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17-P-1524                                            Appeals Court

KIRA WAHLSTROM   vs.    JPA IV MANAGEMENT COMPANY, INC., trustee,1 &
                               another.2


                            No. 17-P-1524.

          Suffolk.      November 9, 2018. - June 10, 2019.

             Present:   Rubin, Maldonado, & Lemire, JJ.


Practice, Civil, New trial, Conduct of counsel, Disqualification
     of judge.



     Civil action commenced in the Superior Court Department on
March 12, 2010.

     The case was tried before Paul D. Wilson, J., and a motion
for a new trial, filed on November 19, 2015, was heard by him.


     Patricia A. DeJuneas (Robert J. Cordy also present) for the
plaintiff.
     Mark A. Aronsson for the defendants.


    RUBIN, J.    Following a four-week jury trial, a verdict was

returned in favor of the plaintiff in this case, which arose




    1   Of the John Philopoulos Associates Trust.

    2   JPA I Management Company, Inc.
                                                                     2


when she was raped in a parking garage owned and operated by the

defendants.    An employee of the defendants had been raped in the

same parking garage by the same man less than two weeks prior to

the rape that forms the basis of this lawsuit.    The jury

concluded, among other things, that the defendants had failed to

take due care to protect the plaintiff, who was a customer of

the garage walking back to her car in the early morning hours of

May 1, 2009, after completing her work as a lighting technician

at a nearby nightclub in downtown Boston.

    The defendants filed a postjudgment motion for a new trial.

In a detailed opinion, the trial judge concluded that there was

misconduct of plaintiff's counsel before the jury during trial

that was not remedied by the judge's curative instructions.        The

details of what the judge found amounted to misconduct will be

spelled out infra in our discussion.     The judge painstakingly

examined the events at trial.     In assessing the motion, he

applied, as the defendants urged, the four-factor framework for

considering claims of prejudicial attorney misconduct that we

articulated in Fyffe v. Massachusetts Bay Transp. Auth., 86

Mass. App. Ct. 457, 472 (2014).    Critically the fourth factor

articulated in Fyffe was "whether the error, in the

circumstances, possibly made a difference in the jury's

conclusion."   Id., quoting Commonwealth v. Lewis, 465 Mass. 119,

130-131 (2013).   Applying this test to each of four incidents of
                                                                     3


what the judge concluded was attorney misconduct, and ultimately

"with great regret," he allowed the motion for a new trial.3,4

     The standard applied by the judge in assessing the motion

for a new trial was the wrong standard.   Consequently, the order

allowing the motion for a new trial was in error.    Although a

remand for application of the proper standard by the judge who

was present during trial would ordinarily be the appropriate

disposition of a case such as this, there is in the trial court

a pending motion for disqualification of the trial judge in this

case.    As we explain in part 2 of our opinion, we have concluded

the most prudent course, therefore, is to stay the appeal to

allow the judge to rule upon the plaintiff's pending motion for

his disqualification.    Since we are in as good a position as any

judge who did not sit on the trial to assess the merits of the

new trial motion, this procedure will allow us to determine

whether a remand for reconsideration under the proper standard

is preferable to our simply reaching the merits ourselves.

First, though, we turn to the appropriate standard for a trial

judge's evaluation in a civil case of a posttrial motion for a




     3 The judge also observed that the defendants had pointed to
many instances of alleged misconduct other than the four upon
which he rested his ruling.

     4 The judge denied the defendants' pending motion for
remittitur as moot in light of his ruling on the new trial
motion.
                                                                    4


new trial, something about which some confusion has arisen in

the trial courts, as exemplified by the instant case.

     1.   New trial standard.   The standard a judge should apply

in determining whether to allow a motion for a new trial in a

civil case under Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974),

even one based on alleged attorney misconduct, is relatively

high.   To begin with, if the motion is based upon claims of

error that were, or could have been, brought prior to verdict,

the judge need not even hear the motion.   See Lonergan v.

American Ry. Express Co., 250 Mass. 30, 38 (1924).    If, in the

judge's discretion, he or she does reach the merits, the

standard is the one we articulated in Evans v. Multicon Constr.

