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13-P-605                                              Appeals Court

           DEBORAH A. ALLEN1   vs.   HAROLD J. ALLEN, JR.


                            No. 13-P-605.

     Suffolk.       February 12, 2014.   -   September 16, 2014.

           Present:    Trainor, Katzmann, & Hanlon, JJ.


Deed, Acknowledgement. Real Property, Deed, Conveyance, Record
     title. Notice. Practice, Civil, Failure to make
     objection, Motion to amend.



     Civil action commenced in the Land Court Department on
January 19, 2010.

     A motion to amend a counterclaim was heard by Gordon H.
Piper, J., the case was tried before him, and a motion to amend
the judgment or for a new trial was considered by him.


     Helen G. Litsas for the defendant.
     Amy M. McCallen for the plaintiff.


     KATZMANN, J.    This case concerns competing claims between

adult siblings for the ownership of the house formerly owned by

     1
       Individually, as trustee of the Allen Realty Trust, and as
executrix of the estate of Ethel M. Allen. In her brief, the
plaintiff avers that she has been succeeded by her sister Nancy
Oldro as executrix of the estate.
                                                                   2


their now-deceased parents.   Harold Allen, Jr., (Harold) traces

his ownership to a July, 2001, deed (July deed) from the

siblings' mother, Ethel Allen (Ethel).   Harold's sister Deborah

Allen (Deborah) claims ownership by virtue of a November, 2001,

deed (November deed) from Ethel to the Allen Realty Trust

(Trust), of which Deborah was a cotrustee along with Ethel.

     Deborah brought an action alleging that the July deed was

forged and claiming that the property was rightfully hers.2

Following a jury-waived trial, a judge of the Land Court

determined that, because the acknowledgment of the July deed was

defective, its recording did not give constructive notice to

Deborah of the conveyance and the deed was not enforceable

against her.   This is an issue of first impression, not yet

addressed by our appellate courts.

     On appeal, Harold argues (1) pursuant to exceptions

provided in the recording statute, his deed was not required to

be recorded, or, alternatively, the recording statute's safe

harbor provision protects his claim to the property; (2) the

judge's decision exceeded the scope of the pleadings;

(3) because of clearly erroneous findings, there was


     2
       The rights of other siblings, who, along with Deborah, are
beneficiaries of the Trust, are also affected by the
determination as to which deed is valid. Deborah's complaint
does not purport to divest the other siblings of their interest
in the property.
                                                                       3


insufficient evidence to support the judgment; and (4) the judge

erred in denying Harold's motion to amend his counterclaim.       We

affirm.

     Background.    We summarize the relevant facts as found by

the judge in his memorandum of decision and postjudgment order,

supplemented as necessary with undisputed facts from the record.

We reserve certain details for discussion with the specific

issues raised.

     Deborah and Harold are two of the six children of Ethel and

Harold Allen, Sr. (Harold, Sr.).    Harold, Sr., and Ethel owned a

house at 257 Marrett Road, in Lexington, and lived in that home

for many years.    Over the course of their marriage, Harold, Sr.,

and Ethel created numerous estate plans, which consistently

excluded their two sons, Harold and Lawrence, because Harold,

Sr., and Ethel had provided for them through lifetime gifts.3

After Harold, Sr., died, Ethel continued this pattern.4



     3
       In 1987, Harold, Sr., transferred a one-third ownership
stake in the family home heating oil business, Sherwood Oil Co.,
Inc., to Harold and a one-third ownership stake in the business
to Lawrence.
     4
         Ethel's final will, executed on February 28, 2008, stated:

     "I have intentionally and not as the result of any accident
     or mistake, made no specific provision for my sons, LARRY
     ALLEN and HAROLD J. ALLEN, Jr., and their issue, not for
     lack of love or affection, but rather because my sons have
     been provided for by my late Husband and myself."
                                                                     4


    The events at the center of this dispute occurred during

2001.   In late April, 2001, Ethel began the process of moving

from her Lexington home to live with one of her daughters, Nancy

Oldro, in Nashua, New Hampshire.    After evaluating conflicting

testimony, the judge concluded that Ethel had fully moved in by

mid-July, 2001.

