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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1372CV00125
ifsFfis
RICK YATSENICK and JOAL (.
YATSENICK Aloutre
Plaintiffs, By jue court, ( bss | (ut 9)
Vv.
Cinta UL hy bilan
eee Se Se ES SH SH SY
fr a all.
OLD WHARF VILLAGE, LLC, { rr)
CHARLES EDGAR, DAVID DILLON P
D/B/A DILLON REAL ESTATE, and of
STACEY CURLEY, (5 yw)
Defendants.
SSS”)
jo?
PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EVIDENCE OF
THE PLAINTIFFS’ SETTLEMENT WITH STACEY CURLEY
The Plaintiffs, Rick Yatsenick and Joal Yatsenick (collectively “Plaintiffs”), by and
through counsel, hereby respectfully move in limine to preclude any and all evidence, references
to evidence, testimony or argument relating to the Plaintiffs’ settlement with former Defendant,
Stacey Curley (“Curley”). As grounds therefor, the Plaintiffs state that such evidence is
irrelevant, immaterial, prejudicial and expressly inadmissible pursuant to Mass. G. Evid. § 408.
a
FACTUAL BACKGROUND L
1. The above-captioned action arises out of the Plaintiffs’ purchase of a purported
single-family, year-round condominium unit in Dennis, Massachusetts. In their Verified
Complaint initiating the action, the Plaintiffs asserted various counts against the Defendants, Old
Wharf Village, LLC, Charles Edgar, David Dillon d/b/a Dillon Real Estate, and Curley.
2. The Plaintiffs had retained Curley, a Massachusetts licensed attorney, to provide
legal services in connection with their purchase of the unit. In the litigation, the Plaintiffs2)
asserted claims for legal. malpractice, violation of G.L. c. 93A, intentional misrepresentation,
negligent misrepresentation, and negligence against Curley.
3. Subsequent to the filing of this action, the Plaintiffs reached settlement with
Curley. Pursuant thereto, on August 13, 2015, the Plaintiffs and Curley filed a Stipulation of
Dismissal with the Court (Court’s Docket, Paper No. 21), in which the parties stipulated to the
dismissal of the claims against Curley pursuant to Mass. R. Civ. P. 41(a)(1)(ii).
ARGUMENT
The remaining Defendants to this action, Old Wharf Village, LLC and Charles Edgar
(collectively “Defendants”), should be precluded from introducing any and all evidence,
references to such evidence, testimony or argument relating to the Plaintiffs’ settlement with
Curley. Not only is such evidence expressly inadmissible pursuant to Mass. G. Evid. § 408 and
settled case law, but it is also irrelevant and prejudicial.
Section 408 of the Massachusetts Guidance to Evidence states as follows with respect to
compromise offers and negotiations in civil cases:
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of
any party — either to prove or disprove the validity or amount of a disputed claim:
(1) furnishing, promising, or offering — or accepting, promising to accept,
or offering to accept — a valuable consideration in compromising or attempting to
compromise the claim or any other claim, and
(2) conduct or a statement made during compromise negotiations about the
claim.
Mass. G. Evid. § 408(a) (2017). Such prohibition is consistent with the rule prospectively
adopted by the Supreme Judicial Court in Morea v. Cosco, Inc., 422 Mass. 601 (1996). There,
the SJC stated that, “unless admission of the evidence is relevant for some other purpose, no
evidence of a settlement or the amount of the settlement shall be admissible.” Id. at 603; see
Murray v. Foster, 343 Mass. 655, 660 (1962) (“Evidence of a settlement entered into by thedefendants with a third person not a party to the action for injuries arising out of the same
accident would be inadmissible on the issue of the defendants’ liability to the plaintiffs.”);
Michnik-Zilberman v. Gordon Liquors, Inc., 14 Mass. App. Ct. 533, 541-43 (1982).
“The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial
matters from being admitted in evidence.” City of Bos. v. Bd. of Educ., 392 Mass. 788, 796
(1984), quoting Commonwealth v. Hood, 389 Mass. 581, 594 (1983); see Mass. G. Evid. § 103(f)
(2016). “Generally, a trial judge is accorded ‘substantial discretion in deciding whether evidence
is relevant,’ and whether relevant evidence should be excluded if it is less probative than
prejudicial. ... The judge’s decision will stand absent palpable error.” Commonwealth v. Talbot,
444 Mass. 586, 589 n.2 (2005), quoting Commonwealth v. Tobin, 392 Mass. 604, 613 (1984); see
Mass. G. Evid. §§ 401-403. “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” City of Bos. v. U.S. Gypsum Co., 37 Mass. App. Ct. 253, 261 n.18 (1994).
