Shawmut Community Bank, N.A. v. Zagami

• Decision Date: 18 February 1992
• Citation: 586 N.E.2d 962,411 Mass. 807
• Parties: SHAWMUT COMMUNITY BANK, N.A. v. Domenic T. ZAGAMI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 962

586 N.E.2d 962

411 Mass. 807

SHAWMUT COMMUNITY BANK, N.A. v. Domenic T. ZAGAMI.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Oct. 10, 1991.

Decided Feb. 18, 1992.

Michael C. Gilleran, Boston, for plaintiff.

Edward J. Collins, Wayland, for defendant.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

On April 19, 1979, Domenic T. Zagami brought this counterclaim in the Superior Court against Shawmut Community Bank, N.A. (Shawmut), alleging fraud and violations of G.L. c. 93A. ¹ The fraud claim was tried to a jury, and, in a judgment entered on September 2, 1986, Zagami was awarded damages in the amount of $225,000, as well as prejudgment and postjudgment interest. A subsequent bench trial on the c. 93A claim resulted in a September 1, 1988, judgment for Zagami under c. 93A, § 9. The trial judge awarded no multiple damages under c. 93A, § 9(3), finding that Shawmut had not violated the statute wilfully or knowingly. However, she did order the bank to pay Zagami's attorney's fees and costs. See G.L. c. 93A, § 9(4).

Shawmut appealed from both judgments, and Zagami appealed from the c. 93A judgment. As a result of the parties' failure to file copies of the trial transcripts, see Mass.R.A.P. 18(a), as amended, 409 Mass. 1602 (1991), and a record appendix meeting the requirements of Mass.R.A.P. 18(d), as amended, 370 Mass. 919 (1976), the Appeals Court refused to consider all but two of the issues raised in the briefs. 30 Mass.App.Ct. 371, 374, 568 N.E.2d 1163 (1991). That court affirmed the award of prejudgment and postjudgment interest, and remanded the c. 93A claim for additional explanation of the ruling that the violation was not wilful or knowing. Having granted Shawmut's application for further appellate review, we order reversal of the judgment entered under G.L. c. 93A, and affirm the judgment under the common law count alleging fraud.

1. Facts. We briefly summarize the evidence put before the jury and the judge hearing the claim under c. 93A. The case involved a series of bank transactions beginning in 1973. At that time, Zagami, a plumber, owned a piece of commercial real estate in Waltham, where he operated his plumbing business and leased space to several business tenants. General Systems Development Corporation (G.S.D.) was one of his tenants, and William T. Quinn was the president of G.S.D.

In 1973, Zagami executed two promissory notes to Shawmut. The proceeds of these loans he invested in G.S.D. The first of these notes, dated April 9, 1973, was for $25,000 and was cosigned by Zagami and Quinn (April note). The money obtained was used by Quinn. Quinn made payments on the April note until 1975, at which time G.S.D. became bankrupt. Contrary to its established procedures, Shawmut never notified Zagami that this loan was in arrears until January, 1977. ²

On December 5, 1973, Zagami and his wife signed a note for $50,000 (December note). The Zagamis gave the money to Quinn, in exchange for shares of G.S.D. stock and Quinn's promise to repay the loan by Shawmut. Quinn and one Morgan, a Shawmut employee, had led the Zagamis to believe that G.S.D. would be receiving a large investment from another source, and that Quinn would repay the December note given to Shawmut with this money. Zagami claimed that Quinn and Morgan misled him, because they knew, but did not reveal, that the other investor's first check had been dishonored on presentment and that Quinn had recently signed a $50,000 note of his own that he was unable to pay. Quinn was able to repay $25,000 of the December note; Zagami paid the remainder.

Shawmut then attempted to collect from Zagami an additional $25,000. Zagami questioned the source of this debt, believing that the December note was paid and the April note had never issued. According to the judge, Shawmut's employees, agents, and attorneys were confused about the source of the debt. They led Zagami to believe that the money was due on the December note, implying that Quinn had not paid $25,000. In fact, the money Shawmut was attempting to collect from Zagami was due on the April note.

Facing Shawmut's threat of a lawsuit, in January, 1977, Zagami signed an agreement which gave him additional time to repay the $25,000. He also executed a mortgage deed of his commercial real estate to secure the debt. Both the agreement and the mortgage explicitly stated that the money was due on the April note. When the note came due and Zagami could not pay it, Shawmut began foreclosure proceedings on the real estate. Zagami sold his property at a price he considered substantially below what the market would offer.

