Opinion
No. 12–P–1176.
2013-07-11
William NOLAN v. GREYLOCK DESIGN ASSOCIATES, INC., & another.
By the Court (KANTROWITZ, BROWN & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, William Nolan, filed a complaint in Superior Court against the defendants, Greylock Design Associates, Inc., and Robert Akroyd (collectively, defendants), alleging breach of contract, negligence, misrepresentation, and violation of G.L. c. 93A. On appeal, the plaintiff claims error only in the allowance of the defendants' motion for a directed verdict on the misrepresentation and G.L. c. 93A counts. He argues that the trial judge erred in dismissing the two aforementioned claims without providing written findings, in violation of Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), and 52(a), as amended, 423 Mass. 1402 (1996), and that he presented sufficient evidence to establish a prima facie case on both counts. We affirm.
I. Discussion. A. Findings.Rule 41(b)(2) permits a judge in a bench trial, on motion by the defendant at the close of the plaintiff's presentation, the discretion to grant a directed verdict. If such request is allowed, the judge is required to make findings as provided in Mass.R.Civ.P. 52(a). Here, after the entire trial ended, the judge issued an eighteen-page decision containing over sixteen pages of findings. Although the plaintiff's brief does not directly explain why these written findings do not satisfy the judge's rule 41(b)(2) obligation, it implies that the judge's findings must be issued before the trial ends. Contrary to this argument, the judge is not obligated to render findings for a directed verdict before the completion of the entire trial.
Rather, rule 52(a) merely states that findings of fact and conclusions of law must be rendered. Thus, the trial judge satisfied his obligation to make findings. As the defendants astutely note, even if we were to decide, and we do not, that the trial judge erred and should have produced written findings pursuant to rule 41(b)(2) immediately upon the dismissal of the misrepresentation and c. 93A counts, our courts have held that such a technical failure does not automatically warrant reversal or remand. See Commonwealth v. One 1969 Mercedes–Benz Auto., 375 Mass. 663, 666 n. 3 (1978).
In fact, to rule as such would place a heavy burden on trial courts and stymie efficiency.
B. Directed verdict. Upon review of the trial judge's extensive findings and conclusions, the briefs, and the record appendix, we discern no error in the grant of the directed verdict on the misrepresentation and c. 93A claims. See and compare Skowronski v. Sachs, 62 Mass.App.Ct. 630, 632–633 (2004) (treating motion for directed verdict made by defendant at bench trial as motion for involuntary dismissal under rule 41[b][2] ).
The standard of review for a motion for a directed verdict is whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972) (citation omitted). However, under rule 41(b)(2), a trial judge is not limited to the directed verdict standard; he may also “weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision.” Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 139 (2002) (citation omitted).
See Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., 8 Mass.App.Ct. 686, 689 (1979).
The plaintiff fails to acknowledge this additional standard.
Here, the judge concluded that the plaintiff did not produce credible evidence to satisfy the elements of misrepresentation; nor could a violation of c. 93A reasonably be found.
To prove misrepresentation, a party must show a false statement of material fact made to induce the party to act and that the reliance on the false statement was to the detriment of the party. See Zimmerman v.. Kent, 31 Mass.App.Ct. 72, 77 (1991). The plaintiff did not meet this burden.
After hearing argument on the motion from both parties, the judge, ruling from the bench, stated: “I find no evidence that I believe—I'm the finder of fact—of any negligent or intentional misrepresentation by Mr. Akroyd.... [T]hat being the case, I fail to see any violation of [c.] 93A.” (The plaintiff's c. 93A claim rested upon the misrepresentation claim.)
The defendants were employed to create a proposal that would allow the plaintiff to build at a stream crossing. In formulating the proposal, the defendants stated that the plaintiff would use two eighteen-inch culverts. The motion judge expressly discredited the plaintiff's testimony that the defendants told him that he could use a twenty-four-inch culvert as opposed to two eighteen-inch culverts.
Credibility determinations lie exclusively within the discretion of the fact finder. See Okoli v. Okoli (No. 1), 81 Mass.App.Ct. 371, 379 (2012). See also Lubin & Meyer, P.C. v. Lubin, 427 Mass. 304, 309 (1998).
The proposal was presented to the Massachusetts Department of Environmental Protection (DEP) and the Great Barrington conservation commission (commission), and signed by the parties. The DEP sent a notice to the plaintiff and defendants stating that before the project could commence, the plaintiff may need to apply for a water quality certification permit and should contact another agency. The commission accepted the proposal as it was written. The DEP had the opportunity to overrule the commission and require that the plaintiff obtain the certification, but did not act or do so. While the judge found that the defendants appropriately and accurately told the plaintiff he could proceed with the installation without seeking the certification, as previously mentioned, the judge rejected testimony that the defendants instructed the plaintiff to install one culvert.
“I simply do not believe that, for no conceivable reason, Akroyd would either recommend or suggest one culvert, or even more improbably that he would instruct Nolan to install one culvert, when the Order of Conditions, which had been issued in response to and in reliance upon Akroyd's carefully prepared submissions to the Conversation Commission, clearly called for the installation of two culverts.”
Despite the plaintiff's attempt to demonstrate that a former employee of the defendants wrote a post-it note depicting an option for the plaintiff to choose to use either one or two culverts, the judge found that the evidence lacked credibility. See note 5, supra. In addition, the judge concluded that the plaintiff's argument concerning the defendants' failure to obtain a water quality certification was unconvincing, and in any event, beside the point. The plaintiff offered no proof that the damage caused by installing one culvert was related to the absence of the certification.
C. Request for attorney's fees and costs. Pursuant to Mass.R .A.P. 25, as appearing in 376 Mass. 949 (1979), and G.L. c. 211A, § 15, the defendants requested an award of costs and attorney's fees.
Although we think that the plaintiff has offered only minimal viable legal arguments, we do not award the defendants their attorney's fees, but do award double costs of appeal.
Judgment affirmed, with double costs of appeal.