This is a dispute over the ownership of stallion owner’s incentive awards from the Massachusetts Thoroughbred Breeders Association. Plaintiff Hill claimed ownership of the awards for races in which an offspring of his stallion won, placed or showed. Defendant Venezia, prior owner of the stallion, also claimed those awards. The trial court awarded damages to the plaintiff and the defendant appealed, claiming various errors in the trial. In this opinion, the Appeals Court upholds the decision of the trial court in favor of the plaintiff.
Both the plaintiff and the defendant claim rights to incentive awards distributed by the Massachusetts Thoroughbred Breeders Association (MTBA) for the offspring of a stallion named Hiromi the Great (Hiromi). A jury found in favor of the plaintiff. We affirm.
1. Incentive awards. Pursuant to G.L. c. 128, § 2(g ), as amended by St.1991, c. 114, § 1, in each licensed thoroughbred horse race in Massachusetts, the MTBA issues up to nine incentive awards. The prizes are available to (1) the owners of any Massachusetts-bred horses that won, placed or showed (the owner's award); (2) the owners of the mares that gave birth to those horses (the breeder's award); and (3) the owners of the registered stallions that sired those horses and "stood the season" in Massachusetts (the stallion owner's award).
2. Facts. The jury could have found the following facts. Shortly after the plaintiff opened a public stable in Ipswich in 1983, the defendant sent Hiromi to the stable, Rainbow Farm, to board and be available for breeding. By 1986, when Hiromi's offspring had not been successful at the racetrack, the plaintiff and the defendant agreed that the plaintiff would take the stallion. The plaintiff filed the appropriate forms showing her ownership of the stallion with the MTBA. The parties are in accord that the plaintiff agreed to waive stud fees involving Hiromi. The sticking point is whether the plaintiff also agreed to waive any stallion owner's incentive awards for foals sired by Hiromi and the defendant's mares.
Subsequently Hiromi and one of the defendant's mares produced a filly who began what turned out to be a successful racing career in late 1992 or early 1993. The defendant asserted that he was entitled to the stallion owner's award. The plaintiff claimed that she was entitled to the award. Upon inquiry from the MTBA, the plaintiff did not put her claim in writing because an agent of the defendant had warned her not to cross Fred Langone, whom she knew to be associated with the defendant.
3. Prior proceedings. The plaintiff filed this suit, claiming breach of contract and violation of G.L. c. 93A. In answer to special questions, a Superior Court jury found that the defendant breached the contract; that the defendant committed an unfair act toward the plaintiff; that the unfair act was a substantial contributing factor causing her loss; that her damages were $32,160.30; that the unfair act was wilful and knowing; and that damages should be doubled. (App.I:78-79) Judgments entered on the c. 93A claim and the contract claim, but no execution issued on the latter claim, as the damages were included in the c. 93A damage award. The trial judge denied the defendant's motion for judgment notwithstanding the verdict (App.I:105-107), and allowed the plaintiff's motion for attorneys' fees in the amount of $22,121.25 plus court costs of $1,212.60. (App.I.107)
4. Analysis. Most of the defendant's claims of error on appeal were not raised below and are therefore waived. In any case, even on the merits there was no error.
a. First the defendant claims error in the judge's instructions on the existence of a contract. Even if the claim of error had not been waived for failure to object below, see Jarry v. Corsaro, 40 Mass.App.Ct. 601, 603 (1996) ("party must make a proper objection to a jury instruction before the jury retires in order to preserve the issue for appeal"); compare Kando v. Dick Weller, Inc., 4 Mass.App.Ct. 808, 808 (1976) (where no objection was made to the trial judge's striking witness's unresponsive answer and instructing the jury to disregard it, issue waived on appeal), there was no error because it was the changing position of trial counsel that led to the instructions. Moreover, the judge protected the defendant by taking upon himself responsibility for the need to correct the instructions.
b. Next the defendant claims that a new trial is warranted because he was prejudiced by the plaintiff's use of a "Mafia theme" at trial. (D.Br.20) However, it was defense counsel who mentioned the term "Mafia deal" in cross- examining the plaintiff. (App.IV:119) It was only in response to defense counsel's persistent questions as to the basis of her belief that the warning about Langone was a threat, that the plaintiff responded "I have seen barns burn." (App.IV:81) Again it was defense counsel who returned to the topic of barn burnings in his closing. (V:108)
The judge gave corrective instructions that Mr. Langone's integrity was not at issue and that he was a reputable attorney. The judge was not required to give, sua sponte, the further instructions the defendant now insists were necessary. (These instructions were that the fact that the defendant, his agent, and Mr. Langone were of Italian descent did not suggest a connection with the Mafia or any greater likelihood that the threats to the plaintiff might have been made.)
