DONNA GRISWOLD & Another v. JANET H. BARBATO & 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

24-P-1143

DONNA GRISWOLD1 & another2

vs.

JANET H. BARBATO & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action, which stems from the late Adam Hart, Jr.'s,

transfer of certain real property and other assets to the

defendants, was tried in the Superior Court. The jury returned

verdicts in favor of the defendants on the plaintiffs' claims

for (1) breaches of contract, (2) fraud and deceit, and (3)

1Individually and as co-personal representative of the
estate of Adam Hart, Jr.

2Adam Hart, Third, individually and as co-personal
representative of the estate of Adam Hart, Jr.

3 Kari A. Hart.
conversion.4 The plaintiffs appealed from the resulting amended

judgment.

In the circumstances of this case, we are satisfied that

the video recorded statement of a deceased witness was properly

admitted in evidence as a statement against penal interest. See

Mass. G. Evid. § 804(b)(3) (2025). Relatedly, we discern no

error in the judge permitting defendants' counsel to, in his

opening statement, refer to anticipated evidence which counsel

reasonably believed would demonstrate that plaintiffs' counsel

had improperly influenced potential witnesses to lie or skew

facts relevant to the plaintiffs' claims. We also conclude that

the plaintiffs waived their argument that the jury's verdicts as

recorded on the special verdict slip were inconsistent and that,

in any event, there was no inconsistency in the jury's answers

to the special questions. Finally, we are not persuaded that

the judge left any claims in law or equity unadjudicated.

Accordingly, we affirm the amended judgment.

Procedural background. The plaintiffs' complaint was filed

in 2018, and the case was tried over eleven days in 2023. As we

have noted, the jury found in favor of the defendants on all but

4 The jury also found in favor of the plaintiffs and awarded
them damages of $60,000 on their count against defendant Janet
H. Barbato for abuse of probate process. No party has appealed
from this aspect of the judgment.

2
one of the claims submitted to them, and a final amended

judgment entered on all claims in 2024. This appeal followed.5

Facts.6 The plaintiffs' claims against the defendants

stemmed from an intrafamilial dispute over the disposition of

property in Dennisport originally owned by Adam Hart, Jr., on

which Adam7 and his family had for many years operated

restaurants, hotels, and other hospitality businesses (resort

property). The plaintiffs, Donna Griswold and Adam "Chip" Hart,

III, and defendant Janet H. Barbato, are siblings and Adam's

children; defendant Kari A. Hart is Janet's daughter and Adam's

granddaughter.

5 The plaintiffs moved for a new trial, and the judge denied
that motion. As far as the record reveals, however, the
plaintiffs did not properly appeal from the judge's ruling, and
we therefore do not consider the plaintiffs' challenges to the
judge's denial of their motion for a new trial. See DeLucia v.
Kfoury, 93 Mass. App. Ct. 166, 170 (2018) ("A timely notice of
appeal is a jurisdictional prerequisite to our authority to
consider any matter on appeal"). Were we to do so, however, we
would discern no basis on which to disturb the amended judgment,
or to vacate the order denying the motion for a new trial.

6 Except as noted, the parties do not disagree on the facts
summarized here. This is not the first time that this complex,
vigorously litigated case has been before this court, and
additional background is set forth by a different panel of this
court in an unpublished decision under M.A.C. Rule 23.0, as
appearing in 97 Mass. App. Ct. 1017 (2020). See Griswold vs.
Barbato, 101 Mass. App. Ct. 1110 (2022).

7 We refer to Adam Hart, Jr., as "Adam" to distinguish him
from plaintiff Adam "Chip" Hart, III. For convenience and in
the interest of consistency, we refer to the defendants by their
respective first names, as well.

3
In 2012, at the age of 85 or 86, Adam pleaded guilty in

Federal court to operating a sports gambling business. He

negotiated a $500,000 fine as an alternative sanction to

incarceration, and planned to use the resort property as

collateral for a loan to pay that fine. Mindful of the deadline

for payment of the fine and advised that, as a convicted felon,

he would be unable to obtain even a "hard money" loan using

collateral that he owned or over which he had legal control,

Adam gifted his interest in the resort property to the

defendants to enable them to obtain a loan and agreed with the

defendants that a portion of the loan proceeds they obtained

would be used to pay his fine. The defendants then did just

that.8

In 2015, Adam told his attorneys that he had an oral side

agreement with the defendants that they would retransfer the

resort property back to him after the loan closed and the fine

was paid.9 The defendants have consistently denied both the

existence of the oral side agreement, and that they ever agreed

to retransfer the resort property to Adam.

8 The specifics of the loan and the details of its
subsequent refinancing were live issues at the trial, but they
are not significant to our analysis. We do not detail them
here.

9 The parties refer to this as the "gentleman's agreement."
We use "side agreement."

4
Discussion. 1. Admissibility of recorded statement. As

part of the parties' pretrial discovery, Timothy Reardon10 gave a

deposition in which he testified in detail and under oath that

he was a percipient witness to the formation of the side

agreement between Adam and the defendants. Because, by the time

of trial, both Tim and Adam had died, the plaintiffs' primary

evidentiary support for the existence of the side agreement was

Tim's deposition testimony, which plaintiffs' counsel was

permitted to read to the jury and into the record.

