

In rejecting a vagueness challenge to an earlier version of G. L. c. 90, § 24, the Supreme Judicial Court held that the language, "[w]hoever upon any way ... operates a motor vehicle so that the lives or safety of the public might be endangered," was sufficiently precise to define the crime. Commonwealth v. Pentz, 247 Mass. 500, 506 (1924). The court ruled that operating a vehicle "so as not to endanger the lives or safety of the public is the description of a fact," and noted that "[w]hile it may not be easy to formulate in words a comprehensive definition of that fact applicable to all cases, it is not difficult to comprehend with some approach to accuracy the thought conveyed by the description of that fact." Id. at 506-507.

Subsequently, this court held that the term "negligently" in G. L. c. 90, § 24G, a motor vehicle homicide statute, was not unconstitutionally vague as it "provides a person of ordinary intelligence with sufficient notice of that conduct which is prohibited." Commonwealth v. Burke, 6 Mass. App. Ct. 697, 700 (1978). That statute "is modelled closely after" and criminalizes the same conduct as the negligent operation statute, but with the added requirement that the conduct cause the death of another person. Id. at 699-700. See Commonwealth v. Jones, 382 Mass. 387, 392 (1981). We are therefore confident that § 24(2)(a ), which simply modifies the phrase "so that the lives or safety of the public might be endangered" (upheld in Pentz ) with the requirement of operating a vehicle "negligently" (upheld in Burke ), is not unconstitutionally vague under the standards discussed above.

The defendant argues that the statute requires, or "should" require, proof of operation in proximity to the public; she mistakenly assumes that something closer to the elements for a cause of action under tort law (i.e., more potential for causing immediate damage or injury) should be required to establish a criminal offense. Our cases have consistently held that the statute does not require proximity to the public, as "it is the operation of the vehicle itself that is the crime." Commonwealth v. Constantino, 443 Mass. 521, 526 (2005). "The statute only requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did." Commonwealth v. Jewett, 471 Mass. 624, 630 (2015), quoting from Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007). "[T]he Legislature has great latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society." Commonwealth v. Jackson, 369 Mass. 904, 909 (1976). One chief purpose of § 24(2)(a ) is to protect the public from negligent drivers, see Commonwealth v. Campbell, 475 Mass. 611, 618-619 (2016), and the Legislature may do so by authorizing punishment of such drivers without waiting for their negligent operation to result in an accident or even a near miss.

We reject the defendant's contention that the statute is impermissibly vague merely because the same conduct could result in a civil infraction. She cites no authority for the proposition that the Legislature cannot make the same conduct the subject of both civil and criminal prohibitions, let alone that doing so creates a constitutional vagueness problem. See generally Cambridge v. Phillips, 415 Mass. 126, 127-130 (1993) (no vagueness problem in allowing police to choose between issuing warning and issuing citation for traffic infraction, even if citation process were treated as criminal).

The defendant finally argues that the judge erred in failing to instruct the jury that negligent operation requires proximity to endangerment of others. Because, as we have discussed, the statute contains no proximity requirement, this claim similarly lacks merit.

Judgment affirmed.

Order denying motion for new trial affirmed.

      The defendant also appeals from her conviction, but makes no separate argument contesting its validity.

      The parties' briefs present differing arguments concerning the extent to which evidence of a defendant's consumption of alcohol may be taken into account on a negligent operation charge where that defendant has been acquitted of operating under the influence. See Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017). Because this question does not bear on whether the negligent operation statute is unconstitutionally vague, we do not discuss it further. To the extent the defendant intends her argument, which appears only in her reply brief, as a challenge to the sufficiency of the evidence supporting her conviction, she may not raise that argument for the first time in a reply brief. See Commonwealth v. Keevan, 400 Mass. 557, 562 n.4 (1987).

