Opinion
16-P-842
04-13-2017
Daniel M. PALMIER v. Patrick AHEARN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This dispute arises out of a contract that Daniel Palmier executed with architectural firm Ahearn Schopfer Associates, LLC, and general contractor Sweeney Custom Homes & Renovations, Inc., to design and construct additions to his home in Wellesley. A jury returned a verdict for the defendants, and Palmier appeals, arguing that the judge erred by (1) limiting the testimony of his expert witness, (2) denying his motion for a new trial on damages, and (3) ruling for Sweeney on his claim under G. L. c. 93A. We affirm.
Patrick Ahearn is the owner of Ahearn Schopfer Associates, LLC (now known as Patrick Ahearn Architect, LLC). We will refer to these defendants together as "Ahearn."
Bryan Sweeney is the owner and president of Sweeney Custom Homes & Renovations, Inc. We will refer to these defendants together as "Sweeney."
Background. In January of 2010, Palmier contracted with Ahearn to design an indoor swimming pool, specialty three-car garage, and expansion to his master bedroom. Several months later, Palmier retained Sweeney to act as the general contractor for the project. Sweeney worked on the project for approximately one year, during which Palmier was consistently late in making payments. As a result, in October of 2011, Sweeney removed himself from the project.
In March of 2012, Sweeney brought suit against Palmier to recover his unpaid fees, asserting breach of contract, among other claims. Thereafter, Palmier filed a separate action against both Sweeney and Ahearn for breach of contract, negligence, fraud/conversion, and violations of G. L. c. 93A. His complaint alleged that the defendants "were seldom on the job site," "repeatedly made excuses for delays and increased costs of the project," performed substandard work, and "walked off the job," leaving the project "unsecured and unheated." In response, Ahearn brought counterclaims to recover his unpaid fees.
After the actions were consolidated, the jury returned a verdict for the defendants, awarding damages in the amounts of $20,000 to Ahearn and $126,000 to Sweeney. The jury also returned an advisory verdict finding that the defendants did not engage in unfair or deceptive trade practices under G. L. c. 93A. The judge adopted the advisory verdict, determining that it was "consistent with [her] assessment of the evidence," and entered judgment for the defendants on Palmier's c. 93A claim. This appeal ensued.
Discussion. 1. Expert witness testimony. At trial Palmier sought to have one of his expert witnesses, general contractor Steven Mielke, offer his opinions as to the various ways that the defendants performed substandard work on the project. After the defendants objected, the judge ruled that Mielke could only testify as to alleged deficiencies in the "pool room roof," finding that Palmier's expert witness disclosure failed to give adequate notice of any other topic. Palmier now argues that the judge erred in limiting Mielke's testimony because the defendants did not request that Palmier clarify his expert witness disclosure at any time prior to trial. We review the judge's decision solely to determine whether there was "prejudicial error resulting from an abuse of discretion." Kace v. Liang, 472 Mass. 630, 637 (2015) (quotation omitted).
Although Palmier also contends that the judge improperly limited the testimony of his second expert, Greg Trotter, and the testimony of a lay witness, Wes Myers, the judge made clear that her ruling applied only to Mielke. Palmier fails to identify any limitation that the judge placed on Trotter's testimony. With respect to Myers, Palmier's only claim of error is that the judge should not have sustained an objection to a question about what the "[building] code [required] for the landing on the pool." The judge did not abuse her discretion in this regard, however, because a witness may not testify as to legal conclusions. See Lind v. Domino's Pizza, LLC, 87 Mass. App. Ct. 650, 664 (2015).
The rules of civil procedure require parties to respond to expert witness interrogatories by identifying each expert witness expected to testify at trial, "the subject matter on which the expert is expected to testify," and "the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Mass.R.Civ.P. 26(b)(4)(A)(i), 365 Mass. 772 (1974). Parties must also "supplement [ ] ... an expert interrogatory response if there are any changes or additions to it." Kace, 472 Mass. at 636, citing Mass.R.Civ.P. 26(e)(1)(B), 365 Mass. 772 (1974). The purpose of these rules is "to facilitate the fair exchange of information about critical witnesses and to prevent unfair surprise." Kace, 472 Mass. at 636.
