Opinion
14-P-1240
08-11-2015
LVI ENVIRONMENTAL SERVICES, INC. v. COMMONWEALTH TANK, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This action for nonpayment for services and materials arose from a project to rehabilitate industrial property located in Peabody and owned by ANO Realty Trust (ANO). As herein relevant, a jury found that the general contractor, Commonwealth Tank, Inc. (Comm Tank), breached its subcontract with LVI Environmental Services, Inc. (LVI), by failing to pay LVI $347,502 for work performed. We find no merit to Comm Tank's claims that the judge erred in: (1) declining to instruct the jury on mitigation, and (2) admitting evidence of a witness's prior conviction. Therefore, we affirm the second amended judgment in favor of LVI.
ANO was a party defendant in the trial court. Following default by ANO, LVI and ANO entered into an agreement for judgment. As of October, 2014, the execution obtained by LVI has not been satisfied.
1. Mitigation. At trial, Comm Tank submitted a proposed jury instruction on mitigation of damages. "The general rule with respect to mitigation of damages is that a plaintiff may not recover for damages that were avoidable by the use of reasonable precautions on [its] part." Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 586 (1982). Typically, the duty to mitigate does not arise until after the defendant's wrongful conduct has occurred. See Breault v. Ford Motor Co., 364 Mass. 352, 354 n.3 (1973).
The proposed jury instruction read, in part: "Persons who suffer damage by the wrongful act of another have an obligation to exercise reasonable care and diligence to avoid loss and to minimize damages. LVI may not recover for losses that it could have been prevented by reasonable efforts."
The trial judge declined to give the instruction, noting at the charge conference that the jury could take two possible views of the subcontract based on the conflicting evidence. If the jury believed Comm Tank's contention that the parties' written contract was orally modified so that Comm Tank would pay LVI only when paid by ANO, the jury would not need to reach the element of damages. If, however, the jury credited LVI's contention that no oral modification had occurred, the terms of the written contract governed the dispute, and Comm Tank would have been obligated to pay LVI irrespective of whether Comm Tank was paid by ANO.
The judge correctly ruled that mitigation had no application in the case under either party's theory. On the evidence presented, LVI's continuation of the phased work notwithstanding Comm Tank's failure to pay for prior work in full could not reasonably be found to constitute a failure to mitigate damages. A mitigation instruction was not required.
2. Prior conviction. Even assuming that the issue was properly preserved, Comm Tank has not demonstrated any abuse of discretion in the denial of its motion in limine to exclude the 2010 criminal convictions of its president, Kevin Hoag, of attempting to commit a crime. LVI appropriately sought to impeach the credibility of Hoag, the only witness to testify about the alleged oral modification to the contract. See Brillante v. R.W. Granger & Sons, Inc., 55 Mass. App. Ct. 542, 545 (2002), quoting from Labrie v. Midwood, 273 Mass. 578, 582 (1931) ("One who has been convicted of crime is presumed to be less worthy of belief than one who has not been so convicted"). See generally G. L. c. 233, § 21. Because this case turned on credibility assessments, there was no abuse of discretion in admitting Hoag's conviction for this limited purpose.
Although Comm Tank's attorney objected to the denial of his motion in limine, at trial, he failed to object to the admission of the evidence. See Ducharme v. Hyundai Motor Am., 45 Mass. App. Ct. 401, 409 n.8 (1998).
Furthermore, the judge minimized the prejudicial effect of the evidence by limiting LVI's questioning on this issue. As a result, the jury never heard about the acts alleged in the indictment or the nature of the offense to which Hoag pleaded guilty. Comm Tank's attorney also did not object to any of the jury instructions regarding credibility and impeachment.
Second amended judgment affirmed.
While Comm Tank's arguments are unpersuasive and unavailing, we do not find them frivolous. LVI's request for attorney's fees and double costs is therefore denied.
By the Court (Berry, Kafker & Cohen, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 11, 2015.