DAVIS, MALM & D'AGOSTINE, P.C. vs. FRANK C. LAHNSTON.

AGNES, J. Until 2008, Mass.R.Civ.P. 64A required a party in a civil case tried in the Boston Municipal Court and District Court departments, to file a special type of request for a ruling of law known as a "warrants" request in order to preserve for appellate review a challenge to the sufficiency of the evidence offered by the party with the burden of proof. [Note 1] These were

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requests that the evidence "warrants a finding for the requesting party" or "does not warrant a finding for the opposing party." [Note 2] Under current practice, the sufficiency of the evidence in a jury-waived trial conducted in the Boston Municipal Court and District Court departments may be challenged and the question preserved for appeal without the need to use the warrants request. Instead, a party may file a motion for involuntary dismissal under Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974), or submit proposed findings of fact and rulings of law. See Mass.R.Civ.P. 52(c), as appearing in 450 Mass. 1404 (2008). See also Perlin and Connors, Civil Procedure in the Massachusetts District Court § 12.6 (4th ed. 2009) (Handbook of Civil Procedure). In this case, the parties resorted to the use of warrants requests and thereby resurrected the problems that led to the abolition of Mass.R.Civ.P. 64A and warrants requests.

The parties' use of warrants requests in the present case, as an alternative to a rule 41(b)(2) motion or properly formulated proposed findings of fact or rulings of law, provides an appropriate occasion for this court to consider whether a request for a ruling of law under rule 52 may be framed as a warrants request in jury-waived proceedings in Massachusetts. Our review of the applicable authority leads to the conclusion that warrants requests are no longer a valid method for obtaining a ruling of law under modern civil practice. In order to preserve issues of law for review by the Appellate Division, see G. L. c. 231, § 108, a party is merely required to submit proposed findings of fact and rulings of law. See Handbook of Civil Procedure § 12.8 ("With the repeal of Mass.R.Civ.P. 64A and its requirement of requests for rulings, a significant source of confusion and procedural error has been eliminated from the process of

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appeal to the Appellate Division in jury-waived cases" [footnote omitted]).

Factual background. The essential dispute underlying this case was whether the defendant, Frank C. Lahnston, or Celus Fasteners Corporation (Celus), a company of which Lahnston was the primary shareholder, owed attorney's fees for work that the law firm Davis, Malm & D'Agostine, PC (Davis, Malm) performed regarding a proposed sale of Celus's assets. Davis, Malm did legal work regarding the sale of Celus's assets between April of 2006, and January of 2007. At trial, Lahnston claimed that, prior to the parties' written representation agreement, Attorney Michael Malm, a partner at Davis, Malm, said that he was going to represent Celus in this matter. However, early in the representation, Davis, Malm sent Lahnston an agreement setting out Davis, Malm's terms of representation, including billing policies and a request for a retainer. Portions of the agreement, which was addressed to "Frank Lahnston," provided strong evidence that Lahnston was the party represented by Davis, Malm. [Note 3] Lahnston signed the document and appended the term "Treas." to his signature.

Attorney Malm testified that he did not notice this addition until it came time to collect the bill. He also indicated that he did not know whether Lahnston had the authority to represent the company. During the course of representation, Attorney Malm initially believed that Lahnston was the sole stockholder of Celus, but later learned that there was another record stockholder. In addition, Lahnston's initial retainer and all subsequent payments tendered to Davis, Malm were paid from an account of a realty trust or company personally owned by Lahnston, not from Celus's bank account. However, Attorney Malm indicated that he never told Lahnston that he would be individually liable for attorney's fees.

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Procedural history. After a bench trial on June 10, 2009, judgment was entered on June 23, 2009, holding Lahnston liable to Davis, Malm for attorney's fees and awarding judgment to Davis, Malm on Lahnston's counterclaims. Sometime between the end of the trial and June 23, Davis, Malm filed with the clerk-magistrate a document entitled "Plaintiff's Requests for Rulings" (Davis, Malm's submission) and Lahnston filed a document entitled "Defendant's Amended Requests for Findings of Fact and Rulings of Law" (Lahnston's submission). [Note 4] Both documents contain a list of statements that all begin with the phrase "[t]he evidence is sufficient to find . . . ." The trial judge issued a "Response to Plaintiff's Requests for Rulings" on or around June 22, 2009. In this document, the judge responded to both Davis, Malm and Lahnston's submissions, and summarily responded to all twelve items in Davis, Malm's submission by stating "1-12. Allowed." As for Lahnston's submission, the judge stated "allowed" in response to some of the items and "[t]he evidence is sufficient but the court does not so find" in response to others. [Note 5] The record indicates that the trial judge ordered judgment for the plaintiff on its complaint and judgment for the plaintiff on the defendant's counterclaim.

Lahnston appealed the judgment to the Appellate Division of the Boston Municipal Court. See G. L. c. 231, § 108. The Appellate Division's decision, issued on December 2, 2010, affirmed the judgment below on the merits, finding that Lahnston was not exempt as a matter of law from personal liability, and that there was ample evidence at trial to support a finding for Davis, Malm. Lahnston further appealed the Appellate Division's decision to this court in an effort to challenge the sufficiency of the evidence, among other things. See G. L. c. 231, § 109. See also Fijal v. Anderson, 49 Mass. App. Ct. 903 (2000).

