ADA MANAGEMENT SERVICES LLC v. SAMUEL HO & Another.

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

25-P-262

ADA MANAGEMENT SERVICES LLC

vs.

SAMUEL HO & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this commercial lease dispute, the defendant, Samuel Ho,

appeals from a judgment after a jury-waived trial in the

Superior Court. We conclude that the judge properly rejected

the defendant's contention that invoices of contractors hired by

the plaintiff were not admissible as business records of the

plaintiff. We further conclude that the evidence at trial

permitted the judge to reject the defendant's claim that he had

overpaid the rent. Finally, accepting the plaintiff's

concession that the judgment is $9,000 too high, we reduce the

judgment by $9,000 but otherwise affirm.

1Xin Sheng Jia. The claims against Xin Sheng Jia were
voluntarily dismissed.
1. Business records. We review a trial judge's

evidentiary rulings for an abuse of discretion, see Commonwealth

v. Kozubal, 488 Mass. 575, 589 (2021), cert denied, 142 S. Ct.

2723 (2022), and, if we find error, we reverse only if that

"error has injuriously affected the substantial rights of the

parties." David v. Kelly, 100 Mass. App. Ct. 443, 451 (2021),

quoting Coady v. Wellfleet Marine Corp., 62 Mass. App. Ct. 237,

244 (2004).

"The business records hearsay exception provides that 'a

writing or record . . . made as a memorandum or record of any

act, transaction, occurrence or event, shall not be inadmissible

in any civil or criminal proceeding as evidence of the facts

therein stated because it is transcribed or because it is

hearsay or self-serving.'" Kozubal, 488 Mass. at 588, quoting

G. L. c. 233, § 78. In his motion in limine, the defendant

argued that the various invoices proffered by the plaintiff were

not business records because "the documents were not created by

plaintiff." At trial, that remained the only objection raised

by the defendant to the admission of the invoices. Accordingly,

that is the only ground preserved for appellate review.2 See

Trapp v. Roden, 473 Mass. 210, 220 n.12 (2015).

2 For that reason, we do not reach the defendant's new
foundation objections raised for the first time on appeal.

2
This preserved objection is unavailing. It is settled law

that "[t]he foundation for the admissibility of a business

record does not need to be established through the testimony of

the preparer nor . . . the transmitter of the record."

McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819 (2006). See

Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 479-480 (2017),

quoting Beal Bank, SSB v. Eurich, 444 Mass. 813, 817 (2005)

("The flexible view of who may supply the foundation facts for

purposes of the business records exception reflected in the

Federal Rules of Evidence is consistent with the settled

Massachusetts view that G. L. c. 233, § 78, 'should be

interpreted liberally to permit the receipt of relevant

evidence'").

The case of Quinn Bros., Inc. v. Wecker, 414 Mass. 815

(1993), is directly on point. There, the defendant offered

"various invoices from various contractors and equipment

suppliers" as "evidence of its costs." Id. at 817. The Supreme

Judicial Court held that the invoices were properly admitted as

business records on the testimony of the defendant's records

custodian. Id. at 818. As the court stated, "The statute

contemplates admissibility of records if they represent a system

of keeping accounts. The fact that [the defendant] did not

write the invoices does not mean that the records were not the

business records of the [defendant]." Id.

3
Here, Alexander Politman testified that he was the keeper

of records for the plaintiff, that he paid the various invoices,

and that they were maintained by the plaintiff in the ordinary

course of business. Cf. OneBeacon Ins. Group v. RSC Corp., 69

Mass. App. Ct. 409, 413 (2007) (loss estimate prepared by public

adjustor and used by insurer's adjustor in computing insurer's

own loss estimates and deciding homeowner's compensation was

properly admitted). As the business's owner, Politman was

"reportin[ing] the information as a matter of business duty."

Commonwealth v. Fulgiam, 477 Mass. 20, 40, cert. denied, 583

U.S. 923 (2017), quoting Wingate v. Emery Air Freight Corp., 385

Mass. 402, 406 (1982). The invoices were admissible as business

records to show what the plaintiff paid to repair the damage

caused by the defendant.

The defendant's reliance on NationsBanc Mortg. Corp. v.

Eisenhauer, 49 Mass. App. Ct. 727 (2000), is misplaced.

Although that case did indeed state that that the maker of a

business record must testify for its admission, id. at 734, that

proposition is no longer good law. In Beal Bank, SSB, 444 Mass.

at 816-817, the Supreme Judicial Court stated that our holding

in NationsBanc Mortg. Corp. was contrary to the principle "that

G. L. c. 233, § 78, 'should be interpreted liberally to permit

the receipt of relevant evidence,'" and that admission of a

business record does not require testimony from its maker. Beal

4
Bank, SSB, supra, quoting Wingate v. Emery Air Freight Corp. 11

Mass. App. Ct. 982, 983 (1981), S.C., 385 Mass. 402 (1982). The

trial judge acted within his discretion in admitting the

plaintiff's invoices.

