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-1010
JAMES J. LYONS & others1
vs.
WILLIAM P. JOHNSON2 & another.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a 2015 Superior Court jury trial, the defendants
William P. and Gail Johnson (the Johnsons) appeal from judgments
totaling $4.8 million entered against them in favor of the
plaintiffs, James J. and Bernadette T. Lyons, their sons Tyler
and Michael, and their business, Mity Pups, Inc. (Mity Pups).
We refer to the plaintiffs collectively as the Lyonses. The
Johnsons claim numerous errors at the summary judgment stage and
at trial. Concluding that all of their claims are waived, we
affirm the judgments.
1Bernadette T. Lyons, individually and as mother and next friend of Michael J. Lyons and Tyler J. Lyons; and Mity Pups, Inc., doing business as Dandi-Lyons.
2Individually and as trustee of Vale Realty Trust and manager of Fay Homes, LLC.
3 Gail Johnson. Background. As a result of protracted and contentious
litigation over a land dispute, the Johnsons embarked on a
campaign of harassment against their neighbors, the Lyonses.
The Lyonses filed this lawsuit in 2009, alleging tortious
interference with advantageous business relationships (TIABR),
tortious interference with contractual relations, assault,
intentional infliction of emotional distress (IIED), negligent
interference with emotional distress (NIED), and fraudulent
conveyance. The case moved slowly pending the criminal
prosecution of the Johnsons stemming from the same events. In
2011, the Johnsons were convicted of criminal harassment, and
William Johnson was convicted of making a false report of child
abuse by James Lyons to the Department of Children and Families;
those convictions were affirmed on appeal. See Commonwealth v.
Johnson, 470 Mass. 300 (2014). The facts are set forth in
Johnson and need not be repeated here. See id. at 303-306.
Once the convictions were affirmed, the Lyonses moved in
2015 for partial summary judgment on liability, arguing that the
doctrine of issue preclusion barred the Johnsons from contesting
the facts established in the criminal case. The Johnsons did
not oppose the motion; their counsel "agree[d] it's a damages
2 case."4 A judge allowed the motion, stating, "So we're going
forward . . . on the issue of damages."
The parties then stipulated to the dismissal of the
Lyonses' claims for tortious interference with contractual
relations and NIED. They also agreed that all of the claims for
fraudulent conveyance (which concerned a transfer of assets to
avoid the Lyonses' pretrial attachment) could be held in
abeyance. This left for trial the claims of assault, IIED, and
TIABR.
On the first day of the 2015 trial, the judge confirmed
with counsel: "We all understand that we're going forward today
on the issue of damages not on the issue of liability?" Defense
counsel responded, "That is correct." On the second day of
trial, before opening statements, defense counsel sought to
clarify that there were only five incidents as to which
liability had been established: the four incidents of
harassment and the one false report of child abuse, all
occurring in 2008, that led to the convictions in Johnson.
Counsel stated his understanding that the Lyonses intended to
offer evidence of additional incidents of harassment and that,
4 The Johnsons' trial counsel was disbarred in 2017. See Matter of Stein, 33 Mass. Att'y Discipline Rep. 441 (2017). New counsel represents them in this appeal.
3 if so, they would need to prove liability as well as damages.
The judge and the Lyonses' counsel agreed.
The Lyonses then put on their case-in-chief, which included
testimony about the impact of the five 2008 incidents; evidence
of a 2010 assault by William Johnson against James Lyons and his
sons; and evidence that Mity Pups lost business after the
Johnsons publicized false sexual abuse allegations against James
Lyons online. The Johnsons unsuccessfully moved for a directed
verdict on the assault claims brought by James and Bernadette
Lyons and on the IIED claim brought by their son Tyler.
The Johnsons then testified in their own defense. At the
close of all the evidence, the Lyonses moved for a directed
verdict on their claims of assault and IIED, and the judge
allowed this motion. Although the Johnsons have not supplied a
transcript of any argument on the motion or of any explanation
the judge gave for his ruling, the docket states that the motion
was allowed "based upon defendants not contesting liability in
the matter but going forward as to the issue of damages."5
The jury were instructed that the Johnsons had stipulated
to liability on the assault and IIED claims, so that the jury
needed to determine only the issue of damages. No mention was
5 The Johnsons supplied only partial transcripts of the proceedings on the day the motion was made and allowed. The Johnsons supplied what appear to be full transcripts of the other days of trial.
