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COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, ss SUPERIOR COURT
Docket No. BACV2013-00125
Rick
Old
Char!
land Joal Yatsenick,
Plaintiffs
arf Village, LLC and
les Edgar,
Defendants
IDEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR NEW TRIAL
The Court should deny the Plaintiffs’ Motion for New Trial where the Court correctly
instructed the jury on breach of contract and vicarious liability; and where the evidence supported
the jury’s verdict on all counts.
of ev}
preju
come
App.
I. THE EVIDENCE SUPPORTED THE JURY’S VERDICT ON BOTH THE
INTENTIONAL MISREPRESENTATION AND G.L. C. 93A CLAIMS
Courts should only grant a new trial where the verdict was “so markedly against the weight
idence as to suggest that jurors allowed themselves to be misled, were swept away by bias or
dice, or for a combination of reasons, including misunderstanding. ..applicable law, failed to
to a reasonable conclusion.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.
Ct. 744 (1993). A ruling on a motion for new trial rests in the sound discretion of trial judge,
and the jury’s verdict is not to be set aside if it is supported by what judge considers to be credible
evid¢
order
mce. Gleason v. Source Perrier, S.A., 28 Mass. App. Ct. 561 (1990). This court should not
a new trial where the jury’s verdict was supported by credible evidence.(but n
Plain
busin:
the j
Plain
decep
(1994
Court
jury’:
they
excl
A. The Finding That Defendant Old Wharf Village, LLC Misrepresented_a
Material Fact Does Not Require the Conclusion that the Defendants Engaged
in an Unfair and Deceptive Business Practice.
The Plaintiffs argue that the jury’s finding that the Defendant, Old Wharf Village, LLC
ot Defendant Charles Edgar individually) intentionally misrepresented a material fact to the
iffs necessitated a finding that the misrepresentations amounted to an unfair and deceptive
‘ess practice.' Exhibit A. It does not. Using the model jury instructions, the court instructed
Iry that to prove the Defendants committed an unfair and deceptive business practice, the
iffs must show that “they would not have suffered a loss but for the defendant’s unfair or
tive act or practice.” Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass. 115, 125
); Massachusetts Superior Court Civil Practice Jury Instructions § 16.5. In other words, the
continued, “if the harm would have occurred anyway, the defendant is not liable.” Id. The
conclusions that the Defendant Old Wharf Village, LLC made misrepresentations and that
did not commit an unfair and deceptive business practice in so doing are not mutually
sive.
The jury heard evidence that the Plaintiffs’ attorney failed to inform them that Unit 204
was not zoned for residential use, despite their specific request that she review the condominium
docut
solel
Yatsi
ments to ensure that it was in fact a residential condominium; and that the Plaintiffs relied
on their attorney’s advice in making the decision to buy the property, despite Plaintiff, Joal
nick’s testimony that their attorney’s advice was just one factor in their decision. The jury
also heard evidence that the Defendant Old Wharf Village, LLC provided its conveyancing
attorney with a template deed that correctly described the use of the property, but the deed the
1 The
jjury’s subsequent findings that Defendant Charles Edgar knew or recklessly disregarded the truth and intended
the Plaintiffs to rely on the misrepresentations should be disregarded because they are illogical. If Defendant Edgar
misre;
resentation. A fair reading of the Special Verdict form suggests that the jury misinterpreted the Special Verdict
did ob misrepresent a material fact, he could not have acted recklessly or intended the Plaintiffs to rely on any
form in answering the later questions.conveyancing attorney actually drafted incorrectly stated that the property was for residential use.
The j
the P|
per
reaso}
ury also heard evidence that the unit increased in value after the Plaintiffs purchased it; that
laintiffs could have rented it to vacationers at any time at rental rates of approximately $1800
eek during at least the eight peak summer weeks; and that the Plaintiffs rejected two
nable offers by the Defendants to resolve their claims. Thus, based on the evidence at trial,
the jury could have concluded that despite any misrepresentations by the Defendants about the
naturt
the hi
conv
prope
14, i
proxi}
answi
e of the property, the misrepresentations did not cause the Plaintiffs any harm at all.
The jury could also have reasonably concluded that if the Plaintiffs did suffer any harm,
larm was caused by their reliance on their attorney’s bad advice; by the Defendants’
yancing attorney’s poor drafting; or by the Plaintiffs’ own choices not to use, sell or rent the
tty. The jury’s answers on the Special Verdict Form support this conclusion. In Question
n answer to the question, “Was the Defendant(s)’ unfair and deceptive act or practice a
mate cause of injury to the Plaintiffs?” the jury answered, “No.” Since the jury had already
ered “No” to the question of whether the Defendant(s) engaged in an unfair and deceptive
business practice, they need not have answered this question, but they did? Their answer could
not bj
e a more clear indication that the jury concluded that the Defendants did not cause any harm
to the Plaintiffs. This conclusion is also supported by the jury’s finding, on Question 6 of the
inten}
ional misrepresentation claim, that the Plaintiffs did not rely on the Defendant’s false
statement and/or that their reliance was not reasonable. Exhibit A.
The Plaintiffs incorrectly claim that, in answering Question 18, the jury found that the
Plaintiffs suffered injury. That question asked:
decep
Did the Defendants, within 30 days of the mailing or delivery of the Plaintiffs’
demand for relief, make a written tender of settlement that was reasonable in
relation to the injury suffered?
2 Qusttion 14 was inartfully drafted. It should have read, “If you find that the Defendants engaged in an unfair and
ive business practice, was that practice a proximate cause of injury to the Plaintiffs?”Exhibit A. The focus of the question, which came after negative responses to questions about
whether the Defendants engaged in an unfair or deceptive practice that proximately caused the
Plaintiffs’ harm, was on whether the Defendants had tendered an offer of settlement within thirty
days.) It was undisputed that the Defendants did not tender an offer of settlement within thirty days
of receiving the demand letter. The jury’s positive response to this question, especially when read
in light of the prior answers, does not mean the jury concluded the Plaintiffs actually suffered any
injury, or that the Plaintiffs caused such injury? It is more likely a simple acknowledgement of
the undisputed fact that the Defendants did not tender an offer of settlement within thirty days.
The jury’s conclusion that the Defendants did not engage in an unfair and deceptive business
practice was supported by the evidence.
B. The Evidence Supported the Jury’s Finding that the Plaintiffs Did Not
Justifiably Rely on the Defendant, Old Wharf Village’s, Misrepresentations.
The jury heard ample evidence to support their conclusion, in Question 6, that the Plaintiffs
did not justifiably rely on any material misrepresentations of the Defendant, Old Wharf Village,
LLC! To reach this conclusion, the jury could either have found that the Plaintiffs did not rely at
all on the statements of the Defendants; or that any reliance was not reasonable. The jury heard
evidence that the Plaintiffs had worked with attorneys on numerous occasions before retaining
Attomey Curley to help them with the purchase of Unit 204--for multiple car accident claims, a
Social Security Disability claim, and to assist with the purchase of two homes. The jury also heard
evidence that the Plaintiffs paid Attorney Curley a fee not only to negotiate the purchase and sale
agre¢ment and prepare closing documents, but also specifically to review the condominium
documents to ensure that they were purchasing a residential condominium because their previous
3 It was undisputed that the Defendants did not offer any settlement in response to the demand letters; but there was
also unrebutted evidence that this was because the Defendants had offered settlements before the demand letters.