2. Counterclaim. Under Rule 20 of the Rules of the

Superior Court (2018), parties to a civil suit may "consider and

propose options to achieve a less costly and more expeditious

resolution of their dispute." Rule 20(2)(h) permits a "trial to

a judge without a jury with or without additional conditions,"

such as "a waiver of detailed written findings of fact and

rulings of law." When written findings are waived, the rule

mandates a "deferential standard of review." Aspell v. Raad,

106 Mass. App. Ct. 291, 292 (2025). "[A]ppellate review is

conducted according to the same standard as that applied to a

judgment entered following a jury verdict." K & K Dev., Inc. v.

Andrews, 103 Mass. App. Ct. 338, 344 (2023). A jury verdict is

not set aside unless it "has no rational basis in the evidence."

Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc.,

68 Mass. App. Ct. 582, 594-595 (2007). Accordingly, a rule

20(2)(h) verdict "will be affirmed so long as 'anywhere in the

evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be drawn in favor of' the prevailing party." Aspell,

supra at 293, quoting K & K Dev., Inc., supra at 344.

5
Here, the parties agreed to try the case pursuant to rule

20, waiving both a trial by jury and detailed findings and

rulings of law. Applying the properly deferential standard of

review, we conclude that the evidence supported the trial

judge's conclusion that the defendant did not overpay the rent

by three months.

At trial, Politman testified that defense counsel was

"probably correct" that the defendant made a total of "39 [rent]

payments for 36 months." Politman further testified that the

money was never returned to the defendant. On redirect

examination, however, Politman clarified that in September 2017

and February 2018 three checks came back unpaid, so the

plaintiff received a net total of thirty-six rent payments.

Then, on recross examination, Politman confirmed that the

plaintiff "eventually got the money" for September and February.

The trier of fact was "entitled to credit all, part, or

none of [a witness's] testimony." Vedensky v. Vedensky, 86

Mass. App. Ct. 768, 774 (2014). Applying the standard of review

applicable to a judgment under rule 20, we have no basis to

disturb the trial judge's decision to credit the testimony

Politman gave on redirect examination. See Buster v. George W.

Moore, Inc., 438 Mass. 635, 644 (2003) ("The judge was free to

credit and discredit portions of each party's testimony");

Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10-11 (2020), quoting

6
Brewster Wallcovering Co., 68 Mass. App. Ct. at 609 ("so long as

there was '[e]vidence that enable[d] the [fact-finder] to arrive

at a reasonably approximate estimate of damages,' the award will

stand on appeal").

3. Correction of the verdict. During closing arguments,

plaintiff's counsel stated that "the total [damages] we are

asking for on all of our claims is $69,643.45 . . . with the

understanding that $9,000 should be applied against that, so the

final [award] should be $60,643.45." In an apparent clerical

error, the judgment orders "that the plaintiff ADA Management

Services, LLC recover of defendant Samuel Ho the sum of

$69,643.25 with interest thereon." At oral argument,

plaintiff's counsel again agreed that the award should be

reduced by $9,000. Accordingly, the final award shall be

amended to reflect a reduction of $9,000, representing the

security deposit paid by the defendant and properly retained by

the plaintiff. See G. L. c. 186, § 15B (4) (iii); Peebles v.

JRK Property Holdings, Inc., 496 Mass. 389, 393-394 (2025).

4. Conclusion. So much of the judgment as ordered the

plaintiff to recover the amount of $69,643.25 from the defendant

is vacated, and a new judgment shall enter ordering the

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plaintiff to recover the amount of $60,643.25 from the

defendant. As so modified, the judgment is affirmed.3

So ordered.

By the Court (Meade,
Ditkoff & Toone, JJ.4),

Clerk

Entered: January 13, 2026.

3 Under the lease, if the "[l]andlord prevails in such suit,
Tenant shall pay Landlord its costs of suit, including, without
limitation, a reasonable sum for attorneys' fees in such suit,
and such attorneys' fees shall be deemed to have accrued on the
commencement of such action." At oral argument, defense counsel
properly agreed that the lease allows for appellate attorney's
fees. The plaintiff's request for appellate attorney's fees is
granted. Consistent with the procedure set forth in Fabre v.
Walton, 441 Mass. 9, 10-11 (2004), the plaintiff may submit an
application for its appellate attorney's fees and costs, with
supporting documentation, within fourteen days of the date of
this opinion. The defendant shall have fourteen days within
which to respond. See Slive & Hanna, Inc. v. Massachusetts
Comm'n Against Discrimination, 100 Mass. App. Ct. 432, 442 n.20
(2021).

4 The panelists are listed in order of seniority.

8