    Harold traces his claim to a deed Ethel executed on July

23, 2001, conveying the house to Harold and to Ethel as joint

tenants with a right of survivorship.     This deed is the subject

of the present dispute.     Attorney Paul Maloy prepared the deed

and signed a certificate of acknowledgment, dated July 23, 2001,

which reads:   "Then personally appeared the above named Ethel M.

Allen and acknowledged the foregoing instrument to be her free

act and deed, before me, [/s] Paul F. Maloy- Notary Public."

Maloy recorded the deed on August 10, 2001.     We reserve further

details regarding the execution and acknowledgment of the deed

for the discussion below.

    On November 30, 2001, Ethel established the Allen Realty

Trust and executed a deed conveying the Lexington property to

herself and to Deborah as cotrustees of the Trust, reserving a

life estate for herself.    She specified that the property would

be sold upon her death and the proceeds divided among several of
                                                                    5


her descendants, including Deborah.5   This deed was recorded on

February 8, 2002.

     Only after Ethel died on December 20, 2009, did Harold

reveal the July 23, 2001, deed.    Neither Deborah nor her sister

Nancy nor the attorney who prepared the November deed had

discovered the July conveyance.6   In January, 2010, Deborah

commenced the present action, disputing Harold's claim to the

property.   After a trial that included forensic testimony

regarding the July deed, the judge found that Ethel's signature

on the July deed was authentic.    But he determined that,

contrary to the certificate of acknowledgment on the deed, Ethel

never appeared before Attorney Maloy to acknowledge the deed.

The judge found that, instead, she had signed the deed in front

of Harold, who then brought it to Maloy for his signature.

Harold appeals from the judgment and from the denial of his

postjudgment motions.7


     5
       Once again, she did not include Harold or Lawrence as a
beneficiary.
     6
       The judge noted that the conveyances to Harold and the
trustees were both for nominal consideration, and observed,
"[T]here is nothing to suggest that the Trustees looked in the
Registry before taking their deed, or had any compelling reason
to do so, given the estate planning context of their acquisition
of title. A genuine third party purchaser for value, on the
other hand, would have been remiss in not consulting the record
before paying consideration."
     7
       Harold makes no separate argument with respect to the
denial of his postjudgment motions.
                                                                        6


    Standard of review.    "In reviewing a matter wherein the

trial judge was the finder of fact, '[t]he findings of fact

. . . are accepted unless they are clearly erroneous[] [and]

[w]e review the judge's legal conclusions de novo.'"     Crown v.

Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 224 (2014),

quoting from T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass.

562, 569 (2010) (citations omitted).    See Mass.R.Civ.P. 52(a),

as amended, 423 Mass. 1402 (1996).     "A finding is 'clearly

erroneous' when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed."

Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct.

304, 309-310 (1981), quoting from United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948).    Furthermore, "[i]n

applying the 'clearly erroneous' standard, rule 52(a) requires

that 'due regard shall be given to the opportunity of the trial

court to judge of the credibility of the witnesses.'"     Demoulas

v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997).       Thus,

"[s]o long as the judge's account is plausible in light of the

entire record, an appellate court should decline to reverse it."

Id. at 510.   It is the appellant's burden to show that a finding

is clearly erroneous.   Hanover Ins. Co. v. Treasurer & Receiver

Gen., 74 Mass. App. Ct. 725, 730 (2009).
                                                                      7


     Discussion.   1.   The recording statute.   a.   Latent defect

in certificate of acknowledgment.8   "[O]rdinarily an

acknowledgment is not an essential part of a deed; but if it is

desired to record the deed in order to charge the world with

notice of the conveyance, then it is necessary that the deed be

acknowledged and that a certificate reciting this fact be

attached to the deed.   Doubtless, that is the principal function

of a certificate of acknowledgment."    McOuatt v. McOuatt, 320

Mass. 410, 413-414 (1946) (McOuatt).    See G. L. c. 183, § 4, as

appearing in St. 1973, c. 205 ("A conveyance . . . shall not be

valid as against any person, except the grantor or lessor, his

heirs and devisees and persons having actual notice of it,

unless it . . . is recorded in the registry of deeds for the

county or district in which the land to which it relates lies");

Gordon v. Gordon, 8 Mass. App. Ct. 860, 862-863 (1979) ("[T]itle

to real estate may be transferred by a deed which has not been

acknowledged, and such deed is good against the grantor and his

heirs and those having actual notice").