4 made of the TIABR claims. Among the types of damages the jury
were instructed to consider was "lost earning capacity," which
the judge stated was applicable to Mity Pups as well as the
Lyonses individually. The jury returned verdicts of $1.25
million each for James and Bernadette Lyons; $500,000 each for
Tyler and Michael Lyons; and $1.3 million for Mity Pups.
Judgments entered accordingly, and the Johnsons filed a notice
of appeal.6
The Lyonses then sought a jury-waived trial on their
fraudulent conveyance claims, but matters were delayed by
William Johnson's late 2015 bankruptcy filing, followed by
several years of collection efforts by the Lyonses. The
Johnsons also filed a motion for a new trial, which was denied.
The Johnsons then filed a motion to compel assembly of the
record; that motion was allowed, and the appeal was docketed in
this court in October 2022.
Discussion. 1. Appellate jurisdiction. The Johnsons'
brief argued that their own appeal was not properly before us
6 Contrary to the judge's order, the judgment for James Lyons initially entered against only William Johnson. After the Johnsons filed their notice of appeal, the judgment was corrected under Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974), so as to run against Gail Johnson as well. Although she did not then file a new notice of appeal, we treat that judgment against her as before us, particularly in light of the further proceedings described infra regarding separate and final judgments.
5 because there was no final judgment on all claims; the
fraudulent conveyance claims remained unadjudicated. After oral
argument in October 2023, we stayed appellate proceedings and
gave the parties leave to file, and the Superior Court leave to
consider, a motion or motions under Mass. R. Civ. P. 54 (b), 365
Mass. 820 (1974). The Lyonses filed such a motion, and on
February 28, 2024, it was allowed, with an express determination
that there was no just reason for delaying the entry of the
judgments ordered and entered in 2015. Concluding that we now
had jurisdiction of the appeal of those judgments, we vacated
the stay of appellate proceedings and now address the Johnsons'
remaining arguments.7
2. Partial summary judgment on liability. The Johnsons
argue that the judge erred in relying on their criminal
convictions to order summary judgment on liability, because some
of the civil claims asserted by the Lyonses were not addressed
in the criminal case. Defense counsel agreed to summary
judgment on liability, however, and repeatedly agreed that the
remaining dispute was about damages. The Johnsons cannot now
reverse course and argue that summary judgment on liability was
7 While the Lyonses sought to clear up the jurisdictional issue in Superior Court, the Johnsons moved to dismiss their appeal, under Mass. R. A. P. 29 (b), as appearing in 481 Mass. 1660 (2019). We deny that motion; judicial economy is best served by resolving the issues already briefed and argued as to judgments entered nearly nine years ago.
6 improper. See Albert v. Municipal Court of Boston, 388 Mass.
491, 493-494 (1983) (argument not made in trial court cannot be
raised for first time on appeal).
Relatedly, the Johnsons argue that, because the case was
not fully adjudicated on the summary judgment motion, the judge
was required to "make an order specifying the facts that appear
without substantial controversy." Mass. R. Civ. P. 56 (d), 365
Mass. 824 (1974). The Johnsons never objected to the judge's
failure to do so, however, nor did they request that he do so.
The issue is therefore waived. See Albert, 388 Mass. at 493-
494.
3. Additional liability evidence at trial. The Johnsons
next argue that, in light of the summary judgment ruling, the
judge erred in "inexplicably proceed[ing] to determine liability
on new claims" at trial. The Johnsons complain that the judge
"did not provide notice of what evidence and testimony would be
produced during trial . . . and allowed for the admission of
evidence and argument that was not contained in the
[c]omplaint."8
We pass over the point that, at least absent some request 8
for clarification of the summary judgment ruling, it was not the judge's responsibility to provide notice to the parties of what evidence would be produced at trial. We note the Johnsons' concession that they conducted no discovery, and we are unpersuaded by their claim that discovery would have been futile.
