Opinion
11-P-219
12-19-2011
VALERIE SIDERS v. SLEEK MEDSPA NATICK LLC.
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
The defendant appeals from an adverse judgment whereby it was ordered to pay the plaintiff $150,000 in damages. On appeal the defendant claims that the plaintiff presented no evidence of negligence, no evidence regarding economic loss, and no evidence of permanent scarring. Because these claims were not preserved by the defendant, they are waived, and the judgment is affirmed.
Background. On August 31, 2010, a jury awarded the plaintiff $150,000 for her claim of negligence against the defendant who had provided laser hair removal services to her. A judgment entered on the jury verdict. At trial the defendant did not file a motion for a required finding after the plaintiff rested, nor after the close of the evidence. In addition, the defendant did not file a motion for a new trial.
Together with her negligence claim, the plaintiff filed a G. L. c. 93A claim alleging unfair trade practices. The judge reserved the c. 93A claim for his consideration. Despite hearing arguments regarding the c. 93A claim on September 1, 2010, the judge never issued findings of fact and rulings of law. No judgment has entered on the c. 93A claim, and a notice of appeal was not filed. See Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999). Because the parties are entitled to a decision on the c. 93A claim, we direct that claim to the trial court for further proceedings thereon.
Discussion. In order to present an issue on appeal, a party must first preserve the issue at the trial court level. It has long been held that a party's failure to preserve an issue as to the sufficiency of the evidence precludes appellate review of same. The defendant argues that the evidence did not support the award of $150,000 in damages. Because the defendant failed to file a motion for required finding or a motion for a new trial, we will not consider this issue on appeal. See Shafir v. Steele, 431 Mass. 365, 371 (2000). Nor did the defendant preserve the claim that there was insufficient evidence to support the award, which it now raises on appeal. Again, because it failed to preserve this issue at the trial court level, we will not consider this issue on appeal. Hatton v. Meade, 23 Mass. App. Ct. 356, 361-362 (2000).
In its brief the defendant raise several arguments, including a claim that the plaintiff's closing argument was unsupported by the evidence. In the 'argument' section of its brief, the defendant focuses on the sufficiency of the evidence claim both as to the negligence claim and the claim that the evidence did not support the verdict. Even if the plaintiff's closing argument was improper, this claim was not preserved and, therefore, will not be considered on appeal.
The defendant argues that it would have been futile to file a motion for a required finding or a motion for a new trial, given the trial judge's postverdict comments indicating that he would not overturn the jury's verdict. However, the failure to preserve the record, notwithstanding the judge's comments, are fatal to the defendant's appellate claims. In its brief, the defendant cites no authority for the proposition that a judge's indication of how he would rule on a motion for a new trial is a substitute for the necessity of filing and arguing a motion for a required finding at the required mileposts during trial or a motion for a new trial in order to preserve the appellate record.
The trial judge held a hearing after the jury rendered their verdict, during which the judge indicated to the defendant that he would not overturn the jury's verdict. Our decision should not be read as an endorsement of the manner in which the judge conducted the postverdict hearing. Rather, we advise that trial judges hear all of the arguments from the parties before indicating how they would rule.
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Judgment on the jury verdict affirmed.
By the Court (Kantrowitz, Fecteau & Carhart JJ.),