Opinion
21-P-174
03-23-2022
Robert STIKELEATHER v. Eric LOWE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a judgment, after a jury trial, awarding damages for breach of a commercial lease as well as from the orders denying his motion for judgment notwithstanding the verdict and motion for new trial and remittitur. He raises two issues on appeal. First, he argues that the evidence was insufficient to find that he breached the lease by removing support beams from the building that was the subject of the lease. Second, he argues that the jury's damages award was based on speculation and conjecture. We affirm.
1. Motion for judgment notwithstanding the verdict. The denial of a motion for judgment notwithstanding the verdict "present[s a] question[ ] of law reviewed under the same standard used by the trial judge." O'Brien v. Pearson, 449 Mass. 377, 383 (2007), citing D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657 (1978). "[W]e determine whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [plaintiff].’ " Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992), quoting Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989). In making this determination, we "construe the evidence in the light most favorable to the [plaintiff] and disregard that favorable to the [defendant]." O'Brien, supra, citing Cimino v. Milford Keg, Inc., 385 Mass. 323, 326 (1982). "Because the jury are a pillar of our justice system, nullifying a jury verdict is a matter for the utmost judicial circumspection." Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350 (2008). In ruling on a defendant's motion for judgment notwithstanding the verdict, it is "the [trial] judge's task, taking into account all the evidence in its aspect most favorable to the plaintiff, to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff." Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983), citing O'Shaughnessy v. Besse, 7 Mass. App. Ct. 727, 728-729 (1979). "Evidence that contradicts the testimony of the nonmoving party is to be ignored." Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting Conway v. Smerling, 37 Mass. App. Ct. 1, 3 (1994). In sum, the question to be answered by the trial judge, and by us in reviewing the denial of the motion, is, "Does the evidence, construed against the moving party, justify a verdict against him?" D'Annolfo, supra.
The central factual question at issue in this appeal is whether the circumstantial evidence permitted a finding that the defendant cut most of the supporting beams in the building. Taking the evidence in the light most favorable to the plaintiff, it did.
In December 2007, the parties entered into a ten-year commercial lease for premises located in Holbrook. The monthly rent was initially $1,200, and was to increase by set amounts at agreed-upon intervals. The plaintiff had owned the 150 year old building since 1997, and his father had acquired it in 1950. The building was in good condition when the defendant moved in.
The lease provided that the defendant, who was in the business of manufacturing stone countertops and selling tiles, was to use the leased premises for purposes of that business. The lease required the defendant to maintain the property in the same condition as it was at the commencement of the lease, and it prohibited the defendant from making structural alterations or additions to the premises.
The defendant's business required that large (ten feet by five feet) granite and concrete slabs be taken off trucks and transported into the premises by a forklift so that they could be cut. The forklift could not fit through the existing barn doors into the building, so the defendant's project manager -- along with other employees -- "notched" the barn doors. The project manager also took out one small section of beam.
The building's drop ceiling also impeded the forklift. This drop ceiling had been there for as long as the plaintiff had owned the property, and it covered an even older sheetrock ceiling. Both ceilings were intact in 2007, when the building had been painted. In 2008 (i.e., the first year of the tenancy), without the plaintiff's knowledge, the defendant applied for a permit in the plaintiff's name as owner of the property to remove the ceilings and also some offices and bathrooms. After obtaining the permit, the defendant's employees removed the drop ceiling as well as the old ceiling above it, and also various offices and bathrooms. The building inspector, after looking up at the ceiling, signed off on the work. It is a fair inference that a building inspector would not have signed off on the work had the majority of the roof timbers in the building been removed at that time. In other words, it is a fair inference that the beams were intact in 2008 when the inspector signed off on the demolition work.
The permit application misspelled the plaintiff's name, supporting the inference that the plaintiff was not directly involved in it.
The 2008 permit is not in the appellate record, although it was apparently an exhibit at trial.
Both experts testified that most of the roof rafters, also referred to as beams, in the building had been cut. Put more concretely, twenty-five to thirty beams had been cut, spanning approximately forty feet of the building.