Palmier's response to the defendants' expert witness interrogatories stated only in general terms that Mielke would testify "to deficiencies in the standard of care, plans, and oversight of the project by [Ahearn], and to construction defects in the project performed for Palmier." Separately, Palmier produced a report authored by Mielke concerning alleged deficiencies in the "pool room roof." Given the generality of Palmier's interrogatory responses, the judge did not abuse her discretion in limiting Mielke's testimony to the sole topic addressed in his report. "[W]hen the proponent has not given proper notice of ... the subject matter of the expert's anticipated testimony, either in his answers to interrogatories or in his supplementary responses," the judge is entitled to exclude the testimony. Id. at 637, quoting from Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993). See Barron v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519-520 (2003) (judge was within discretion to exclude expert's testimony "as a result of the plaintiffs' failure adequately to answer [the defendant's] expert interrogatories and, later, to supplement the answers they did provide"). Here, the judge determined that Palmier's interrogatory responses did "not identify[ ] specifically what it is that in [the expert's] opinion fell below the standard of care." Limiting the scope of Mielke's testimony to the subject matter of his report was therefore appropriate and not an abuse of discretion. See Kace, 472 Mass. at 636.
2. Damages. Palmier next argues that the damages awarded to the defendants are excessive. "[A]n award of damages must stand unless ... to permit it to stand was an abuse of discretion on the part of the court below, amounting to an error of law." Mirageas v. Massachusetts Bay Transp. Authy., 391 Mass. 815, 822 (1984), quoting from Bartley v. Phillips, 317 Mass. 35, 43 (1944). An award amounts to an error of law only if the damages were "greatly disproportionate to the injury proven or represented a miscarriage of justice," Mirageas, 391 Mass. at 822, quoting from doCanto v. Ametek, Inc., 367 Mass. 776, 787 (1975), or were "so great ... that it may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice or corruption." Reckis v. Johnson & Johnson, 471 Mass. 272, 299 (2015), quoting from Bartley, 317 Mass. at 41.
Contrary to the defendants' assertions, Palmier preserved this claim by raising it in a motion for a new trial. See Shafir v. Steele, 431 Mass. 365, 371 (2000), quoting from Pridgen v. Boston Hous. Authy., 364 Mass. 696, 715 (1974) ("[Q]uestions concerning inadequate or excessive damages ... should ordinarily be raised by bringing a motion for a new trial").
The judge did not abuse her discretion in declining to grant a new trial on damages. As to Ahearn, contrary to Palmier's claim that the evidence only supported an award of $5,400, there was evidence that Ahearn's damages were actually far greater than the $20,000 awarded. And as to Sweeney, the $126,000 award was directly supported by the testimony of the defendants' expert that Sweeney "[was] owed ... $126,691 and change." Although Palmier contends that the $126,000 figure should be reduced to account for double billing, the expert testified that he analyzed the invoices and already "deduct [ed] the double billing" before arriving at his final calculation. Neither award was excessive.
Specifically, the jury could have found that Palmier owed Ahearn upwards of $60,000 based on testimony that Ahearn's contract required Palmier to pay him twelve percent of the final construction value of the project; Ahearn had performed 98.5 percent of the project; the final construction value of the project was $856,468.87; and Palmier had paid Ahearn only $37,800.
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3. Chapter 93A claim. Finally, Palmier argues that the judge should have ruled against Sweeney on the c. 93A claim because Sweeney and his expert admitted to an unfair business practice, i.e., double billing. But Palmier has cited no authority to support his assertion that double billing is per se unfair or deceptive within the meaning of c. 93A. To the contrary, there was sufficient evidence for the judge to conclude that the double billing was inadvertent: Sweeney testified that he could have made "mistakes" in his billing, and the expert characterized them as "accidents." We defer to the judge's assessment of the witnesses' credibility. See Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014).
Judgment affirmed.