Discussion. 1. Lahnston failed to preserve a question of law for review. Neither party requested that the trial judge make any

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findings of fact, and the judge did not make any findings of fact on his own as permitted by Mass.R.Civ.P. 52(c). [Note 6] The requests submitted by the parties were exclusively in the form of warrants requests ("the evidence is sufficient to find . . ."). All of the plaintiff's requests and most of the defendant's requests mix a statement about the sufficiency of the evidence with a statement of law accompanied by citations to legal authorities. None of the submissions constitutes a proposed finding of fact. See Stella v. Curtis, 348 Mass. 458, 461 (1965). None of the submissions constitutes a proposed ruling of law. [Note 7] Instead, the parties' requests were an effort to obtain rulings "which are not decisive of any general or special issue in the case. They would not be tolerated as requests for instructions to a jury, and they have no better standing as requests for rulings in a trial without jury." Id. at 463. Even if each and every one of the requests submitted by both sides had been allowed without reservation, the judge would not have been compelled to enter judgment for one side or the other on either the claim or the counterclaim. Likewise, if it was the intention of the parties to obtain from the judge rulings of law, the requests were not in the proper form. [Note 8] One option available to the judge was to take no action on the submissions

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and simply enter a general finding for the plaintiff. See Mass.R.Civ.P. 52(c), first sentence. However, it was irregular for the judge to "allow" some of Lahnston's warrants requests without qualification, and others with the statement "[t]he evidence is sufficient but the court does not so find," because the judge made no independent findings of fact or rulings of law. [Note 9] In summarily adopting Davis, Malm's submissions and responding to Lahnston's submissions as one would respond to a request for rulings under former Mass.R.Civ.P. 64A, the trial judge failed to place a "badge of personal analysis" sufficient to make the rulings clearly the court's own. See Cormier v. Carty, 381 Mass. 234, 237-238 (1980). Nevertheless, the judge's action was not inconsistent with his general finding in favor of the plaintiff. See Mastercraft Wayside Furniture Co. v. Sightmaster Corp., 332 Mass. 383, 387-388 (1955).

In the circumstances of this case, the defendant did not preserve the legal question of the sufficiency of the evidence in support of the finding for the prevailing party. This, in turn, left the Appellate Division without a legal question to review. See G. L. c. 231, § 108 (when it is shown that "there has been prejudicial error in the ruling complained of [the Appellate Division] may reverse, vacate or modify the same or order a new trial in whole or part . . ."). See also Butler v. Cromartie, 339 Mass. 4, 6 (1959) ("A party may claim a report to the Appellate Division only with respect to a ruling of law and not to a finding of

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fact"); Addis v. Steele, 38 Mass. App. Ct. 433, 435 n.7 (1995), quoting from Elliott v. Warwick Stores, Inc., 329 Mass. 406, 409-410 (1952) ("[T]he authority of the Appellate Division is 'limited to the review of rulings which have been reported and to matters of law arising in connection with the making of reports' "). [Note 10] In such a case, the Appellate Division could have simply dismissed the report. See Reliable Finance Corp. v. Baldrate, 291 Mass. 150, 152 (1935). Therefore, because Lahnston did not preserve a claim of prejudicial error with regard to any ruling by the trial judge in his appeal to the Appellate Division, he cannot raise an issue for the first time here. See Gossels v. Fleet Natl. Bank, 453 Mass. 366, 376 (2009); Brossi v. Fisher, 51 Mass. App. Ct. 543, 550 (2001). [Note 11]

2. Warrants requests are no longer valid. The parties' misuse of a specialized form of a request for a ruling of law that was rendered obsolete by the repeal of Mass.R.Civ.P. 64A, see note 1, supra, demonstrates the need to clarify the effect of recent rule changes on Massachusetts civil practice. The current practice under Mass.R.Civ.P. 52(c) makes the use of the warrants request unnecessary because a party may compel a judge sitting in a jury-waived session of the District Court or Boston Municipal Court department to make findings of fact and rulings of law, and the judge may make such findings and rulings even in the absence of a request. The warrants request was first recognized in the 1930s as a tool of the civil practitioner to enable a party in a jury-waived proceeding, where judges were not required to make findings of fact, to obtain a ruling of law on the sufficiency of the evidence and thus an appealable issue. See L. Grossman Sons, Inc. v. Rudderham, 319 Mass. 698, 699 (1946), discussing Bresnick v. Heath, 292 Mass. 293 (1935). [Note 12], [Note 13]

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Over the years, however, trial judges and appellate courts struggled with the correct use of the warrants request. [Note 14] These requests were often mishandled, leading to unnecessary appellate

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litigation. See, e.g., DiGesse v. Columbia Pontiac Co., 369 Mass. 99, 102-106 (1975). [Note 15]

There is no Massachusetts statute or rule that requires or even authorizes the use of the warrants request. The 2008 repeal of Mass.R.Civ.P. 64A, and amendment of Mass.R.Civ.P. 52(c), made the warrants request superfluous, and effectively eliminated their use for any purpose in civil practice in jury-waived trials as a vehicle for challenging the sufficiency of the evidence, or as a substitute for a proposed finding of fact or ruling of law. See Handbook of Civil Procedure, supra at § 12.8.

Conclusion. Judges sitting in jury-waived sessions may disregard any requests for findings of fact or rulings of law in the form of "the evidence warrants," "the evidence does not warrant," "the evidence is sufficient," or "the evidence is not sufficient," etc. In cases tried in the District Court or Boston Municipal Court departments, the effect of submitting requests for findings of fact or rulings of law in the form just described will be that the trial judge is under no obligation to make findings of fact or rulings of law, but, of course, is free to do so. See Mass.R.Civ.P. 52(c). Lawyers and parties in jury-waived proceedings in the District Court and Boston Municipal Court departments should limit submissions under Mass.R.Civ.P. 52(c) to proposed findings of fact and rulings of law. This is in keeping with the modern practice under which appellate review is based on the trial judge's rulings of law and not on rulings of law formulated by counsel. See Handbook of Civil Procedure, supra at § 12.6. [Note 16]

Decision and order of the Appellate Division affirmed.