2022 Mass. App. Div. 48

January 21, 2022 - August 1, 2022

Appellate Division Southern District

Court Below: District Court, Plymouth Division

Present: Finnerty, P.J., Finigan & Pino, JJ.

Contract, Home improvement, Hearsay.

Trial judge did not err in excluding expert report and not instructing jury on unjust enrichment. Order entered in Quincy District Court by N. Hourihan, J.

Brandon E. Toste for the plaintiff.

Peter C. Netburn and Kent W. McKinley for the defendants.

FINIGAN, J. The plaintiff, Msouza Landscape & Masonry, Inc. ("Msouza"), appeals from the decision of the trial judge to exclude a written report prepared by his expert (who did not testify at trial) and the failure of the judge to instruct the jury on unjust enrichment in this breach of contract case. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C. For the reasons set forth below, we affirm.

I. Procedural history. This action arose in the aftermath of a contract entered into on October 26, 2017, between Msouza and the defendants, Kevin L. Riemer and Stacey A. Brown ("Riemer and Brown"), a married couple. The contract called for Msouza to remove an existing retaining wall at the couple's Milton home and install a new wall, along with accompanying landscaping work. The original contract price was $19,160; the parties later entered into a modification that increased the contract price by $12,460 in exchange for increasing the wall height from four feet to six feet and related changes. Msouza began work on the wall in the spring of 2018, and Riemer and Brown made a series of payments totaling $15,000 toward the contract price.

By the fall of 2018, Riemer and Brown had become dissatisfied with the work done by Msouza and terminated the relationship, ultimately hiring a second contractor to rebuild the wall. Msouza responded by bringing this action for breach of contract and unjust enrichment. Riemer and Brown counterclaimed for breach of contract, a breach of the covenant of good faith and fair dealing, and a G.L. c. 93A claim.

In anticipation of trial, each side engaged engineers to inspect the wall, who reached opposing conclusions whether the wall showed signs of distress. On the eve of trial, the parties agreed upon a "joint exhibit list," which included the reports of three engineers, one engaged by Msouza and two by Riemer and Brown.

The case was tried to a jury in August of 2019. Of the three engineers hired to inspect the wall, only one testified, on behalf of Riemer and Brown. In light of Msouza's failure to call his expert as a witness, the trial judge struck the engineer's written report from evidence on hearsay grounds. The jury returned a verdict in favor of Msouza on its claim but awarded no damages; the jury also returned a verdict in favor of Riemer and Brown on their counterclaim and awarded damages of $22,300. This appeal followed.

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II. Analysis.

A. Exclusion of expert's report. The sole witness for the plaintiff was Marco Souza, the principal of Msouza. When it became apparent Msouza did not plan to offer the testimony of its expert, civil engineer J.T. Gaucher ("Gaucher"), the trial judge excluded Gaucher's report from the trial exhibits. Gaucher's report, which is part of the record before us, was based on a visual inspection of the wall constructed by Msouza. In his report, Gaucher found "no visible evidence that the wall is in distress." The report contained caveats, though, namely that because there was no construction monitoring while the wall was built, he could not verify that construction met manufacturer's recommendations, and was based on a visual inspection only.

While the record does not contain the trial judge's actual ruling regarding the exclusion of the Gaucher report, it is beyond dispute that the report was hearsay and would not normally be admissible. Hearsay is defined as an out-of-court statement offered to establish the truth of the words contained in the statement. Adoption of Luc, 484 Mass. 139, 148 n.20 (2020). See Mass. G. Evid. § 801(c) (2021). Hearsay is "generally inadmissible unless it falls within an exception to the hearsay rule." Commonwealth v. Rice, 441 Mass. 291, 305 (2004).

While the report was included on the list of agreed exhibits, there is nothing in the record to suggest Riemer and Brown agreed to its admission without Gaucher's testimony and the ability to test his findings on cross-examination before the jury. Even absent the hearsay objection, § 403 of the Mass. G. Evid. (2021) further provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . confusing the issues [or] misleading the jury." Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error. Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998). Our review of the judge's decision to exclude the Gaucher report is limited to whether the decision to exclude the evidence amounted to an abuse of discretion. Tosti v. Ayik, 394 Mass. 482, 490 (1985). In such cases, an appellate court may not disturb a judge's ruling "simply because [it] might have reached a different result; the standard of review is not substituted judgment." Cruz v. Commonwealth, 461 Mass. 664, 670 (2012), quoting Bucchiere v. New England Tel & Tel. Co., 396 Mass. 639, 641 (1986). We find no error in the judge's decision to exclude the Gaucher report on hearsay grounds. [Note 2]

B. Lack of jury instruction for unjust enrichment claim. In its complaint, Msouza included a count for unjust enrichment, seeking damages for landscaping work and materials of which Riemer and Brown benefitted. The judge instructed the jury on the elements of breach of contract; he did not, however, instruct the jury regarding unjust enrichment. The plaintiff's appeal on this issue is squarely governed by Rule 51(b) of the Mass. R. Civ. P., which provides, "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

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From the record, it is apparent counsel to Msouza raised no objection to the jury instructions given or requested further instructions. While the complete testimony of Msouza's witness is not included in the record before us, we note that neither the plaintiff's opening statement nor closing argument made mention of the unjust enrichment claim; the thrust of the plaintiff's case appeared to be the breach of contract theory. At any rate, by failing to raise an objection to the judge's charge prior to the case being submitted to the jury, the plaintiff waived that objection. See Abraham v. City of Woburn, 383 Mass. 724, 732 (1981).

Judgment affirmed.

So ordered.


[Note 1] Stacey A. Brown

[Note 2] After Riemer and Brown's expert made reference to the Gaucher report during his testimony, the judge did permit the jury to consider the report as evidence the engineers reached different conclusions as to the soundness of the wall.