Opinion
15-P-1071
04-21-2016
JOHN P. FORBES & another v. D & D MULCH AND LANDSCAPE, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the District Court, the plaintiffs secured jury verdicts and damage awards for their claims of breach of contract, breach of warranty, and negligence against the defendant. The judge reserved the plaintiffs' G. L. c. 93A claim for his own determination and rendered a verdict for the defendant. The defendant filed a motion for a new trial pursuant to Mass.R.Civ.P. 59, 365 Mass. 827 (1974), which the judge allowed with respect to the jury's verdict on the negligence claim. The plaintiffs appealed that ruling to the Appellate Division of the District Court, which upheld the judge's rulings in their entirety. We affirm.
The plaintiffs agreed to try the G. L. c. 93A claim simultaneously with their common-law claims.
The evidence at trial was largely undisputed. The defendant delivered loam to the plaintiffs' residence. The plaintiffs' personal landscaper spread and raked the loam over the plaintiffs' yard. Several weeks after the loam was delivered and spread by the landscaper, the plaintiffs complained that there was glass and other debris in the loam and throughout the yard. The plaintiffs contacted the Department of Environmental Protection (DEP) and municipal health officials to investigate the defendant. The DEP initiated an investigation that had not concluded at the time of trial.
At trial, the jury returned a verdict for the plaintiffs on all counts and awarded (i) $178.50, the invoice price for the loam, as damages for breach of contract, (ii) $500 for breach of warranty, and (iii) $10,000 for negligence. The defendant moved for a new trial pursuant to Mass.R.Civ.P. 59, principally challenging the negligence verdict. The judge vacated the jury's negligence award, finding that there was no evidence to support it, and granted a new trial on that claim. In that decision the judge also considered and rejected the plaintiffs' c. 93A claim. Rather than retrying the negligence claim, the parties stipulated that judgment would be entered for the defendant, Mass.R.Civ.P. 54, as amended, 382 Mass. 829 (1981), so that the plaintiffs could pursue an appeal to the Appellate Division. We address the issues raised on appeal.
Pretrial motions. The plaintiffs sought to introduce evidence of the DEP's contemporaneous investigation of the defendant. They assert that the judge erred in quashing their trial subpoena to the DEP and in granting the defendant's motion in limine. As the DEP investigation of the defendant was not completed at the time of trial, the judge did not abuse his discretion in finding that the DEP's investigation records were exempt from disclosure under the deliberative process exemption to the Public Records Act, G. L. c. 66. See Babets v. Secretary of Human Servs., 403 Mass. 230, 237 n.8 (1988). Consequently, the defendant's motion to prohibit the plaintiffs from referring to the ongoing investigations at trial was also properly allowed.
Jury instructions and postverdict jury voir dire. The plaintiffs assert, for the first time on appeal, that because the jury awarded a seemingly arbitrary amount of $500 for the breach of warranty claim, the judge was obligated to reinstruct the jury or conduct a juror voir dire. We are unaware of any legal basis for the assertion that the judge has an obligation, sua sponte, to poll the jury in these circumstances; in any event the issue is waived. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001).
Motion for a new trial. "A trial judge may set aside a jury verdict and order a new trial if the verdict is against the clear weight of the evidence." J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992). We give considerable deference to "a judge's disposition of a motion for a new trial, especially where he was the trial judge, and we will reverse the ruling only for an abuse of discretion." Gath v. M/A-COM, Inc., 440 Mass. 482, 492 (2003). The plaintiffs assert error with respect to two aspects of the judge's denial of their motion for a new trial.
1. Negligence. The judge noted that the evidence at trial established that debris could have come from the defendant's loam but not that the defendant knew or should have known either of the contamination or of the existence of defects in the screening process of the loam. Accordingly, he ruled that the delivery of contaminated loam could support a jury finding for breach of warranty, but not more. He correctly observed that the evidence of contamination alone, "without some other demonstration of lack of care," cannot also support a finding of negligence. In other words, evidence of harm is all that is required to satisfy a claim for breach of warranty, but that does not also satisfy the essential elements of a negligence claim, namely the obligation to demonstrate a causal connection between the defendant's breach of a duty and the resulting harm. Accordingly, we discern no abuse of discretion in the judge's allowance of the motion for new trial with respect to the claim of negligence.
In a related argument, the plaintiffs contend that after the DEP investigation was complete and a notice of noncompliance was issued to the defendant, the judge should have reconsidered the pretrial rulings and "reversed himself." However, the notice of noncompliance provides no additional basis for a finding of negligence. It recites the delivery of loam by the defendant, the subsequent presence of "solid waste" at the plaintiffs' property, and refers to applicable regulations that limit disposal of solid waste to authorized sites, a category that does not describe the plaintiffs' property.
2. Chapter 93A. The plaintiffs assert that the jury's verdict for breach of warranty required that the judge find the defendant liable under G. L. c. 93A. We disagree.
The plaintiffs' reliance on the Attorney General's regulations (to which we give deference, but by which we are not bound) is unavailing in these circumstances, where neither intentional nor negligent wrongdoing was proved. Contrast Calimlim v. Foreign Car Center, Inc., 392 Mass. 228, 235-236 (1984) (where defendant knowingly sold a car it knew to be in bad condition and refused a reasonable demand for relief, the warranty of fitness and merchantability are components of a c. 93A violation).
It is well established that "a jury's verdict on related common-law claims is not binding on a judge who has reserved determination of a c. 93A claim to [him]self." Specialized Technology Resources, Inc. v. JPS Elastomerics Corp., 80 Mass. App. Ct. 841, 844 (2011). We reject the plaintiffs' contention that because the jury found for the plaintiffs on the breach of warranty claim, the judge was bound to find that there was a c. 93A violation. Kattar v. Demoulas, 433 Mass. 1, 12 (2000) ("It is indeed both possible and feasible for a judge deciding a c. 93A claim to make findings of fact that are contrary to those made by a jury on a parallel common law claim, as here"). The judge was not bound by the jury finding; the parties stipulated that the c. 93A claim was reserved for the judge. Accordingly, the judge's dismissal of the c. 93A claim shall not be disturbed.
Decision and order of Appellate Division affirmed.
By the Court (Grainger, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 21, 2016.