Corp., 6 Mass. App. Ct. 291, 295 (1978):    "the judge should not

take it upon [herself or] himself to nullify a jury's verdict by

granting a new trial unless it appears on a survey of the whole

case that otherwise a miscarriage of justice would result."

     The reasons this standard is used should be clear.     Trial

has already been held, and a judgment has entered.   Under our

adversary system, the losing party has been free during trial to

make before the trial judge whatever objections the party

thought were appropriate.   The judge has already had a chance to

rule on these objections.   Where he or she has sustained

objections, and, where appropriate, has had an opportunity to

attempt to cure errors that have taken place, the objecting
                                                                     5


party has also had an opportunity to object to the adequacy of

those curative measures, or even to seek a mistrial.    The losing

party thus has had a full bite of the trial court apple.     And,

under our system, that party is now entitled to a full bite of

the appellate court apple.

    In filing a motion for a new trial in the trial court on

the basis of trial error, then, the losing party seeks a second

bite at the trial court apple.   And, in order to ensure justice

is done, he or she may, at the judge's discretion, be given it.

But it is in this light that the standard for allowance of a

motion for a new trial can be best understood.   It is by no

means an impossibly high burden that is placed on the losing

party, and motions for new trial are with regularity

appropriately allowed by our trial court judges.    But the new

trial motion is not a mechanism for addressing individual errors

at trial.   It is an opportunity to allow the judge to take "a

survey of the whole case" to ensure that "a miscarriage of

justice" has not occurred.    Evans, 6 Mass. App. Ct. at 295.

    By contrast, Fyffe did not articulate a standard to be

utilized by trial judges in evaluating motions for a new trial.

Rather, it explicated an appellate standard of review, the

prejudicial error standard.   Fyffe involved two consolidated

appeals, one from the denial of a motion for a new trial and one

from the underlying judgment.    Fyffe, 86 Mass. App. Ct. at 459.
                                                                    6


As we explained, although our review of the denial of the motion

for a new trial is limited to determining whether there was an

abuse of discretion, a very difficult standard for a complaining

party to meet, a less deferential standard is applicable when a

party on direct appeal seeks reversal and a new trial.    See id.

at 470-471.   In that circumstance, in a civil case we apply to

preserved claims of error the well-known "prejudicial error"

standard of review.   Id. at 472.   Under that standard, if there

has been an error, we will reverse and, where appropriate, order

a new trial unless we can "say with substantial confidence that

the error would not have made a material difference."     DeJesus

v. Yogel, 404 Mass. 44, 49 (1989).   Put another way, in the face

of error, an appellant can obtain a new trial unless the error

is "harmless."   Comeau v. Currier, 35 Mass. App. Ct. 109, 112

(1993).5   And it is this standard that the defendants here asked

the judge to apply, arguing in reliance on Fyffe that, "When

considering . . . a motion [for a new trial based on attorney

misconduct], the courts apply the prejudicial error standard,

which requires that the error 'injuriously affected the




     5 In the case of preserved constitutional error, in a
criminal matter at least, reversal is even more likely, as we
must conclude that the error was not only harmless but "harmless
beyond a reasonable doubt." Commonwealth v. Vinnie, 428 Mass.
161, 163, cert. denied, 525 U.S. 1007 (1998).
                                                                     7


substantial rights of the parties.'     [G. L.] c. 231, §§ 119,

132; Fyffe, 86 Mass. App. Ct. at 474."

    As Fyffe indicates, however, the Fyffe factors are simply a

way of determining whether a preserved claim of error arising

out of attorney misconduct is prejudicial under the appellate

prejudicial error standard of review.    See Fyffe, 86 Mass. App.

Ct. at 471 ("this case is also before us on direct appeal from

the judgment.    Therefore, the deferential standard applicable to

review of the new trial motion does not relieve us of the duty

to examine the record to determine whether instructions that

were given or not given by the judge when a matter was properly

brought to her attention amounted to an error of law, and to

assess whether the error was prejudicial").    They have nothing

to do with the standard to be applied in trial courts on motions

for a new trial.    Indeed, the prejudicial error standard of

appellate review in Fyffe did not even apply to our review of

the denial of the motion for a new trial, but only to our review

of the direct appeal from the judgment.    The appropriate

standard to be used by a trial judge considering a motion for a

new trial is not an appellate standard of review at all.