After the defendant complained about leaks, the plaintiff put a new roof on the building, and there was thereafter a heavy snow. The roof began to sag. The defendant did not inform the plaintiff of this fact, but rather attempted to address the situation himself by installing a vertical pole to support the roof. The building began to show other signs of structural instability which were caused by the beams having been cut.
On February 1, 2013, the defendant wrote to the plaintiff asking that the rent be fixed at $1,500 per month, rather than increase in accordance with the terms of the lease. At this time, the defendant made no mention of any problems with the building; instead, he claimed that he needed the reduced rent because his business had been in a downward slope for the past year, to the point that he had considered closing the business. The plaintiff responded that he was unwilling to reduce the rent. The defendant stopped paying rent by July 2013.
In April 2013 -- with four years remaining on his lease with the plaintiff -- the defendant entered into a lease for a different building. The new facility had a monthly rent of $3,905, which was more than twice the rent that the defendant had told the plaintiff that his business could not support.
Several months after he entered into the lease for the new building, the defendant hired a structural engineer. Although the defendant claimed he had long been concerned about the structural integrity of the building, he had never complained to the plaintiff. The jury could infer that the timing of the defendant's decision to hire a structural engineer was tied to his decision to break his lease with the plaintiff, and that the purpose was to find a justification for that breach.
The structural engineer found that the building was unstable because of the cut beams. The defendant provided the structural engineer's report to the building inspector, who then inspected and condemned the building, and ordered no further occupancy.
The plaintiff then entered the building and saw that the beams holding up the old sheetrock ceiling had been cut. He had never cut the beams, nor had he ever authorized the beams to be cut. He also discovered that the defendant had installed an underground storage tank without his knowledge, and that the defendant had braced the roof with a vertical pole.
The jury could infer that the beams could not have been cut without demolishing the sheetrock ceiling below them. Photographs of the cut beams permitted the jury to conclude that the cuts were of recent vintage. The jury could thus infer that the beams were cut after the ceilings were removed in 2008. This inference is buttressed by the fact that the jury could infer that the building inspector would have noticed if the majority of the ceiling beams had been cut in 2008 when he looked up at the ceiling before signing off on the permit. The jury could also conclude that the defendant did not complain about any structural problems with the building during his tenancy, and attempted to brace the sagging roof himself, because he did not want the plaintiff to discover that he (the defendant) had cut the beams. The jury could also conclude that the defendant cut the beams so that his forklift could move around inside the building, which it otherwise could not do. Although the defendant claimed that the forklift was never taken into the part of the building where the beams had been cut, a photograph showed the forklift, loaded with a large granite slab, in the area of the building where the beams had been cut.
2. Motion for new trial and remittitur. The defendant argues that his motion for new trial and for remittitur should have been allowed because the damages award was not supported by the evidence. "[T]he allowance of a motion for a new trial based upon an inadequate or excessive award of damages, and the direction of an addition or remittitur, rests in the sound discretion of the judge." Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009), quoting Blake v. Commissioner of Correction, 403 Mass. 764, 771 (1989). "An additur [or remittitur] is appropriate where the judge concludes that the verdict is sound except for the amount of damages and that the amount of damages is unreasonable." Service Publ., Inc. v. Goverman, 396 Mass. 567, 580 (1986), citing Freeman v. Wood, 379 Mass. 777, 785 (1980).
Here, the judge denied the defendant's motion for remittitur because she found that "there was evidence presented of unpaid rent due on the 10 year lease and repair work to the leased property from which the jury reasonably could have found [their] damages award." This was not an abuse of discretion. The defendant apparently stopped paying rent on the lease no later than July 2013. The rent remaining due under the lease at that point far exceeded the $35,000 awarded by the jury. In addition, the plaintiff introduced invoices and bills from various contractors for work required to repair the building from the damage caused by the cut beams. These included a $15,000 bill and one for $4,036. In view of this, the jury's damages award of $35,000 was not unreasonable or excessive, and the judge did not abuse her discretion in denying the defendant's motion for remittitur. See Baudanza, 454 Mass. at 630.
Judgment affirmed.
Orders entered June 28, 2019, denying motions for judgment notwithstanding the verdict and new trial and remittitur, affirmed.