     The certificate of acknowledgment "furnishes formal proof

of the authenticity of the execution of the instrument when

presented for recording."   Id. at 862, citing McOuatt, 320 Mass.

     8
       On appeal, Harold argues that the judge's consideration of
this issue exceeded the scope of the pleadings. See part 2,
infra. Because we determine that the issue was fairly
litigated, we first consider the issue on the merits.
                                                                   8


at 413-414.   "The certificate of acknowledgment is of

evidentiary character, and the taking of the acknowledgment has

always been regarded in this Commonwealth as a ministerial and

not as a judicial act and the recitals contained in the

certificate may be contradicted."   McOuatt, supra at 413.

     In McOuatt, the Supreme Judicial Court held that where an

acknowledgment had not actually occurred, a facially correct

certificate of acknowledgment failed to satisfy the statutory

requirement that in order for a deed conveying property between

spouses to be valid, it must be acknowledged and recorded.9

McOuatt, supra at 415-416 (applying the then-existing version of

G. L. c. 209, § 3).   Here, as in McOuatt, the deed included a

facially correct certificate of acknowledgment, with the

required signature and recitals, and was recorded.   Also, as in

McOuatt, the judge here concluded that the acknowledgment never

actually occurred.

     Notwithstanding the facially correct certificate of

acknowledgment, because the July deed was never actually

acknowledged, it was not entitled to be recorded.    See G. L.

c. 183, § 29 ("No deed shall be recorded unless a certificate of

its acknowledgment or of the proof of its due execution, made as


     9
       Because the conveyance was void on these grounds, that
court did not reach the question we face today regarding
constructive notice to subsequent grantees.
                                                                   9


hereinafter provided, is endorsed upon or annexed to it");10 Dole

v. Thurlow, 12 Metc. 157, 163 (1846) ("[A]s a prerequisite to

recording, acknowledgment, or proof by one or more subscribing

witnesses, was necessary.   Actual recording, without one of

these prerequisites, would not give effect to the deed").

     An improvidently recorded deed cannot give constructive

notice of the conveyance.   See Graves v. Graves, 6 Gray 391,

392-393 (1856) (where assignment was recorded notwithstanding

fact that it had not been acknowledged, court held that the

assignment was improvidently recorded, the recorded document did

"not operate as constructive notice of the execution of the

assignment . . . as against [a] . . . creditor . . .; and

therefore the title of the . . . creditor, though subsequent in

time, takes precedence").

     As in McOuatt, the facially correct certificate of

acknowledgment does not remedy the absence of a proper

acknowledgment.   See McOuatt, supra at 413, 415.   Indeed, as the

judge here observed, to determine otherwise would reward a

grantee who records a deed that falsely purports to be

acknowledged.   And, pursuant to Graves, an improvidently

recorded deed cannot provide constructive notice to subsequent

grantees.   We therefore conclude that the latent defect in the

     10
       Harold makes no argument that the July deed was recorded
with a certificate proving its due execution.
                                                                    10


certificate of acknowledgment of the July deed prevented it from

giving constructive notice to Deborah of the prior conveyance.

    Harold argues that, even if the July deed was not properly

acknowledged, that defect does not affect his claim to the

property.    He argues, first, that he was not required to record

the July deed in order for it to provide superior title, and,

second, that the recording statute's safe harbor provision

protects his right to the property given the time that elapsed

between the recording of the July deed and the action on appeal

here.    We disagree with both contentions.

    b.     Requirement to record deed.    As we have noted, the

recording statute provides:

    "A conveyance . . . shall not be valid as against any
    person, except the grantor or lessor, his heirs and
    devisees and persons having actual notice of it, unless it
    . . . is recorded in the registry of deeds for the county
    or district in which the land to which it relates lies."

G. L. c. 183, § 4.   Harold argues that proper recording is not

required for the July deed to be valid against Deborah because

she qualifies both as the grantor's heir and as the grantor's

devisee.    But Deborah's status as Ethel's heir (as her daughter)

and devisee (as a named beneficiary of other property under

Ethel's will) does not determine whether the requirement to

record applies to this transaction.      Deborah did not receive the

disputed property by virtue of either of these statuses; she

received it through an inter vivos transfer.     Harold does not
                                                                  11


point to any authority establishing that a grantee's status as

an heir or devisee, with respect to unrelated property,

eliminates the protections of the recording statute for that

grantee.   We conclude that it does not.

