VISTA HEALTH SERVICES and another [Note 1] v. KBL, INC. and another [Note 2]

FINNERTY, P.J. The plaintiffs, Vista Health Services and Michael Abruzzese (collectively, "Vista"), brought suit against the defendants, KBL, Inc. ("KBL") and Kevin Lennon ("Lennon"), as a result of a contract Vista had entered with KBL and Lennon for purchase of a route of vending machines, which Vista claimed it entered based on intentional misrepresentations as to the amount of revenue historically made on the route by KBL and Lennon. Vista also claimed that KBL and Lennon breached the contract by failing to buy back the route or assist in its sale.

Following trial, a jury returned a verdict for Vista finding both KBL and Lennon liable for breach of contract and breach of the implied covenant of good faith and fair dealing, and finding Lennon liable for false representation and fraud/deceit. The jury awarded Vista $30,000 in damages, which the court doubled and to which the court added attorney's fees and costs of $28,263.60 on its determination of liability under G.L. c. 93A for a total judgment of $95,636.49. KBL and Lennon appealed the court's rulings regarding a motion in limine to exclude evidence of other lawsuits against them; the allowance into evidence of exhibit 17, which was a compilation of credit card sales figures for the vending machines at issue in the case; the repetition of a jury instruction; a verdict slip that included special questions as to Vista's c. 93A claims that were reserved for the court; the lack of written findings by the court on the c. 93A claim; and the court's denial of the defendants' motion for judgment notwithstanding the verdict ("judgment n.o.v."). For the reasons that follow, we affirm.

KBL and Lennon moved in limine to prevent evidence of other lawsuits against them alleging conduct that Vista claimed was evidence of a pattern of conduct by KBL and Lennon. Ultimately, the plaintiffs did not introduce the challenged evidence, and KBL and Lennon presented no witnesses at the trial. The court did not rule on the motion prior to the trial. Failure to rule on such a motion was effectively a denial of the motion. Gutierrez v. Mass. Bay Transp. Auth., 437 Mass. 396, 404 (2002). KBL and Lennon did not include this issue in their motion for judgment n.o.v., and it is therefore waived in this appeal. See Mass. R. Civ. P. 50(b); Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6 , 9 (1983). It is worth noting, however, that a trial judge has substantial discretion in determining relevance and weighing

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the probative value of relevant evidence against the possibility of undue prejudice. Green v. Richmond, 369 Mass. 47, 60 (1975); Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997). Here, the evidence was relevant to show the defendants had knowledge of the falsity in their conduct and representations, their intent to deceive, and their participation in a common fraudulent scheme. See Lynn v. Wallace, 221 Mass. 351 (1915); Jordan v. Osgood, 109 Mass. 457 (1872); Foster v. Hull, 29 Mass. 89, 102 (1831). The trial court's denial of the motion in limine was not clearly erroneous or an abuse of discretion. It was not "palpable error." See McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 8 (1995).

We do not need to say much here about the defendants' challenge to the admission of exhibit 17. A "document is admissible as a business record if the judge finds that it was (1) made in good faith; (2) made in the regular course of business; (3) made before the action began; and (4) the regular course of business to make the record at or about the time of the transaction or occurrences recorded." Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005), citing DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 105 (1983). It is well established that G.L. c. 233, § 78 "should be interpreted liberally to permit the receipt of relevant evidence." Wingate v. Emery Air Freight Corp., 11 Mass. App. Ct. 982, 983 (1981). Further, a "judge's decision to admit the records implies these requisite findings under G.L. c. 233, § 78." Beal Bank, SSB, supra at 815, citing Commonwealth v. Baker, 368 Mass. 58, 84 (1975). The decision to admit a document as a business record is reviewed for an abuse of discretion. Id., citing Poirier v. Plymouth, 374 Mass. 206, 210 (1978). The trial judge conducted a preliminary hearing on the admissibility of the exhibit and admitted it as a business record. There was no error or abuse of discretion as the exhibit met the requirements of G.L. c. 233, § 78 and was relevant evidence.

KBL and Lennon claim error in the court repeating the jury instruction on fraud and integration to clarify that it applied to both KBL and the individual defendant. An error in jury instructions is grounds for setting aside a verdict only where the error was prejudicial, i.e., where "the result might have differed absent the error." Blackstone v. Cashman, 448 Mass. 255, 270 (2007). See generally Mass. R. Civ. P. 61; Abramian v. President & Fellows of Harvard College, 432 Mass. 107 , 118-119 (2000) (analyzing remedy for erroneous jury instructions in terms of prejudice). An appellate court will not find reversible error unless the instructions, taken as a whole, are incomplete, inaccurate, or otherwise improper. Hoffman v. Houghton Chemical Corp., 434 Mass. 624, 639 (2001). Since the plaintiffs' claims were brought against both defendants, the court correctly instructed the jury that the instruction on the law applied to both defendants. On review of the jury instructions in their entirety, there was no error of law and the court did not prejudicially overemphasize any part of the instructions.

The court initially gave the jury a verdict slip that contained special questions relating to the G.L. c. 93A claims, which the court had reserved for itself. The option of reserving judgment or referring the matter to a jury with respect to c. 93A claims is a lawful exercise of discretion even if the defendant objects. See Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 37 (1991). Ultimately, the jury was provided a verdict slip without those special questions and upon which it returned its verdict, which was acknowledged by the jury in open court and recorded. The defendants have shown no prejudicial error.

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All that is necessary for "willful" violations of G.L. c. 93A is proof of a "culpable state of mind -- the state of mind of willful disregard for truth or falsity of the fact represented." Computer Sys. Engineering, Inc. v. Qantel Corp., 571 F. Supp. 1365, 1375 (1983). See also Computer Sys. Engineering, Inc. v. Qantel Corp., 740 F.2d 59, 68 (1st Cir. 1984) (affirming District Court's "comprehensive and scholarly analysis"). The evidence presented to the trial court supported the court's judgment for the plaintiffs on the claims under c. 93A. The trial court was not required to make specific findings of fact and rulings of law as they were not requested pursuant to Mass. R. Civ. P. 52(c).

We do not view the unsuccessful appeal to be frivolous or in bad faith, and the appellees' request for appellate attorney's fees is denied.

The appeal is dismissed.