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March 6, 2026 Get Citation Alerts Download PDF Add Note

DAVID LADD v. ALINA BOSCH; RALPH v. LADD, Third-Party

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-1175

• Precedential Status: Non-Precedential

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.4K)

• PDF

Combined Opinion

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-1175

DAVID LADD1

vs.

ALINA BOSCH; RALPH V. LADD,2 third-party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After an eight-day Superior Court jury trial, the

defendant, Alina Bosch (Bosch), appeals from judgments holding

her liable for abuse of process and dismissing her claims under

the New Hampshire consumer protection act (CPA), N.H. Rev. Stat.

Ann. § 358 -A (2015), and from postjudgment orders denying

relief. This case arose from Bosch's renovation of a farmhouse

she owned in Dunbarton, New Hampshire (farmhouse). Bosch hired

the plaintiff, David Ladd (David), doing business as Ladd

1 Doing business as Ladd Property Development.

2 Doing business as Ladd Plumbing and Heating.
Property Development, to do the renovation.3 After Bosch

terminated his services, David brought this action for breach of

contract, unjust enrichment, and conversion, claiming that Bosch

owed him payment for his work. Bosch brought counterclaims in

contract and tort and for violations of the CPA -- not only

against David, but also, as third-party claims, against David's

father, Ralph V. Ladd (Ralph), doing business as Ladd Plumbing

and Heating. Ralph counterclaimed against Bosch for abuse of

process, and the jury returned a verdict in Ralph's favor. On

the CPA claims, the judge found that, despite jury verdicts

against David for misrepresentation, negligence, and gross

negligence, Bosch did not prove that either David or Ralph

violated the CPA.

Bosch appeals, arguing that the judge erred by (1) denying

her motions for a directed verdict and judgment notwithstanding

the verdict (judgment n.o.v.) on Ralph's abuse of process

counterclaim; (2) ruling to admit evidence of Ralph's legal

costs and his medical condition; (3) denying Bosch's motion to

reduce the jury's damages award; and (4) finding that Bosch did

not prove that David violated the CPA. We affirm.

3 Because the same surname is shared by plaintiff David
Ladd, third-party defendant Ralph V. Ladd, and witness Caroline
Ladd, we refer to them by their first names to avoid confusion.

2
Background. Bosch hired David and his construction

business to renovate the farmhouse. They did not have a written

contract; rather, Bosch would communicate what work she wanted

performed, and David would provide an estimated cost. The scope

of work on the farmhouse grew substantially, and David tried to

handle it by himself with workers from his business when he

should have obtained additional expertise, particularly from a

structural engineer.

Ralph and his plumbing business had no involvement in the

renovation of the farmhouse. Bosch never asked Ralph to do any

work on the farmhouse, never paid him for any work on the

farmhouse, and never saw him there. Ralph had no management or

control over David's business or its projects.

On November 5, 2016, Bosch terminated David's services. On

November 30, David sent Bosch a final invoice, which Bosch did

not pay. As mentioned above, David sued Bosch for unpaid work.

Bosch brought counterclaims against David and third-party claims

against Ralph for breach of contract, breach of the implied

covenant of good faith and fair dealing, misrepresentation,

negligence, gross negligence, and violations of the CPA. Ralph

counterclaimed against Bosch for abuse of process.

3
The jury returned a verdict in favor of Ralph on his abuse

of process claim, awarding him $232,715 in damages.4 Judgment on

the counterclaim entered, and Bosch appealed. Bosch filed

various posttrial motions, including for judgment n.o.v.,

remittitur of damages, and for a new trial. The judge denied

the motions, and Bosch appealed.

Before trial, the judge had reserved to his own decision

Bosch's claims that David and Ralph had violated the CPA. The

judge found that Bosch had not proven those claims. Judgment on

Bosch's CPA claims entered, and Bosch appealed. Bosch's

consolidated appeals from these judgments are now before us.

Discussion. 1. Abuse of process. Bosch argues that the

judge erred in denying her motions for a directed verdict and

for judgment n.o.v. on Ralph's abuse of process counterclaim.

Bosch contends that Ralph did not prove that she had an ulterior

4 The judge directed verdicts in favor of Ralph on Bosch's
claims for breach of contract and misrepresentation. The jury
returned a verdict in favor of Ralph on Bosch's claims for
negligence and gross negligence. No issue is before us as to
those claims.

The jury returned a verdict in favor of Bosch on David's
breach of contract claim as well as on her misrepresentation,
negligence, and gross negligence counterclaims against David,
awarding her $40,950 in damages. David did not appeal, and has
not participated in this appeal.

4
or illegitimate motive or purpose in bringing her third-party

claims against Ralph. We are not persuaded.