7 This ignores that, before opening statements, defense
counsel asserted his understanding that the Lyonses' counsel now
"intend[ed] to introduce evidence [of] harassment that my
clients were never convicted of," and that "if he's going to
bring those issues into this case he has to [inaudible] those
issues." The judge agreed, and the Lyonses' counsel, while
expressing puzzlement over why the Johnsons would want to agree
to some incidents but contest others, said, "[I]f that's the way
you want to try the case[,] let's go." Although there are some
minor gaps in the transcript, it seems clear that the parties
and the judge understood that if the Lyonses sought damages
based on incidents not proved in the criminal trial, they would
need to offer evidence of liability (as well as damages) for
those incidents.
The Lyonses then offered evidence of two such incidents:
the 2010 assault by William Johnson on James Lyons and his sons,
and the Johnsons' spreading of false allegations that caused
Mity Pups to lose business. The Johnsons did not object that
this new liability evidence was beyond the scope of the issues
to be tried. At the close of their case, the Lyonses sought a
directed verdict on liability on their assault and IIED claims,
and the judge allowed the motion "based upon defendants not
contesting liability." And defense counsel did not object when
the judge instructed the jury that liability on the assault and
8 IIED claims had been established and that the only issue to be
decided was damages. In these circumstances, not having
objected at trial, the Johnsons cannot now argue that the judge
erred by admitting evidence to show liability for incidents not
already proved at the criminal trial. See Albert, 388 Mass. at
493-494.
4. Assault claim based on 2010 incident. In a variation
on the preceding argument, the Johnsons assert that, because the
complaint alleged an assault based only on a 2008 incident
addressed in the criminal case,9 the judge erred by allowing the
admission of evidence about the 2010 assault. As just
discussed, however, the Johnsons did not object at trial to the
admission of this evidence. An objection raised for the first
time on appeal comes too late.
As the Johnsons recognize, "[w]hen issues not raised by the
pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had
been raised in the pleadings." Mass. R. Civ. P. 15 (b), 365
Mass. 761 (1974). As they further recognize, "[u]nder this
9 The incident involved the Johnsons causing notice to be posted on the Internet site "Craigslist" that caused dozens of unwitting third parties to appear at the Lyonses' home and ask for free golf carts, thus frightening Bernadette Lyons. This was one of the incidents of harassment underlying the Johnsons' convictions, and the Supreme Judicial Court ruled that evidence of the incident was sufficient to support the convictions. See Johnson, 470 Mass. at 302-304, 312-314.
9 rule, there is implied consent to litigate an issue if there is
no objection to the introduction of evidence on the unpleaded
issue, as long as the non-objecting party was fairly appr[]ised
that the evidence went to the unpleaded issue" (citation
omitted). Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 355
(1978). The Johnsons now argue that they were not so apprised.
They assert that their counsel did not understand, until the
close of the Lyonses' case-in-chief and the argument on the
Johnsons' motion for a directed verdict, that the evidence of
the 2010 assault was intended to support the assault claim.10
Even assuming that to be true, however, defense counsel did
not object once he realized the significance of the evidence.
He did not seek at that time or any other to exclude
consideration of the 2010 assault from the case. Rather, when
William Johnson testified in the defense case, counsel asked
whether he had committed the act (a hand gesture) that underlay
the claim of the 2010 assault, and William Johnson denied it.
Counsel referred to that evidence in his closing argument, and
he did not object when the Lyonses' counsel did the same. Nor
does it appear that counsel sought any instruction to the jury
that they should not consider the 2010 incident as an assault.
10On appeal the Johnsons argue in their brief that the evidence could "easily be confused with a claim for harassment." But the complaint had not asserted any claim for "harassment" as such.
10 In the circumstances, we are not persuaded that there was any
error or unfair surprise. Any error that might have occurred
has been waived.11
The Johnsons also argue that the judge erred in denying
their motion for a directed verdict on the assault claim at the
close of the Lyonses' case-in-chief. This argument is not now
open to the Johnsons, because they introduced evidence on the
assault claim in their own case and then did not renew their
motion for a directed verdict at the close of all the evidence.
See Hammell v. Shooshanian Eng'g Assocs., Inc., 73 Mass. App.
Ct. 634, 640 (2009). Relatedly, the Johnsons argue that the
judge erred in allowing the Lyonses' motion for a directed
verdict on liability for assault at the close of all the
evidence. As we have seen, however, the judge allowed the
Lyonses' motion "based upon defendants not contesting
liability," and so any challenge to the sufficiency of the
evidence of liability has been waived.