      As the defendant failed to raise this argument in a pretrial motion to dismiss, and asserted it only in her motion for new trial, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Moses, 436 Mass. 598, 605 n.4 (2002) ; Commonwealth v. Bly, 444 Mass. 640, 647-651 (2005). As we reject the defendant's constitutional challenge, the standard of review makes no practical difference here.

      The judge instructed the jury:
      "A person can be found to have driven negligently even if no accident resulted, and even if there was no one else actually on the road to be put in danger. A person is negligent if she drives in a way that has the potential to cause an accident or to endanger anyone who might be on the road."


text:
    COMMONWEALTH v. Todd J. GERMAINI.
    16-P-1687
    Appeals Court of Massachusetts.
    Entered: March 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant, Todd J. Germaini, of larceny over $250. Following the conviction, the defendant was found guilty of being a common and notorious thief after a jury-waived trial. On appeal, the defendant contends the denials of his motion for new trial and motion to dismiss were erroneous and his trial counsel was ineffective. We affirm.

Background. Based on the evidence presented by the Commonwealth, the jury could have found the following facts. On March 8, 2014, Germaini was in the Hyannis Home Depot store where he was observed by Travis Riggle, the loss prevention employee for Home Depot, taking a "heavy duty" drill and a drill bit from the hardware department. Germaini took the items to the kitchen and bath section of the store where he removed the drill and drill bit from their packaging and put the items down the front of his pants. Germaini then "paced the aisle" at which point he observed Riggle. Upon seeing Riggle, Germaini removed the drill and drill bit from his pants, left them in the kitchen and bath section, and left the store. Riggle stopped Germaini, brought him back into the store, and contacted the Barnstable police. Germaini was placed under arrest and transported to the police station.

Discussion. 1. Motion for new trial. Prior to trial, the defendant was provided with a report of the incident prepared by Riggle. This report incorrectly indicated that the defendant walked out of the store with the items. At trial all parties learned for the first time that the report was incorrect and that Riggle had prepared an amended report that had not been provided to the police or the prosecutor. The defendant's motion for new trial claims that he was prejudiced by the prosecutor's failure to provide him with a copy of Riggle's amended report prior to trial.

"A motion for new trial is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error. Reversal for abuse of discretion is particularly rare where[, as here,] the judge acting on the motion was also the trial judge." Commonwealth v. Moore, 408 Mass. 117, 125 (1990) (citations omitted).

We reject the defendant's assertion that the judge abused his discretion in denying the motion for new trial. The Commonwealth could not disclose an amended report it never had in its possession. "The Commonwealth's responsibility to provide discovery to the defendant extends to material in its possession, custody, or control, and includes information in the possession of persons who have participated in the investigation or evaluation of the case and who report to the prosecutor's office concerning the case." Commonwealth v. Williams, 456 Mass. 857, 870 (2010). Riggle was an employee of Home Depot and, as such, was an independent witness. He was not an agent of the Commonwealth. See Commonwealth v. Beal, 429 Mass. 530, 532-533 (1999).

2. Motion to dismiss. The defendant next asserts error in the denial of his pretrial motion to dismiss the indictment for larceny based on his claim that the grand jury heard insufficient evidence to establish probable cause as to the elements of asportation and intent to permanently deprive. See generally Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).

Applying the standard set forth in McCarthy, we conclude that sufficient evidence was presented to the grand jury to establish probable cause for the indictment for larceny. Here the defendant took the items from the hardware section of the store to the kitchen and bath section where he was observed removing the packaging and placing the items down his pants. After pacing in the aisle and seeing the loss prevention employee, the defendant removed the items from his pants and left them in the kitchen and bath section. See Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003) ("[I]t is well-recognized in Massachusetts and elsewhere that taking goods beyond a store's premises is not a necessary precondition to a larceny conviction; the element of asportation may be satisfied if the defendant's behavior establishes that he or she removed the goods from the store's control to his or her own"). As to his intent, "even if the defendant ultimately gave up [his] efforts to remove the goods from the premises" when he placed the items down his pants, he "did so with an intent that was inconsistent with purchasing the goods and had transferred control to [himself]." Id. at 28.

