2016 Mass. App. Div. 73

March 25, 2016 - June 8, 2016

Appellate Division Northern District

Court Below: District Court, Woburn Division

Present: Swan, P.J., Crane & Nestor, JJ. [Note 1]

Sami Herbawi, pro se.

Robert M. Pattillo, and Anthony R. Minchella for the defendant.

NESTOR, J. A jury-waived trial was held in the Woburn District Court on April 24, 2014, on the claims of the plaintiff, Sami Herbawi (“Herbawi”), against the defendant, Home Depot U.S.A., Inc. (“Home Depot”). The judge found for Home Depot. She did not issue any written findings but made detailed findings on the record immediately following the trial. As a result of that ruling, Herbawi filed this appeal. [Note 2]

In June, 2011, Herbawi was trying to purchase cedar siding in order to complete the construction of a new home that he intended to live in with his family. He initially went to the Home Depot store in Everett. That store did not have the cedar siding he was looking for in stock. The sales person, however, indicated that Home Depot could get the siding from its Watertown location. Herbawi indicated that he wanted to examine the siding before purchasing it. If it was acceptable, then he would purchase it, but he did not complete the purchase that day.

Shortly thereafter, Home Depot informed him that a sufficient amount of the cedar siding was no longer available from the Watertown store but that it could order the siding from the supplier. Herbawi agreed, and an order was placed for 4,000 square feet. Herbawi paid for the order on July 21, 2011.

On August 3, 2011, Home Depot informed Herbawi that the supplier sells the siding only on a linear-foot basis and not a square-foot basis. Herbawi indicated that he wanted to cancel the order, and he requested a refund. Home Depot then mistakenly issued the refund check to a different customer. Home Depot did, however, eventually figure out its mistake and sent Herbawi a check, which he then cashed. Later in August, 2011, Herbawi purchased a different type of siding from Home Depot.

Herbawi then filed suit seeking the following: his lost deposit from the delay with his initial siding contractor, the $27,200.00 difference between the price of the

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second contractor and the first, and for five months of mortgage, utility, insurance, and property tax payments due to the delays allegedly caused by Home Depot.

We review the trial judge’s factual findings for clear error. Mass. R. Civ. P. 52(c). A finding is “clearly erroneous” when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Guardianship of Clyde, 44 Mass. App. Ct. 767, 774 (1998); D&D Realty Trust v. Borgeson, 2015 Mass. App. Div. 115, 118.

The trial judge specifically declined to credit anything that Herbawi said about the delay and the effect it had on the project. She found that there was not sufficient evidence to determine why Herbawi changed contractors or even that the work contracted for was the same in each instance. She further found that there was nothing in the purchase agreement with Home Depot to indicate that time was of the essence. Moreover, she found there was simply no evidence to support the fact that the project was delayed for five months because of a minor error by Home Depot.

The trial judge’s findings are amply supported by the evidence presented at trial. The judgment is affirmed.


[Note 1] The Honorable Allen G. Swan, Presiding Justice, participated in the hearing and review of this appeal, but completed his Appellate Division service prior to the issuance of this opinion.

[Note 2] We note that the trial transcript included in the record appendix has significant gaps. Herbawi, as the appellant, has the burden to ensure that an adequate record exists for appellate review. Donovan v. Mahoney, 2012 Mass. App. Div. 4, 5.