Here, the Defendants should be precluded from introducing evidence and/or argument
relative to the Plaintiffs’ settlement with Curley. The admission of such evidence is expressly
prohibited by Mass. G. Evid. § 408(a) and pursuant to the SJC’s decision in Morea. Moreover,
the Plaintiffs’ settlement with Curley is not probative to their claims against the remaining
Defendants — which primarily regards whether the Defendants violated G.L. c. 93A and made
misrepresentations (either intentionally or negligently) to the Plaintiffs that induced them to
purchase the unit. The admission of evidence relating to the Plaintiffs’ settlement with Curley
does not have any tendency to prove a fact relevant to the permissibility of the Defendants’
conduct, and it would be more prejudicial than probative because of the substantial danger thatthe evidence will confuse and mislead the jury concerning the issues. See Morea, 442 Mass. at
603; Zabin v. Picciotto, 72 Mass. App. Ct. 141, 150 (2008) (trial court acted within its discretion
in concluding that the allocation agreement could have tended to mislead rather than illuminate
the jury as to the value of the claims).
CONCLUSION
For the foregoing reasons, the Plaintiffs respectfully request that this Honorable Court
preclude the Defendants from introducing any and all evidence, references to evidence,
testimony or argument relating to the Plaintiffs’ settlement with Curley.
REQUEST FOR RELIEF
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court issue an
Order:
1. precluding the Defendants from introducing any evidence, referring to any
evidence, offering any testimony or making any argument relating to the
Plaintiffs’ settlement with Stacey Curley at the trial of the above-captioned
matter; and
2. granting such further and additional relief as the Court deems fair and equitable.Respectfully submitted,
RICK YATSENICK and
JOAL YATSENICK,
By their attorney,
Douglas & Troyer (BBO # 6& 134)
Moriarty Troyer & Malloy LLC
30 Braintree Hill Office Park, Suite 205
Braintree, MA 02184
(781) 817-4900
dtroyer@lawmtm.com
Dated: February 14, 2018CERTIFICATION OF SERVICE
Thereby certify that on February 14, 2018, I served a true and correct copy of this
document upon all counsel of record via Federal Express Overnight.
Douglas AaI Toyer 4
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1372CV00125 ifsFfis RICK YATSENICK and JOAL (. YATSENICK Aloutre Plaintiffs, By jue court, ( bss | (ut 9) Vv. Cinta UL hy bilan eee Se Se ES SH SH SY fr a all. OLD WHARF VILLAGE, LLC, { rr) CHARLES EDGAR, DAVID DILLON P D/B/A DILLON REAL ESTATE, and of STACEY CURLEY, (5 yw) Defendants. SSS”) jo? PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EVIDENCE OF THE PLAINTIFFS’ SETTLEMENT WITH STACEY CURLEY The Plaintiffs, Rick Yatsenick and Joal Yatsenick (collectively “Plaintiffs”), by and through counsel, hereby respectfully move in limine to preclude any and all evidence, references to evidence, testimony or argument relating to the Plaintiffs’ settlement with former Defendant, Stacey Curley (“Curley”). As grounds therefor, the Plaintiffs state that such evidence is irrelevant, immaterial, prejudicial and expressly inadmissible pursuant to Mass. G. Evid. § 408. a FACTUAL BACKGROUND L 1. The above-captioned action arises out of the Plaintiffs’ purchase of a purported single-family, year-round condominium unit in Dennis, Massachusetts. In their Verified Complaint initiating the action, the Plaintiffs asserted various counts against the Defendants, Old Wharf Village, LLC, Charles Edgar, David Dillon d/b/a Dillon Real Estate, and Curley. 2. The Plaintiffs had retained Curley, a Massachusetts licensed attorney, to provide legal services in connection with their purchase of the unit. In the litigation, the Plaintiffs2) asserted claims for legal. malpractice, violation of G.L. c. 93A, intentional misrepresentation, negligent misrepresentation, and negligence against Curley. 