As the judge instructed the jury, to prove abuse of

process, Ralph was required to show by a preponderance of the

evidence that Bosch (1) used legal process; (2) for an ulterior

or illegitimate purpose; that (3) resulted in damages to Ralph.

See Psy-Ed Corp. v. Klein, 459 Mass. 697, 713 (2011), citing

Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636

(2010); Powers v. Leno, 24 Mass. App. Ct. 381, 383-384 (1987).

As to the ulterior or illegitimate purpose, the judge

instructed:

"The ulterior purpose must be to gain some collateral
advantage not properly involved in this proceeding itself,
such as the surrender of property or the payment of money.
The desire to litigate a dispute by itself does not
translate into an ulterior purpose for bringing the action
even if you determine that [Bosch]'s claims against Ralph
were groundless."

That instruction paraphrased governing cases on this element,

including Psy-Ed Corp., supra at 713-714 & n.35, and Ladd v.

Polidoro, 424 Mass. 196, 199-200 (1997).

In denying the postjudgment motions, the judge concluded

that "the jury was . . . justified in its determination that

Bosch's third party claim[s] against Ralph served the ulterior

and illegitimate purpose in providing leverage in the case that

5
David had commenced."5 We agree. See Millennium Equity

Holdings, LLC, 456 Mass. at 640 (ulterior purpose of lawsuit was

to disqualify defendant from representing plaintiff's wife in

divorce).

As mentioned, see note 4, supra, all of Bosch's third-party

claims against Ralph resulted in directed verdicts and jury

verdicts in Ralph's favor. In denying the motion for judgment

n.o.v. on the abuse of process counterclaim, the judge found

that the "absence of Ralph's connection to the N.H. work became

very clear at trial." The fact that Bosch's claims against

Ralph were groundless tended to show that she had an ulterior

motive in bringing them. "Filing a groundless claim is not an

element of the tort, but it is relevant, because it may tend[]

to show that the process was used for an ulterior purpose"

(quotation and citation omitted). Psy-Ed Corp., 459 Mass. at

713.

Before the trial judge, Bosch contended that because she

brought the third-party claims against Ralph in the proceeding

At trial, Ralph argued that Bosch also had two other
5

ulterior motives: to make David and Ralph the "scapegoats" for
her own mismanagement of the farmhouse renovation so that she
could obtain funds from her father, and as "revenge" for David's
lawsuit. We need not consider those theories, because we agree
with the judge that the jury could have found that Bosch's
ulterior motive was to gain leverage in David's breach of
contract action.

6
that David had initiated, those claims were not collateral

within the meaning of Psy-Ed Corp., 459 Mass. at 713-714, which

requires that "the ulterior purpose must be to gain some

collateral advantage." The judge disagreed, pointing out that

Bosch's argument would mean that "a third-party complaint could

never qualify as abuse of process." We concur. In Psy-Ed

Corp., the Supreme Judicial Court stated, "[w]e do not suggest

that the claim must be collateral to the proceeding, but only

that it be collateral to the legitimate purposes of the

proceeding." Id. at 714 n.36.

Bosch argues that the judge's instruction on ulterior

motive was "erroneous," and the jury's "confusion" about the

instruction was shown by their question during deliberations.6

Bosch did not object at trial to either the instruction or the

response to the jury question, and thus she waived the issue.7

6 The jury asked, "If the preponderance of the evidence
shows that [Bosch] had little or no evidence connecting Ralph to
David's business, does that in itself prove an ulterior or
illegitimate motive, re: abuse of process?"

7 Because the trial judge was unavailable, a different judge
handled the jury question. The transcript reflects that Bosch's
counsel provided that judge with an electronic document
containing the trial judge's abuse of process instruction, and
the substitute judge used it to craft a typewritten response,
which was provided to the jury and marked for identification.
Bosch has not provided us with a copy of that exhibit. As
appellant, it was her duty to do so. See Mass. R. A. P.
18 (a) (1) (A) (v), as appearing in 481 Mass. 1637 (2019).

7
See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). See also

Greene v. Philip Morris USA Inc., 491 Mass. 866, 877-878 (2023).

1. Evidentiary rulings. "We review a trial judge's

evidentiary decisions under an abuse of discretion standard."

N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466

Mass. 358, 363 (2013). "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made a clear error of judgment in weighing the factors relevant

to the decision, such that the decision falls outside the range

of reasonable alternatives" (quotation and citation omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See

Nyberg v. Wheltle, 101 Mass. App. Ct. 639, 648 (2022).

a. Testimony about legal costs incurred by Ralph. Bosch

argues that the judge erred in admitting the testimony of

Ralph's bookkeeper, Caroline Ladd (Caroline), about the amount

of the legal costs Ralph incurred in defending against Bosch's

third-party claims. Bosch contends that Caroline's testimony

was hearsay and violated the best evidence rule.