5. Evidentiary errors. The Johnsons next assert that the
judge erred or abused his discretion in admitting certain
11The Johnsons further argue that, had they known the 2010 incident would be the basis for an assault claim, they could have asserted a statute of limitations defense. This argument, too, was never raised in the trial court and so is waived. See Albert, 388 Mass. at 493-494.
11 testimony over the Johnsons' objections.12 The Johnsons argue
that the objected-to testimony went to issues not alleged in the
complaint and that its prejudicial effect exceeded its probative
value. We have examined each of the challenged passages of
testimony and conclude that none of the objections were stated
to be based on either of the grounds just mentioned, nor would
the judge have reasonably understood them to be so based. "When
objecting, counsel should state the specific ground of the
objection unless it is apparent from the context." Commonwealth
v. Marshall, 434 Mass. 358, 365 (2001), quoting P.J. Liacos,
Massachusetts Evidence § 3.8.3, at 85 (7th ed. 1999). Here,
counsel's objections appear to have been based on hearsay,
questions that called for a legal conclusion, or
nonresponsiveness, or else to have had no clear basis at all.
In short, the objections the Johnsons now raise were waived.
6. Tyler Lyons's IIED claim. The Johnsons next argue
that, with respect to Tyler Lyons's IIED claim, the judge erred
in directing a verdict against the Johnsons on liability,
12The evidence concerned: (1) a threat made by William Johnson the day before Valentine's Day in 2008; (2) an accusation that one of the Lyons boys inappropriately touched girls at school; (3) a claim that William Johnson tried to rip the Lyons boys out of their house and then "sit and watch it"; (4) a claim that William Johnson "thought [it] was really funny" that James Lyons was accused of abusing a fifteen year old boy; and (5) a claim that the Johnsons were going to accuse the Lyons boys of being "Peeping Toms," in order to cause their arrest.
12 because there was no evidence that Tyler Lyons was present for
any of the extreme and outrageous conduct directed at his family
members. Once again, however, the judge allowed the Lyonses'
motion "based upon defendants not contesting liability," and so
any challenge to the sufficiency of the evidence of liability on
this claim has been waived.
7. Damages award to Mity Pups. The Johnsons challenge the
award of $1.3 million in damages to Mity Pups on its claims for
TIABR, on the ground that the judge ultimately dismissed those
claims after trial. When judgment nevertheless entered for Mity
Pups, however, the Johnsons failed to object or seek
clarification. Their claim of error is therefore waived.
The record is clear enough that, on the third day of trial,
Mity Pups, through counsel and outside the presence of the jury,
stated its intention to pursue its TIABR claims, and defense
counsel did not object or disagree.13 Mity Pups introduced some
evidence in support of those claims. The special verdict form
(at least as read into the record when the jury returned its
verdicts) asked, among other things, whether the Johnsons'
actions were "a substantial factor in causing the damages and
injuries sustained by the plaintiff, Mity Pups, Inc." It
further asked what amount of compensation the jury awarded Mity
13 Bernadette Lyons's TIABR claims were not mentioned.
13 Pups for any such damages and injuries. The jury answered the
causation question in the affirmative and awarded Mity Pups $1.3
million in damages. The record reflects no objection by defense
counsel to the special verdict form or to the recording of the
verdict for Mity Pups.
The judge's order for judgment referred to the verdict
having been returned on claims of assault, IIED, "and upon
claims of . . . lost earning capacity" -- a reference that could
have been intended to encompass Mity Pups's TIABR claims -- but
then stated that "[t]he remainder of the plaintiffs' claims are
now dismissed by stipulation of the parties or upon there being
no evidence presented to the jury at trial." This order,
standing alone, could be read to mean that Mity Pups's TIABR
claims were dismissed.
But judgment then entered for Mity Pups. If the Johnsons
believed this was in contravention of the judge's order or
otherwise in error, they could and should have sought relief
under Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), or Mass. R.
Civ. P. 60 (a), 365 Mass. 828 (1974). Having failed to claim
error in the trial court, they may not do so on appeal.14
14The Johnsons also failed to preserve their arguments that evidence of Mity Pups's lost revenues was admitted in error. Although defense counsel asserted stray objections to some of the evidence, his grounds were far from clear. None of the three grounds asserted on appeal was clearly made known to the judge or would have been apparent from the context.