Thus, |the quality of the defendants’ response to the demand letters was not likely a critical issue for the jury.
4attorney warned them of possible scams. The Plaintiffs were so concerned about the nature of the
property that they had even written “contingent upon review of condo docs” in their Offer to
Purchase the unit.
logic
toim
In light of the extreme concern the Plaintiffs had about the nature of the property, it defies
Ito imagine that they would rely on the statements of anyone other than the attorney they paid
estigate it in deciding to purchase Unit 204. Yet the Plaintiffs claim that the jury’s conclusion
that they did not justifiably rely on the statements of Old Wharf Village, LLC is contradicted by
their
presentation of evidence that they did rely on the Defendant’s statements in addition to
Curley’s statements in making their decision to purchase the property. However, Joal Yatsenick
had t
Exhil
evide
oppo!
witng
Comt
estified at her deposition four years before the trial that:
We asked Stacey Curley to check those documents and any and everything
you need to check so you can tell us that we should buy this. Because if we
don’t have it confirmed by her that this is definitely a single family
residential year round condominium...then we weren’t going to go forward.
We would stop.
She told us that everything was fine per her research and go ahead. So to
me, she said go, and we did.
bit B (emphasis supplied). The deposition of a party may be. admitted as substantive
mce. Mass. R. Civ. P. 32(a)(2); Mass. G. Evid. § 801(d)(2)(A) (2012) (admission of party-
nent); Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) (same). The credibility of
sses is always ajury question, Lupia v. Marino, 353 Mass. 749, 749 (1967) (rescript opinion);
monwealth v. Bishop, 9 Mass. App. Ct. 468, 471 (1980). The jury, as the sole arbiter of
witness credibility, were free to disbelieve Joal Yatsenick’s trial testimony in favor of her
depo
the n
conc!
sition testimony, which was more consistent with the Yatsenick’s oft-stated concerns about
lature of the property and their goals in hiring Curley. Thus, the jury could easily have
uded that the Plaintiffs did not rely at all on the misrepresentations of Defendant Old Wharf
Village, LLC in purchasing the property. They could also have concluded that if the Plaintiffsrelied
retent
intent
requi
testify
on the Defendant’s statements at all, such reliance was unreasonable in light of their
tion of an attorney they specifically hired to investigate the status of the property.
The Plaintiffs argue that the Defendants should have provided notice prior to trial of their
tion to read the above-cited portion of the Plaintiffs’ testimony. Even if such notice were
ted, which it is not, the Defendants could not have known prior to trial that the Plaintiff would
in a manner inconsistent with her deposition testimony, but the Plaintiffs, of all people,
should have been well aware of any inconsistencies between Joal Yatsenick’s deposition testimony
and her trial testimony. The Plaintiffs also argue that reading selective portions unfairly permitted
the D
efendants to “cherry-pick” the evidence. The portion of the testimony read to the jury
included the complete question posed and answer given. If there were any passages from the
depo:
ition that “ought in fairness to be considered with the part introduced,” the Plaintiffs could
have |requested the reading of such passages, but they did not. Mass. R. Civ. P. 32 (a) (4). The
Plain
depo:
portic
case,
iffs also could have requested to recall the Plaintiff in rebuttal to attempt to rehabilitate her
ition testimony, but they did not. Indeed, even now, the Plaintiffs have offered no other
ns of Joal Yatsenick’s deposition that could have rehabilitated her trial testimony. In any
even without the deposition testimony, the jury could still have concluded that any reliance
on the Defendant’s statements was unreasonable where they specifically hired and paid Curley to
investigate their significant concerns about the nature of the property.
of Di
The jury’s conclusion that the Plaintiffs did not justifiably rely on any misrepresentations
fendant, Old Wharf Village, LLC were well supported by the evidence.
IL. THE COURT CORRECTLY INSTRUCTED THE JURY ON THE BREACH
OF CONTRACT CLAIM AND VICARIOUS LIABILITY.
A. The Court Correctly Instructed the Jury on the Breach of Contract Claim.The Plaintiffs claim that the court improperly narrowed the breach of contract claim to
apply) only to the Exculpatory Clause in { 25 of the Purchase and Sale Agreement by failing to
specifically identify the deed as the contract allegedly breached by the Defendants, and that this
failure justifies a new trial. It does not.
In their Request to Reform and Supplement the Proposed Jury Instructions, the Plaintiffs
asked the court to instruct the jury that the Plaintiffs alleged a breach of the deed, that all promises
made in the Purchase and Sale Agreement merge with the deed, and that the Plaintiffs claimed that
the Defendants breached the deed by failing to give the Plaintiffs a residential condominium, and
by providing a condominium whose legally permitted use created an encumbrance on the property
in vi
lation of the convenant to provide the property free from encumbrances.‘ The Court did
instruct the jury, on the first page of the instructions, that “condominium units are conveyed by
way
about
of a unit deed”—in other words, that the deed is a contract.> After additional instructions
condominiums, the court gave the general instructions on the elements of a breach of contract
claim. See Michelson v. Digital Financial Servs., 167 F.3d 715, 720 (1% Cir. 1999) (citations
omitted). By statute, as the jury were instructed, all condominium units must contain a description
of the use of the property. G.L. c. 183A § 9. Thus, without evidence outside the deed
demonstrating that the parties actually negotiated this particular term, rather than just including it
in the deed to satisfy the statutory obligation, the description of the use cannot be seen as a material
term
4 The
The o|
other
of the contract, as a warranty, or as an encumbrance. Although the Plaintiffs did not request
laintiffs did not request an instruction on the definition of encumbrance, and they were not entitled to one.
‘dinary meaning of the term encumbrance connotes "'[a] claim or liability... attached to property or some
right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership.'"
Noonan v. Wonderland Greyhound Realty, LLC, 723 F. Supp. 2d 298, 338 (2010), citing Board of Trustees of Sea
Grass Village Condominium v. Bergquist, 2009 Mass. App. Div. 132. An encumbrance “must exist in favor of another
perso!
|, rendering the land of less value to its owner.” Id. The use restriction in the deed to Unit 204 did not amount
to an encumbrance because it did not create a right in any other person to ownership of the property.
5 The|
Plaintiffs did not request that the court move this language to the breach of contract section of the
instructions.an in:
§ 14.
struction on express warranty, Massachusetts Superior Court Civil Practice Jury Instructions
B.4, the court nonetheless instructed the jury that they could consider whether the Plaintiffs
justifiably relied on any written representations made by the Defendants outside the purchase and
sale agreement or the deed that might have led them to believe that the Defendants had promised
them
a residential condominium. To instruct the jury otherwise would have been error. The
instructions as given by the court allowed the jury to determine what the essential terms of the
contract were, including whether the use was an essential term, and if so, whether the Defendants
breached any material term. Given the disclosures about the Master Deed (which accurately
described the use) in the Purchase and Sale Agreement and in the deed itself, the jury could well
have
concluded that the “use” language in the deed was not a material term.