     "We interpret a statute according to 'all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated.'"    Johnson v. Kindred Healthcare, Inc., 466

Mass. 779, 783 (2014), quoting from Board of Educ. v. Assessor

of Worcester, 368 Mass. 511, 513 (1975).     The purpose of the

recording statute is "to allow persons without actual knowledge

to the contrary to rely upon registry records."    Moore v.

Gerrity Co., 62 Mass. App. Ct. 522, 526 (2004).   The

enforceability of unrecorded deeds against the grantors, as well

their heirs and devisees, is closely linked with the rationale

for enforcing unrecorded deeds against those with actual

knowledge -- preventing fraud.   See Killam v. March, 316 Mass.

646, 650 (1944), quoting from Lawrence v. Stratton, 6 Cush. 163,

167 (1850) ("a party with such notice could not take a deed

without fraud").    Interpreting the statute as Harold suggests

would undermine the purpose of the statute, removing protection

for grantees like Deborah who were uninvolved with the original
                                                                   12


conveyance and had no knowledge of it.    That result cannot be

what the Legislature intended in establishing the recording

system.    See Ward v. Ward, 70 Mass. App. Ct. 366, 370 n.7 (2007)

(tracing the purpose of the recording act to its creation in

1640).

    Harold also argues that proper recording is not required

for the July deed to be valid against Deborah because she had

actual notice of the prior conveyance.    This argument also

fails.    The burden of showing actual notice is on Harold.

Tramontozzi v. D'Amicis, 344 Mass. 514, 517 (1962).    Actual

notice is to be "construed with considerable strictness [and

mere] [k]nowledge of facts which would ordinarily put a party

upon inquiry is not enough."    Ibid., quoting from McCarthy v.

Lane, 301 Mass. 125, 128 (1938).    Deborah did not know of the

prior conveyance at the time the November deed was executed.

Nor did she or any of her siblings who were beneficiaries of the

Trust know of the prior conveyance to Harold at any point before

Harold revealed its existence after Ethel's death, eight years

later.    Harold's argument that Deborah had knowledge by virtue

of Ethel's knowledge is unavailing.    The question we face is not

whether the conveyance to Harold is valid against Ethel, but,
                                                                    13


rather, its validity against Deborah.    Harold has not carried

his burden of showing that Deborah had actual notice.11

     c.   Safe harbor.   Harold argues that even if he was

required to record the July deed, as we have concluded, he is

protected by the safe harbor of G. L. c. 184, § 24, under which

a defective acknowledgment cannot be challenged after ten years.

See Howson v. Crombie St. Congregational Church, 412 Mass. 526,

529 (1992) (recorded deed with defective acknowledgment cured

within ten years if not challenged within that time).     General

Laws c. 184, § 24, inserted by St. 1956, c. 348, § 1, provides:

     "When any owner of land . . . signs an instrument in
     writing conveying or purporting to convey his land or
     interest . . . and the instrument, whether or not entitled
     to record, is recorded . . . and a period of ten years
     elapses after the instrument is accepted for record, and
     the instrument or the record thereof because of defect,
     irregularity or omission fails to comply in any respect
     with any requirement of law relating to seals, corporate or
     individual, to the validity of acknowledgment, to
     certificate of acknowledgment . . . such instrument and the
     record thereof shall notwithstanding any or all of such

     11
       In his reply brief, Harold further argues that Deborah
had actual notice because Ethel's knowledge of her prior
conveyance to Harold should be attributed to Deborah given that
Ethel also conveyed the property to herself and to Deborah as
cotrustees. "Any issue raised for the first time in an
appellant's reply brief comes too late, and we do not consider
it." Pasquale v. Casale, 72 Mass. App. Ct. 729, 738 (2008),
quoting from Assessors of Boston v. Ogden Suffolk Downs, Inc.,
398 Mass. 604, 608 n.3 (1986). Even if we considered this
argument, it would fail. Even if the knowledge of one cotrustee
can be attributed to other cotrustees in certain circumstances,
we would not do so here, where the disputed knowledge pertains
to an event that occurred before the cotrustee relationship
began.
                                                                    14


    defects, irregularities and omissions, be effective for all
    purposes to the same extent as though the instrument and
    the record thereof had originally not been subject to the
    defect, irregularity or omission, unless within said period
    of ten years a proceeding is commenced on account of the
    defect, irregularity or omission, and notice thereof is
    duly recorded in said registry of deeds and indexed and
    noted on the margin thereof under the name of the signer of
    the instrument and, in the event of such proceeding, unless
    relief is thereby in due course granted."

