Opinion
10-P-1518
02-08-2012
EILEEN KENNEDY v. WILLIAM A. MEECH, administrator.
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
Sued in his capacity as the administrator of the estate of his deceased uncle William K. Cunningham, William A. Meech appeals from an amended judgment on a Housing Court jury verdict in favor of Cunningham's former landlord, Eileen Kennedy, and from the denial of his postjudgment motions. We affirm.
Opinion testimony. Meech first argues that the judge improperly allowed Kennedy's son, a lay witness, to testify as an expert about the need to replace certain items in Cunningham's unit. The admissibility of Kennedy's son's opinion testimony turned on the principles articulated in Mass. G. Evid. § 701 (2011 ed.). See, e.g., Commonwealth v. Cabral, 77 Mass. App. Ct. 909, 910-911 (2010). Meech's short, undeveloped claim of error was devoid of any reference to this evidentiary standard or to the correct standard of review. Given his noncompliance with Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), we need not address the claim. See Adams v. Adams, 459 Mass. 361, 392 (2011). Were we to reach the merits, we would find no abuse of discretion or prejudicial error, substantially for the reasons stated in Kennedy's brief.
There was no abuse of discretion or error of law in the judge's qualification of Brian Silva as an expert witness on the costs of needed repairs. See Matter of Trusts Under the Will of Crabtree, 449 Mass. 128, 152 (2007).
Although Silva, who had started his own business shortly before trial, had been pricing jobs on his own for only a few months, the judge could properly have concluded that Silva possessed sufficient specialized knowledge, experience, and familiarity with the subject matter to assist the jury in its fact-finding role. The judge also could have properly concluded that the factual basis for Silva's opinion was sufficient. Although Silva failed to take actual measurements of the rooms, his opinion regarding repair costs was based upon his personal observations of the room dimensions as well as prices on similar jobs. Meech's complaints about Silva's methodology and omissions in the factual foundation went to the weight of this evidence, and not to its admissibility. See Sacco v. Roupenian, 409 Mass. 25, 28-30 (1990).
Exhibits. There was no abuse of the judge's broad discretion in the admission of Kennedy's photographic and videographic evidence. See Gath v. M/A-COM, Inc., 440 Mass. 482, 488 (2003). We disagree with Meech's assertion that this evidence had little probative value. The evidence was relevant to the disputed question whether Cunningham had committed voluntary waste, and if so, whether substantial injury to the premises resulted, necessary elements of Kennedy's tort claim that were strongly contested by Meech. While we agree with Meech that some of the images may have repulsed the average juror, 'even inflammatory evidence may be admissible.' Id. at 490. The relevancy of this evidence to the central issues in the case weighted the balance in favor of its admission. Ibid.
Meech's argument that the judge erred by failing to apply the exclusionary rule is unpersuasive. See Carey v. Zayre of Beverly, Inc., 367 Mass. 125, 130 n.4 (1975).
Meech failed to demonstrate any abuse of discretion or prejudicial error in the judge's ruling barring his video exhibit and equipment from the jury room. See Commonwealth v. Pixley, 42 Mass. App. Ct. 927, 928 (1997).
To the extent that Meech's attorneys now maintain that they were 'complete[ly] surprise[d]' by the judge's ruling, the record does not show that at the trial, they objected when the judge reminded them about this pretrial ruling.
The judge's ruling applied equally to both sides. If the jury had requested to see Meech's video again during deliberations, the judge indicated he would have made appropriate arrangements for viewing. The jury, however, quickly returned a verdict for Kennedy, and never asked for a replay. So far as appears, Meech's attorneys failed to object to the judge's alleged disparate treatment of the parties in the presentation of their respective videos, and in any event, given their choice of equipment (a portable player with an eightinch screen as opposed to the large screen projector used by Kennedy's attorney), their arguments on this issue fall flat.
Jury instructions. There was no unfair prejudice in instructing the jury about Meech's representative capacity and his lack of personal liability for any damages. As Meech admitted, these statements were correct. The judge could properly have concluded that in the interest of fairness, an explanation of Meech's status was required. Nor did the judge's general instruction that any damages 'would come from . . . the assets of the estate . . . and from no other source' contradict his earlier ruling excluding any reference to the multi- million dollar value of the estate, an obviously irrelevant fact. We fail to see how these instructions predisposed the jury to find in favor of Kennedy.
There was no unfair surprise stemming from the judge's decision to instruct the jury on the estate's liability for rent and for use and occupancy. During the charge conference, Meech's attorneys admitted that Kennedy's complaint put them on notice of the claim, which, we note, was also listed in the joint pretrial memorandum. We conclude that the judge properly instructed the jury on the principles of law governing this claim. See Ferrigno v. O'Connell, 315 Mass. 536, 537 (1944); Bruce v. Harvard Trust Co., 1 Mass. App. Ct. 373, 374-375 (1973).
Contrary to Meech's assertions, the judge's pet example of voluntary waste in his instructions was a correct statement of the law. We disagree with Meech's blanket factual assertion that the judge's seven examples closely paralleled the facts of the case, and in any event, Meech's brief reference to the 'direct[ing of] a verdict,' which was unsupported with citation to any case law, did not constitute adequate appellate argument on the issue. We deem the claim of error waived. See Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 783 n.13 (2007).
Sufficiency of the evidence. Applying the same standards, we conclude that the judge properly denied Meech's motions for a directed verdict and for judgment notwithstanding the verdict on the waste claim. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). Although the line between voluntary and permissive waste is often not an easy one to draw, here the jury were warranted in finding that some of the deplorable conditions in the unit were the result of far more than simple neglect or omission. Kennedy presented evidence that the apartment smelled horribly like cat feces, which Cunningham had allowed to remain on the floors of his unit for several years, long after his cat had died, and that the hardwood floors were stained throughout with cat urine. Moreover, the jury could have found that the spongy bathroom floor was the result of human waste placed and left there by Cunningham, who lived alone for the last sixteen years of his life. The jury could also have found that as a result of the heavy grease buildup in the kitchen from Cunningham's frying, the vent and stove were inoperable, the countertop was delaminating from the woodwork, and the cabinets stuck when opened. This evidence warranted the finding that Cunningham, by his affirmative acts, had caused substantial injury to the unit.
Amended judgment affirmed.
Postjudgment order affirmed.
By the Court (Cypher, Katzmann & Grainger, JJ.),