The Plaintiffs also claim that the court’s instruction on the breach of contract claim
“infected the Plaintiffs’ 93A count” because the jury could have found that the breach of contract
gave
rise to an unfair and deceptive business practice. The Amended Complaint contains no
reference in the G.L. c. 93A Count to the alleged breach of contract. The G.L. c. 93A Count
alleg,
pract!
on thi
The i
acts
ed only that the Defendants’ misrepresentations constituted an unfair and deceptive business
ice. § 32-34. Thus, the court’s instructions could not have infected the jury’s deliberations
© 93A claim, because those allegations should not have been before the jury.
B. The Court Correctly Instructed the Jury on the Subject of Vicarious Liability.
Court instructed the jury that:
The Defendant, Old Wharf Village, LLC, is a Massachusetts Limited Liability
Company. Like a corporation, a limited liability company can only act through its
agents. A limited liability company is liable for the wrongful conduct of a member
or a manager. A corporation is responsible for the acts of its agents made in their
capacity as agents of the corporation.
instruction accurately states the law of agency, which makes a corporation responsible for the
f its agents. Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 742 (2000). ThePlaintiffs did not request any specific instruction on individual liability, and the jury heard no
evidence that Defendant Charles Edgar made any statement outside his role as manager of
Defendant Old Wharf Village, LLC.
744,
The Plaintiffs rely on W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct.
(748 (1993) in arguing that the court incorrectly instructed the jury as to Defendant Edgar’s
personal liability. To the extent the Plaintiffs argue that references to statements made by the
president of the Plaintiff company in the cited case support a claim for individual liability of the
Defendant Charles Edgar, it does not. There were no individual defendants in the Tripp Co. case,
and it contains no reference to the law of agency as distinguished from individual liability.
«“,
UI. THE COURT CORRECTLY EXCLUDED EVIDENCE OF “OTHER UNIT
OWNERS’ _ UNDERSTANDING” OF THE PERMITTED USE OF THE
UNITS.
The Court correctly excluded evidence proffered by the Plaintiffs about other unit owners
‘understanding” of the permitted use of the units. The Plaintiffs now argue that they offered this
evidence to show a’ common pattern or scheme, and to show that the Defendants acted in
acco!
‘dance with their routine business practices in the manner in which they sold Unit 204 to the
Plaititiffs. The Plaintiffs did not make either argument at trial, but even if they had, the evidence
would not have been relevant.
kno
acts
spec’
Propy
each
At trial, the Plaintiffs said they wanted to introduce evidence that other unit owners did not
their units were not residential units when they bought them to show that the Defendants’
and omissions had a “tendency to deceive.” The Plaintiffs proferred no evidence of any
fic nexus between the unit owners’ lack of knowledge of the actual permitted use of the
ert and any specific act or omission of the Defendants; nor did they proffer any evidence that
of the other unit owners justifiably relied on misrepresentations of the Defendants. Whether
any acts or omissions of the Defendants had a “tendency to deceive” others or that they acted inaccordance with their routine business practices was not relevant to any issue at trial, as the
meaning of the Defendants’ statements to the Plaintiffs were not particularly ambiguous and the
Defe:
dants’ adherence to its own routine business practices was not an issue at trial.
Statements made by the Defendants or their agents to other unit owners in advance of their
purchases, whether verbally or in writing, could have corroborated the Plaintiffs’ claims that the
Defer
ndants’ made material misrepresentations by demonstrating they made similar statements to
others; but the Plaintiffs did not specifically state that this was their purpose. Moreover, the critical
issue
in this case was not whether the statements had a tendency to deceive, but whether the
Plaintiffs were actually deceived. The jury’s finding that Defendant Old Wharf Village, LLC
misrepresented a material fact suggests that the jury did find that the Plaintiffs were deceived—so
this
decei
‘vidence was clearly unnecessary. In addition, evidence that the Defendants may have
ed others would not have helped the jury to decide whether the Plaintiffs suffered any harm
caused by the Defendants as a result of the misrepresentations.
instru
DAT
CONCLUSION
Where the jury’s verdict was well supported by the evidence, and the court correctly
cted the jury on all counts, the Court should deny the Plaintiffs’ motion for new trial.
Respectfully submitted,
Defendants,
By Their Attorneys,
etkins, BBO# 561909
Lynhe hiodo, BBO# 657428
DP Law
619 High Street, Suite 103
Dedham, MA 02026
(781) 326-6320 (voice)
(781) 326-6321 (fax)
dp@djunaperkinslaw.com
Ichiodo@djunaperkinslaw.com
ED: December 20, 2018
10.foaeee
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS. SUPERIOR COURT DEPARTMENT
CIV. ACT. NO. 2013-00125
Rick and Joal Yatsenick,
Plaintiff
Old Wharf Village, LLC and
Charles Edgar,
- Defendants
OO
SPECIAL VERDICT FORM
Breach of Contract
1, Did Defendant Old Wharf Village, LLC breach a contract with the Plaintiffs?
YES, NO. v
Tf your answer to Question 1 is YES, proceed to Question 2. If your answer to Question 1 is NO,
please skip to Question 3.
2. What amount of money (if any), separate and apart from the purchase price paid for the
unit, is required to fully and fairly compensate Plaintiffs for the damages that they
suffered as a result of Defendant Old Wharf Village LLC’s breach of contract?
Amount in Numbers:
Amount in Words:Intentional Misrepresentation
3. Did the Defendants misrepresent a material fact to the Plaintiffs in their purchase of Unit
204?
(a) As to Charles Edgar, Individually: Yes No 4
(b) As to Old Wharf Village LLC: Yes 4 No
if your answer to either or both of the subsections of Question 3 is YES, please proceed to
answer subsection(s) 4 through 7. If your answer to both of the subsections of Question 3 is NO,
please skip to Question 10.
4. Did the Defendants know or recklessly disregard the truth or falsity of the statement?
(©) Asto Charles Edgar, Individually: Yes / No
(d) As to Old Wharf Village LLC: Yes 4 No
5. Did the Defendants intend the Plaintiffs to rely on the misrepresentation in making their
decision?
(c) As to Charles Edgar, Individually: Yes Yo No
(@) As to Old Wharf Village LLC: Yes Y No
6. Did the Plaintiffs rely on the Defendants’ false statement, and if so, was their reliance
reasonable?
(c) As to Charles Edgar, Individually: Yes No Y
(@) = Asto Old Wharf Village LLC: Yes No Yvite os
7. Ifthe answers to all four questions 4 through 7 are yes as to Defendant Old Wharf
Village LLC, or if the answers to all four questions 4 through 7 are yes as to Defendant
Charles Edgar, did the Plaintiffs suffer financial loss as a result of relying on the
misrepresentation?
uf A Yes No
8. Ifthe answer to question #7 is yes, what amount of financial losses did the Plaintiffs
incur, separate and apart from the purchase price paid for the unit?
MA
Amount in Numbers:
Amount in Words:
9. Ifyou found any amount of money required to fully and fairly compensate Plaintiffs for
the damages that they experienced as a result of a Defendant's intentional
misrepresentation, is this amount in addition to the amount (if any) you stated in Answer
2 above? v/a
Yes. No
Chapter 93A — Unfair and Deceptive Business Practices
10. Did the Plaintiffs deliver an adequate demand letter to the defendant at least thirty days
prior to commencing this action on March 18, 2013?