    Of course, in one sense, the judge is permitted to engage

in a broader examination of the proceedings than we may even on

direct appeal.    That is because, although unpreserved claims of

error that do not touch on jurisdiction are waived for purposes
                                                                   8


of appeal in almost all circumstances in a civil case, Palmer v.

Murphy, 42 Mass. App. Ct. 334, 338-339 (1997), in the interest

of justice, a judge evaluating a motion for a new trial is

permitted to consider even unpreserved claims of error like some

of those raised in the motion here.   See Lonergan, 250 Mass. at

38 ("While a judge may in his discretion permit such a question

to be presented on a motion for a new trial, he cannot be

required to consider it.   It is discretionary with him whether

to consider it or not, having regard to all the requirements of

justice").   See also Cassamasse v. J.G. Lamotte & Son, Inc., 391

Mass. 315, 320 (1984) (same).   But the question for the trial

judge is not whether there has been prejudicial error.   Indeed,

it is not even whether the more stringent appellate standard of

review we utilize in criminal cases in which unpreserved claims

of error are raised on appeal has been met -- whether there has

been a "substantial risk of a miscarriage of justice."   See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).6   The question is


     6 We find a substantial risk of a miscarriage of justice
unless we are persuaded that an error did not "materially
influence[]" a guilty verdict. Alphas, 430 Mass. at 13, quoting
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). "In making
that determination, we consider the strength of the
Commonwealth's case against the defendant . . . , the nature of
the error, whether the error is 'sufficiently significant in the
context of the trial to make plausible an inference that the
[jury's] result might have been otherwise but for the error,'
and whether it can be inferred 'from the record that counsel's
failure to object was not simply a reasonable tactical
                                                                    9


whether an actual "miscarriage of justice would result" if the

verdict were allowed to stand.   Evans, 6 Mass. App. Ct. at 295.

     And, as our discussion implies, the purpose of an order

granting a new trial motion is not to punish attorney

misconduct.   If, because of attorney misconduct, "it appears on

a survey of the whole case that . . . a miscarriage of justice

would result" if the verdict were allowed to stand, such

misconduct may, of course, support an order allowing a motion

for a new trial.   Id.   But the new trial motion inquiry focuses

on the harmful impact of the errors.   It is not the

egregiousness of, or the disrespect to the court shown by,

attorney misconduct that the new trial motion addresses.   There

are other remedies for such misconduct available even in cases

where it has not influenced the jury's consideration of the case

to the extent that a miscarriage of justice has in fact

occurred.

     Although the judge here did express a conclusion that a new

trial was warranted using the appropriate verbal formulation

found in Evans, 6 Mass. App. Ct. at 295,7 it is clear from the

judge's extended and precise discussion, described in more



decision.'" Id., quoting Commonwealth v. Miranda, 22 Mass. App.
Ct. 10, 21 (1986).

     7 The judge did not cite Evans, but quoted an early
articulation of the same standard in Davis v. Boston Elev. Ry.
Co., 235 Mass. 482, 496 (1920).
                                                                     10


detail infra, that his conclusion was based only on the

application of the "prejudicial error" standard as articulated

in Fyffe and argued by the defendants.     This was in error.

     2.    Disposition of appeal.   The plaintiff argues that, for

two independent reasons, we should not remand the case for

application of the appropriate standard.8    First, she argues that

the errors claimed by the defendants could not as a matter of

law support allowance of the motion under the proper standard.

Second, she argues that there would be no benefit to a remand.

There is a pending motion in the trial court to disqualify the

judge in this case, and she urges us to rule that he must be

disqualified.   She posits that if the judge who was present at

trial must be disqualified, on a remand the motion would have to

be heard by a judge who did not sit on the case.    She argues

that we are in as good a position as any such judge to assess

the merits of the motion under the proper standard, and that

rather than remanding we should do so and, she argues, conclude

that it should have been denied.    We turn to those two arguments

in turn.