3. Ineffective assistance of counsel. Finally, the defendant claims that his trial counsel was ineffective for failing to obtain Riggle's amended report and failing to object to three jurors. The defendant's trial counsel cannot be considered ineffective where the disclosure of the amended report was made for the first time during Riggle's testimony at trial. As to the claim relating to the selection of jurors, the defendant has failed to indicate the nature of any alleged prejudice resulting from the jury selection, or to support such allegations with argument.

For these reasons we conclude that the defendant's trial counsel was not ineffective.

Judgments affirmed.

Order denying motion for new trial affirmed.

      After the defendant noticed his appeal from the judgments and the order denying his motion for new trial, he dismissed that appeal. See Mass.R.A.P. 29(b), as amended, 378 Mass. 943 (1979). He then filed a motion for a required finding, which was denied, and then a new notice of appeal. As a result, the order denying the motion for new trial may not properly be before us. But because neither party raises this issue, and the argument has been fully briefed, we address the appeal of the order in our discretion. See Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 410-411 (2007).

      We review the evidence to determine whether the grand jury heard "sufficient evidence to establish the identity of the accused, ... and probable cause to arrest him." McCarthy, supra. This standard "is considerably less exacting than the requirement that a judge must apply at trial." Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). "All that is required is 'reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the defendant had committed ... an offense.' " Ibid., quoting from Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984).

      "Where the defendant merely lists alleged errors and complaints, without proper argument, that list does not merit our attention. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. [921] (1975)." Commonwealth v. Klein, 400 Mass. 309, 316 (1987).


text:
    HAEHYUN CHOI v. TOYOTA MOTOR SALES USA, INC.
    16-P-1595
    Appeals Court of Massachusetts.
    Entered: March 12, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff Haehyun Choi appeals the dismissal under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), of her amended complaint filed in 2016 as an independent action under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). The complaint, asserting both fraud (count 1) and fraud on the court (count 2), sought to set aside a 2005 judgment in favor of Toyota Motor Sales USA, Inc. (Toyota), in Choi's underlying product liability suit against Toyota. We affirm.

Background. The underlying suit arose out of a one-car accident that occurred while Choi was driving her 1996 Toyota Corolla and that left her paralyzed. Choi alleges that the accident was due to a sudden loss of steering control. Choi retained counsel, who brought suit against Toyota and related entities. In the meantime, Choi's husband, who held a Ph.D. in mechanical engineering, performed his own investigation of the accident (with assistance from others) and concluded that two parts of the vehicle that might have caused or contributed to the accident and Choi's injuries-the strut rod attached to one of the rear wheels, and the driver's seat-had been tampered with after the accident so as to make them appear to be in normal condition. Choi and her husband believed that Toyota was responsible for the alleged tampering.

Despite the urgings of Choi and her husband, however, the Chois' then-counsel declined to pursue this theory, opting instead to accept the notion of operator error and pursue a claim that a subsequent airbag malfunction caused Choi's injuries. The Chois considered obtaining alternate counsel, but "it appeared unwise to change horses in midstream," so they "relented and put their fate in [then-counsel's] hands." After a trial in 2005, the jury returned a defense verdict, and the judgment was affirmed on appeal. Choi v. Toyota Motor Corp., 74 Mass. App. Ct. 1118 (2009). The Chois' posttrial motion alleging fraud was denied in 2009. Choi filed this action in 2015, amended her complaint in 2016, and now appeals from its dismissal.

Discussion. "[W]e review de novo a rule 12(b)(6) dismissal of a rule 60 claim that is raised in an independent action." Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 347 n.18 (2010). We thus "determine whether facts alleged in the complaint raise a right to relief above the speculative level, on the assumption that all the allegations of the complaint are true." Ibid., quoting from Largo Realty, Inc. v. Purcell, 77 Mass. App. Ct. 162, 163 (2010). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).