(©) As to Charles Edgar, Individually: Yes J No
(@) As to Old Wharf Village LLC: Yes V Noyee
11, Were the Plaintiffs acting as private, nonprofessional consumers?
Yes, J No,
12. Were the Defendants, Charles Edgar and Old Wharf Village, LLC engaged in trade or
commerce in its dealings with the Plaintiffs?
(¢) Asto Charles Edgar, Individually: Yes No
(qd) As to Old Wharf Village LLC: Yes J No
13. Did Defendants commit an unfair or deceptive act or practice in their dealings with the
Plaintiffs?
) As'to Charles Edgar, Individually: , Yes No vw
(@ — Asto Old Wharf Village LLC: Yes No Sf
14. Was the Defendant(s)’ unfair and deceptive act or practice a proximate cause of injury to
the Plaintiffs?
(6) Ato Charles Edgar, Individually: Yes no Y
(4) As to Old Wharf Village LLC: Yes No Y
15. If the answers to all four questions 10 through 14 are YES as to Old Wharf Village LLC
or if the answers to all four questions 10 through 14 are YES as to Charles Edgar, what
amount of money (if any), separate and apart from the purchase price paid for the unit, is
required to fully and fairly compensate Plaintiffs for the damages that they experienced
as a result of Defendants unfair and deceptive trade practices? h
pA
Amount in Numbers:
Amount in Words:> yee
Bt et
16. If you found any amount of money required to fully and fairly compensate Plaintiffs for
the damages they experienced as a result of a Defendant’s unfair and deceptive trade
practices intentional misrepresentation, is any portion of this amount in addition to the
amounts (if any) you stated in Answers 2 and 8? , N YA
Yes No.
If YES, how much of this amount is in addition to the amount awarded for the other claims?
Amount in Numbers:
Amount in Words:
17. Do you find that any of the unfair and deceptive acts of Defendants were made willfully
and/or knowingly?
(c) As to Charles Edgar, Individually: Yes No f
@) — As to Old Wharf Village LLC: Yes No /
18. Did the Defendants, within 30 days of the mailing or delivery of the Plaintiffs’ demand
for relief, make a written tender of settlement that was reasonable in relation to the injury
actually suffered?
f
() As to Charles Edgar, Individually: Yes No
@) = As to Old Wharf Village LLC: Yes No
your answer to either of the subsections of Question 18 isYES, please proceed to question 19.
your answer to both subsections of Question 18 is NO, please skip to question 20.19, Was the Defendants refusal to grant relief in response to the Plaintiffs’ demand letter
made in bad faith with knowledge or reason to know that the act or practice complained
of constituted an unfair or deceptive act or practice? if
la) As to Charles Edgar, Individually: Yes No
ib) As to Old Wharf Village, LLC: Yes No
20. As to each Defendant separately, if you answered YES to either Question 17 or
Question 19, you are to award the Plaintiffs up to three (3) times but no less than two (2)
times the amount of damages you awarded to the Plaintiffs in your Answer to Question
15. What is the total amount of your award for the Plaintiffs claim of unfair and
deceptive acts or practices under Ch. 93A ? N i/, iD
As to the Defendant Charles Edgar, Individually:
Amount in Numbers:
ount in Words:
to the Defendant Old Wharf Village, LLC:
ount in Numbers:
jount in Words:, eee
Final Instruction
STOP HERE. You have completed the Special Jury Verdict Form. The jury foreperson
should sign the verdict slip and you should inform the Court Officer that you have completed
the Special Jury Verdict Form.
Thereby certify that at least 11 of 13 jurors have agreed to the answers to each of the
s0ve questions.
i Lot tnd» K~—
le Jury Foreperson
THANK YOUCOMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT.
C.A. NO. BACV2013-00125 _
RICK YATSENICK and JOAL YATSENICK,
Plaintiffs,
vs.
OLD WHARF VILLAGE, LLC; CHARLES EDGAR,
DAVID DILLON d/b/a DILLON REAL ESTATE,
and STACEY CURLEY,
Defendants.
DEPOSITION OF JOAL YATSENICK, taken
on behalf of the defendants pursuant to the
applicable provisions of the Massachusetts
Rules of Civil Procedure, before Mary M.
Cunha, Court Reporter and Notary Public in
and for the Commonwealth of Massachusetts,
at the offices of Lynch & Lynch, 45 Bristol
Drive, South Easton, Massachusetts, on
Thursday, August 7, 2014, commencing at
11:16 a.m.245
a
1 No matter what the Town did, we would always 1 © dont have it confirmed by her that this E
2 be grandfathered; we would always have a 2 4 definitely a single-family, residential, _ \
3 condominium. J asked her to tell me what a 3 year-1 “round condominium as Mr. Dillon and, Mr: EF
4 183B was that [had sent her. Could she 4 | Edgar told‘ us it is, then we werén't going i
5 explain it to us and help us. And she said 5 \_ to go forward. That was it, We would stop. 4
6 she would do the research and never got back 6 [Wwe spol
7 tous. 7
8 Q. So she agreed to represent you, she 8
9 agreed to look into it? 9
10 A. Yes, she did. To do research, look 10 us afew SS ines That, — me, “indicated that
a1 into it and get back to us as to what was 11 she had read the documents. I mentioned
12 going on and what was 183B that I sent to 12 before she had mentioned the parking. She
13 her because we didn't understand it. 13 had mentioned there was no reference to not
14 Q. How many attempts did you make to 14 having animals. She had mentioned that we
15 follow up? 15 could sell it. If we sold it within two
16 A. We let that go based on the fact that 16 years, we would have to sell it back to the
17 she was doing research and she would 17 developer for what we paid. But that didn't
18 eventually get back to us, and then we asked 18 mean anything because we were keeping this
19 her some other things that we needed to 19 long term as our residence. So, to me, she
20 know. It was her nature to kind of drop 20 said go, and we did. We then asked her to
21 things and not get back to you or eventually 21 take care of the purchase and sales -- I'm
22 get back to you. So we pretty much realized 22 sorry?
23 we weren't going to get any help. 23 Q. Bear with me for a minute so I
24 Q. Did she ever get back to you? 24 understand.
1 A. Not on that, no. Not on anything 1 A. Uh-huh.
2 other than we asked for, um -- there was a 2 Q. So that was -- at that point in time,
3 mortgage release that wasn't done by the 3 you hadn't retained Ms. Curley yet to close
4 bank that Mr. Edgar had. And we asked her 4 on this property?
5 what would be done with that, and she said 5 A. What we told her when we spoke with
6 she would handle that. She also said she 6 her was we wanted her to check these first.
7 could refer us to someone if we wanted to 7 And if everything was a go, then we would
8 sue Mr. Edgar, 8 continue with her as our attorney to close.
9 Q. Ms. Yatsenick, what was your 9 Q. So, is it fair to say that the first
10 understanding of the scope of duty or 10 scope of representation with Ms, Curley was
ii responsibility that you asked of Ms. Curley? 11 to research this property to make sure it
12 What did you want her to do? What did you 12 was nothing more or less than a
13 retain her for? 13 single-family, year-round, residential
14 A. Well, the first thing we retained her 14 condo?
1s for was, we asked her to check -- we were 15 A. Yes. And she told us that if she
16 sending over to her the documents from 16 spotted a problem anywhere, that was the
17 Mr. Edgar. We wanted her to check those 17 end. We would have stopped. We would have
18 documents. Mr. Hunter gave her the offer 18 paid her for her services and we would have
19 that we showed her was contingent upon her 19 moved on. And since she was good at finding
20 _letting us ‘mow that everything was okay. 20 things, we probably would have used her if
#1 Sowe ed her to to check those docurrents and} 21 we bought something else.