(Emphasis added.)    This proceeding was commenced in January,

2010, within ten years of the recording of the July deed on

August 10, 2001.    Nonetheless, Harold contends he can take

advantage of the safe harbor provision.

    First, Harold argues that while this proceeding was

commenced within ten years, it was not "commenced on account of

the defect, irregularity or omission."    He argues that the

proceeding was brought with respect to the alleged forgery of

the July deed and that that defect does not encompass the

fatally defective acknowledgment.   We disagree.   Even if we

agreed with Harold's narrow reading of the phrase "on account of

the defect, irregularity or omission," his argument fails.      This

argument is foreclosed by our conclusion infra, see part 2, that

the issue of the defective acknowledgment was tried by implied

consent.

    Second, Harold argues that the safe harbor statute requires

that relief be granted within the ten-year period.    Once again,

we disagree.   Even if a proceeding is properly commenced within
                                                                    15


ten years, the statute allows a defect to be cured "unless

relief is thereby in due course granted."    The language of the

statute indicates that only the commencement of a proceeding

must be within ten years; the relief granted as a result of a

successful proceeding need only be granted "in due course."     The

purpose of this last clause is plain:    while a timely but

ultimately unsuccessful proceeding may forestall the application

of the safe harbor, it cannot foreclose it.    Here, as the

statute requires, a proceeding "on account of the defect" was

commenced within ten years,12 and relief was in due course

granted.    Thus, the safe harbor provision does not apply and the

defective acknowledgment was not cured.

     2.    Scope of the pleadings.   Harold argues that the judge

improperly rendered a decision that exceeded the scope of the

pleadings in concluding that a defective acknowledgment gave

Deborah superior title to the property.     We disagree.

     "When issues not raised by the pleadings are tried by

express or implied consent of the parties, they shall be treated

in all respects as if they had been raised in the pleadings."

Mass.R.Civ.P. 15(b), 365 Mass. 761 (1974).     See National Med.

Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984)


     12
       We note in passing that the trial "on account of the
defect" was held in May, 2011, also less than ten years after
the August, 2001, recording of the July deed.
                                                                   16


(issue tried by express or implied consent of parties treated as

raised in pleadings "without regard to whether the pleadings are

amended to conform to the evidence").13    "To find implied consent

where the pleadings are not amended, it must '[a]t least . . .

appear that the parties understood [that] the evidence [was]

aimed at the unpleaded issue.'"     Harrington-McGill v. Old Mother

Hubbard Dog Food Co., 22 Mass. App. Ct. 966, 968 (1986), quoting

from MBI Motor Co. v. Lotus/East, Inc., 506 F.2d 709, 711 (6th

Cir. 1974).

     The record here shows that, to the extent not raised by the

pleadings, the issue of the acknowledgment was tried by implied

consent.   In the complaint, Deborah alleged that Harold had

"illegally converted the property for his own use" and that he

had "by fraud and forgery attempted to take the property."     This

is not a case where "[s]erious problems [were] created [because

the] judge base[d his] decision on an issue that [was] not

before the court."     Messina v. Scheft, 20 Mass. App. Ct. 945,

946 (1985).     Harold was not "effectively foreclosed from

presenting any evidence on the very issue that [was] dispositive

of the case."    Ibid.   In fact, the propriety of the

acknowledgment first emerged during the direct examination of

Attorney Maloy, a witness called by Harold.     On direct

     13
       Nonetheless, it would be better practice to move to amend
the pleadings to conform to the evidence.
                                                                   17


examination, Maloy testified that he did not recollect Ethel's

signing the deed on July 23, 2001, the date on which he

notarized the deed.   He also testified it was possible that

Ethel might have signed the deed on a date other than July 23.

On cross-examination, Deborah pursued this inquiry further.

