BLAS REYNOSO v. ASHWANI RATHOR & 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-917

BLAS REYNOSO

vs.

ASHWANI RATHOR & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action stems from a contract regarding a turf soccer

field between the plaintiff, Blas Reynoso, and the defendants,

Ashwani Rathor and Vikas Rathor, the owners of a summer camp.

The plaintiff filed a complaint in the Superior Court against

the defendants alleging that the defendants breached their

contract to share income from the field and that they were

unjustly enriched. The defendants answered and counterclaimed

for breach of contract, fraud, and promissory estoppel, alleging

that the plaintiff failed to complete the turf field as

promised. After a trial, a jury found that there was a valid

1 Vikas Rathor.
contract between the parties and that the plaintiff breached it

but the defendants did not breach it.

The jury rejected the plaintiff's claim that the defendants

had been unjustly enriched. Finally, the jury found that the

plaintiff had committed fraud. The jury awarded the defendants

$860,580 in damages. After interest was calculated, the

judgment against the plaintiff totaled $1,067,548.33. The

plaintiff appeals from the judgment. We affirm.

Discussion. 1. Waiver. None of the issues that the

plaintiff raises on appeal were preserved in the Superior Court.

As a result, they are waived. See Palmer v. Murphy, 42 Mass.

App. Ct. 334, 338 (1997). See also Mass. R. A. P. 16(a)(9)(A),

as appearing in 481 Mass. 1628 (2019). Where the parties have

briefed the issues, however, we exercise our discretion to

consider those arguments that conceivably rise to the level of

appellate argument. See Rivas v. Chelsea Housing Auth., 464

Mass. 329, 337 (2013) (exercising discretion to consider issue

of sufficient public policy even though waived).

2. Entitlement to an interpreter. We are not persuaded

that the judge abused his discretion by failing, sua sponte, to

provide the plaintiff with an interpreter. General Laws

c. 221C, § 2, grants a "non-English speaker, throughout a legal

proceeding, . . . a right to the assistance of a qualified

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interpreter who shall be appointed by the judge." Section one

defines a "Non-English speaker" as "a person who . . . has

difficulty in speaking or understanding, the English language,

because he uses only or primarily a spoken language other than

English." G. L. c. 221C, § 1.

The plaintiff proceeded pro se at trial. He claims that

the record establishes that he was a "non-English speaker"

because there are multiple instances where he struggled to

understand the judge or properly present his case. Accordingly,

he argues the judge was on notice of his difficulty speaking

English and committed reversible error when he did not, sua

sponte, appoint the plaintiff an interpreter. We disagree.

In fact, the record shows that the plaintiff was able to

speak English well. First, the evidence at trial established

that the plaintiff communicated with and did business with the

defendants in English. See Crivello v. All-Pak Mach. Sys., 446

Mass. 729, 733-734 (2006) (evidence of being able to explain

medical condition to doctors in English suggested plaintiff was

not non-English speaker). Second, and more importantly, it is

apparent from the trial transcript that the plaintiff

communicated effectively with the other participants in the

trial and understood the judge. See Crivello, supra at 735

(record does not suggest plaintiff was non-English speaker even

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if plaintiff had to repeat herself or judge had to seek

clarification to understand what she was conveying). He was

able to examine witnesses, make objections, and deliver both an

opening statement and a closing argument. See id. (transcript

reflected plaintiff's ability to understand what evidence was

significant to her case despite fact that English was not her

first language). To the extent the plaintiff expressed

occasional difficulty in understanding the judge or the

proceedings, his struggles seem to have stemmed more from

unfamiliarity with the mechanics of litigation than any

difficulty understanding English. The judge was alert to the

plaintiff's needs and intervened to provide additional

explanation when the plaintiff appeared to require it, including

by providing detailed explanation of the jury charge. We

discern no error in the judge's failure to appoint an

interpreter for the plaintiff in these circumstances.