Q. Now, when you spoke with her where she
says, told you, as you testified, that she
gave you the go --
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o COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss SUPERIOR COURT Docket No. BACV2013-00125 Rick Old Char! land Joal Yatsenick, Plaintiffs arf Village, LLC and les Edgar, Defendants IDEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR NEW TRIAL The Court should deny the Plaintiffs’ Motion for New Trial where the Court correctly instructed the jury on breach of contract and vicarious liability; and where the evidence supported the jury’s verdict on all counts. of ev} preju come App. I. THE EVIDENCE SUPPORTED THE JURY’S VERDICT ON BOTH THE INTENTIONAL MISREPRESENTATION AND G.L. C. 93A CLAIMS Courts should only grant a new trial where the verdict was “so markedly against the weight idence as to suggest that jurors allowed themselves to be misled, were swept away by bias or dice, or for a combination of reasons, including misunderstanding. ..applicable law, failed to to a reasonable conclusion.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. Ct. 744 (1993). A ruling on a motion for new trial rests in the sound discretion of trial judge, and the jury’s verdict is not to be set aside if it is supported by what judge considers to be credible evid¢ order mce. Gleason v. Source Perrier, S.A., 28 Mass. App. Ct. 561 (1990). This court should not a new trial where the jury’s verdict was supported by credible evidence.(but n Plain busin: the j Plain decep (1994 Court jury’: they excl A. The Finding That Defendant Old Wharf Village, LLC Misrepresented_a Material Fact Does Not Require the Conclusion that the Defendants Engaged in an Unfair and Deceptive Business Practice. The Plaintiffs argue that the jury’s finding that the Defendant, Old Wharf Village, LLC ot Defendant Charles Edgar individually) intentionally misrepresented a material fact to the iffs necessitated a finding that the misrepresentations amounted to an unfair and deceptive ‘ess practice.' Exhibit A. It does not. Using the model jury instructions, the court instructed Iry that to prove the Defendants committed an unfair and deceptive business practice, the iffs must show that “they would not have suffered a loss but for the defendant’s unfair or tive act or practice.” Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass. 115, 125 ); Massachusetts Superior Court Civil Practice Jury Instructions § 16.5. In other words, the continued, “if the harm would have occurred anyway, the defendant is not liable.” Id. The conclusions that the Defendant Old Wharf Village, LLC made misrepresentations and that did not commit an unfair and deceptive business practice in so doing are not mutually sive. The jury heard evidence that the Plaintiffs’ attorney failed to inform them that Unit 204 was not zoned for residential use, despite their specific request that she review the condominium docut solel Yatsi ments to ensure that it was in fact a residential condominium; and that the Plaintiffs relied on their attorney’s advice in making the decision to buy the property, despite Plaintiff, Joal nick’s testimony that their attorney’s advice was just one factor in their decision. The jury also heard evidence that the Defendant Old Wharf Village, LLC provided its conveyancing attorney with a template deed that correctly described the use of the property, but the deed the 1 The jjury’s subsequent findings that Defendant Charles Edgar knew or recklessly disregarded the truth and intended the Plaintiffs to rely on the misrepresentations should be disregarded because they are illogical. If Defendant Edgar misre; resentation. A fair reading of the Special Verdict form suggests that the jury misinterpreted the Special Verdict did ob misrepresent a material fact, he could not have acted recklessly or intended the Plaintiffs to rely on any form in answering the later questions.conveyancing attorney actually drafted incorrectly stated that the property was for residential use. The j the P| per reaso} ury also heard evidence that the unit increased in value after the Plaintiffs purchased it; that laintiffs could have rented it to vacationers at any time at rental rates of approximately $1800 eek during at least the eight peak summer weeks; and that the Plaintiffs rejected two nable offers by the Defendants to resolve their claims. Thus, based on the evidence at trial, the jury could have concluded that despite any misrepresentations by the Defendants about the naturt the hi conv prope 14, i proxi} answi e of the property, the misrepresentations did not cause the Plaintiffs any harm at all. The jury could also have reasonably concluded that if the Plaintiffs did suffer any harm, larm was caused by their reliance on their attorney’s bad advice; by the Defendants’ yancing attorney’s poor drafting; or by the Plaintiffs’ own choices not to use, sell or rent the tty. The jury’s answers on the Special Verdict Form support this conclusion. In Question n answer to the question, “Was the Defendant(s)’ unfair and deceptive act or practice a mate cause of injury to the Plaintiffs?” the jury answered, “No.” Since the jury had already ered “No” to the question of whether the Defendant(s) engaged in an unfair and deceptive business practice, they need not have answered this question, but they did? Their answer could not bj e a more clear indication that the jury concluded that the Defendants did not cause any harm to the Plaintiffs. This conclusion is also supported by the jury’s finding, on Question 6 of the inten} ional misrepresentation claim, that the Plaintiffs did not rely on the Defendant’s false statement and/or that their reliance was not reasonable. Exhibit A. The Plaintiffs incorrectly claim that, in answering Question 18, the jury found that the Plaintiffs suffered injury. That question asked: decep Did the Defendants, within 30 days of the mailing or delivery of the Plaintiffs’ demand for relief, make a written tender of settlement that was reasonable in relation to the injury suffered? 2 Qusttion 14 was inartfully drafted. It should have read, “If you find that the Defendants engaged in an unfair and ive business practice, was that practice a proximate cause of injury to the Plaintiffs?”Exhibit A. The focus of the question, which came after negative responses to questions about whether the Defendants engaged in an unfair or deceptive practice that proximately caused the Plaintiffs’ harm, was on whether the Defendants had tendered an offer of settlement within thirty days.) It was undisputed that the Defendants did not tender an offer of settlement within thirty days of receiving the demand letter. The jury’s positive response to this question, especially when read in light of the prior answers, does not mean the jury concluded the Plaintiffs actually suffered any injury, or that the Plaintiffs caused such injury? It is more likely a simple acknowledgement of the undisputed fact that the Defendants did not tender an offer of settlement within thirty days. The jury’s conclusion that the Defendants did not engage in an unfair and deceptive business practice was supported by the evidence. B. The Evidence Supported the Jury’s Finding that the Plaintiffs Did Not Justifiably Rely on the Defendant, Old Wharf Village’s, Misrepresentations. The jury heard ample evidence to support their conclusion, in Question 6, that the Plaintiffs did not justifiably rely on any material misrepresentations of the Defendant, Old Wharf Village, LLC! To reach this conclusion, the jury could either have found that the Plaintiffs did not rely at all on the statements of the Defendants; or that any reliance was not reasonable. The jury heard evidence that the Plaintiffs had worked with attorneys on numerous occasions before retaining Attomey Curley to help them with the purchase of Unit 204--for multiple car accident claims, a Social Security Disability claim, and to assist with the purchase of two homes. The jury also heard evidence that the Plaintiffs paid