Home MARY LOUISE ROWE vs. RANSOM ROWE.

8 Mass. App. Ct. 870

June 29, 1979

1. Two of the arguments now urged upon us (concerning the admission of certain parol evidence and the failure to give credit for legal fees expended by the defendant) have no basis in the defendant's objections to the master's report which were filed in Superior Court. Since those issues were not presented to the trial judge we shall not consider them now in reviewing his actions. Artco, Inc. v. DiFruscia, 5 Mass. App. Ct. 513 , 516 (1977).

2. The defendant's objections to the master's report numbered 1, 5, 6, and 7 turn on evidence not reported, and, in the absence of compliance with the provisions of Rule 49(7) of the Superior Court, as amended, effective May 8, 1976, relative to obtaining summaries of the evidence, were properly overruled. H. Piken & Co. v. Planet Constr. Corp., 3 Mass. App. Ct. 246 , 249 (1975). Michelson v. Aronson, 4 Mass. App. Ct. 182 , 189 (1976). The objections numbered 2, 3, and 4 were properly overruled as they were merely objections to the master's failure to make certain findings. Minot v. Minot, 319 Mass. 253 , 259 (1946). Sowle v. Empire Mut. Ins. Co., 2 Mass. App. Ct. 824 , 825 (1974). The eighth objection, a general objection to a multiplicity of findings, failed to state the grounds therefor, as required by Mass.R.Civ.P. 53 (e) (2), 365 Mass. 820 (1974), and was properly overruled for that reason.

3. Notwithstanding the above, the sum awarded to the plaintiff is to be reduced from $2,718.79 to $1,777.29 to reflect the correction of a computational error. It is obvious from the master's subsidiary finding no. 14 that in his ultimate finding no. 10 he failed to take into account the fact that the defendant had already paid the plaintiff the sum of $941.50. See Nychis v. Fields, 7 Mass. App. Ct. 931 (1979). As so modified the judgment is affirmed.

So ordered.

Home SCHOOL COMMITTEE OF FOXBOROUGH vs. MICHAEL J. KOSKI & another.

8 Mass. App. Ct. 870

June 29, 1979

This is an action in the nature of certiorari which the plaintiff school committee commenced prior to our decision in Doherty v. School Comm. of Boston, 6 Mass. App. Ct. 805 , 810-812 (1979), to obtain appellate review of an adverse decision of the Superior Court in an appeal brought by the defendant Koski under G. L. c. 71, Section 43A, as in effect prior to St. 1977, c. 671. The case is before us on the reservation and report of a single justice. The appeal was heard in the Superior Court solely on the written record of the proceedings of the school

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committee. That record, which is before us, shows that Koski was dismissed from his position as a physical education instructor as a result of a cutback in the number of such positions from six to five, for budgetary reasons, Koski ranking last in seniority among the holders of those positions. There is no doubt as to the power of a school committee, acting in good faith, to abolish a position for reasons of economy. Kaplan v. School Comm. of Melrose, 363 Mass. 332 , 335 (1973). Nutter v. School Comm. of Lowell, 5 Mass. App. Ct. 77 , 79-80 (1977), and cases cited. The basis for selecting Koski for discharge complied with the "good cause" standard of G. L. c. 71, Section 42. "Good cause includes any ground which is put forward by the committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system." Rinaldo v. School Comm. of Revere, 294 Mass. 167 , 169 (1936). The fact that the vote to delete one physical education position from the budget for the ensuing school year was taken prior to the commencement of the procedures mandated by Section 42 for the removal of a particular teacher does not bring the case within the authority of Graves v. School Comm. of Wellesley, 299 Mass. 80 (1937). Unlike that case and Nutter v. School Comm. of Lowell, supra, the earlier vote was not in substance a dismissal of any particular person. The hearing on June 14 and 21, 1976, was neither futile (contrast Kaplan v. School Comm. of Melrose, at 336) nor, as the defendant Koski contends, a sham. The judgment of the Superior Court is reversed, and a new judgment is to enter affirming the action of the school committee.

So ordered.