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
24-P-491
BRIAN BRAGINTON-SMITH
vs.
DOROTHY R. TEREN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Brian Braginton-Smith, filed a complaint in
the Barnstable Superior Court against the defendant Dorothy R.
Teren, in her capacity as former power of attorney for Dorothy
Braginton-Smith, the plaintiff's and defendant's mother, and as
successor trustee of the M.R. Realty Trust, seeking to impose a
constructive trust in his favor on a property held by the trust,
and in the alternative, alleging counts for quantum meruit and
equitable relief. The defendant counterclaimed seeking a
declaration that she was the lawful owner of the property and
had the authority as trustee to require the plaintiff to vacate
1 Individually and as trustee of the M.R. Realty Trust. the property, and requesting use and occupancy payments from the
plaintiff. After a trial, the jury entered its verdict on
special questions. The trial judge then entered final judgment
(1) dismissing the plaintiff's complaint, (2) declaring that the
defendant is entitled to sole possession of the property, and
(3) awarding use and occupancy damages to the defendant. We
affirm.
Discussion. The facts of the proceedings below are well
known to the parties and will be repeated below only as
necessary.
a. Trial management. "[J]udges are afforded substantial
latitude in pretrial and trial management." Esteraz,
petitioner, 90 Mass. App. Ct. 330, 335 (2016). We review these
decisions by the trial judge for abuse of discretion. See
Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct.
426, 429 (1986). Additionally, we review evidentiary
determinations concerning relevance and probative value for
abuse of discretion. See Carrel v. National Cord & Brain Corp.,
447 Mass. 431, 446 (2006).
The plaintiff asserts that the judge abused his discretion
during the course of the trial in several ways. First, he
claims the judge erred in failing to exclude testimony from the
defendant where she stated, "my mother gave [the plaintiff]
2 large sums of money at several different times." The plaintiff
argues this testimony was irrelevant and prejudicial, leading
the jury to believe the plaintiff "enjoyed a windfall," and that
no evidence was submitted demonstrating the claim.2 We disagree.
The judge did not err in concluding that the testimony, provided
by the plaintiff's other sister and not the defendant as the
plaintiff claims, is relevant under the defendant's theory that
their mother had not bequeathed the property solely to the
plaintiff because she had already given him a disproportionate
amount of money compared to her other children. See Anthony's
Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991)
("issue of relevancy is a matter on which the opinion of the
trial judge will be accepted on review except for palpable
error" [quotation and citation omitted]).
Further, documentary evidence was not required to show that
the mother had gifted the plaintiff "large sums of money." The
witness demonstrated that she had personal knowledge of the
mother's finances, as she testified to helping to oversee the
mother's financial affairs, and the jury was free to assess her
2 The plaintiff does not argue in his brief that this statement is hearsay, nor did the plaintiff's counsel object to its admission at trial. Thus, any challenge to the admissibility of this statement based on hearsay is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
3 credibility in relation to the plaintiff. See Commonwealth v.
Harbin, 435 Mass. 654, 657 (2002) (witnesses competent to
testify when "evidence is introduced sufficient to support a
finding that they have personal knowledge of the matter about
which they are testifying").
Second, the plaintiff argues that the judge improperly
interjected his personal interpretation of the plaintiff's
testimony. Specifically, in response to the plaintiff's
counsel's question, "Did you actually purchase the property in
1994 as a result of this particular purchase and sale agreement
at that time?", the plaintiff replied, "It couldn't be
transferred, so I couldn't purchase it." The judge interjected,
stating, "So, the answer is no. Next question, please." The
plaintiff's counsel failed to object to the judge's summary of
the testimony. "Objections, issues, or claims -- however
meritorious -- that have not been raised at the trial level are
deemed generally to have been waived on appeal." Palmer v.
Murphy, 42 Mass. App. Ct. 334, 338 (1997). Because this claim
"fits none of the usual exceptions to the general rule that
claims not raised below are waived," we need not address it.
Id. at 338-339.