    The question whether Ethel signed the deed, particularly in

the fashion that Harold maintained at trial, was inextricably

intertwined with the question whether it was properly

acknowledged.   Substantial evidence was admitted regarding

Ethel's whereabouts on July 23 with respect to whether she could

have signed the deed in Massachusetts on that day.   The failure

to object to this evidence suggests consent.   See Republic

Floors of New England, Inc. v. Weston Racquet Club, Inc., 25

Mass. App. Ct. 479, 487-488 (1988).   The issue of the

acknowledgment was litigated at trial.   Indeed, Deborah's

proposed findings of fact indicate her awareness that the

acknowledgment was at issue.   Her proposed finding no. 37

states:

    "Ethel Allen was never in the presence of attorney Maloy on
    July 23, 2001. I do not credit attorney Maloy's testimony
    that she executed the deed in his presence. He is a friend
    and business partner of Harold, Jr. Ethel and Harold, Sr.
    terminated his representation of them in 1993. The
    handwritten note attorney Maloy says was delivered to him
    by Ethel is undated and has attached to it a mortgage, even
    though the note itself refers to a deed. He could not
    specifically remember the execution, and suggested that
    Ethel may have signed it some other day than the date set
                                                                   18


    forth in his purported acknowledgement.    Ethel could not
    have signed the deed on July 23, 2001."

(Emphasis added.)   Just as Deborah knew that the acknowledgment

was at issue, so should Harold have been aware that it was at

issue.   We conclude that the question of the acknowledgment was

tried by consent and was properly before the judge.

    3.   Evidentiary support.   During a four-day trial, the

judge heard testimony from ten fact witnesses and three expert

witnesses.   Harold contends that the ensuing judgment was

unsupported by the evidence because several of the judge's

findings were erroneous.   Reviewing the findings under the

clearly erroneous standard, Cahaly v. Benistar Property Exch.

Trust Co., 85 Mass. App. Ct. 418, 424 (2014), we discern no

reversible error.

    Harold's argument centers on finding of fact no. 58,

reproduced in full here, given its importance to this dispute:

    "While the analysis of the handwriting convinces me that
    Ethel Allen's signature on the July 23, 2001 Deed is
    authentic, I am convinced that she did not sign the Deed in
    the presence of Attorney Maloy on July 23, 2001. Attorney
    Maloy's testimony admits the possibility that the Deed was
    not signed in front of him, and that the Deed was not
    signed on July 23, 2001, despite its date and certificate
    of acknowledgment. Attorney Maloy had a long time personal
    and business relationship with Harold, Jr. I am convinced
    and find that Ethel signed the Deed in front of Harold,
    Jr., without Attorney Maloy being present, and Harold, Jr.
    brought the signed Deed to his attorney, represented that
    Ethel had signed the Deed, and asked for Attorney Maloy to
    notarize the acknowledgment, which he then did. I find
    that the certificate of acknowledgment, which recites that
    Ethel appeared personally before Attorney Maloy in his
                                                                     19


    capacity as notary public, and that she acknowledged in his
    presence the Deed as her free act, was inaccurate. She did
    not appear personally before him at any time to acknowledge
    the Deed, and the certifications on this point are false."

The judge heard substantial testimony with respect to the

signing and purported acknowledgment of the deed.   The judge

determined that Maloy's testimony about the signing and

acknowledgment, described above, was an "equivocal, unsatisfying

account of what happened."   The judge also heard testimony with

respect to Ethel's whereabouts in the days surrounding the

purported signature and acknowledgment -- shedding light on

whether she could have signed the deed and acknowledged it to

Maloy in Arlington, Massachusetts, as Harold claims.     The judge

explicitly discredited testimony of one of Ethel's daughters,

Sandra Madigan, and of Harold's mother-in-law that placed Ethel

as living in the disputed property at the time of the purported

acknowledgment.   The judge instead credited testimony of other

family members that placed Ethel as living with her daughter

Nancy in Nashua, New Hampshire, at that time, including

testimony that Ethel slept in Nashua during the nights

surrounding the disputed signing and that she spent the day of

the purported signing in New Hampshire.

    "[T]he judge's assessment of the quality of the testimony

is entitled to our considerable respect because 'it is the trial

judge who, by virtue of his firsthand view of the presentation
                                                                  20


of evidence, is in the best position to judge the weight and

credibility of the evidence.'"   Edinburg v. Edinburg, 22 Mass.

