2017 Mass. App. Div. 88

February 17, 2017 - May 8, 2017

Appellate Division Northern District

Court Below: District Court, Framingham Division

Present: Coven, P.J., Singh & Flynn, JJ.

No brief filed [Note 1] for the plaintiff.

Richard P. Tosti, pro se.

SINGH, J. After a bench trial, plaintiff Discover Bank recovered a money judgment against defendant Richard P. Tosti ("Tosti") arising out of a credit card debt. Tosti, who represented himself both at trial and on appeal, contends that the court made several trial errors and further erred in denying his motion for new trial. We affirm the judgment.

Discover Bank's keeper of the records testified that Discover Bank issued Tosti a credit card in 1987 and that the account was closed in 2014 due to default. The outstanding balance on Tosti's account was $18,252.34. There was no record of Tosti ever having disputed anything on the account. The keeper of the records also presented the cardholder agreement in effect at the time of default, as well as a set of credit card billing statements on the account. At the conclusion of trial, the court found in favor of Discover Bank in the amount alleged. Tosti later moved for a new trial, but the court denied the motion.

On appeal, Tosti contends that the court erred in accepting the cardholder agreement into evidence, because Discover Bank had not provided Tosti with the agreement prior to trial. Additionally, he argues that Discover Bank failed to establish that the agreement applied to him. When Discover Bank sought to introduce the agreement, Tosti did indicate that he had not seen the document before. However, he never objected to its admission on any ground. When given an opportunity to address the court, Tosti argued regarding the credit card billing statements but said nothing more about the cardholder agreement. This issue is waived. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001) (consequence of failure to object at trial is waiver of evidentiary issue on appeal).

Tosti next contends that the court precluded him from cross-examining Discover Bank's witness and from presenting evidence at trial. The trial transcript belies this claim. At the conclusion of the direct testimony of the keeper of the records, the court specifically invited Tosti to cross-examine by asking him whether he had any questions for the witness. Tosti declined in favor of making a statement to the court. When Discover Bank indicated that it had concluded its case by requesting a

Page 89

directed verdict, [Note 2] the court again turned to Tosti and asked him whether he would like to say anything. Thus, Tosti was given an opportunity to cross-examine as well as to offer his own evidence. We reject this claim.

Tosti further argues that the court erred in allowing Discover Bank to present evidence regarding the balance due on the account because it had not previously provided him with a full accounting. This objection was not made at the time of trial and is therefore waived. Id. Additionally, he contends that the keeper of the records who gave such testimony should have been precluded from doing so because she had no personal knowledge of the account details. In response to the testimony of the keeper of the records, Tosti argued to the court that the testimony should not be credited because the witness "probably" did not prepare the statements or look at the interest rates or payments. Even if this argument were to be considered an objection, the court did not err in accepting the testimony of the witness. As the keeper of the records, the witness was not required to have personal knowledge of everything contained in Tosti's account history. Rather, she could testify based on her review of records, after a proper foundation had been laid regarding their admissibility as business records. See McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819-820 (2006); Mass. G. Evid. ยง 803(6)(A) (2017).

Finally, Tosti claims that the judge erred in denying his motion for new trial premised on the same allegations of trial error. We cannot find any abuse of discretion in the judge's denial of the motion for new trial, particularly where Tosti failed to establish that resolution of the issues in his favor would have altered the result. Wojcicki v. Caragher, 447 Mass. 200, 208-209 (2006) (motion for new trial will not be overturned absent abuse of discretion).

Judgment affirmed.

So ordered.


[Note 1] Although the plaintiff did not file an appellate brief, it did submit a motion to dismiss the appeal. We need not address the motion given our disposition of this case.

[Note 2] As Tosti correctly points out, a motion for directed verdict made by the plaintiff at the close of its own case in a jury-waived trial was inappropriate. See Mass. R. Civ. P. 41(b)(2) (defendant may make motion for finding directed in its favor at close of plaintiff's case for failure of plaintiff to make out prima facie case).