Opinion
10-P-1686
12-13-2011
ROBERT E. LANGILLE v. THERESA S. FRENCH & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendants Theresa S. French and George R., French, II, appeal from a declaratory judgment of the Land Court that fixed the boundary line between their property and the property of their neighbor, plaintiff Robert E. Langille. They raise two arguments: (a) they were deprived of their right to due process of law because the judge, having declined to conduct a pretrial conference, was insufficiently familiar with their case at trial, and (b) the identity of the plaintiff's expert was not disclosed to them in a timely fashion and the expert relied on exhibits that were not made available to them. We affirm.
Discussion. (a) Pretrial Conference. Under rule 16 of the Massachusetts Rules of Civil Procedure, 'the court may in its discretion direct the attorneys for the parties to appear before it for a conference.' Mass.R.Civ.P. 16, 365 Mass. 762 (1974). The judge may conduct a pretrial conference to clarify the legal and factual issues before the commencement of trial, but is not required to do so. See ibid. 'The fundamental requirement of due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner.' Matter of Angela, 445 Mass. 55, 62 (2005) (internal quotation marks and citation omitted).
Here, the defendants cite to no authority, and we are aware of none, indicating that the judge declining to conduct a pretrial conference, as she was permitted to do under rule 16, could deprive them of their right to due process. Nor do the defendants explain how the absence of a pretrial conference impaired the judge's ability to conduct the trial properly.
Finally, we note that the defendants make no argument that any inadmissible or inappropriate evidence was considered by the judge as a result of the procedures employed. In other words, the defendants do not make any argument that the judge or they would have done something different prior to or during the trial if the judge had conducted a pretrial conference.
(b) Plaintiff's expert. Under rule 26 of the Massachusetts Rules of Civil Procedure, parties generally are not required to disclose the identities or the opinions of expert witnesses except in response to a discovery request. See Mass.R.Civ.P. 26, as amended, 423 Mass. 1401 (1996). Here, the defendants argue that the judge erred in allowing the testimony of the plaintiff's expert witness, a land surveyor, because the defendants did not know the identity of the expert witness until the morning of trial. However, the defendants failed to make a discovery request for the identity and the opinion of the plaintiff's expert witness, hence, the plaintiff was under no obligation to disclose this information. Furthermore, the defendants were made aware of the plaintiff's reliance on the company that employed the expert who testified, and they waived any objection to his testimony.
Judgment affirmed.
By the Court (Graham, Rubin & Wolohojian, JJ.),