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-514
CLAIRE J. DELOID
vs.
FRANCIS E. ELLIS, JR. & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Francis E. Ellis, Jr., appeals from an amended
judgment entered after a jury trial in the Superior Court. The
judgment, as amended, found Ellis liable to the plaintiff,
Claire J. DeLoid, for conspiring with defendant Jamie M.
Ferreira to defraud the plaintiff in the amount of $151,000
(count III of the plaintiff's complaint) and for fraudulent
conveyance of assets of $126,000 (count IX), plus prejudgment
interest. The amended judgment also declared a resulting trust
in favor of the plaintiff on property in Wareham ostensibly
owned by Ellis (count VIII). Ellis also appeals from the denial
1Jamie M. Ferreira; John J. Ferreira, also known as John J. Ferreira, Sr.; and Mary Ellen L. Ferreira, individually and as trustees of the John and Mary Realty Trust. of his motion for judgment notwithstanding the verdict and
motion for a new trial. Because most of the issues raised in
Ellis's brief are waived, and the few issues properly before us
lack merit, we affirm.
Discussion. 1. Trial errors. The Supreme Judicial Court,
"on numerous occasions, has held that issues not raised below
cannot be argued for the first time on appeal." Boss v.
Leverett, 484 Mass. 553, 562-563 (2020). "The reason for this
fundamental rule of appellate practice is well established: it
is important that an appellate court have before it an adequate
record and findings concerning a claim to permit it to resolve
that claim properly." Id. at 563, quoting R.W. Granger & Sons,
Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001).
For the first time on appeal, Ellis claims that the jury
were not informed of the amount of damages that had already been
awarded against Ferreira and not instructed how to assess
Ferriera's liability in determining Ellis's liability; that the
verdict slip did not provide the jury with appropriate
guidelines for calculating damages; that the judge did not
properly instruct the jury on the knowledge requirement for
civil conspiracy as set forth in Kurker v. Hill, 44 Mass. App.
Ct. 184, 189 (1998); that evidence of Ferreira's criminal
conviction and of the purchase of one of two Cadillac
automobiles was erroneously admitted; and that the judge
2 inadequately answered a question from the jury during
deliberations regarding how to determine damages. As nothing in
the record before us indicates that Ellis asserted any of these
claims when they arose at trial, we decline to address them.
See Cormier v. Pezrow New England, Inc., 437 Mass. 302, 311
(2002) (claimed error in judge's instructions to jury waived by
failure to object at trial); Shafnacker v. Raymond James &
Assocs., 425 Mass. 724, 731 (1997) (claimed error in verdict
form waived by failure to object at trial); Mullins v. Pine
Manor College, 389 Mass. 47, 57 n.13 (1983) (claimed error in
admission of evidence waived by failure to object); Simon v.
Solomon, 385 Mass. 91, 107 (1982) (because plaintiff did not
object to judge's instructions on damages, plaintiff "cannot
claim appellate relief on the basis of defects in the
instructions"); Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974)
(failure to object to "the giving or the failure to give an
instruction" before jury retires to consider verdict waives
issue).
Ellis did object, on relevance grounds, to evidence of his
income tax filings. "Whether evidence is relevant is a question
addressed to the substantial discretion of the trial judge,
whose decision we will not overturn except for palpable error."
Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538, 541–542 (2023),
quoting Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997).
3 The plaintiff offered Ellis's tax records, which showed his
failure to report certain income, some of it received from or on
behalf of Ferreira, to demonstrate Ellis's knowledge of
Ferreira's fraudulent conduct and participation in fraudulent
conveyances, as well as to impeach Ellis's credibility. The
judge did not abuse his substantial discretion in finding this
evidence to be relevant. Although "[r]elevant evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice," Gath v. M/A-Com, Inc., 440
Mass. 482, 490 (2003), Ellis made no argument that the documents
were unfairly prejudicial, nor did he request a limiting
instruction to mitigate any prejudice. See Mailhiot v. Liberty
Bank & Trust Co., 24 Mass. App. Ct. 525, 529 n.5 (1987) ("The
defendants did not request a limiting instruction, and cannot
complain now").
