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Civil practice - Depositions - Best evidence rule - Statute of frauds.

Byline: Mass. Lawyers Weekly Staff

Where a plaintiff filed a motion in limine and sought to compel deposition answers in a property case against his brother, the motion to compel is denied because he did not identify the questions he intended to ask, and the motion in limine is denied because the evidence he sought to bar was not necessarily prohibited by the best evidence rule or statue of frauds.

"This action is a fight between siblings, [Paul and Gerald] concerning their respective interests in 823 LLC[.] Defendants deny that Plaintiff has any ownership interest in 823 LLC. They assert, instead, that there was a 'friendly foreclosure' of Plaintiff's interest in the Property in or about 2004

"Presently before the Court are two recently-filed motions. The first is Plaintiff's motion to compel [his brother] to answer certain questions put to him by Plaintiff's counsel at his continued deposition[.] The second is Plaintiff's motion in limine seeking to bar Defendants from offering any evidence at the upcoming trial of Plaintiff's purported agreement to the 'friendly foreclosure' that allegedly took place back in 2004.

"[The motion to compel] is DENIED. [T]he Court is unwilling to blindly direct Gerald to answer questions that the Court has not seen. As to Plaintiff's specific question concerning Gerald's 'reputation in the community in South Boston,' the question is too broadly phrased to be of any meaningful assistance in proving whether Plaintiff is a fifty percent owner/member of 823 LLC.

"[The motion in limine] also is DENIED. Neither the best evidence rule, nor the statute of frauds necessarily precludes the evidence that Plaintiff seeks to exclude. While the best evidence rule generally requires the introduction of evidence of '[a]n original writing or record ... in order to prove its contents....' (see Mass. Guide to Evid. 1002), production of the original 'may be excused and other evidence of its contents will be admissible" in circumstances where the original 'has been lost, destroyed, or otherwise made available.' ...

"Similarly, if any oral contract between Plaintiff and Gerald already has been fully acted upon and Gerald has acquired complete ownership of the Property as a result, the statute of frauds does not preclude enforcement of the parties' agreement. See Dangelo v. Farina, 310 Mass. 758, 761 (1942). "

Martin v. Martin, et al. (Lawyers Weekly No. 09-124-18) (2 pages (Davis J.) (Suffolk Superior Court) (Docket No. 1784CV00442-BLS1) (Oct. 5, 2018).

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Title Annotation:Martin v. Martin, Suffolk Superior Court, Massachusetts
Publication:Massachusetts Lawyers Weekly
Date:Nov 14, 2018
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