Third, the plaintiff asserts that the judge improperly
excluded probative and admissible testimony regarding the poor
4 condition of the property. For example, the plaintiff claims
the judge erred in sustaining an objection to the plaintiff's
testimony on the basis of hearsay where the plaintiff attempted
to testify that (1) the prior owner (John Dunphy) of the
property told him there was an oil leak and (2) that the woman
residing at the property had complained to Dunphy about the high
cost of her oil bill. The plaintiff contends that these
statements are admissible under a hearsay exception
demonstrating the property owner's state of mind as to the
condition of the oil leak. See Mass. G. Evid. § 803(3)(B)(ii)
(2025) ("Statements, not too remote in time, which indicate an
intention to engage in particular conduct, are admissible to
prove that the conduct was, in fact, put in effect"). We are
not persuaded.
Dunphy's first statement concerning the oil leak was not
subject to the state of mind exception to the rule against
hearsay, as it was not offered by the plaintiff to evince the
intent of the declarant, Dunphy, to engage in a particular
course of conduct. See Mass. G. Evid. § 803(3)(B)(ii).
Instead, it was offered to establish the plaintiff's intent to
negotiate a sale price for the property. See Commonwealth v.
Conley, 103 Mass. App. Ct. 496, 511 (2023), citing Mass. G.
Evid. § 803(3)(B)(ii) (state of mind hearsay exception not
5 applicable to statements that state "the [declarant]'s memory or
belief . . . offered to prove the fact remembered or believed"
and do not "contemplate future conduct").
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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
24-P-491
BRIAN BRAGINTON-SMITH
vs.
DOROTHY R. TEREN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Brian Braginton-Smith, filed a complaint in
the Barnstable Superior Court against the defendant Dorothy R.
Teren, in her capacity as former power of attorney for Dorothy
Braginton-Smith, the plaintiff's and defendant's mother, and as
successor trustee of the M.R. Realty Trust, seeking to impose a
constructive trust in his favor on a property held by the trust,
and in the alternative, alleging counts for quantum meruit and
equitable relief. The defendant counterclaimed seeking a
declaration that she was the lawful owner of the property and
had the authority as trustee to require the plaintiff to vacate
1 Individually and as trustee of the M.R. Realty Trust. the property, and requesting use and occupancy payments from the
plaintiff. After a trial, the jury entered its verdict on
special questions. The trial judge then entered final judgment
(1) dismissing the plaintiff's complaint, (2) declaring that the
defendant is entitled to sole possession of the property, and
(3) awarding use and occupancy damages to the defendant. We
affirm.
Discussion. The facts of the proceedings below are well
known to the parties and will be repeated below only as
necessary.
a. Trial management. "[J]udges are afforded substantial
latitude in pretrial and trial management." Esteraz,
petitioner, 90 Mass. App. Ct. 330, 335 (2016). We review these
decisions by the trial judge for abuse of discretion. See
Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct.
426, 429 (1986). Additionally, we review evidentiary
determinations concerning relevance and probative value for
abuse of discretion. See Carrel v. National Cord & Brain Corp.,
447 Mass. 431, 446 (2006).
The plaintiff asserts that the judge abused his discretion
during the course of the trial in several ways. First, he
claims the judge erred in failing to exclude testimony from the
defendant where she stated, "my mother gave [the plaintiff]
2 large sums of money at several different times." The plaintiff
argues this testimony was irrelevant and prejudicial, leading
the jury to believe the plaintiff "enjoyed a windfall," and that
no evidence was submitted demonstrating the claim.2 We disagree.
The judge did not err in concluding that the testimony, provided
by the plaintiff's other sister and not the defendant as the
plaintiff claims, is relevant under the defendant's theory that
their mother had not bequeathed the property solely to the
plaintiff because she had already given him a disproportionate
amount of money compared to her other children. See Anthony's
Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991)
("issue of relevancy is a matter on which the opinion of the
trial judge will be accepted on review except for palpable
error" [quotation and citation omitted]).