Attorney Curley a fee not only to negotiate the purchase and sale agre¢ment and prepare closing documents, but also specifically to review the condominium documents to ensure that they were purchasing a residential condominium because their previous 3 It was undisputed that the Defendants did not offer any settlement in response to the demand letters; but there was also unrebutted evidence that this was because the Defendants had offered settlements before the demand letters. Thus, |the quality of the defendants’ response to the demand letters was not likely a critical issue for the jury. 4attorney warned them of possible scams. The Plaintiffs were so concerned about the nature of the property that they had even written “contingent upon review of condo docs” in their Offer to Purchase the unit. logic toim In light of the extreme concern the Plaintiffs had about the nature of the property, it defies Ito imagine that they would rely on the statements of anyone other than the attorney they paid estigate it in deciding to purchase Unit 204. Yet the Plaintiffs claim that the jury’s conclusion that they did not justifiably rely on the statements of Old Wharf Village, LLC is contradicted by their presentation of evidence that they did rely on the Defendant’s statements in addition to Curley’s statements in making their decision to purchase the property. However, Joal Yatsenick had t Exhil evide oppo! witng Comt estified at her deposition four years before the trial that: We asked Stacey Curley to check those documents and any and everything you need to check so you can tell us that we should buy this. Because if we don’t have it confirmed by her that this is definitely a single family residential year round condominium...then we weren’t going to go forward. We would stop. She told us that everything was fine per her research and go ahead. So to me, she said go, and we did. bit B (emphasis supplied). The deposition of a party may be. admitted as substantive mce. Mass. R. Civ. P. 32(a)(2); Mass. G. Evid. § 801(d)(2)(A) (2012) (admission of party- nent); Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) (same). The credibility of sses is always ajury question, Lupia v. Marino, 353 Mass. 749, 749 (1967) (rescript opinion); monwealth v. Bishop, 9 Mass. App. Ct. 468, 471 (1980). The jury, as the sole arbiter of witness credibility, were free to disbelieve Joal Yatsenick’s trial testimony in favor of her depo the n conc! sition testimony, which was more consistent with the Yatsenick’s oft-stated concerns about lature of the property and their goals in hiring Curley. Thus, the jury could easily have uded that the Plaintiffs did not rely at all on the misrepresentations of Defendant Old Wharf Village, LLC in purchasing the property. They could also have concluded that if the Plaintiffsrelied retent intent requi testify on the Defendant’s statements at all, such reliance was unreasonable in light of their tion of an attorney they specifically hired to investigate the status of the property. The Plaintiffs argue that the Defendants should have provided notice prior to trial of their tion to read the above-cited portion of the Plaintiffs’ testimony. Even if such notice were ted, which it is not, the Defendants could not have known prior to trial that the Plaintiff would in a manner inconsistent with her deposition testimony, but the Plaintiffs, of all people, should have been well aware of any inconsistencies between Joal Yatsenick’s deposition testimony and her trial testimony. The Plaintiffs also argue that reading selective portions unfairly permitted the D efendants to “cherry-pick” the evidence. The portion of the testimony read to the jury included the complete question posed and answer given. If there were any passages from the depo: ition that “ought in fairness to be considered with the part introduced,” the Plaintiffs could have |requested the reading of such passages, but they did not. Mass. R. Civ. P. 32 (a) (4). The Plain depo: portic case, iffs also could have requested to recall the Plaintiff in rebuttal to attempt to rehabilitate her ition testimony, but they did not. Indeed, even now, the Plaintiffs have offered no other ns of Joal Yatsenick’s deposition that could have rehabilitated her trial testimony. In any even without the deposition testimony, the jury could still have concluded that any reliance on the Defendant’s statements was unreasonable where they specifically hired and paid Curley to investigate their significant concerns about the nature of the property. of Di The jury’s conclusion that the Plaintiffs did not justifiably rely on any misrepresentations fendant, Old Wharf Village, LLC were well supported by the evidence. IL. THE COURT CORRECTLY INSTRUCTED THE JURY ON THE BREACH OF CONTRACT CLAIM AND VICARIOUS LIABILITY. A. The Court Correctly Instructed the Jury on the Breach of Contract Claim.The Plaintiffs claim that the court improperly narrowed the breach of contract claim to apply) only to the Exculpatory Clause in { 25 of the Purchase and Sale Agreement by failing to specifically identify the deed as the contract allegedly breached by the Defendants, and that this failure justifies a new trial. It does not. In their Request to Reform and Supplement the Proposed Jury Instructions, the Plaintiffs asked the court to instruct the jury that the Plaintiffs alleged a breach of the deed, that all promises made in the Purchase and Sale Agreement merge with the deed, and that the Plaintiffs claimed that the Defendants breached the deed by failing to give the Plaintiffs a residential condominium, and by providing a condominium whose legally permitted use created an encumbrance on the property in vi lation of the convenant to provide the property free from encumbrances.‘ The Court did instruct the jury, on the first page of the instructions, that “condominium units are conveyed by way about of a unit deed”—in other words, that the deed is a contract.> After additional instructions condominiums, the court gave the general instructions on the elements of a breach of contract claim. See Michelson v. Digital Financial Servs., 167 F.3d 715, 720 (1% Cir. 1999) (citations omitted). By statute, as the jury were instructed, all condominium units must contain a description of the use of the property. G.L. c. 183A § 9. Thus, without evidence outside the deed demonstrating that the parties actually negotiated this particular term, rather than just including it in the deed to satisfy the statutory obligation, the description of the use cannot be seen as a material term 4 The The o| other of the contract, as a warranty, or as an encumbrance. Although the Plaintiffs did not request laintiffs did not request an instruction on the definition of encumbrance, and they were not entitled to one. ‘dinary meaning of the term encumbrance connotes "'[a] claim or liability... attached to property or some right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership.'" Noonan v. Wonderland Greyhound Realty, LLC, 723 F. Supp. 2d 298, 338 (2010), citing Board of Trustees of Sea Grass Village Condominium v. Bergquist, 2009 Mass. App. Div. 132. An encumbrance “must exist in favor of another perso! |, rendering the land of less value to its owner.” Id. The use restriction in the deed to Unit 204 did not amount to an encumbrance because it did not create a right in any other person to ownership of the property. 