CLAIRE J. DELOID v. FRANCIS E. ELLIS, JR. & Others.

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-514

CLAIRE J. DELOID

vs.

FRANCIS E. ELLIS, JR. & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Francis E. Ellis, Jr., appeals from an amended

judgment entered after a jury trial in the Superior Court. The

judgment, as amended, found Ellis liable to the plaintiff,

Claire J. DeLoid, for conspiring with defendant Jamie M.

Ferreira to defraud the plaintiff in the amount of $151,000

(count III of the plaintiff's complaint) and for fraudulent

conveyance of assets of $126,000 (count IX), plus prejudgment

interest. The amended judgment also declared a resulting trust

in favor of the plaintiff on property in Wareham ostensibly

owned by Ellis (count VIII). Ellis also appeals from the denial

1Jamie M. Ferreira; John J. Ferreira, also known as John J.
Ferreira, Sr.; and Mary Ellen L. Ferreira, individually and as
trustees of the John and Mary Realty Trust.
of his motion for judgment notwithstanding the verdict and

motion for a new trial. Because most of the issues raised in

Ellis's brief are waived, and the few issues properly before us

lack merit, we affirm.

Discussion. 1. Trial errors. The Supreme Judicial Court,

"on numerous occasions, has held that issues not raised below

cannot be argued for the first time on appeal." Boss v.

Leverett, 484 Mass. 553, 562-563 (2020). "The reason for this

fundamental rule of appellate practice is well established: it

is important that an appellate court have before it an adequate

record and findings concerning a claim to permit it to resolve

that claim properly." Id. at 563, quoting R.W. Granger & Sons,

Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001).

For the first time on appeal, Ellis claims that the jury

were not informed of the amount of damages that had already been

awarded against Ferreira and not instructed how to assess

Ferriera's liability in determining Ellis's liability; that the

verdict slip did not provide the jury with appropriate

guidelines for calculating damages; that the judge did not

properly instruct the jury on the knowledge requirement for

civil conspiracy as set forth in Kurker v. Hill, 44 Mass. App.

Ct. 184, 189 (1998); that evidence of Ferreira's criminal

conviction and of the purchase of one of two Cadillac

automobiles was erroneously admitted; and that the judge

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inadequately answered a question from the jury during

deliberations regarding how to determine damages. As nothing in

the record before us indicates that Ellis asserted any of these

claims when they arose at trial, we decline to address them.

See Cormier v. Pezrow New England, Inc., 437 Mass. 302, 311

(2002) (claimed error in judge's instructions to jury waived by

failure to object at trial); Shafnacker v. Raymond James &

Assocs., 425 Mass. 724, 731 (1997) (claimed error in verdict

form waived by failure to object at trial); Mullins v. Pine

Manor College, 389 Mass. 47, 57 n.13 (1983) (claimed error in

admission of evidence waived by failure to object); Simon v.

Solomon, 385 Mass. 91, 107 (1982) (because plaintiff did not

object to judge's instructions on damages, plaintiff "cannot

claim appellate relief on the basis of defects in the

instructions"); Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974)

(failure to object to "the giving or the failure to give an

instruction" before jury retires to consider verdict waives

issue).

Ellis did object, on relevance grounds, to evidence of his

income tax filings. "Whether evidence is relevant is a question

addressed to the substantial discretion of the trial judge,

whose decision we will not overturn except for palpable error."

Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538, 541–542 (2023),

quoting Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997).

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The plaintiff offered Ellis's tax records, which showed his

failure to report certain income, some of it received from or on

behalf of Ferreira, to demonstrate Ellis's knowledge of

Ferreira's fraudulent conduct and participation in fraudulent

conveyances, as well as to impeach Ellis's credibility. The

judge did not abuse his substantial discretion in finding this

evidence to be relevant. Although "[r]elevant evidence may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice," Gath v. M/A-Com, Inc., 440

Mass. 482, 490 (2003), Ellis made no argument that the documents

were unfairly prejudicial, nor did he request a limiting

instruction to mitigate any prejudice. See Mailhiot v. Liberty

Bank & Trust Co., 24 Mass. App. Ct. 525, 529 n.5 (1987) ("The

defendants did not request a limiting instruction, and cannot

complain now").

2. Sufficiency of the evidence. Ellis also argues that

the evidence was insufficient to establish a civil conspiracy

with Ferreira.2 Ellis preserved this issue by raising it, albeit

in general terms, in his motion for a directed verdict. Because

2 Although the caption of this argument section of the brief
refers to all three counts against Ellis, the argument itself is
limited to the claim of civil conspiracy (count III). We limit
our decision to the claim raised. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The
appellate court need not pass upon questions or issues not
argued in the brief . . .").

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he did not present any evidence after the plaintiff rested,

Ellis was not required to renew the motion at the close of all

the evidence. See Martin v. Hall, 369 Mass. 882, 884 (1976).

Specifically, Ellis argues that the evidence did not show

that when Ellis engaged in financial transactions with or on

behalf of Ferreira, he was aware that Ferreira had obtained his

funds by defrauding the plaintiff. As the judge explained in

his jury instructions, the plaintiff alleged that Ferreira and

Ellis had "acted in concert" to funnel fraudulently-obtained

funds into real estate, automobiles, and other vehicles in

Ellis's name to conceal the assets from Ferreira's creditors.