3. Subsequent to the filing of this action, the Plaintiffs reached settlement with Curley. Pursuant thereto, on August 13, 2015, the Plaintiffs and Curley filed a Stipulation of Dismissal with the Court (Court’s Docket, Paper No. 21), in which the parties stipulated to the dismissal of the claims against Curley pursuant to Mass. R. Civ. P. 41(a)(1)(ii). ARGUMENT The remaining Defendants to this action, Old Wharf Village, LLC and Charles Edgar (collectively “Defendants”), should be precluded from introducing any and all evidence, references to such evidence, testimony or argument relating to the Plaintiffs’ settlement with Curley. Not only is such evidence expressly inadmissible pursuant to Mass. G. Evid. § 408 and settled case law, but it is also irrelevant and prejudicial. Section 408 of the Massachusetts Guidance to Evidence states as follows with respect to compromise offers and negotiations in civil cases: (a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim: (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim or any other claim, and (2) conduct or a statement made during compromise negotiations about the claim. Mass. G. Evid. § 408(a) (2017). Such prohibition is consistent with the rule prospectively adopted by the Supreme Judicial Court in Morea v. Cosco, Inc., 422 Mass. 601 (1996). There, the SJC stated that, “unless admission of the evidence is relevant for some other purpose, no evidence of a settlement or the amount of the settlement shall be admissible.” Id. at 603; see Murray v. Foster, 343 Mass. 655, 660 (1962) (“Evidence of a settlement entered into by thedefendants with a third person not a party to the action for injuries arising out of the same accident would be inadmissible on the issue of the defendants’ liability to the plaintiffs.”); Michnik-Zilberman v. Gordon Liquors, Inc., 14 Mass. App. Ct. 533, 541-43 (1982). “The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial matters from being admitted in evidence.” City of Bos. v. Bd. of Educ., 392 Mass. 788, 796 (1984), quoting Commonwealth v. Hood, 389 Mass. 581, 594 (1983); see Mass. G. Evid. § 103(f) (2016). “Generally, a trial judge is accorded ‘substantial discretion in deciding whether evidence is relevant,’ and whether relevant evidence should be excluded if it is less probative than prejudicial. ... The judge’s decision will stand absent palpable error.” Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005), quoting Commonwealth v. Tobin, 392 Mass. 604, 613 (1984); see Mass. G. Evid. §§ 401-403. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” City of Bos. v. U.S. Gypsum Co., 37 Mass. App. Ct. 253, 261 n.18 (1994). Here, the Defendants should be precluded from introducing evidence and/or argument relative to the Plaintiffs’ settlement with Curley. The admission of such evidence is expressly prohibited by Mass. G. Evid. § 408(a) and pursuant to the SJC’s decision in Morea. Moreover, the Plaintiffs’ settlement with Curley is not probative to their claims against the remaining Defendants — which primarily regards whether the Defendants violated G.L. c. 93A and made misrepresentations (either intentionally or negligently) to the Plaintiffs that induced them to purchase the unit. The admission of evidence relating to the Plaintiffs’ settlement with Curley does not have any tendency to prove a fact relevant to the permissibility of the Defendants’ conduct, and it would be more prejudicial than probative because of the substantial danger thatthe evidence will confuse and mislead the jury concerning the issues. See Morea, 442 Mass. at 603; Zabin v. Picciotto, 72 Mass. App. Ct. 141, 150 (2008) (trial court acted within its discretion in concluding that the allocation agreement could have tended to mislead rather than illuminate the jury as to the value of the claims). CONCLUSION For the foregoing reasons, the Plaintiffs respectfully request that this Honorable Court preclude the Defendants from introducing any and all evidence, references to evidence, testimony or argument relating to the Plaintiffs’ settlement with Curley. REQUEST FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Honorable Court issue an Order: 1. precluding the Defendants from introducing any evidence, referring to any evidence, offering any testimony or making any argument relating to the Plaintiffs’ settlement with Stacey Curley at the trial of the above-captioned matter; and 2. granting such further and additional relief as the Court deems fair and equitable.Respectfully submitted, RICK YATSENICK and JOAL YATSENICK, By their attorney, Douglas & Troyer (BBO # 6& 134) Moriarty Troyer & Malloy LLC 30 Braintree Hill Office Park, Suite 205 Braintree, MA 02184 (781) 817-4900 dtroyer@lawmtm.com Dated: February 14, 2018CERTIFICATION OF SERVICE Thereby certify that on February 14, 2018, I served a true and correct copy of this document upon all counsel of record via Federal Express Overnight. Douglas AaI Toyer 4