2019 Mass. App. Div. 59

February 15, 2019 - April 29, 2019

Appellate Division Northern District

Court Below: District Court, Marlborough Division

Present: Coven, P.J., Nestor & Karstetter, JJ.

Marc D. Padellaro for the plaintiff.

Jose P. Moriera for the defendant.

COVEN, P.J. This case involves a jury-waived trial on a portion of a claim of conversion and a violation of G.L. c. 93A and assessment of damages on the remaining portion of the conversion claim. Judgment entered for Magno Auto Repair and Sales, Inc. ("Magno") on the claims of Eugenijus Jagminas ("Jagminas") for conversion [Note 1] and violation of G.L. c. 93A. As to Magno's counterclaim for storage fees, judgment entered for Jagminas. The trial judge did not issue findings of fact or rulings of law. Jagminas has appealed. We reverse and return this case for a new trial.

This case involved a claim by Jagminas that he towed and left his 2003 Chevy Express work van with Magno in 2011 or 2012 for mechanical work. The van was alleged to contain plumbing tools and heating equipment. The work on the van was to be suspended while Jagminas relocated to Florida and found work to finance the repairs. In early 2014, Jagminas returned and first learned that Magno, without his permission, had delivered the van to a salvage yard. Jagminas testified that the van was worth approximately $8,000 and the tools inside were worth approximately

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$11,000. Magno Souza, owner of Magno, asserted that the van in its condition had no value and that he did not see any tools in the van.

This case was tried in one day and then continued to the following day for closing arguments. Requests for rulings of law and findings of fact were filed on the day of trial. It is not clear in the record whether those filings were brought to the attention of the trial judge prior to closing. [Note 2] The docket does indicate that, on the date of the closing arguments, "[c]opies of documents" were given to the trial judge. Nonetheless, the docket clearly indicates the filing of the requests.

Rule 52(c) of the Massachusetts Rules of Civil Procedure provides that in all actions tried without a jury, "the court shall find the facts specially and state separately its conclusions of law thereon, provided that any party submits before the beginning of any closing arguments proposed findings of fact and rulings of law." Davis, Malm & D'Agostine, P.C. v. Lahnston, 82 Mass. App. Ct. 254, 258 n.6 (2012). Under the Rule 52(c) procedure, "the court does not rule on each request, but prepares its own findings and rulings, without a requirement to reference the findings and rulings so proposed" by the parties. B. Thomas Heinzer Assocs. v. Xarras, 2010 Mass. App. Div. 218, 219. It is through this procedure that a litigant preserves a right to appellate review of the correctness of the trial judge's findings and rulings of law.

This case demonstrates the essential need for a trial judge to respond to requests for findings and rulings. Here, the first judge entered summary judgment for Jagminas as to liability for conversion of the van. The second judge, without explanation, entered judgment for Magno on the very same claim without explanation, ignoring the earlier ruling on summary judgment.

The judgment is reversed, and this case is returned to the trial court for a new trial and assessment of damages.


[Note 1] Jagminas asserted in his complaint that Magno converted his work van and tools. Prior to trial, the first judge entered summary judgment for Jagminas on the claim of conversion of the work van, but limited, in that respect, to the issue of liability only. As to this claim, "[t]he then-posture of the case [was] similar to . . . an assessment of damages after a default." J.W. Smith & H.B. Zobel, Rules Practice ยง 56.9, at 300 (2007). Such an evidentiary hearing "is not a trial." Reporters' Notes to Mass. R. Civ. P. 55. Rather, Rule 55(b)(2) provides in relevant part that "[i]f, in order to enable the court to enter judgment . . ., it is necessary . . . to determine the amount of damages . . ., the court may conduct such hearings or order such references as it deems necessary and proper . . . ." The motion for summary judgment was denied as to the claim of conversion of the tools.

Despite that summary judgment was allowed as to that portion of the conversion claim dealing with the van, after trial no damages were awarded. Judgment entered for the defendant. We note that nominal damages may be awarded on a claim for conversion. See Horvitz v. St. John the Baptist Church Corp., 1998 Mass. App. Div. 143, 143-144. But see Blais-Porter, Inc. v. Simboli, 402 Mass. 269, 274 (1988) (directed verdict proper because plaintiff did not claim nominal damages).

[Note 2] Magno filed in this Division a motion to add to the joint appendix the transcript of the closing arguments. It is within this transcript that Magno cites the absence of requests for findings of fact and rulings of law being brought to the attention of the trial judge. We allowed the motion, but determine that the docket indicates that requests for findings of fact and rulings of law were submitted to the court on the day before closing arguments.