1. Count 1. Count 1 of Choi's complaint was framed as an independent action to relieve Choi from the 2005 judgment, based on allegedly fraudulent conduct by Toyota that made that judgment manifestly unconscionable. "Grounds for such an action are very narrow and require something more than common-law fraud." Owens v. Mukendi, 448 Mass. 66, 77 (2006), citing Sahin v. Sahin, 435 Mass. 396, 401-402 (2001).

"To the extent that the claims raised by a party's independent action appear to fall within those provisions of rule 60(b) that mandate a specific time limitation, but materialized too late to file in a motion to the court which rendered the judgment, the party must raise some additional ground or reason justifying relief after the expiration of the time limitation" (emphasis supplied).

Sahin, 435 Mass. at 401. That principle applies here, where motions for relief from judgment based on fraud are subject to the one-year limitation period of Mass.R.Civ.P. 60(b)(3). The party seeking relief must show that allowing the judgment to stand would be "manifestly unconscionable." Sahin, 435 Mass. at 402, quoting from Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-245 (1944).

Whether that standard is met-whether the facts fall into the "very narrow" category of situations, "something more than common-law fraud," that will justify relief-has been treated as a question of law. Owens, 448 Mass. at 77. See Sahin, 435 Mass. at 403-405 ; Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 348-349. Prior decisions illustrate the difficulty of meeting the standard. Compare Sahin, 435 Mass. at 402-403 (citing cases indicating that presentation of perjured testimony, or a conspiracy to present such testimony, is insufficient to warrant relief in independent action for relief from judgment), with Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 348 (although "perjury, standing alone, generally does not support relief," alleged "extraordinary fraud that touched every part of [a party's] case" was sufficient, when considered with other circumstances).

Choi's complaint alleges four instances of fraud-two arising out of other proceedings, and two arising in her own underlying product liability suit-that assertedly rise to this level. We consider these allegations in turn and conclude that, taken as true and even when taken together, they do not allege a sufficient fraud to warrant relief.

a. Alleged fraud in other proceedings. First, Choi alleges that in 2014, Toyota Motor Corporation entered into a deferred prosecution agreement with the United States Department of Justice in which it admitted to having systematically misled consumers and Federal regulators for years about safety issues related to unintended acceleration in Toyota automobiles.

Second, Choi alleges that in 2009, a high-ranking in-house lawyer for Toyota from 2003 to 2007, Dimitrios Biller, filed a whistleblower suit in Federal court in California, alleging that Toyota had intentionally disobeyed discovery orders in over 300 cases between 2004 and 2007. Choi alleges that Biller's suit asserted Toyota maintained certain "Books of Knowledge" in which it compiled extensive information about internal reviews of, concerns about, and design defects in its automobiles, but that it routinely failed to produce such documents in discovery. Choi alleges that given the timing of her own suit against Toyota, "Biller was likely involved in the oversight" of that suit, and that no "Books of Knowledge" were ever produced to her counsel in that suit.

Choi attached to her complaint a copy of Biller's Federal complaint. In that complaint, Biller alleged that he had served as National Managing Counsel in charge of Toyota's National Rollover Program. Biller alleged that, over his objections, Toyota was not producing electronically-stored information (ESI) in the discovery process, and that a Toyota entity had destroyed ESI "that should have been produced in, approximately, over 300 rollover accidents involving roof crush issues." Biller also alleged that one of the electronic discovery issues he sought to resolve within Toyota related to the "Books of Knowledge."

Choi's complaint alleges that her accident was due to a sudden loss of steering control. She does not allege that she experienced any unintended acceleration or that her car rolled over. Choi nevertheless alleges that although the deferred prosecution agreement was "technically restricted to unintended acceleration cases," its acknowledgment of Toyota's wrongdoing, "coupled with the allegations of discovery obstruction made by Biller, illustrate a corporate culture imbued with secrecy and lawlessness." She then alleges, "If such tactics were utilized in [her] underlying litigation, this would not have constituted ordinary, but 'extraordinary' fraud" (emphasis supplied).