In a trial for abuse of process, damages include "the costs

of defending against the improper action." Millennium Equity

Holdings, LLC, 456 Mass. at 645. "As such, fees for defending

such a lawsuit are considered compensatory damages, not

8
attorney's fees." Id., citing American Velodur Metal, Inc. v.

Schinabeck, 20 Mass. App. Ct. 460, 470 (1985).

As of trial, Bosch's third-party claims against Ralph had

been pending for more than six years. Caroline, who had been

the bookkeeper for Ralph's business for about sixty-two years,

testified that throughout the case she communicated with Ralph's

counsel "[a]ll the time" and reviewed "thousands of pages" of

documents. Asked how much Ralph had incurred in legal costs in

defending against Bosch's third-party claims, Caroline

testified, without objection, "approximately 235,000 dollars."

Ralph's counsel then showed Caroline a document and asked her

for the specific amount; over Bosch's objection, Caroline

testified that, as of May 28, 2023, it was $232,715. On Bosch's

objection, the judge precluded Ralph from introducing the

document into evidence because of its late disclosure.8

We conclude that Caroline's testimony about the amount of

legal costs incurred by Ralph was not hearsay. See DiMarzo v.

American Mut. Ins. Co., 389 Mass. 85, 105-106 (1983) (where

documents evidencing legal costs were generated while action was

8 The document was not marked for identification. Bosch has
included in the record appendix an invoice from Ralph's counsel
that seems to be the document that Ralph's counsel showed
Caroline; it states, "TOTAL[] AS OF MAY 28, 2023 - $232,715."
Neither party challenges the inclusion of the invoice in the
record appendix.

9
pending and thus not business records, "[t]hose bits of relevant

evidence which could be found in the records were introduced

through the testimony"); American Velodur Metal, Inc., 20 Mass.

App. Ct. at 467 (abuse of process damages proven by testimony of

counsel's law partner, which "was necessarily based in part on

the records of the firm"). Bosch did not object to Caroline's

testimony that Ralph's legal costs were "approximately 235,000

dollars," but only to Ralph's counsel's using the document to

refresh her recollection. To refresh a witness's recollection,

a lawyer may show the witness a document that contains hearsay.

See Commonwealth v. Cunneen, 389 Mass. 216, 225 (1983) (memory

refreshed by invoices). See also Mass. G. Evid. § 612(a)(1)

(2025).

As for Bosch's claim that Caroline's testimony violated the

best evidence rule because the invoice was not admitted in

evidence, that claim was not preserved for appellate review. At

trial, Bosch strenuously objected to admission of the invoice.

She cannot now be heard to complain about its absence,

particularly on a theory she did not raise at trial. See

Ciccarelli v. School Dep't of Lowell, 70 Mass. App. Ct. 787, 799

(2007) (issue not preserved for appeal where party failed to

"lodge a specific objection on the record" at trial).

10
b. Testimony about Ralph's medical condition. Bosch

argues that the judge erred in admitting testimony of Ralph and

Caroline that while the litigation was pending Ralph suffered

two strokes, and because of that testimony Bosch was entitled to

a new trial.

In denying the motion for a new trial, the judge concluded

that "there were valid reasons to introduce evidence of Ralph's

ailments and condition," and it "did not poison the trial as

Bosch suggests." We agree that evidence of Ralph's medical

condition was admissible to explain inconsistencies between his

deposition testimony and his trial testimony. Ralph testified

that medications he was taking at the time of his deposition

caused vertigo, loss of memory, extreme confusion, and fatigue,

but the medications he was taking at the time of trial did not

affect his memory. We conclude that the judge did not abuse his

discretion in ruling that the evidence was relevant. See

Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004).

Moreover, as the judge noted, he had "instructed the jury

that it could not attribute any medical condition to the

litigation against Ralph, due to the absence of medical

testimony." Bosch did not object to those instructions. We

presume that the jury followed them. See David v. Kelly, 100

Mass. App. Ct. 443, 451 (2021). We agree with the judge that,

11
because the jury did not award Ralph any damages related to his

medical condition, the issue is "academic."

1. Damages. Bosch argues that the judge erred in denying

her motion for remittitur of the jury's award to Ralph of

$232,715 in damages. We apply a "highly deferential" standard

in assessing the evidence supporting a jury's award of damages

"and will overturn such an award only if it is 'clearly

excessive in relation to what the plaintiff's evidence ha[d]

demonstrated damages to be.'" Trites v. Cricones, 105 Mass.

App. Ct. 246, 256 (2025), quoting Spinosa v. Tufts, 98 Mass.

