Marguerite Cocco owned an insurance agency. In 2002 she contracted with another insurance agency, LJM, to refer customers to it in exchange for fifty percent of commissions received from her referrals.
After a number of years LJM reduced the percentage of commissions paid and then abruptly ceased paying all commissions. Cocco sued.
The trial judge allowed LJM's motion to preclude any evidence of unpaid commissions owed prior to August 13, 2004, based on the six year statute of limitations for breach of contract.
After the jury-waived trial the judge found in favor of Cocco and awarded her damages for commissions due from and after August, 2004. The judge offset the amount due by $2,000 on the ground that LJM had paid that amount in 2008. The total amount awarded was $23,058.57 plus interest.
Cocco appealed the preclusion of evidence and the offset.
In Cocco v. LJM Ins. Agency, Inc., 87 Mass. App. Ct. 1106, 2015 WL 709623 (unpublished), the Massachusetts Appeals Court affirmed the rulings of the trial court.
The Appeals Court held that, contrary to Cocco's argument, nothing in LJM's 2008 payment was intended to renew its promise to her so that the statute of limitations would be reset.
The court also held that the judge properly offset the 2008 payment from the judgment. Cocco argued that the payment should have been applied to payments due prior to 2004. The court held, "as the judge excluded all evidence of debts prior to 2004 on statute of limitations grounds, there was no evidence properly before the court of debts prior to August, 2004." This ruling only makes sense if Cocco made no proffer of evidence of the pre-2004 debt for the purpose of showing that the 2008 payment was for the older debts. The exclusion of evidence of debts prior to 2004 for the purpose of recovering those debts does not equal the exclusion of debts prior to 2004 for the purpose of showing that certain payments were to offset those debts.
It is worth noting that the court also held that both of Cocco's arguments were deemed waived as not properly preserved for appeal.
One of the hats I wear is as an appellate lawyer. This case serves as a reminder that the time to start thinking about an appeal is at the beginning of the case.