2. Sufficiency of the evidence. Ellis also argues that
the evidence was insufficient to establish a civil conspiracy
with Ferreira.2 Ellis preserved this issue by raising it, albeit
in general terms, in his motion for a directed verdict. Because
2 Although the caption of this argument section of the brief refers to all three counts against Ellis, the argument itself is limited to the claim of civil conspiracy (count III). We limit our decision to the claim raised. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief . . .").
4 he did not present any evidence after the plaintiff rested,
Ellis was not required to renew the motion at the close of all
the evidence. See Martin v. Hall, 369 Mass. 882, 884 (1976).
Specifically, Ellis argues that the evidence did not show
that when Ellis engaged in financial transactions with or on
behalf of Ferreira, he was aware that Ferreira had obtained his
funds by defrauding the plaintiff. As the judge explained in
his jury instructions, the plaintiff alleged that Ferreira and
Ellis had "acted in concert" to funnel fraudulently-obtained
funds into real estate, automobiles, and other vehicles in
Ellis's name to conceal the assets from Ferreira's creditors.
To find Ellis liable, the judge instructed the jury that they
were required to find two elements: (1) a "common design or
agreement" between Ferreira and Ellis, even if not expressed, to
keep assets out of Ferreira's name and to defraud Ferreira's
creditors, including the plaintiff; and (2) that Ellis "provided
substantial assistance or encouragement in furtherance of the
agreement."
"Key to this cause of action is a defendant's substantial
assistance, with the knowledge that such assistance is
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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-514
CLAIRE J. DELOID
vs.
FRANCIS E. ELLIS, JR. & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Francis E. Ellis, Jr., appeals from an amended
judgment entered after a jury trial in the Superior Court. The
judgment, as amended, found Ellis liable to the plaintiff,
Claire J. DeLoid, for conspiring with defendant Jamie M.
Ferreira to defraud the plaintiff in the amount of $151,000
(count III of the plaintiff's complaint) and for fraudulent
conveyance of assets of $126,000 (count IX), plus prejudgment
interest. The amended judgment also declared a resulting trust
in favor of the plaintiff on property in Wareham ostensibly
owned by Ellis (count VIII). Ellis also appeals from the denial
1Jamie M. Ferreira; John J. Ferreira, also known as John J. Ferreira, Sr.; and Mary Ellen L. Ferreira, individually and as trustees of the John and Mary Realty Trust. of his motion for judgment notwithstanding the verdict and
motion for a new trial. Because most of the issues raised in
Ellis's brief are waived, and the few issues properly before us
lack merit, we affirm.
Discussion. 1. Trial errors. The Supreme Judicial Court,
"on numerous occasions, has held that issues not raised below
cannot be argued for the first time on appeal." Boss v.
Leverett, 484 Mass. 553, 562-563 (2020). "The reason for this
fundamental rule of appellate practice is well established: it
is important that an appellate court have before it an adequate
record and findings concerning a claim to permit it to resolve
that claim properly." Id. at 563, quoting R.W. Granger & Sons,
Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001).
For the first time on appeal, Ellis claims that the jury
were not informed of the amount of damages that had already been
awarded against Ferreira and not instructed how to assess
Ferriera's liability in determining Ellis's liability; that the
verdict slip did not provide the jury with appropriate
guidelines for calculating damages; that the judge did not
properly instruct the jury on the knowledge requirement for
civil conspiracy as set forth in Kurker v. Hill, 44 Mass. App.
Ct. 184, 189 (1998); that evidence of Ferreira's criminal
conviction and of the purchase of one of two Cadillac
automobiles was erroneously admitted; and that the judge
2 inadequately answered a question from the jury during
deliberations regarding how to determine damages. As nothing in
the record before us indicates that Ellis asserted any of these
claims when they arose at trial, we decline to address them.