2. Failure to comply with the Massachusetts Rules of Appellate Procedure. The Appeals Court refused to review most of the issues raised on appeal, due to "gross and pervasive deficiencies, attributable to both parties, in the record presented to" the court. 30 Mass.App.Ct. at 371, 568 N.E.2d 1163. ³ Although both parties referred repeatedly to a trial transcript of almost 1,500 pages in their briefs, they did not file copies with the court, choosing instead to provide photocopies of a few pages of selected testimony. The record appendix was a "diffusely arranged" collection of material containing some documents that were incomplete, irrelevant, duplicative, or illegible. See 30 Mass.App.Ct. at 373, 568 N.E.2d 1163. The parties failed to include in the appendix most of the relevant trial and posttrial motions; they also omitted a transcript of the hearing on posttrial motions. The pages of the appendix were not numbered consecutively nor was the material arranged in chronological order. Neither party asked, prior to argument, for permission to refer to parts of the record omitted from the appendix, see rule 18(a), nor did they request that the court dispense with the need for an appendix, see Mass.R.A.P. 18(f), 365 Mass. 864 (1974).

Shawmut argues that we should consider its appeal on the merits, because it has corrected the flaws in the record and because the failure to file copies of the transcript was based on a reasonable, good-faith misreading of Mass.R.A.P. 18(b), as amended, 378 Mass. 940 (1979). The cited rule states in pertinent part: "In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation." In support of its argument, Shawmut refers to Menard v. McCarthy, 410 Mass. 125, 128, 571 N.E.2d 23 (1991), in which this court held that a misreading of rule 18(b) that is not "in bad faith or ... totally unreasonable" should not prevent consideration of the merits of an appeal once the appellant is informed of the mistake and corrects it. Shawmut argues that, based on its reading of rule 18(b), it honestly believed that it should not file the bulky trial transcript. It further contends that its interpretation was reasonable and that the rule is misleading. We disagree.

In pursuing its appeal, Shawmut had an obligation to include copies of the trial transcript in the record appendix. Under rule 18(a), an appellant must provide the reviewing court with all relevant portions of the record. Rule 18(b) complements, and does not negate, this requirement. The term "unnecessary designation," referred to in rule 18(b), warns against inclusion of items in the record appendix which are either irrelevant or at least tangential to the issues presented for review. See Holleman v. Gibbons, 27 Mass.App.Ct. 563, 567, 541 N.E.2d 345 (1989) (appeal heard after appellant filed trial transcripts where original omission of transcripts was based on erroneous reading of rule 18[b] and all other procedural rules were correctly followed). As the Appeals Court noted, in the case before us, review of the transcript is necessary to determine whether the arguments raised on appeal are first, correct, and second, properly preserved. Inclusion of the transcript here is certainly not an unnecessary designation. ⁴

Because the parties' appellate missteps surpass those considered in Menard, we need not consider the merits of the appeal not reviewed by the Appeals Court. Were the parties' mistakes the result of mere inadvertence, the situation would be the same as that in Menard and Holleman. The Appeals Court held, however, that "[t]he grave and almost universal failure to present an adequate appendix prevents a characterization of inadvertence; rather we are compelled to the conclusion that there has been serious 'negligence or a lack of attention and diligence.' " 30 Mass.App.Ct. at 373-374, 568 N.E.2d 1163, quoting Holleman, supra 27 Mass.App.Ct. at 568, 541 N.E.2d 345. We have reviewed the record appendix filed by the parties in the Appeals Court. We conclude that the ruling by the Appeals Court was correct. The parties did much more than omit transcripts; they omitted motions, included unacceptable copies of documents, and violated the requirements of the proper arrangement of the record appendix set forth in rule 18(d). ⁵ The Appeals Court acted entirely correctly in refusing to overlook such gross violations of the rules of appellate procedure. Thus, we also limit our review of the substantive issues to those considered by the Appeals Court.

3. Prejudgment and postjudgment interest on the fraud judgment. Shawmut raises various challenges to the judgment in favor of Zagami on the issue of fraud. The Appeals Court considered only the claim of error in the award of prejudgment interest on the common law fraud judgment. We do the same.

On this judgment, Zagami was awarded prejudgment and postjudgment interest on his damages at the rate of twelve per cent. Shawmut disputes the award, because G.L. c. 231 § 6B, which establishes the rate of prejudgment interest on certain tort judgments, does not specifically list fraud among the torts to which it...