Opinion
No. 15–P–150.
10-04-2016
Abdiel Eddie Santos CORTORREAL v. Patricia VALLEY & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The minor plaintiff, through his mother and next friend, commenced this action alleging that the defendants violated the lead poisoning law, G.L. c. 111, §§ 189A, by failing to remediate lead paint contamination at a residential property they owned or managed. The plaintiff moved for partial summary judgment against Alfonso Garcia contending that he was strictly liable for the injuries the plaintiff sustained as a result of exposure to lead . See Mass.R.Civ.P. 56, 365 Mass. 824 (1974). Garcia opposed the plaintiff's motion. After a hearing, the judge allowed the plaintiff's motion for partial summary judgment and found Garcia “liable ... for all damages proved to have been caused to the minor plaintiff by [Garcia's] violation of G.L. c. 111, § 197.” An assessment of damages hearing was held before a different judge to determine the nature and the extent of the damages caused by the exposure. The plaintiff sought a total of $1,167,062.50 in damages. In consideration of the plaintiff's medical and school records, as well as arguments made at the hearing, the judge ordered Garcia to pay $350,000 in damages, plus $63,633.43 in interest.
The complaint also alleged interference with quiet enjoyment, negligence, and breach of the implied warranty of habitability. The plaintiff voluntarily dismissed these claims.
A default judgment entered against Patricia Valley in the amount of $450,000, plus interest in the amount of $42,756.54. See Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012).
On appeal, Garcia asserts that the plaintiff failed to present expert testimony or otherwise to demonstrate that $350,000 in damages were causally related to his lead paint exposure. It is not clear to us how the judge arrived at the $350,000 figure and, therefore, we must remand the case for further findings.
“[T]he amount of damages awarded is a factual issue reviewed on appeal under an abuse of discretion standard.” Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 424 (2005). The judge appeared to base his assessment on the filings and argument, but the factual basis for the judge's conclusion that the lead poisoning caused $350,000 in damages nevertheless is not apparent from his findings. Because the findings provide no evidentiary support for the award of $350,000 in damages, we remand for further findings to allow the judge to state more specifically how he arrived at the $350,000 in damages.
Garcia did not include the hearing transcript in the record appendix. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997) ( “In civil cases, the appendix shall contain: ... parts of the record to which the parties wish to direct the particular attention of the court”).
The filings available to us include medical and school records; however, these filings alone do not support a finding that the plaintiff's exposure to lead resulted in the $350,000 in damages the judge assessed. See Ankiewicz v. Kinder, 408 Mass. 792, 795 (1990) (“the substantive nature of the plaintiff's claim under the lead paint act is a tort claim” and plaintiff has burden of proving element of damages arising from breach). Contrast Parker v. D'Avolio, 40 Mass.App.Ct. 394, 401 (1996) (plaintiff presented at trial detailed testimony of two experts as to “extent of and damage due” to injuries sustained from exposure to lead).
Garcia's remaining contention that the plaintiff's notice of the assessment of damages hearing was incomplete and untimely under Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012), merits little discussion. No default judgment entered against Garcia; therefore, the plaintiff was not required to comply with the notification requirements set forth in rule 55(b)(2).
So much of the judgment as awards the plaintiff $350,000 in damages plus interest of $63,633.43 is vacated. The case is remanded to the Superior Court for further findings consistent with this memorandum and order. The remainder of the judgment is affirmed.