Opinion
11-P-289
12-22-2011
JAMES E. WARREN v. WILLIE J. MURPHY & another.
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
On December 22, 2006, the plaintiff, James E. Warren, filed a complaint against the defendants, Willie J. Murphy and Allen Parham, alleging breach of contract and G. L. c. 93A violations. The contracts in question were for construction work to be completed by the defendants on a Dorchester property owned by the plaintiff. After a trial, a jury found in favor of the defendants on the plaintiff's breach of contract claims, and awarded damages for each defendant on their respective counterclaims, under the theories of quantum meruit and unjust enrichment. The jury awarded Murphy $12,000 and Parham $7,000 as compensation for work they completed for the plaintiff and for which they had not been paid. Subsequently, the trial judge entered judgment for the defendants on the plaintiff's G. L. c. 93A claims.
On appeal, the plaintiff argues (1) that the defendants submitted insufficient evidence to show that they had substantially performed the work required by their contracts, and were therefore not entitled to quantum meruit damages; (2) that the defendants were not entitled to an unjust enrichment recovery because the evidence established that the defendants breached the contract, and that their work was sloppy and violated city codes, causing the plaintiff to suffer substantial damages in correcting the work; (3) that there was insufficient evidence to establish that the receipts for materials submitted by the defendants were used in the construction work at the plaintiff's property; (4) that the evidence established that a contract existed and the defendant breached the contract; and (5) that the plaintiff was entitled to judgment on the c. 93A claim because the defendants unfairly failed to perform after collecting money from the plaintiff.
Each of these arguments is essentially a claim that the evidence was insufficient to warrant the findings of the jury and the trial judge. However, the docket does not reflect that the plaintiff filed a motion for a directed verdict, nor is a copy included in the record appendix. The plaintiff does not claim that a verbal motion for a directed verdict was made, nor can we ascertain for ourselves if one was made as a copy of the full trial transcript has not been provided by the plaintiff. 'It is an established rule that an ' appellate court cannot review the sufficiency of the evidence in the absence of an effective motion for a directed verdict." International Fid. Ins. Co. v. Wilson, 387 Mass 841, 846 (1983), quoting from Martin v. Hall, 369 Mass. 882, 884 (1976). See also Mass.R.Civ.P. 50(a), as amended by 428 Mass. 1402 (1998); Worcester County Natl. Bank v. Brogna, 386 Mass. 1002, 1002-1003 (1982) ('[P]laintiff's failure to file a request for rulings of law in a timely fashion precludes it from claiming on appeal that the evidence was insufficient to warrant the findings of the [fact finder]'). The plaintiff made no such motion here. As a result we affirm the findings made by the jury and the trial judge.
The docket reflects only that each defendant filed a motion for a directed verdict.
In addition, '[a] party claiming insufficiency of the evidence . . . has the burden on appeal of furnishing the court with all the evidence.' Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 641 (1998). The plaintiff here has provided the court with only twenty pages of transcripts from a four-day jury trial, which generated, at a minimum, 240 pages of transcripts. The plaintiff has failed to provide us with a complete appellate record, a prerequisite of any proper and thorough review of these evidentiary issues. Covell v. Department of Social Servs., 439 Mass. 766, 782-783 (2003). Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Mass.R.A.P. 18(a), as amended by 378 Mass. 940 (1979).
Judgment affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),