5 The| Plaintiffs did not request that the court move this language to the breach of contract section of the instructions.an in: § 14. struction on express warranty, Massachusetts Superior Court Civil Practice Jury Instructions B.4, the court nonetheless instructed the jury that they could consider whether the Plaintiffs justifiably relied on any written representations made by the Defendants outside the purchase and sale agreement or the deed that might have led them to believe that the Defendants had promised them a residential condominium. To instruct the jury otherwise would have been error. The instructions as given by the court allowed the jury to determine what the essential terms of the contract were, including whether the use was an essential term, and if so, whether the Defendants breached any material term. Given the disclosures about the Master Deed (which accurately described the use) in the Purchase and Sale Agreement and in the deed itself, the jury could well have concluded that the “use” language in the deed was not a material term. The Plaintiffs also claim that the court’s instruction on the breach of contract claim “infected the Plaintiffs’ 93A count” because the jury could have found that the breach of contract gave rise to an unfair and deceptive business practice. The Amended Complaint contains no reference in the G.L. c. 93A Count to the alleged breach of contract. The G.L. c. 93A Count alleg, pract! on thi The i acts ed only that the Defendants’ misrepresentations constituted an unfair and deceptive business ice. § 32-34. Thus, the court’s instructions could not have infected the jury’s deliberations © 93A claim, because those allegations should not have been before the jury. B. The Court Correctly Instructed the Jury on the Subject of Vicarious Liability. Court instructed the jury that: The Defendant, Old Wharf Village, LLC, is a Massachusetts Limited Liability Company. Like a corporation, a limited liability company can only act through its agents. A limited liability company is liable for the wrongful conduct of a member or a manager. A corporation is responsible for the acts of its agents made in their capacity as agents of the corporation. instruction accurately states the law of agency, which makes a corporation responsible for the f its agents. Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 742 (2000). ThePlaintiffs did not request any specific instruction on individual liability, and the jury heard no evidence that Defendant Charles Edgar made any statement outside his role as manager of Defendant Old Wharf Village, LLC. 744, The Plaintiffs rely on W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. (748 (1993) in arguing that the court incorrectly instructed the jury as to Defendant Edgar’s personal liability. To the extent the Plaintiffs argue that references to statements made by the president of the Plaintiff company in the cited case support a claim for individual liability of the Defendant Charles Edgar, it does not. There were no individual defendants in the Tripp Co. case, and it contains no reference to the law of agency as distinguished from individual liability. «“, UI. THE COURT CORRECTLY EXCLUDED EVIDENCE OF “OTHER UNIT OWNERS’ _ UNDERSTANDING” OF THE PERMITTED USE OF THE UNITS. The Court correctly excluded evidence proffered by the Plaintiffs about other unit owners ‘understanding” of the permitted use of the units. The Plaintiffs now argue that they offered this evidence to show a’ common pattern or scheme, and to show that the Defendants acted in acco! ‘dance with their routine business practices in the manner in which they sold Unit 204 to the Plaititiffs. The Plaintiffs did not make either argument at trial, but even if they had, the evidence would not have been relevant. kno acts spec’ Propy each At trial, the Plaintiffs said they wanted to introduce evidence that other unit owners did not their units were not residential units when they bought them to show that the Defendants’ and omissions had a “tendency to deceive.” The Plaintiffs proferred no evidence of any fic nexus between the unit owners’ lack of knowledge of the actual permitted use of the ert and any specific act or omission of the Defendants; nor did they proffer any evidence that of the other unit owners justifiably relied on misrepresentations of the Defendants. Whether any acts or omissions of the Defendants had a “tendency to deceive” others or that they acted inaccordance with their routine business practices was not relevant to any issue at trial, as the meaning of the Defendants’ statements to the Plaintiffs were not particularly ambiguous and the Defe: dants’ adherence to its own routine business practices was not an issue at trial. Statements made by the Defendants or their agents to other unit owners in advance of their purchases, whether verbally or in writing, could have corroborated the Plaintiffs’ claims that the Defer ndants’ made material misrepresentations by demonstrating they made similar statements to others; but the Plaintiffs did not specifically state that this was their purpose. Moreover, the critical issue in this case was not whether the statements had a tendency to deceive, but whether the Plaintiffs were actually deceived. The jury’s finding that Defendant Old Wharf Village, LLC misrepresented a material fact suggests that the jury did find that the Plaintiffs were deceived—so this decei ‘vidence was clearly unnecessary. In addition, evidence that the Defendants may have ed others would not have helped the jury to decide whether the Plaintiffs suffered any harm caused by the Defendants as a result of the misrepresentations. instru DAT CONCLUSION Where the jury’s verdict was well supported by the evidence, and the court correctly cted the jury on all counts, the Court should deny the Plaintiffs’ motion for new trial. Respectfully submitted, Defendants, By Their Attorneys, etkins, BBO# 561909 Lynhe hiodo, BBO# 657428 DP Law 619 High Street, Suite 103 Dedham, MA 02026 (781) 326-6320 (voice) (781) 326-6321 (fax) dp@djunaperkinslaw.com Ichiodo@djunaperkinslaw.com ED: December 20, 2018 10.foaeee COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT DEPARTMENT CIV. ACT. NO. 2013-00125 Rick and Joal Yatsenick, Plaintiff Old Wharf Village, LLC and Charles Edgar, - Defendants OO SPECIAL VERDICT FORM Breach of Contract 1, Did Defendant Old Wharf Village, LLC breach a contract with the Plaintiffs? YES, NO. v Tf your answer to Question 1 is YES, proceed to Question 2. If your answer to Question 1 is NO, please skip to Question 3. 2. What amount of money (if any), separate and apart from the purchase price paid for the unit, is required to fully and fairly compensate Plaintiffs for the damages that they suffered as a result of Defendant Old Wharf Village LLC’s breach of contract? Amount in Numbers: Amount in Words:Intentional Misrepresentation 3. Did the Defendants misrepresent a material fact to the Plaintiffs in their purchase of Unit 204? (a) As to Charles Edgar, Individually: Yes No 4 (b) As to Old Wharf Village LLC: Yes 4 No if your answer to either or both of the subsections of Question 3 is YES, please proceed to answer subsection(s) 4 through 7. If your answer to both of the subsections of Question 3 is NO, please skip to Question 10. 4. Did the Defendants know or recklessly disregard the truth or falsity of the statement? (©) Asto Charles Edgar, Individually: Yes / No (d) As to Old Wharf Village LLC: Yes 4 No 5. Did the Defendants intend the Plaintiffs to rely on the misrepresentation in making their decision? (c) As to Charles Edgar, Individually: Yes Yo No (@) As to Old Wharf Village LLC: Yes Y No 6. Did the Plaintiffs rely on the Defendants’ false statement, and if so, was their reliance reasonable? (c) As to Charles Edgar, Individually: Yes No Y (@) = Asto Old Wharf Village LLC: Yes No Yvite os 7. Ifthe answers to all four questions 4 through 7 are yes as to Defendant Old Wharf Village LLC, or if the answers to all four questions 4 through 7 are yes as to Defendant Charles Edgar, did the Plaintiffs suffer financial loss as a result of relying on the misrepresentation? uf A Yes No 8. Ifthe answer to question #7 is yes, what amount of financial losses did the Plaintiffs incur, separate and apart from the purchase price paid for the unit? MA Amount in Numbers: Amount in Words: 9. Ifyou found any amount of money required to fully and fairly compensate Plaintiffs for the damages that they experienced as a result of a Defendant's intentional misrepresentation, is this amount in addition to the amount (if any) you stated in Answer 2 above? v/a Yes. No Chapter 93A — Unfair and Deceptive Business Practices 