     8 The defendants do not argue on appeal that, as a matter of
law, the attorney misconduct in this case created an actual
miscarriage of justice, but only that, if we find that the trial
judge employed the incorrect standard, we should remand for
reconsideration.
                                                                    11


     a.    The plaintiff argues first that the four claimed errors

relied upon by the judge, even combined with several other

claimed errors on which the judge did not rely, could not

support a claim under the appropriate standard that the verdict

reflects a miscarriage of justice.

     The judge, employing all four Fyffe factors, first

concluded that a reference in the opening statement by

plaintiff's counsel to a discussion he had with the rapist, the

contents of which the judge had already ruled were inadmissible

as hearsay, violated the "spirit" but not the "letter" of his

ruling.9   The judge reasoned as follows:     "First, there was a

defense objection" (see Fyffe, 86 Mass. App. Ct. at 472 ["(1)

whether the defendant seasonably objected" (quotation

omitted)]); "Second, the issue of whether [the] [d]efendants

should have taken additional security measures after the first

rape was at the very heart of the case" (see id. ["(2) whether

the error was limited to collateral issues or went to the heart




     9   Plaintiff's counsel told the jury,

     "[B]efore we came to trial, we had to consider whether [the
     rapist] could have been stopped, whether added security
     guards or increased lighting or cameras on each floor, or
     any combination thereof, would have made a difference, so
     we decided to ask the guy who did it. So we met with him,
     as uncomfortable as that was, but that's all I'm allowed to
     tell you about that right now. We wanted him to testify
     before you, but he is incarcerated for fifteen years, and
     it is safer if he stays where he is."
                                                                  12


of the case"]); "Third, while I did instruct the jury that

[they] should ignore what [plaintiff's counsel] had said, I

should have gone further . . ." (see id. ["(3) what specific or

general instructions the judge gave to the jury which may have

mitigated the mistake"]); and "Fourth, . . . the improper

statement may well have made [a] difference in the jury's

conclusion" (see id. ["(4) whether the error, in the

circumstances, possibly made a difference in the jury's

conclusion"]).

    There was an objection to this aspect of the opening by the

third defendant at trial, LAZ Parking Limited LLC (LAZ), which

the jury later found not liable, and the judge gave a curative

instruction, telling the jury to "put out of your mind anything

that [plaintiff's counsel] said about talking to [the rapist]

and anything that he may or may not have said."   The plaintiff

points out that whether that instruction was or was not

effective, the subject matter of the hearsay itself –- the

rapist's statement that he "went back to the property because he

didn't see any security" -- was elicited by the defendants'

counsel in the cross-examination of the plaintiff's criminology

witness, was not the subject of a motion to strike, and was not

the basis for any claim of error in the motion for a new trial.

She argues the reference in plaintiff's counsel's opening was
                                                                  13


thus in any event cumulative of evidence that was before the

jury.

    Next, the judge relied on several instances in which the

plaintiff's lawyer, in seeking to introduce a security video

recording (video) which was not admitted, made reference to the

contents of that video, saying that it would impeach the

security guard's testimony that he did not see the rapist on the

night of the first rape.    The judge, again utilizing all four

Fyffe factors, wrote, "This behavior raises a serious problem

under the four Fyffe factors.    First, the [d]efendants did

object, and strenuously.    Second, while the issue of whether the

[d]efendants could have prevented the first rape was not central

to this case as a matter of law, [plaintiff's counsel]

nonetheless attempted to make it so in the face of my pretrial

ruling to the contrary.    Third, I failed to instruct the jury

that [they] should ignore what [plaintiff's counsel] had said

about the contents of the video contradicting the witness's

testimony.   Finally, I fear that the jury's possible

misapprehension about the contents of the video may well have

made [a] difference in the jury's conclusion."   See Fyffe, 86

Mass. App. Ct. at 472 (listing the four factors).

    But, the plaintiff points out, because the transcript was

not finalized, the judge misunderstood the plaintiff's attorney

to have said that the video showed the guard "visualizing the
                                                                  14


rape" of the hotel employee -– words the judge quoted and which,

the judge recognized, would not just be false, but inflammatory.

In fact, however, the attorney said that the video showed the

guard "visualizing the rapist" (emphasis added).     We have

examined the video ourselves, which was marked for

identification before the trial judge, and the video does show a

silhouette of a guard in the same frame as the rapist for

several seconds, although it does not show which direction the

guard was looking at the time.   The plaintiff also points out

that defense counsel did not request a curative instruction.