See Cormier v. Pezrow New England, Inc., 437 Mass. 302, 311
(2002) (claimed error in judge's instructions to jury waived by
failure to object at trial); Shafnacker v. Raymond James &
Assocs., 425 Mass. 724, 731 (1997) (claimed error in verdict
form waived by failure to object at trial); Mullins v. Pine
Manor College, 389 Mass. 47, 57 n.13 (1983) (claimed error in
admission of evidence waived by failure to object); Simon v.
Solomon, 385 Mass. 91, 107 (1982) (because plaintiff did not
object to judge's instructions on damages, plaintiff "cannot
claim appellate relief on the basis of defects in the
instructions"); Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974)
(failure to object to "the giving or the failure to give an
instruction" before jury retires to consider verdict waives
issue).
Ellis did object, on relevance grounds, to evidence of his
income tax filings. "Whether evidence is relevant is a question
addressed to the substantial discretion of the trial judge,
whose decision we will not overturn except for palpable error."
Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538, 541–542 (2023),
quoting Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997).
3 The plaintiff offered Ellis's tax records, which showed his
failure to report certain income, some of it received from or on
behalf of Ferreira, to demonstrate Ellis's knowledge of
Ferreira's fraudulent conduct and participation in fraudulent
conveyances, as well as to impeach Ellis's credibility. The
judge did not abuse his substantial discretion in finding this
evidence to be relevant. Although "[r]elevant evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice," Gath v. M/A-Com, Inc., 440
Mass. 482, 490 (2003), Ellis made no argument that the documents
were unfairly prejudicial, nor did he request a limiting
instruction to mitigate any prejudice. See Mailhiot v. Liberty
Bank & Trust Co., 24 Mass. App. Ct. 525, 529 n.5 (1987) ("The
defendants did not request a limiting instruction, and cannot
complain now").
2. Sufficiency of the evidence. Ellis also argues that
the evidence was insufficient to establish a civil conspiracy
with Ferreira.2 Ellis preserved this issue by raising it, albeit
in general terms, in his motion for a directed verdict. Because
2 Although the caption of this argument section of the brief refers to all three counts against Ellis, the argument itself is limited to the claim of civil conspiracy (count III). We limit our decision to the claim raised. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief . . .").
4 he did not present any evidence after the plaintiff rested,
Ellis was not required to renew the motion at the close of all
the evidence. See Martin v. Hall, 369 Mass. 882, 884 (1976).
Specifically, Ellis argues that the evidence did not show
that when Ellis engaged in financial transactions with or on
behalf of Ferreira, he was aware that Ferreira had obtained his
funds by defrauding the plaintiff. As the judge explained in
his jury instructions, the plaintiff alleged that Ferreira and
Ellis had "acted in concert" to funnel fraudulently-obtained
funds into real estate, automobiles, and other vehicles in
Ellis's name to conceal the assets from Ferreira's creditors.
To find Ellis liable, the judge instructed the jury that they
were required to find two elements: (1) a "common design or
agreement" between Ferreira and Ellis, even if not expressed, to
keep assets out of Ferreira's name and to defraud Ferreira's
creditors, including the plaintiff; and (2) that Ellis "provided
substantial assistance or encouragement in furtherance of the
agreement."
"Key to this cause of action is a defendant's substantial
assistance, with the knowledge that such assistance is
contributing to a common tortious plan." Kurker, 44 Mass. App.
Ct. at 189. Such knowledge, however, can be proven by
circumstantial evidence. See Henry W. Savage, Inc. v. Wheelock,
5 230 Mass. 111, 116 (1918); Ricky Smith Pontiac, Inc. v. Subaru
of New England, Inc., 14 Mass. App. Ct. 396, 419 (1982).
The evidence permitted the jury to infer that Ellis and
Ferreira were in close communication, that Ellis knew Ferreira
was taking money from the plaintiff, and that Ellis assisted
Ferreira in making purchases with the plaintiff's money and
hiding those purchases from the plaintiff and other creditors,
such as the Internal Revenue Service. The evidence showed
numerous transactions in which Ferreira and Ellis used checks
signed or provided by the plaintiff to make purchases of real
and personal property for Ellis. Ferreira and Ellis frequently
shopped together for these items, including an "ATV", personal
watercraft, and an excavator, which Ellis purchased in his own
name but soon transferred to Ferreira, who then sold them.