We conclude that these allegations, even if true, are insufficient to raise Choi's "right to relief above the speculative level." Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 347 n.18 (quotation omitted). Choi does not allege that such tactics were used in her case, only that they might have been. That Toyota concealed evidence of unintended acceleration from consumers and Federal regulators, or allegedly maintained a corporate culture of secrecy and lawlessness, is too speculative a basis on which to conclude that Toyota concealed evidence of a steering or other design defect in Choi's case. That Biller alleged that Toyota engaged in discovery abuses in cases involving vehicle rollovers, and cases involving ESI, and perhaps other cases, is too speculative a basis on which to conclude that Toyota actually engaged in such abuses in Choi's case, which she does not allege involved a vehicle rollover or any discovery request from her counsel to Toyota seeking ESI. Moreover, Choi does not allege that Biller's allegations were true (or what might have been the outcome of his suit), and it is only the allegations in Choi's complaint-not those in Biller's-that we must accept as true in reviewing action on a rule 12(b)(6) motion.

b. Alleged fraud in Choi's own suit. Choi alleges that in 2013, she received, from her then-counsel, approximately twenty boxes of documents from her underlying case. Based on these documents, Choi's husband "refine[d] his technical analysis of the accident, causing him to conclude that the defense experts, with the advice and consent of counsel, had offered scientifically invalid opinions at trial." "He concluded that their collective testimony was flawed and misleading regarding the cause of the accident and the injuries sustained by [Choi] therein."

These allegations, taken as true, do not rise to the level that would warrant relief. First, Choi does not allege that information revealing the flaws in the defense experts' testimony was unavailable at the time of trial. Choi and her husband, who was also a plaintiff in the underlying case, had the right to attend the trial and listen to the defense experts' testimony (although the complaint does not make clear whether they did so), as well as the right to obtain materials from their then-counsel. Choi does not allege that her counsel ever denied her and her husband access to the case files. Second, even if the defense experts' testimony was "misleading," that would not entitle Choi to relief, because even a showing of perjured testimony does not ordinarily warrant relief in an independent action under rule 60(b). See Sahin, 435 Mass. at 402-403 ; Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 348.

The second instance of fraud Choi alleges to have occurred in her underlying suit grows out of a motion in limine that Toyota filed to preclude Choi's husband from testifying as an expert at the 2005 trial. Choi's then-counsel did not oppose that motion, and it was allowed. Shortly after the trial, Choi wrote a letter to the trial judge, outlining her husband's investigation and alleging that the truth had been concealed at trial. She asked that the letter be treated as a posttrial motion. No action was taken on the motion until after the appeal was resolved in 2009. At that time Toyota filed an opposition to the motion, attaching an affidavit from Toyota's trial counsel asserting that when he had filed the motion in limine, he had only limited knowledge of Choi's husband's contentions.

Choi alleges that her posttrial motion was denied and that she appealed this ruling, but that her appeal was dismissed for lack of prosecution. Choi now alleges that she learned, based on the receipt of case materials from her then-counsel in 2013, that Toyota's trial counsel's 2009 affidavit was "materially inaccurate," and that in fact he had "extensive[ ]" knowledge of her husband's theories prior to trial.

Any such inaccuracies in the affidavit would not entitle Choi to relief in this action, because, among other reasons, the judge who denied Choi's posttrial motion in 2009 did not rely on that affidavit. Rather, he ruled, "the only materials properly before the court for consideration" on Choi's motion were materials submitted by Choi herself, and they did "not show by clear and convincing evidence that either defendant, or anyone whose conduct is attributable to them, engaged in fraud or other misconduct that deprived [Choi] of an opportunity to present her case fully and fairly at trial." In the circumstances, the alleged inaccuracies in Toyota's trial counsel's affidavit furnish no basis for an independent action to vacate the 2005 judgment.