In response, the defendants were permitted to admit into

evidence portions of a later video recorded statement that Tim

gave ex parte to defendants' counsel (recorded statement). In

the recorded statement, Tim characterized his earlier deposition

testimony as "dishonest and a lie," and explicitly recanted his

prior testimony about the existence of the side agreement as

"not truthful." He also represented that he had had little or

no memory about certain facts at the time of the deposition and,

having been coached by plaintiffs' counsel, ultimately testified

untruthfully to "what [plaintiffs' counsel] wanted [him] to

say." The plaintiffs objected to the recorded statement on the

ground that it was inadmissible hearsay.

10Because we refer, infra, to the testimony of Timothy
Reardon's father, Kevin Reardon, we refer to them as "Tim" and
"Kevin" for the sake of clarity.

5
We discern no abuse of discretion in the judge's ruling

that the recorded statement was admissible as a statement

against penal interest.11 See Commonwealth v. Andre, 484 Mass.

403, 414 (2020) ("We review a judge's evidentiary rulings for an

abuse of discretion").

"An out-of-court statement 'is admissible under the penal
interest exception [to the hearsay rule] if (1) the
declarant's testimony is unavailable; (2) the statement so
far tends to subject the declarant to criminal liability
that a reasonable person in his position would not have
made the statement unless he believed it to be true; and
(3) the statement, if offered to exculpate the accused, is
corroborated by circumstances clearly indicating its
trustworthiness.'"

Commonwealth v. Bonnett, 482 Mass. 838, 847 (2019), quoting

Commonwealth v. Carriere, 470 Mass. 1, 17 (2014). Tim's

unavailability is not disputed; as we have noted, he died before

trial began in this case. Additionally, because Tim admitted in

the recorded statement to lying in his earlier deposition, the

recorded statement exposed him to the risk of prosecution for

the crime of perjury. See G. L. c. 268, § 1. See also

Commonwealth v. Mendez, 104 Mass. App. Ct. 341, 349 (2024),

11The judge ruled that the recorded statement was
admissible on three discrete grounds: as a statement against
Tim's penal interest, see Mass. G. Evid. § 804 (b)(3) (2025); as
a declaration of a decedent, see G. L. c. 233, § 65, Mass. G.
Evid. § 804 (b)(5)(A) (2025); and as a subsequent inconsistent
statement, see Mass. G. Evid. § 801 (d)(1)(A) (2025). Because
we conclude that the recorded statement was admissible as a
statement against penal interest, we do not address its
admissibility on the other two grounds.

6
quoting Commonwealth v. Walters, 472 Mass. 680, 702 (2015) ("The

crime of perjury in a judicial proceeding occurs whenever one

'willfully swears or affirms falsely in a matter material to the

issue or point in question'"). Lastly, the trustworthiness of

the recorded statement was exhaustively argued by counsel, and

the judge held a voir dire of Kari (who was present when Tim

gave the recorded statement) before admitting certain portions

of the recorded statement into evidence. Accordingly, it is

apparent that the judge, who had ample opportunity to assess

Tim's credibility and the circumstances in which he gave the

recorded statement, concluded that, at a minimum, "there [was]

some reasonable likelihood that the [recorded] statement could

be true." Commonwealth v. Weichell, 446 Mass. 785, 803 (2006),

quoting Commonwealth v. Galloway, 404 Mass. 204, 208 (1989). It

was therefore proper in these circumstances to permit the

defendants to play the challenged portions of the recorded

statement for the jury.12

12The plaintiffs have not persuaded us that the fact that
Tim's recorded statement was made ex parte changes this analysis
or requires a different result. We are aware of no precedent
that conditions the applicability of the hearsay exception at
issue on notice or an opportunity to cross-examine the
declarant, and the plaintiffs have not provided us with any. We
emphasize, however, that our decision in this case should not be
read as an endorsement of discovery tactics that create a risk
of "trial by ambush," see Hawkins v. Hawkins, 397 Mass. 401, 407
n.5 (1986), or amount to attempts to skirt the usual rules
applicable to discovery and notice. Indeed, our ruling is
confined to the particular facts and procedural posture of the

7
2. Defendants' opening statement and closing argument.

The judge also acted within his discretion when he permitted

defense counsel to preview in his opening statement the evidence

he expected would be admitted at trial, including evidence that

(to the extent the jury credited it) suggested that plaintiffs'

counsel had improperly influenced Tim's deposition testimony.

"The proper function of an opening is to outline in a general

way the nature of the case which the counsel expects to be able

to prove or support by evidence." Posell v. Herscovitz, 237

Mass. 513, 514 (1921). "[One making an] opening statement may

reference anything that [that person] reasonably believes in

good faith will be proved by evidence introduced during the

course of the trial." Commonwealth v. Kapaia, 490 Mass. 787,

800 (2022), quoting Commonwealth v. Copeland, 481 Mass. 255, 261

n.5 (2019).