2. Jury bias and peremptory challenges. We are likewise

unpersuaded by the plaintiff's argument that the judge deprived

him of a fair trial by failing to (1) question jurors about

their biases concerning national origin; and (2) sua sponte

question the defendants' peremptory challenges of jurors.

a. Jury bias. We are not persuaded that the judge erred

or otherwise abused his discretion by failing to question the

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prospective jurors about their possible biases against Spanish-

speaking people and immigrants, where the issue was neither

raised by the plaintiff nor apparent on the record. Pursuant to

G. L. c. 234, § 28, a trial judge "must examine the jurors

individually when it appears that issues extraneous to the case

might affect the jury's impartiality." Commonwealth v. Grice,

410 Mass. 586, 588 (1991). That is particularly so in a

criminal case, where the defendant has Federal and State

constitutional rights to due process and an impartial jury. The

plaintiff has not identified any precedent supporting his

argument that the judge in this civil commercial dispute was

required to conduct individual voir dire of prospective jurors

about their potential biases stemming from his status as a pro

se litigant who spoke English as a second language, and we are

aware of none. Contrast Commonwealth v. Colon, 482 Mass. 162,

175-176 (2019) (in criminal cases involving murder, sexual

offenses against children, and rape, where victim and defendant

are of different ethnic origins, judge must, upon request,

conduct individual voir dire on potential bias). Moreover, the

plaintiff has not pointed to any facts particular to his

individual circumstances, the facts of this case, or the nature

of his legal claims that posed a risk of juror bias or prejudice

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against him. Indeed, as the defendants' counsel noted at oral

argument, they too speak English as a second language.

To the extent any of the jurors harbored the particular

biases highlighted in the plaintiff's brief, the judge mitigated

the risk of resulting harm when he gave the Superior Court model

jury instruction on implicit bias. See Superior Court Model

Jury Instructions, Final Charge 10-11 (Oct. 2021). The judge's

instruction included the cautions that "[a]ll people deserve

fair and equal treatment in our system of justice regardless of

their race, national origin, . . . or any other personal

characteristic," and that the jurors should "consider [the

parties] as individuals rather than as members of a particular

group." Cf. Commonwealth v. Kapaia, 490 Mass. 787, 799 (2022)

("even standard instructions, such as those given in this case,

contribute to mitigating the harm created by improper

[considerations]").

b. Peremptory challenges. In the course of jury

empanelment, defense counsel exercised peremptory challenges to

excuse the jurors numbered 12, 16, and 23. In an affidavit

prepared after the trial (but not, so far as the record

reflects, presented to the trial judge), the plaintiff averred

that two of these challenges applied to "a Haitian woman" and a

Caribbean or Central American Immigrant." Waiver concerns

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aside, where the plaintiff did not develop the record to support

his affidavit, and did not raise this issue to the trial judge,

we discern no reason to disturb the usual "presumption that the

exercise of a peremptory challenge is proper." Commonwealth v.

Benoit, 452 Mass. 212, 218 (2008). See Commonwealth v. LeClair,

429 Mass. 313, 321 (1999) ("A trial judge is in the best

position to decide if a peremptory challenge appears improper

and requires an explanation by the party exercising it").

3. Jury instructions. The plaintiff argues that the trial

judge erred in failing to instruct the jurors "to recognize and

overcome their biases against the national origin, linguistic

minority status and the fact that [the plaintiff] was not born

in the United States." The plaintiff also argues that the judge

erroneously instructed the jury that the plaintiff's statements

during his examination of the witnesses were not evidence. We

discern no error.

The plaintiff did not request that any specific

instructions be given to the jury nor did he make any objections

after the judge delivered his proposed instructions. See

Rotkiewicz v. Sadowsky, 431 Mass. 748, 750-751 (2000) ("[a]

party objecting to the inclusion or exclusion of an instruction

must . . . clearly bring the objection and the grounds for it to

the attention of the judge"); Jarry v. Corsaro, 40 Mass. App.