2. Count 2. Choi framed count 2 of her complaint as an independent action for relief from the 2005 judgment based on "fraud on the court." "A party seeking to demonstrate fraud on the court must [allege] 'the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to "influence" the court, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud.' " Paternity of Cheryl, 434 Mass. 23, 36 (2001), quoting from MacDonald v. MacDonald, 407 Mass. 196, 202 (1990). Another formulation of the standard is that "[a] 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).

Choi argues two instances of fraud on the court. The first involves the alleged tampering with Choi's vehicle after the accident-tampering for which Choi believed Toyota was responsible. But Choi did not allege that any attorney for Toyota was involved in such an effort, nor did she allege that Toyota unfairly hampered her from presenting evidence of such tampering to the court; rather, she alleges that it was her own trial counsel who, presented with the tampering allegations, declined to pursue them. Thus the tampering allegation fails to state a claim for fraud on the court under the standards articulated in Paternity of Cheryl and Rockdale Mgmt. Co.

Choi's second claimed instance of fraud on the court involves the allegedly false statement in Toyota's trial counsel's 2009 affidavit explaining why he filed the 2005 motion in limine to preclude Choi's husband from giving expert testimony. But, as just noted, Choi's own complaint alleges that her trial counsel repeatedly declined to pursue her husband's theories about the accident and did not oppose Toyota's motion in limine. The complaint does not allege that the assertedly false statement had any influence on whether Choi's husband testified as an expert, and it does not plausibly allege that the statement influenced the judge's ruling on Choi's posttrial motion. This aspect of the complaint thus fails to allege the requisite "most egregious conduct involving a corruption of the judicial process itself." Paternity of Cheryl, 434 Mass. at 36.

Conclusion. The amended complaint was properly dismissed for failure to state a claim on which relief could be granted.

Judgment affirmed.

      Rule 60(b) states, in pertinent part, "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court."

      Choi's husband passed away before the present action was filed.

      We therefore need not consider other factors deemed relevant to a plaintiff's entitlement to relief in an independent action under rule 60. See, e.g., Owens, 448 Mass. at 77 (considering timeliness of filing of action); Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 348 (considering size of judgment and conduct of pro se party that obtained it).

      Toyota Motor Corporation was a defendant in Choi's earlier product liability suit leading to the 2005 judgment, and was originally a defendant in this action as well, but Choi's amended complaint asserted claims only against Toyota Motor Sales USA, Inc.

      We therefore need not decide the question whether such tactics, if used in Choi's case, would fall into the "very narrow" category of situations that will justify relief in an independent action under rule 60(b). Owens, 448 Mass. at 77.

      Although it is not clear whether the 2009 ruling denying Choi's posttrial motion was attached to her complaint in this action, Toyota has attached the ruling to its appellate brief. "A reviewing court, like the judge initially evaluating and ruling upon a motion to dismiss, is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint." Kilnapp Enterprises, Inc. v. Massachusetts State Auto. Dealers Assn., 89 Mass. App. Ct. 212, 213 (2016). See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).

      Choi's reply brief notes that "[i]t is not necessary to show that the statement of material fact did in fact influence a determination by the judge." Matter of Angwafo, 453 Mass. 28, 35 (2009). But that case applied the quoted proposition in determining whether an attorney had violated the rules of professional conduct. Choi cites no case applying the proposition to vacate a judgment because of fraud on the court regardless of whether the alleged fraud had any effect on the court.

      We deny, as moot, both Toyota's motion to dismiss the appeal (paper no. 11), and Choi's motion (paper no. 10.1) to file supplemental materials in support of her previously-denied motion (paper no. 9) for leave to file in the trial court a motion to set aside the judgment of dismissal.