To find Ellis liable, the judge instructed the jury that they

were required to find two elements: (1) a "common design or

agreement" between Ferreira and Ellis, even if not expressed, to

keep assets out of Ferreira's name and to defraud Ferreira's

creditors, including the plaintiff; and (2) that Ellis "provided

substantial assistance or encouragement in furtherance of the

agreement."

"Key to this cause of action is a defendant's substantial

assistance, with the knowledge that such assistance is

contributing to a common tortious plan." Kurker, 44 Mass. App.

Ct. at 189. Such knowledge, however, can be proven by

circumstantial evidence. See Henry W. Savage, Inc. v. Wheelock,

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230 Mass. 111, 116 (1918); Ricky Smith Pontiac, Inc. v. Subaru

of New England, Inc., 14 Mass. App. Ct. 396, 419 (1982).

The evidence permitted the jury to infer that Ellis and

Ferreira were in close communication, that Ellis knew Ferreira

was taking money from the plaintiff, and that Ellis assisted

Ferreira in making purchases with the plaintiff's money and

hiding those purchases from the plaintiff and other creditors,

such as the Internal Revenue Service. The evidence showed

numerous transactions in which Ferreira and Ellis used checks

signed or provided by the plaintiff to make purchases of real

and personal property for Ellis. Ferreira and Ellis frequently

shopped together for these items, including an "ATV", personal

watercraft, and an excavator, which Ellis purchased in his own

name but soon transferred to Ferreira, who then sold them.

Ellis admitted that these vehicles spent little to no time in

his possession. At least once, Ellis received a "kickback" for

his role in the purchase. Ellis was aware that Ferreira had

issues with paying taxes and child support, and agreed to front

the purchases because Ferreira was "afraid of throwing up red

flags." In addition, the evidence showed that Ellis assisted

Ferreira in buying and selling vehicles through the automobile

business that Ellis and his brother owned, that Ferreira

received payment from the business, and that Ellis concealed

these transactions from his brother. This evidence permitted

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the jury to infer that Ellis knowingly participated in

Ferreira's fraudulent conduct.

In his motion for a new trial, focusing on the jury

instructions, Ellis argued that the jury's verdict was against

the weight of the evidence and based on a misunderstanding of

the law. The judge denied the motion, concluding, "Ellis has

not shown that the jury failed to exercise an honest and

reasonable judgment in accordance with the controlling

principles of law so as to warrant a new trial." To the extent

Ellis argues on appeal that a new trial is warranted, we discern

no abuse of discretion in the judge's determination that a new

trial was not warranted. See Wahlstrom v. JPA IV Mgt. Co., 95

Mass. App. Ct. 445, 447 (2019) (judge should not grant new trial

"unless it appears on a survey of the whole case that otherwise

a miscarriage of justice would result" [citation omitted]).

3. Duplicative damages. Finally, Ellis argues that the

damages awarded to the plaintiff under count III for civil

conspiracy were duplicative of the damages awarded under count

IX for fraudulent conveyance. See Szalla v. Locke, 421 Mass.

448, 453 (1995) ("Recovery of duplicative damages under multiple

counts of a complaint is not permissible"). Because Ellis

asserts this argument for the first time on appeal, it is

waived. See Reckis v. Johnson & Johnson, 471 Mass. 272, 300

(2015), cert. denied 577 U.S. 1113 (2016) (where defendants

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never challenged sufficiency of evidence of damages award in

motion for directed verdict or judgment notwithstanding verdict,

claim waived).3

Even if this claim were properly before us, our review

would be "confined to the question whether the verdicts were

supportable under any view of the case as submitted to the

jury," Simon, 385 Mass. at 108, viewed in light of the jury

instructions and the jury's response to the questions on the

verdict slip. See Szalla, 421 Mass. at 453; Mailman's Steam

Carpet Cleaning Corp. v. Lizotte, 415 Mass. 865, 870 (1993).4 As

to civil conspiracy, the judge instructed that Ellis could be

held liable for all of the doings of the conspiracy, even if he

was not aware of the entire scope of the conspiracy and even if

his own share in the conspiracy was small. The verdict form

framed damages as the amount "arising from" the conspiracy

between Ellis and Ferreira. As to the fraudulent conveyance

claim, the judge instructed that damages should be based on the

value of the transferred assets, at the time of the transfer,

and the verdict form asked for the total value of all assets

3 In his motion for judgment notwithstanding the verdict,
Ellis argued only that the resulting trust (count VIII) and the
damages for fraudulent conveyance (count IX) were duplicative.
He does not advance that argument here.

4 As explained supra, any claim that the duplicative damages
resulted from errors in or omissions from the jury instructions
or verdict slip is waived.

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fraudulently transferred to Ellis (or for his benefit) by

Ferreira. So instructed, given the extent of Ferreira's

fraudulent activities and Ellis's participation, the jury had

ample evidence to support awards of damages under both claims

without duplication. Thus, the record does not substantiate

Ellis's claim that the damages were duplicative.5

Amended judgment affirmed.

Order denying motion for
judgment notwithstanding
the verdict affirmed.

Order denying motion for a
new trial affirmed.

By the Court (Vuono,
Massing & Allen, JJ.6),

Clerk

Entered: October 6, 2025.

5 The plaintiff's request for appellate attorney's fees and
costs is denied.

6 The panelists are listed in order of seniority.

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