Ellis admitted that these vehicles spent little to no time in
his possession. At least once, Ellis received a "kickback" for
his role in the purchase. Ellis was aware that Ferreira had
issues with paying taxes and child support, and agreed to front
the purchases because Ferreira was "afraid of throwing up red
flags." In addition, the evidence showed that Ellis assisted
Ferreira in buying and selling vehicles through the automobile
business that Ellis and his brother owned, that Ferreira
received payment from the business, and that Ellis concealed
these transactions from his brother. This evidence permitted
6 the jury to infer that Ellis knowingly participated in
Ferreira's fraudulent conduct.
In his motion for a new trial, focusing on the jury
instructions, Ellis argued that the jury's verdict was against
the weight of the evidence and based on a misunderstanding of
the law. The judge denied the motion, concluding, "Ellis has
not shown that the jury failed to exercise an honest and
reasonable judgment in accordance with the controlling
principles of law so as to warrant a new trial." To the extent
Ellis argues on appeal that a new trial is warranted, we discern
no abuse of discretion in the judge's determination that a new
trial was not warranted. See Wahlstrom v. JPA IV Mgt. Co., 95
Mass. App. Ct. 445, 447 (2019) (judge should not grant new trial
"unless it appears on a survey of the whole case that otherwise
a miscarriage of justice would result" [citation omitted]).
3. Duplicative damages. Finally, Ellis argues that the
damages awarded to the plaintiff under count III for civil
conspiracy were duplicative of the damages awarded under count
IX for fraudulent conveyance. See Szalla v. Locke, 421 Mass.
448, 453 (1995) ("Recovery of duplicative damages under multiple
counts of a complaint is not permissible"). Because Ellis
asserts this argument for the first time on appeal, it is
waived. See Reckis v. Johnson & Johnson, 471 Mass. 272, 300
(2015), cert. denied 577 U.S. 1113 (2016) (where defendants
7 never challenged sufficiency of evidence of damages award in
motion for directed verdict or judgment notwithstanding verdict,
claim waived).3
Even if this claim were properly before us, our review
would be "confined to the question whether the verdicts were
supportable under any view of the case as submitted to the
jury," Simon, 385 Mass. at 108, viewed in light of the jury
instructions and the jury's response to the questions on the
verdict slip. See Szalla, 421 Mass. at 453; Mailman's Steam
Carpet Cleaning Corp. v. Lizotte, 415 Mass. 865, 870 (1993).4 As
to civil conspiracy, the judge instructed that Ellis could be
held liable for all of the doings of the conspiracy, even if he
was not aware of the entire scope of the conspiracy and even if
his own share in the conspiracy was small. The verdict form
framed damages as the amount "arising from" the conspiracy
between Ellis and Ferreira. As to the fraudulent conveyance
claim, the judge instructed that damages should be based on the
value of the transferred assets, at the time of the transfer,
and the verdict form asked for the total value of all assets
3 In his motion for judgment notwithstanding the verdict, Ellis argued only that the resulting trust (count VIII) and the damages for fraudulent conveyance (count IX) were duplicative. He does not advance that argument here.
4 As explained supra, any claim that the duplicative damages resulted from errors in or omissions from the jury instructions or verdict slip is waived.
8 fraudulently transferred to Ellis (or for his benefit) by
Ferreira. So instructed, given the extent of Ferreira's
fraudulent activities and Ellis's participation, the jury had
ample evidence to support awards of damages under both claims
without duplication. Thus, the record does not substantiate
Ellis's claim that the damages were duplicative.5
Amended judgment affirmed.
Order denying motion for judgment notwithstanding the verdict affirmed.
Order denying motion for a new trial affirmed.
By the Court (Vuono, Massing & Allen, JJ.6),
Clerk
Entered: October 6, 2025.
5 The plaintiff's request for appellate attorney's fees and costs is denied.
6 The panelists are listed in order of seniority.