Here, at the time of the opening statements, the judge had

deferred his ruling on the admissibility of the recorded

statement. Nevertheless, defense counsel could reasonably have

believed that at least some portions of the recorded statement

would be admitted, and that the recorded statement would

persuade the jury that plaintiffs' counsel had manipulated Tim's

deposition testimony. Where the judge had not ruled on the

present case.

8
admissibility of that evidence, his permitting defendants'

counsel to refer to it in his opening was not, as the plaintiffs

argue, "inconsistent with [the judge's] own rulings."

Likewise, where the judge ultimately permitted the

defendants to introduce the recorded statement in evidence, we

discern no error in the judge allowing defendants' counsel to

refer to it in closing argument, and to urge the jury to draw

inferences from Tim's statement, and that of his father, Kevin,

alleging some influence by plaintiffs' counsel on Tim's

deposition testimony. See Mason v. General Motors Corp., 397

Mass. 183, 192 (1986) ("The scope of proper closing argument is

limited to comments on facts in evidence that are relevant to

the issues and the fair inferences which can be drawn from those

relevant facts"). The portions of the recorded statement that

were played for the jury permitted such a finding, and it was

proper to permit defense counsel to marshal the evidence and

argue the fair inferences that could be drawn from it. See id.

The judge correctly and repeatedly instructed the jury that the

closing arguments were not evidence, and he also emphasized the

jury's role as fact finders in the case. See Commonwealth v.

Donahue, 430 Mass. 710, 718 (2000) ("We presume that a jury

understand and follow limiting instructions, and that the

application of such instructions ordinarily renders any

potentially prejudicial evidence harmless" [citations omitted]).

9
"[I]t [was] for [the] jury to determine what to believe."

McNamee v. Jenkins, 52 Mass. App. Ct. 503, 509 (2001).

3. Jury's verdict. The plaintiffs' challenge to the

jury's verdict as "inconsistent" was not raised at trial, and so

is waived. See Conway v. Planet Fitness Holdings, LLC, 101

Mass. App. Ct. 89, 101 (2022). Even were we to consider the

question, however, we would agree with the judge (who addressed

the question when ruling on the plaintiffs' motion for a new

trial) that the jury's answers to questions one and seven on the

special verdict slip were not inconsistent. Question one asked

whether the plaintiffs had proved "that there was an enforceable

oral contract with specific contract terms between Adam Hart,

Jr., [and the defendants]." The jury answered, "No." The jury

then went on to consider question seven, which was conditioned

on a "yes" answer to question one -- "If you find such oral

. . . agreement existed, was it a knowing attempt to execute

[bank fraud]?" The jury also answered this question, "No."

These answers were, as the judge concluded, consistent with one

another; the jury's answer to question one reflected their

determination that the plaintiffs had not proven the existence

of the oral side agreement, and nothing about their answer to

question seven suggested that they had reconsidered that

10
conclusion, particularly in light of the error in the verdict

slip's directions.13

4. Failure to adjudicate all claims. At trial, the judge

reserved to himself the plaintiffs' claims for conversion and

annulment of the alleged asset transfer agreement based on the

defendant's "fraud and deceit." On appeal, the plaintiffs argue

that, because the judge did not submit these arguments to the

jury, "the court did not adjudicate" the "equity issues" of (1)

whether Adam was fraudulently induced to transfer assets to the

defendants, requiring that the transfer documents and an

amendment to a trust be reformed or annulled, and (2) whether,

at the time of Adam's death, his donative intent was to

disinherit the defendants and seek to recover the resort assets

from them.

The judge, who presided over the trial and heard all the

evidence in the case, addressed this argument in his ruling on

the plaintiffs' motion for a new trial. The judge was explicit

that

The special verdict slip mistakenly directed the jurors
13

to answer question seven even if they answered question one in
the negative. The error in these directions went unnoticed
until the deliberating jury asked a question about it; the judge
then provided the jurors with correct directions. The jury
answered the remaining questions in accordance with the judge's
corrected instructions. Neither party objected to this
procedure.

11
"to the extent that there [we]re any equitable claims
reserved to [him] still pending, . . . [he] [found] as a
matter of fact that there was no credible evidence to
support the smorgasbord of theories and/or claims
[presented] by the plaintiffs during the trial; or that
would in any way support any of the listed claims for
equitable relief listed under Count VIII ["Equitable
Remedies"] of the [operative complaint]."

It is apparent that the parties had a full and fair opportunity

to litigate all facets of this case. To the extent that there

remained any outstanding issues to be decided after the jury

returned its verdicts, the judge's decision made clear that he

resolved them against the plaintiffs.14

Amended judgment affirmed.

By the Court (Neyman, Singh &
Hand, JJ.15),

Clerk

Entered: August 22, 2025.

14The defendants' request for appellate attorney's fees and
double costs is denied.

15 The panelists are listed in order of seniority.

12