App. Ct. 199, 203 (1986), quoting from New England Canteen

Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977).14   Based on the

evidence presented, the judge concluded that Ethel had not

acknowledged the deed in front of Maloy.   "The judge's advantage

in weighing the testimony is particularly evident in a case

involving conflicting testimony, 'one in which widely differing

inferences could be drawn from the evidence,' and the drawing of

inferences cannot be separated from the evaluation of the

testimony itself."   Demoulas v. Demoulas Super Mkts., Inc., 424

Mass. at 510, quoting from Goddard v. Dupree, 322 Mass. 247, 248

(1948).   "[W]here there are two permissible views of the

evidence, the factfinder's choice between them cannot be clearly

erroneous."   Edinburg v. Edinburg, 22 Mass. App. Ct. at 203,

     14
        Harold also contests the judge's finding, in finding of
fact no. 57, that "[n]obody testified that they saw Ethel Allen
in Massachusetts on . . . July 23, 2001," arguing that Maloy had
testified that Ethel was in Arlington that day. But reading the
entirety of finding of fact 57 in context, we read it to mean
that no one other than Maloy testified to having seen Ethel in
Massachusetts on July 23. Nor did anyone testify to taking
actions that could have enabled her to be at the location of the
purported signing, in Arlington, on that day. (Ethel did not
drive at that time.) Even Maloy's testimony on that point was,
at best, "equivocal." Even assuming this finding was strictly
speaking erroneous because of Maloy's testimony, it is of no
moment. The judge did not attribute much weight or credibility
to Maloy's testimony in the first place. Had the judge amended
this finding as Harold suggests, it would have no impact on the
result.
                                                                  21


quoting from Anderson v. Bessemer City, 470 U.S. 564, 573-574

(1985).   The finding that the deed was not properly acknowledged

was not clearly erroneous.

     After considering the conflicting evidence regarding the

signing and acknowledgment, as well as the background

relationships among the family members and others,15 the judge

found that Ethel had signed the deed in front of Harold and that

he brought the deed to Maloy for notarization.   We acknowledge

that the evidence supporting this conclusion is less firm than

that supporting the more fundamental conclusion that Ethel did

not sign or acknowledge the July deed before Maloy.

Nonetheless, the evidence in the record with respect to both

Harold's close relationship with Maloy and Ethel's whereabouts

in the days surrounding the purported signing and acknowledgment

supports the judge's finding as to how the signing and

notarization unfolded.   See Klairmont v. Gainsboro Restaurant,

Inc., 465 Mass. 165, 188 (2013) (finding was not clear error

where it was supported by ample circumstantial evidence).

Moreover, even if we were to conclude that the judge's finding

as to how Maloy ultimately notarized the document was clear

error because it was speculative, it would not be cause for us

     15
       Maloy performed legal work for Harold, Sr., and Ethel
prior to 1993 but did little work for them between 1993 and
2001. He remained a friend of the family and a joint venturer
with Harold in several real estate projects.
                                                                     22


to disturb the judgment.    Because we have concluded that the

finding that Ethel did not sign or acknowledge the deed before

Maloy was not clear error, whether Ethel signed it before

Harold, as the judge found, is immaterial.     Because Harold has

not demonstrated that any of the findings that support the

judgment are clearly erroneous, we reject his argument that the

judgment is not supported by the evidence.

     4.   Amendment of counterclaim.    Notwithstanding Harold's

argument to the contrary, the judge did not abuse his discretion

in denying Harold's motion to amend his counterclaim -- in order

to add an undue influence claim regarding the November deed --

without prejudice to raising the claim in a separate action.16

The judge's concerns that the motion was excessively late with

respect to the impending trial and that the proposed

counterclaim entailed unrelated questions of fact were

reasonable.     See Audubon Hill S. Condominium Assn. v. Community

Assn. Underwriters of America, Inc., 82 Mass. App. Ct. 461, 471-

472 (2012).17

                                      Judgment affirmed.

     16
       We note that Harold has commenced such an action in the
Land Court.
     17
       To the extent we do not address other contentions made by
Harold, they "have not been overlooked. We find nothing in them
that requires discussion." Department of Rev. v. Ryan R., 62
Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
                         23



Order denying
  postjudgment motions
  affirmed.