Further, documentary evidence was not required to show that
the mother had gifted the plaintiff "large sums of money." The
witness demonstrated that she had personal knowledge of the
mother's finances, as she testified to helping to oversee the
mother's financial affairs, and the jury was free to assess her
2 The plaintiff does not argue in his brief that this statement is hearsay, nor did the plaintiff's counsel object to its admission at trial. Thus, any challenge to the admissibility of this statement based on hearsay is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
3 credibility in relation to the plaintiff. See Commonwealth v.
Harbin, 435 Mass. 654, 657 (2002) (witnesses competent to
testify when "evidence is introduced sufficient to support a
finding that they have personal knowledge of the matter about
which they are testifying").
Second, the plaintiff argues that the judge improperly
interjected his personal interpretation of the plaintiff's
testimony. Specifically, in response to the plaintiff's
counsel's question, "Did you actually purchase the property in
1994 as a result of this particular purchase and sale agreement
at that time?", the plaintiff replied, "It couldn't be
transferred, so I couldn't purchase it." The judge interjected,
stating, "So, the answer is no. Next question, please." The
plaintiff's counsel failed to object to the judge's summary of
the testimony. "Objections, issues, or claims -- however
meritorious -- that have not been raised at the trial level are
deemed generally to have been waived on appeal." Palmer v.
Murphy, 42 Mass. App. Ct. 334, 338 (1997). Because this claim
"fits none of the usual exceptions to the general rule that
claims not raised below are waived," we need not address it.
Id. at 338-339.
Third, the plaintiff asserts that the judge improperly
excluded probative and admissible testimony regarding the poor
4 condition of the property. For example, the plaintiff claims
the judge erred in sustaining an objection to the plaintiff's
testimony on the basis of hearsay where the plaintiff attempted
to testify that (1) the prior owner (John Dunphy) of the
property told him there was an oil leak and (2) that the woman
residing at the property had complained to Dunphy about the high
cost of her oil bill. The plaintiff contends that these
statements are admissible under a hearsay exception
demonstrating the property owner's state of mind as to the
condition of the oil leak. See Mass. G. Evid. § 803(3)(B)(ii)
(2025) ("Statements, not too remote in time, which indicate an
intention to engage in particular conduct, are admissible to
prove that the conduct was, in fact, put in effect"). We are
not persuaded.
Dunphy's first statement concerning the oil leak was not
subject to the state of mind exception to the rule against
hearsay, as it was not offered by the plaintiff to evince the
intent of the declarant, Dunphy, to engage in a particular
course of conduct. See Mass. G. Evid. § 803(3)(B)(ii).
Instead, it was offered to establish the plaintiff's intent to
negotiate a sale price for the property. See Commonwealth v.
Conley, 103 Mass. App. Ct. 496, 511 (2023), citing Mass. G.
Evid. § 803(3)(B)(ii) (state of mind hearsay exception not
5 applicable to statements that state "the [declarant]'s memory or
belief . . . offered to prove the fact remembered or believed"
and do not "contemplate future conduct").
Moreover, the testimony as to what Dunphy said about the
oil leak was not relevant. The existence of oil contamination
to the property at a time the plaintiff was attempting to
purchase the property, and before the mother was interested in
purchasing it, is not probative of whether the plaintiff and his
mother had an agreement to transfer him title to the property.3
See Mass G. Evid. § 803 note ("Evidence of a person's state of
mind, whether hearsay [and offered under this exception] or
nonhearsay, is admissible only if the state of mind is
relevant"); Cf. Commonwealth v. Trotto, 487 Mass. 708, 727
(2021) ("Evidence of a victim's state of mind is admissible
where that state of mind is relevant to an essential element of
the crime charged"); Commonwealth v. Seabrooks, 425 Mass. 507,
512 (1997) ("Allowing hearsay statements generally under the
state-of-mind exception would entirely eviscerate the hearsay
rule and its important purpose of securing the correctness and
completeness of testimony through cross-examination").
3 The record demonstrates that the plaintiff attempted to purchase the property in 1994, but the purchase was not completed because of the oil contamination. The mother then purchased the property on her own in 1996.
