ASHMONT HILL, LLC v. THELMA S. MOSBEY & Others.

• Court: Massachusetts Appeals Court
• Decided: March 13, 2023
• Docket: 22-P-0662
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-662

ASHMONT HILL, LLC1

vs.

THELMA S. MOSBEY & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from a judgment awarding it $85,578 for care and

services provided to the defendant Thelma S. Mosbey, the

plaintiff Ashmont Hill, LLC (Ashmont Hill) asserts that the

trial judge erred in excluding certain statements purportedly

made by Mosbey to an Ashmont Hill social worker. We affirm.

1. Waiver. As a threshold matter, the record furnishes no

indication that Ashmont Hill preserved its claim of error for

appeal. Ashmont Hill filed a motion in limine prior to trial,

seeking to introduce the notes of a social worker containing

Mosbey's alleged statements under the business records exception

1 Doing business as St. Joseph Rehabilitation & Nursing Care Center. 2Sherley A. Phillips, individually and as trustee of the Thelma

S. Mosbey Irrevocable Trust, and James B. Phillips, as trustee of the Thelma S. Mosbey Irrevocable Trust. to the hearsay rule; that motion was denied by the judge after a

hearing, on the basis that Mosbey's statements to the social

worker were subject to the social worker-client privilege.3 At

trial, the defendants objected to a question posed by Ashmont

Hill to the social worker asking whether Mosbey "ever said she

wanted to be discharged."4 The objection was sustained, and a

sidebar discussion followed. However, the content of that

discussion is not in the record. Ashmont Hill cannot rest on

the judge's denial of its motion in limine to preserve its

appellate rights, see Hoffman v. Houghton Chem. Corp., 434 Mass.

624, 639 (2001), nor (without an exception in the record to the

judge's ruling) can it rest on the judge's ruling at trial

sustaining the defendants' objection to the social worker's

testimony.5

2. Privilege. There is likewise no merit to Ashmont

Hill's contention that it was error for the judge to rely on the

3 We note that Ashmont Hill's motion in limine did not include a copy of the notes it sought to admit in evidence. The record accordingly does not permit us to see what the proposed evidence would have been. 4 On appeal, Ashmont Hill asserts that the social worker's

testimony was admissible as a statement of a party opponent. 5 Absent a record of the sidebar discussion, we are left to

speculate on what it might have addressed (including whether Ashmont Hill raised in that discussion an exception to the judge's ruling on the defendants' objection), which we will not do. If Ashmont Hill wished to create a record to preserve its claim, it could have sought to reconstruct the record pursuant to Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611 (2019).

2 social worker-client privilege as a basis to deny its motion in

limine, in the absence of an affirmative assertion of the

privilege by Mosbey. Though the privilege is not self-

executing, by the time of trial the defendants were well aware

of its potential applicability to Mosbey's statements to the

social worker. Accordingly, the defendants could have been

expected to raise the privilege in response to any attempt by

Ashmont Hill to introduce during trial any such statements

through the social worker's testimony.6

3. Prejudice. Finally, Ashmont Hill has not demonstrated

that the exclusion of the evidence was error or, if so, that the

error was prejudicial. See DeJesus v. Yogel, 404 Mass. 44, 48-

49 (1989) ("the appropriate test is whether the proponent of

erroneously excluded, relevant evidence has made a plausible

showing that the trier of fact might have reached a different

result if the evidence had been before it").

The record contains scant information about what the

excluded evidence would have been. As we have observed, the

motion in limine did not include a copy of the notes Ashmont

6 We note again that Ashmont Hill made no attempt to reconstruct the record to furnish the content of the sidebar discussion of the judge's ruling on the defendants' objection to the question posed to the social worker. Notably, Ashmont Hill advances no substantive challenge to the application of the social worker- client privilege to Mosbey's statements, and instead asserts only that the judge committed a procedural error in applying the privilege sua sponte in her ruling on the motion in limine.

3 Hill sought to introduce as business records. When the judge

sustained the defendants' objection to the social worker's

testimony, Ashmont Hill made no offer of proof concerning what

the social worker's testimony would have been. Without an offer

of proof, we are unable to discern whether the evidence was

properly excluded. Indeed, uncertainty about the precise nature

of the proffered evidence was among the bases for the judge's

denial of Ashmont Hill's motion in limine, as she expressed an

inability to determine whether the social worker's notes

constituted business records, and whether the alleged statements

about which the social worker proposed to testify were direct

statements by Mosbey or were instead merely the social worker's

impressions of Mosbey's state of mind. Without a more precise

description of the evidence at issue, we discern no error in the

judge's exclusion of the evidence, irrespective of the propriety

of her application of the social worker-client privilege.

We are also unconvinced that admission of Mosbey's

statements would have produced a different outcome at trial.

See DeJesus, 404 Mass. at 49. The jury were chiefly tasked with

determining whether Ashmont Hill improperly delayed discharging

Mosbey from its nursing home facility. The jury found that

Ashmont Hill should have discharged Mosbey following requests

made by her duly authorized attorney-in-fact, defendant Sherley

A. Phillips, in May 2019. Ashmont Hill offers no argument on

4 appeal to suggest that any statements by Mosbey to the social

worker indicating a desire to remain in the nursing home

facility would have entitled it to ignore Phillips's request, as

Mosbey's authorized attorney-in-fact, that Mosbey be discharged.7

Ashmont Hill accordingly has made no showing of prejudice.

Judgment affirmed.

By the Court (Green, C.J., Rubin & Massing, JJ.8),

Clerk

Entered: March 13, 2023.

7 We note that Ashmont Hill sought unsuccessfully in the Probate and Family Court to revoke Phillips's power of attorney. We further note that, in those proceedings, Ashmont Hill asserted that Mosbey (who was 108 years old) suffered cognitive impairment rendering her incapable of making independent decisions concerning her care. 8 The panelists are listed in order of seniority.