    Thirdly, the judge further concluded, again using the Fyffe

factors, that references by plaintiff's counsel to cross claims

in which the defendants and LAZ accused each other of

negligence, and referred to the rape of the plaintiff merely as

an "alleged rape," supported a new trial.   The judge explained,

    "Application of the Fyffe factors suggests that this, too,
    was a serious matter. First, . . . the [d]efendants
    objected at trial when [p]laintiff's counsel violated the
    pretrial order [precluding reference to the cross claims].
    Second, I failed to issue adequate curative instructions.
    Third, the rape was the central fact in the case, and
    therefore any suggestion that [the] [d]efendants denied its
    occurrence, or accused each other of negligence that caused
    the rape, was not a collateral matter. Fourth, these
    multiple statements by [p]laintiff's counsel . . . raise a
    serious danger that the jury's verdict was influenced by
    those statements."

See Fyffe, 86 Mass. App. Ct. at 472 (listing the four factors).

The plaintiff points out that there was a curative instruction
                                                                  15


with respect to the references to the cross claims and that the

witness who was asked if she thought the rape was merely an

"alleged rape" flatly said she believed the plaintiff had been

raped.

    And finally, with respect to an improper question by

plaintiff's counsel asking a witness if the sale price of the

defendants' hotel to which the garage was attached was 143

million dollars, the judge, who sustained an objection and

instructed the jury to disregard the question before it was

answered, acknowledged that, given that the verdict was lower

than that sought by the plaintiff, the error might not have made

a difference in the jury's conclusion.   Nonetheless, in

concluding that the Fyffe analysis of this misconduct favored a

new trial, the judge reasoned that "in the final analysis, [the]

[p]laintiff's decision to put the sale price of the hotel before

the jury is unconscionable."

    But the plaintiff argues correctly that, as we have

explained supra, egregiousness of misconduct absent an effect

upon the jury is not a basis for finding the type of miscarriage

of justice that warrants nullifying the jury's verdict.

    Whatever the strength of the plaintiff's arguments,

however, the trial judge remains in the best position to assess

the claim that there has been a miscarriage of justice.    We

therefore would ordinarily simply vacate the order allowing the
                                                                   16


motion for a new trial and remand to allow the judge to rule

upon the motion applying the correct standard.   As we have

described, in evaluating the motion, the judge must examine the

entire course of the proceedings, and the trial judge is in the

best position to do so in the first instance.

    b.   The plaintiff, however, argues secondly that a remand

would be "futile" because of a pending motion to disqualify the

trial judge based on remarks he has made about the trial, the

attorneys who appeared before him, and his ruling on the new

trial motion.   The plaintiff urges us to decide that there has

been at least an "appearance of partiality," and to disqualify

the judge.    And, if the judge who sat on the trial is

disqualified, the plaintiff argues, we are in as good a position

as any judge to whom the case might be reassigned to assess the

defendants' motion.

    Because the case has been in this court, the motion for

disqualification has not yet been ruled upon.    Although we agree

that, if it were allowed, we would be in as good a position as

any other judge to whom the case might be assigned to assess the

claim made in the new trial motion, we decline the plaintiff's

invitation to decide the motion to disqualify in the first

instance.    Motions for recusal are "generally left to the

discretion of the trial judge."    Haddad v. Gonzalez, 410 Mass.

855, 862 (1991).    Accord id. ("When faced with 'a question of
                                                                   17


his capacity to rule fairly, the judge [must] consult first his

own emotions and conscience' [and] then [is] required to attempt

an objective appraisal of whether this was a proceeding in which

'his impartiality might reasonably be questioned'" [citations

omitted]).

     Therefore, while expressing no view on the motion pending

before the trial judge, we stay this appeal in order to allow

the motion to disqualify to be litigated and decided forthwith.

If it is allowed, we will assess the motion for a new trial

under the appropriate standard.   If it is denied, we will vacate

the order allowing the new trial motion and remand the case as

described supra.10   The parties shall submit a status report to

this court in sixty days.

                                    So ordered.




     10We note that the defendants did not argue in their
memorandum below that they were entitled to a new trial under
the appropriate standard.