10. Did the Plaintiffs deliver an adequate demand letter to the defendant at least thirty days prior to commencing this action on March 18, 2013? (©) As to Charles Edgar, Individually: Yes J No (@) As to Old Wharf Village LLC: Yes V Noyee 11, Were the Plaintiffs acting as private, nonprofessional consumers? Yes, J No, 12. Were the Defendants, Charles Edgar and Old Wharf Village, LLC engaged in trade or commerce in its dealings with the Plaintiffs? (¢) Asto Charles Edgar, Individually: Yes No (qd) As to Old Wharf Village LLC: Yes J No 13. Did Defendants commit an unfair or deceptive act or practice in their dealings with the Plaintiffs? ) As'to Charles Edgar, Individually: , Yes No vw (@ — Asto Old Wharf Village LLC: Yes No Sf 14. Was the Defendant(s)’ unfair and deceptive act or practice a proximate cause of injury to the Plaintiffs? (6) Ato Charles Edgar, Individually: Yes no Y (4) As to Old Wharf Village LLC: Yes No Y 15. If the answers to all four questions 10 through 14 are YES as to Old Wharf Village LLC or if the answers to all four questions 10 through 14 are YES as to Charles Edgar, what amount of money (if any), separate and apart from the purchase price paid for the unit, is required to fully and fairly compensate Plaintiffs for the damages that they experienced as a result of Defendants unfair and deceptive trade practices? h pA Amount in Numbers: Amount in Words:> yee Bt et 16. If you found any amount of money required to fully and fairly compensate Plaintiffs for the damages they experienced as a result of a Defendant’s unfair and deceptive trade practices intentional misrepresentation, is any portion of this amount in addition to the amounts (if any) you stated in Answers 2 and 8? , N YA Yes No. If YES, how much of this amount is in addition to the amount awarded for the other claims? Amount in Numbers: Amount in Words: 17. Do you find that any of the unfair and deceptive acts of Defendants were made willfully and/or knowingly? (c) As to Charles Edgar, Individually: Yes No f @) — As to Old Wharf Village LLC: Yes No / 18. Did the Defendants, within 30 days of the mailing or delivery of the Plaintiffs’ demand for relief, make a written tender of settlement that was reasonable in relation to the injury actually suffered? f () As to Charles Edgar, Individually: Yes No @) = As to Old Wharf Village LLC: Yes No your answer to either of the subsections of Question 18 isYES, please proceed to question 19. your answer to both subsections of Question 18 is NO, please skip to question 20.19, Was the Defendants refusal to grant relief in response to the Plaintiffs’ demand letter made in bad faith with knowledge or reason to know that the act or practice complained of constituted an unfair or deceptive act or practice? if la) As to Charles Edgar, Individually: Yes No ib) As to Old Wharf Village, LLC: Yes No 20. As to each Defendant separately, if you answered YES to either Question 17 or Question 19, you are to award the Plaintiffs up to three (3) times but no less than two (2) times the amount of damages you awarded to the Plaintiffs in your Answer to Question 15. What is the total amount of your award for the Plaintiffs claim of unfair and deceptive acts or practices under Ch. 93A ? N i/, iD As to the Defendant Charles Edgar, Individually: Amount in Numbers: ount in Words: to the Defendant Old Wharf Village, LLC: ount in Numbers: jount in Words:, eee Final Instruction STOP HERE. You have completed the Special Jury Verdict Form. The jury foreperson should sign the verdict slip and you should inform the Court Officer that you have completed the Special Jury Verdict Form. Thereby certify that at least 11 of 13 jurors have agreed to the answers to each of the s0ve questions. i Lot tnd» K~— le Jury Foreperson THANK YOUCOMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT. C.A. NO. BACV2013-00125 _ RICK YATSENICK and JOAL YATSENICK, Plaintiffs, vs. OLD WHARF VILLAGE, LLC; CHARLES EDGAR, DAVID DILLON d/b/a DILLON REAL ESTATE, and STACEY CURLEY, Defendants. DEPOSITION OF JOAL YATSENICK, taken on behalf of the defendants pursuant to the applicable provisions of the Massachusetts Rules of Civil Procedure, before Mary M. Cunha, Court Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the offices of Lynch & Lynch, 45 Bristol Drive, South Easton, Massachusetts, on Thursday, August 7, 2014, commencing at 11:16 a.m.245 a 1 No matter what the Town did, we would always 1 © dont have it confirmed by her that this E 2 be grandfathered; we would always have a 2 4 definitely a single-family, residential, _ \ 3 condominium. J asked her to tell me what a 3 year-1 “round condominium as Mr. Dillon and, Mr: EF 4 183B was that [had sent her. Could she 4 | Edgar told‘ us it is, then we werén't going i 5 explain it to us and help us. And she said 5 \_ to go forward. That was it, We would stop. 4 6 she would do the research and never got back 6 [Wwe spol 7 tous. 7 8 Q. So she agreed to represent you, she 8 9 agreed to look into it? 9 10 A. Yes, she did. To do research, look 10 us afew SS ines That, — me, “indicated that a1 into it and get back to us as to what was 11 she had read the documents. I mentioned 12 going on and what was 183B that I sent to 12 before she had mentioned the parking. She 13 her because we didn't understand it. 13 had mentioned there was no reference to not 14 Q. How many attempts did you make to 14 having animals. She had mentioned that we 15 follow up? 15 could sell it. If we sold it within two 16 A. We let that go based on the fact that 16 years, we would have to sell it back to the 17 she was doing research and she would 17 developer for what we paid. But that didn't 18 eventually get back to us, and then we asked 18 mean anything because we were keeping this 19 her some other things that we needed to 19 long term as our residence. So, to me, she 20 know. It was her nature to kind of drop 20 said go, and we did. We then asked her to 21 things and not get back to you or eventually 21 take care of the purchase and sales -- I'm 22 get back to you. So we pretty much realized 22 sorry? 23 we weren't going to get any help. 23 Q. Bear with me for a minute so I 24 Q. Did she ever get back to you? 24 understand. 1 A. Not on that, no. Not on anything 1 A. Uh-huh. 2 other than we asked for, um -- there was a 2 Q. So that was -- at that point in time, 3 mortgage release that wasn't done by the 3 you hadn't retained Ms. Curley yet to close 4 bank that Mr. Edgar had. And we asked her 4 on this property? 5 what would be done with that, and she said 5 A. What we told her when we spoke with 6 she would handle that. She also said she 6 her was we wanted her to check these first. 7 could refer us to someone if we wanted to 7 And if everything was a go, then we would 8 sue Mr. Edgar, 8 continue with her as our attorney to close. 9 Q. Ms. Yatsenick, what was your 9 Q. So, is it fair to say that the first 10 understanding of the scope of duty or 10 scope of representation with Ms, Curley was ii responsibility that you asked of Ms. Curley? 11 to research this property to make sure it 12 What did you want her to do? What did you 12 was nothing more or less than a 13 retain her for? 13 single-family, year-round, residential 14 A. Well, the first thing we retained her 14 condo? 1s for was, we asked her to check -- we were 15 A. Yes. And she told us that if she 16 sending over to her the documents from 16 spotted a problem anywhere, that was the 17 Mr. Edgar. We wanted her to check those 17 end. We would have stopped. We would have 18 documents. Mr. Hunter gave her the offer 18 paid her for her services and we would have 19 that we showed her was contingent upon her 19 moved on. And since she was good at finding 20 _letting us ‘mow that everything was okay. 20 things, we probably would have used her if #1 Sowe ed her to to check those docurrents and} 21 we bought something else. Q. Now, when you spoke with her where she says, told you, as you testified, that she gave you the go -- LAPLANTE & ASSOCIATES, INc. 508-999-7499 FIT SSE TT SS OL TS