App. Ct. 1, 10 (2020).

In denying Bosch's motion, the judge found that Ralph's

evidence of damages was based "almost entirely" on Caroline's

testimony. As mentioned, Caroline testified, without objection,

that the amount of Ralph's legal costs was "approximately

235,000 dollars," and, after her recollection was refreshed,

testified that it was $232,715 -- the same amount the jury

awarded. In light of this evidence, the jury's damage award

cannot be said to "lack[] an evidentiary foundation." Anthony's

Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 483 (1991). We

discern no abuse of discretion in the denial of Bosch's

postjudgment motion to the extent that it was based on an

12
excessive damage award. See Baudanza v. Comcast of Mass. I,

Inc., 454 Mass. 622, 630 (2009).

1. New Hampshire consumer protection act. Finally, Bosch

argues that the judge erred in finding that David did not

violate the CPA, N.H. Rev. Stat. Ann. § 358 -A.9 Bosch contends

that because the jury found David liable for misrepresentation,

and, according to Bosch, the trial evidence would support a

finding that David's misrepresentations were fraudulent and

intentional, the judge was required to find that David also

violated the CPA. We disagree.

We apply the New Hampshire statute. See N.J. Gendron

Lumber Co. v. Great N. Homes, Inc., 8 Mass. App. Ct. 411, 418-

419 (1979) (applying CPA). It proscribes "any person" from

using "any unfair or deceptive act or practice in the conduct of

any trade or commerce," including "[r]epresenting that goods or

services are of a particular standard, quality, or grade . . . ,

if they are of another." N.H. Rev. Stat. Ann. § 358 -A:2 (VII).

See N.H. Rev. Stat. Ann. § 358 -A:2 (V). As construed by the New

Hampshire Supreme Court, a misrepresentation "does not, as a

matter of law," amount to a violation of the CPA. Fat Bullies

Farm, LLC v. Devenport, 170 N.H. 17, 26 (2017). Rather, "the

9 On appeal, Bosch does not argue that the judge erred in
ruling that Bosch failed to prove that Ralph violated the CPA,
and so we do not consider the issue.

13
objectionable conduct must attain a level of rascality that

would raise an eyebrow of someone inured to the rough and tumble

of the world of commerce."10 Id. at 24, quoting George v. Al

Hoyt & Sons, Inc., 162 N.H. 123, 129 (2011). In the context of

the CPA, "[t]he trial court's findings of fact and rulings of

law will be upheld unless they lack evidentiary support or

constitute clear error of law." Axenics, Inc. v. Turner Constr.

Co., 164 N.H. 659, 675 (2013), quoting George, supra. Cf. Green

Mountain Realty Corp. v. Fifth Estate Tower, LLC, 161 N.H. 78,

82 (2010) (whether CPA applied to conduct in political setting

was question of law reviewed de novo).

From the trial evidence, including the testimony of David

and Bosch, the judge found that David was "in over his head" in

trying to renovate the farmhouse, and "should have obtained

additional expertise," particularly that of a structural

engineer, and as a result some of David's work had to be redone.

The judge found that those facts were reflected in the verdicts

10That standard was originally enunciated by this court in
Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504
(1979), construing G. L. c. 93A, the Massachusetts analogue to
the CPA. Although the Supreme Judicial Court has since
repudiated that language as "uninstructive," Massachusetts
Employers Ins. Exchange v. Propac-Mass, Inc., 420 Mass. 39, 42
(1995), the New Hampshire Supreme Court has adopted it, see
Barrows v. Boles, 141 N.H. 382, 390-391 (1996), and continues to
apply it in construing the CPA.

14
against David for misrepresentation, negligence, and gross

negligence, but David "did not undertake to defraud Bosch, nor

did he take her money without performing work or buying

materials." We conclude that the judge's findings of fact do

not lack evidentiary support, and his rulings of law do not

constitute clear error. See Axenics, 164 N.H. at 675-677.

Conclusion. The judgment dated June 2, 2023, in favor of

Ralph on his abuse of process counterclaim is affirmed. The

orders dated September 27, 2023, denying Bosch's motions (1) for

judgment n.o.v., or, in the alternative, for a new trial, on the

abuse of process counterclaim; (2) for remittitur as to the

jury's award of damages on abuse of process; and (3) to alter or

amend the judgment, or for a new trial, based on Ralph's medical

testimony, are affirmed. The judgment dated August 23, 2024,

against Bosch on her CPA counterclaims is affirmed.11

So ordered.

By the Court (Singh, Grant &
Tan, JJ.12),

Clerk

Entered: March 6, 2026.

11 Ralph's request for appellate attorney's fees is denied.

12 The panelists are listed in order of seniority.

15