Opinion
11-P-1309
04-18-2012
VERIZON NEW ENGLAND INC. v. TRIGEN-BOSTON ENERGY CORPORATION.
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
The defendant, Trigen-Boston Energy Corporation (Trigen), appeals from an order denying its motion for new trial in light of newly discovered evidence, pursuant to Mass.R.Civ.P. 60(b)(2), 365 Mass. 828 (1974). Two months after a jury found contributory negligence by both parties in this property damage case, Trigen was provided a 1975 operating manual distributed by the predecessor of Verizon New England Inc. (Verizon), which suggested that Verizon had prior knowledge of possible damage that could result from the use of plastic-jacketed cable near steam mains. Trigen alleges that such evidence is sufficient to warrant a new trial. Trigen argues that (1) it exercised due diligence in the course of discovery; and (2) the new evidence would produce a different result at trial. We affirm.
Although the notice of appeal includes an appeal from the judgment, Trigen's argument concerns only the denial of its motion for new trial.
After the motion judge (who was also the trial judge) denied Trigen's initial rule 60(b) motion, Trigen filed a timely notice of appeal. Trigen later filed a motion to reconsider the 60(b) motion, which was also denied by the same judge. No new notice of appeal was filed from the order denying the motion to reconsider, and therefore any issue arising from that motion is not properly before us. We therefore decline to consider any additional issues raised or exhibits submitted with the motion to reconsider. See Fergione v. Minuteman Regional Vocational Technical Sch. Dist., 396 Mass. 1015, 1016 (1986) (failure to file timely notice of appeal forecloses review).
'[W]e defer broadly to the [judge's] informed discretion in granting or denying relief from judgment, and we review [the] ruling solely for abuse of that discretion.' Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 362 (2008), quoting from Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002). 'A party seeking postjudgment relief on grounds of 'newly discovered evidence' . . . must satisfy four requirements: '(1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; (3) the evidence is not merely cumulative or impeaching; and (4) the evidence is of such a nature that it would probably change the result were a new trial to be granted." Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. at 361, quoting from United States Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002).
We conclude that the judge did not abuse his discretion in finding that Trigen failed to establish that the new evidence would likely have produced a different result in a new trial. Indeed, as the motion judge was also the trial judge, he was in a superior position to determine whether the admission of the additional evidence was likely to change the verdict.
Deciding as we do, we need not address at length the due diligence argument. We recognize that the manual was written some thirty years earlier, and that any attorney would have difficulty locating it. It is also worth noting that the manual did not fall within the scope of the discovery requests, which, understandably, only requested material going back to 1998. However, we find no error in the judge's findings as to due diligence.
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Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan JJ.),