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Ct. 601, 603 (1996) ("A party must make a proper objection to a

jury instruction before the jury retires in order to preserve

the issue for appeal"). See also Mass. R. Civ. P. 51 (b), 365

Mass. 816 (1974). Again, even were these arguments not waived,

they would fail. As noted above, on the issue of juror bias,

the judge gave the model jury instruction on implicit bias,

which specifically warned the jurors to guard against their own

implicit bias based on race or national origin and urged them to

"consider [the parties] as individuals rather than as members of

a particular group." See Superior Court Model Jury

Instructions, Final Charge 10-12 (Oct. 2021). No more was

required in these circumstances.

The judge also correctly instructed the jury that "[a]

question put to a witness by counsel or by the pro se plaintiff,

no matter how artfully phrased, is not evidence unless and until

the witness affirmatively answered or adopted it." See Superior

Court Model Jury Instructions, Final Charge 5-6 (Oct. 2021).

4. Fraud and misrepresentation claims. The plaintiff

claims that the judge erred in failing to enter a directed

verdict sua sponte for the plaintiff on the defendants' fraud

and misrepresentation claims. However, the plaintiff failed to

make a motion for a directed verdict at the close of the

defendant's evidence. See Mass. R. Civ. P. 50(a), 365 Mass. 814

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(1974). Moreover, he did not make a motion for judgment

notwithstanding the verdict after the jury returned. See Mass.

R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998). This

precludes appellate review. See Hatton v. Meade, 23 Mass. App.

Ct. 356, 361-362 (1987).

5. Missing witness instruction. The plaintiff claims that

he was entitled to a missing witness instruction based on the

defendants' failure to call the plaintiff's former business

partner, Carlos Semedo, to testify at trial, and that the judge

erred in preventing the plaintiff from arguing facts not in

evidence. Waiver claims aside, we are not persuaded.

The plaintiff's claim that the judge erred by interrupting

his argument and reminding him to "focus on the evidence"

(rather than assertions about Semedo that were not in evidence)

is simply incorrect. The judge was properly limiting the

plaintiff's arguments to the trial evidence and the reasonable

inferences drawn from it. 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").

As for the plaintiff's claim that the judge should

have given a missing witness instruction,

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"a missing witness instruction is appropriate when a
party 'has knowledge of a person who can be located
and brought forward, who is friendly to, or at least
not hostilely disposed toward, the party, and who can
be expected to give testimony of distinct importance
to the case,' and the party, without explanation,
fails to call the person as a witness" (citation
omitted).

Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). First,

there was virtually no evidence about Semedo's involvement in

the field improvement project after a preliminary meeting in

early 2017, in which the plaintiff represented that Semedo was

his business partner and would install the field. The

defendants quickly learned that Semedo had left the project.

Beyond the trial evidence, the plaintiff never made any proffer

about Semedo's relevance to his claims. Thus, the judge had no

basis to infer that Semedo would "'be expected to give testimony

of distinct importance to the case.'" Id. Second, it is

readily understandable that the defendants would not have called

Semedo, since as the plaintiff's business partner his loyalty

presumably would have been with the plaintiff.

6. Fair and orderly publication and presentation of

exhibits. Finally, the plaintiff argues the judge erred in

permitting the parties to present the exhibits to the jury as

the parties had agreed, given that some exhibits included

duplicate documents, and in then instructing the jury "not to

consider multiple copies more important than single documents."

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Even if this claim were not waived, it is meritless. The judge

correctly instructed the jury that evidence included the

witnesses' in-court testimony and "the documents that were

admitted in evidence during the trial" and that "the weight of

the evidence is not necessarily determined by . . . the number

of Exhibits introduced into evidence by either party." There

was no error.

Judgment affirmed.

By the Court (Hand, Grant &
Wood, JJ.2),

Clerk

Entered: July 29, 2025.

2 The panelists are listed in order of seniority.

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