Opinion
August 6, 1987.
Present: Doyle, P.J., Forte Ruma, JJ.
Negligence, Rupture of waterbed. Practice, Civil, Inconsistency between finding and rulings; report.
Report of court's dismissal of defendants' report. Action heard in the Malden Division by Heffernan, J.
Philip S. Iuliano for the plaintiff.
David Weingarten for the defendants.
This is an action based on negligence wherein the plaintiff seeks damages from her tenants due to the rupture of the defendants' waterbed.
There is no need to recite the reported evidence, nor to repeat the requests for rulings filed by the appellants because the defendants claim "to be aggrieved by the court's finding in favor of the plaintiff, in light of the rulings of law made by the court". In actuality, the appellants' appeal is based on their claim of an inconsistency between the finding for the plaintiff and the court's rulings of law.
When a party alleges inconsistencies between a trial judge's findings and rulings, the proper procedure is first to bring the issue to the trial judge's attention either by a motion for a new trial or by a motion to correct the inconsistencies and not raise the issue for the first time by a report to the Appellate Division. Cook v. Kozlowski, 351 Mass. 708 (1967); Katsaros v. Johnson, 1978 Mass. App. Div. Adv. Sh. 117. Neither procedure was followed here.
Report dismissed.