14 8. Closing argument. The Johnsons argue that the Lyonses'
closing argument was improper. They did not object at trial,
however, and thus the issue is waived.15 The Johnsons
nevertheless ask us to address the issue, despite the lack of
objection, under the "plain error" doctrine, in order to prevent
what they assert is "a manifest miscarriage of justice."
Michnik-Zilberman v. Gordon's Liquor, Inc., 14 Mass. App. Ct.
533, 537 (1982), S.C., 390 Mass. 6 (1983), quoting Little v.
Bankers Life & Cas. Co., 426 F.2d 509, 511 (5th Cir. 1970).
Michnik-Zilberman, however, arose in the narrow context of a
particular sequence of motions for a directed verdict and for
judgment notwithstanding the verdict. Michnik-Zilberman, supra
at 536-537. The Johnsons offer no developed and persuasive
argument as to why the plain error doctrine should be extended
to the circumstances of this case, particularly given the
importance of the oft-repeated competing rule in civil cases
that issues not raised in the trial court may not be raised for
the first time on appeal. See, e.g., Columbia Plaza Assocs. v.
Northeastern Univ., 493 Mass. 570, 585 n.7 (2024); Eno v.
15The Johnsons argue that the judge had an independent duty to cut off or take curative action in response to the Lyonses' closing argument. But the cases the Johnsons cite do not hold it reversible error for a judge not to do so in the absence of an objection. See Gath v. M/A-Com, Inc., 440 Mass. 482, 495 (2003); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 529 (1992).
15 McGinn, 103 Mass. App. Ct. 662, 670 n.17 (2024). See also R.B.,
petitioner, 479 Mass. 712, 716 (2018).
Assuming arguendo that the plain error doctrine were
available in the context of an assertedly improper closing
argument in a civil case,16 we would not apply it here. The
Johnsons have identified numerous objectionable passages in the
Lyonses' closing argument, but they have done little to explain,
and have cited no cases to establish, that the resulting
prejudice rises to the high level necessary to show "a manifest
miscarriage of justice" (citation omitted), Michnik-Zilberman,
14 Mass. App. Ct. at 537, or a "manifest injustice." Rotkiewicz
v. Sadowsky, 431 Mass. 748, 752 n.3 (2000). The Johnsons offer
no standard against which the unpreserved claims of assertedly
improper closing argument in this case could be said to present
a manifest injustice, while unpreserved claims of improper
argument in other cases would not.
The Supreme Judicial Court has emphasized that courts may
reach unpreserved claims in "exceptional cases." Albert, 388
Mass. at 494, quoting Hormel v. Helvering, 312 U.S. 552, 557
16 Although the Johnsons have not cited it, we note one Massachusetts decision discussing the plain error doctrine in this context. See Fyffe v. Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457, 471 & n.18 (2014). That discussion was dictum, because there was no claim that the defendants had not preserved their objections to the plaintiff's closing argument. See id.
16 (1941). The Johnsons do not show how this case is exceptional.
We therefore do not consider the merits of the challenge to the
Lyonses' closing argument. For the same reason, we do not
consider the Johnsons' related assertion that the judge failed
to adequately instruct the jury that closing arguments are not
evidence.
9. Excessive damages. The Johnsons argue that the damages
awarded to each plaintiff were excessive, but they failed to
make this argument to the trial judge in a timely motion for a
new trial. "Questions concerning inadequate or excessive
damages are initially within the discretion of the trial judge
and should ordinarily be raised by bringing a motion for a new
trial." Pridgen v. Boston Hous. Auth., 364 Mass. 696, 715
(1974). Absent a motion raising the issue in the trial court,
an appellate court is not required to consider it. Id. See
Shafir v. Steele, 431 Mass. 365, 371 (2000) (same). The issue
is therefore waived.
Conclusion. The judgments dated April 27, 2015, for Mity
Pups and Bernadette, Michael, and Tyler Lyons are affirmed. The
17 corrected judgment dated May 29, 2015, for James Lyons is
affirmed.
So ordered.
By the Court (Wolohojian, Desmond & Sacks, JJ.17),
Assistant Clerk
Entered: April 5, 2024.
17 The panelists are listed in order of seniority.