c. G. L. c. 93A claim. The defendant further claims there was insufficient evidence to submit the G.L. c. 93A claim to the jury. There having been no motion for a directed verdict at trial, this issue was not preserved. See Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998); Michnik- Zilberman v. Gordon's Liquor, Inc., 14 Mass.App.Ct. 533, 536 (1982). Even if the issue had been preserved, the threat directed at the plaintiff constituted "conduct undertaken as leverage to destroy the rights of another party to [an] agreement ... [and] warranted a finding of unfair acts or practices." Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 43 (1995).
d. Citing Commonwealth v. Shraiar, 397 Mass. 16, 17 (1986), the defendant next asserts that "[b]ecause Attorney Langone had such a personal stake in the outcome of the trial, it was improper for him to appear on behalf of [the defendant]." (D.Br.26) He claims that "[t]he failure of the judge to order the defendant to retain alternate trial counsel constitutes reversible error." (D.Br .27) Shraiar, however, involved a criminal defendant's Sixth Amendment right to effective assistance of counsel. We have found no recent civil case in the Commonwealth that stands for such a proposition.
As to civil litigation, it was long ago established that "as a general rule, ... review should not be granted when the [appellant's] ... cause of complaint grows out of the negligence or misconduct of his attorney ... he should be left to seek his remedy against [the person] who is responsible for the wrong." Trustees of Amherst College v. Allen, 165 Mass. 178, 180 (1896). See more recent cases from other States, e.g., Wolfe v. Board of Educ., 171 Ill.App.3d 208, 212 (1988) ("unfair to put the prevailing party in a civil case to the inconvenience and expense of a new trial because the losing party ha[d] problems with its attorney"); Jackson v. Russell, 498 N.E.2d 22, 28-34 (Ind.Ct.App.1986). So in this case, we think the judge was not required to order disqualification of the defendant's attorney sua sponte. The defendant chose his attorney, and a client's choice is entitled to considerable deference. See Levitt v. Levitt, 9 Mass.App.Ct. 894, 894 (1980) (recognizing the strong presumption that a party has a "right to representation by counsel of [his] choice").
e. Next the defendant contends there was error in the calculation of the prejudgment interest. He complains that the judge rather than the jury determined the date of the contract breach. See Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986). However, the judge did not so much decide the question himself as point to the agreed upon issues of fact set out in the joint pretrial memorandum, albeit he referred to the document as a stipulation. In the discussion of the special jury questions, the judge asserted that, if the jury were to find that there was a breach, "there's no dispute as to when it occurred. It occurred when the Defendant took the position that the Plaintiff was not entitled to owner stallion fees ... that's in the stipulation." (A.V:5) There was no objection from the defendant. Nor was there any error in that determination.
Citing G.L. c. 231, § 6C, the defendant argues on appeal that "[t]he payments which were the subject of the plaintiff's claims were paid over a period of years.... Interest cannot be assessed on a balance which was not owed [on a particular date]," and thus "[i]nterest should [be] permitted only from the commencement of the action." (D.Br.28-29) The problem with this contention is that the defendant failed to file a motion pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974); or Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), or take any other action to bring the issue to the judge's attention. Under Palermo v. Fireman's Fund Ins. Co., 42 Mass.App.Ct. 283, 292 n. 15 (1997), the claim is therefore waived.
f. Finally, the defendant claims that the admission of Exhibit one, consisting of a series of stallion registration forms filed with the Massachusetts Department of Food & Agriculture for the years 1987 to 1990, constituted prejudicial error. There was some evidence that the record-keeping at this State agency may have been unreliable. (App.IV:191-192) Trial counsel objected to introduction of the records on the ground that they were not properly certified. In view of the judge's instructions to the jury (App.IV:10), and the limited role the certification played in the trial, any error in the admission of the evidence was not prejudicial. See Bermingham v. Thomas, 3 Mass.App.Ct. 742, 742 (1975) (defendants failed to "sustain their burden of showing that the admission of the testimony, even if erroneous, was prejudicial"). The plaintiff testified that she filled out the proper paper work and sent it to the department. (A.IV:9-12) The defendant effectively introduced evidence of the deficiencies in the records, which were in any case not critical to the issue as to the terms of the agreement. The agency's action or any lack thereof did not play a significant role in the case. Any other objections to these records were not made below and are therefore waived. See Huber v. Huber, 408 Mass. 495, 497 (1990) (argument that report was inadmissible hearsay was not preserved for appeal because at trial party argued report was inadmissible for other reasons).
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