6 Even if this statement fell under a hearsay exception and
was relevant, the plaintiff was not prejudiced by the
statement's exclusion because it was cumulative of other
testimony. Cf. Commonwealth v. Wilson, 427 Mass. 336, 348
(1998). The jury heard testimony from the plaintiff that there
was a strong oil scent in the basement; there had been a
significant oil spill; the plaintiff intended to remediate the
oil spill; and the plaintiff offered to buy the property at a
reduced price.
As to the plaintiff's second statement, that a prior tenant
had complained to Dunphy, the judge did not abuse his discretion
in excluding it because the statement was "hearsay within
hearsay." See Mass. G. Evid. § 805 (2025) ("Hearsay within
hearsay is not excluded by the rule against hearsay if each part
of the combined statements conforms with an exception to the
rule"). For the same reasons as the plaintiff's first
statement, the second statement was not subject to any hearsay
exception, not relevant, and cumulative of other evidence.
We disagree with the plaintiff's contention that the trial
judge rushed the plaintiff's counsel in questioning his
witnesses such that the plaintiff was prejudiced. Our review of
the trial transcript demonstrates that the judge acted well
within his discretion in managing the length of the trial and,
7 further, was fair and reasonable with his approach and
decisions. See Chandler v. FMC Corp., 35 Mass. App. Ct. 332,
338 (1993) ("judge has wide discretion to impose reasonable
limits on the length of the direct and cross-examination of
witnesses" [citation omitted]).
b. Motion for new trial. A party moving for a new trial
on the grounds of newly discovered evidence under Mass. R.
Civ. P. 60 (b) (2) (Rule 60(b))
"must satisfy four requirements:'(1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; (3) the evidence is not merely cumulative or impeaching; and (4) the evidence is of such a nature that it would probably change the result were a new trial to be granted'" (citation omitted).
Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 361
(2008). Where the motion judge was also the trial judge, "we
defer broadly to the [judge]'s informed discretion in granting
or denying relief from judgment, and we review [the] ruling
solely for abuse of that discretion" (citation omitted). Id.
Here, after trial, the plaintiff produced an affidavit from
an alleged newly discovered witness, John English. In the
affidavit, English, a long-time family friend, claims to have
had a conversation with the plaintiff's mother in 1994 where the
mother mentioned her intent to "put the house in her name so
[the plaintiff]'s ex-wife couldn't take it from him as part of
8 their divorce." The judge was well within his discretion in
denying the plaintiff's motion and declining to hold a hearing
where the conclusory statements in the plaintiff's own affidavit
failed to meet his burden of showing the new witness "could not
by due diligence have been discovered earlier by the movant."
Cahaly, supra. See Clamp-All Corp. v. Foresta, 53 Mass. App.
Ct. 795, 808 (2002) (support for rule 60 (b) motion must consist
of facts and not conclusory statements). The plaintiff does not
give an adequate reason why English, as a "longtime friend[]" of
the family who "saw all the clean up work at [the mother's]
home," could not have been discovered earlier with due
diligence. In addition, English's affidavit is cumulative of
both the plaintiff's and his wife's testimony as to the mother's
alleged intent to protect the plaintiff from his ex-wife by
keeping the property in a trust.
We also note that English's statements in the affidavit
would not "probably change the result." English alleges the
mother made the statement about her intent to place the property
in a trust in 1994. But as discussed above, the mother's
alleged statement was related to the plaintiff's purchase
agreement in 1994; it was inconsequential to her eventual
purchase of the property in 1996.
9 Finally, in declining to hold a hearing, the judge "was
informed by his long involvement with this . . . case and his
opportunity at trial to assess the credibility of the
witnesses." Knott v. Racicot, 442 Mass. 314, 326 (2004), citing
Commonwealth v. Carver, 33 Mass. App. Ct. 378, 381 (1992) (judge
"entitled to use his knowledge and evaluation of the evidence at
trial in reaching a decision" on motion for new trial).4
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Englander, Hodgens & Smyth, JJ.5),
Clerk
Entered: September 5, 2025.
4 We deny the defendant's request for appellate fees and costs associated with the plaintiff's second appeal.
5 The panelists are listed in order of seniority.