KAREN CONSTRUCTION CO., INC. vs. BARBARA A. LIZOTTE, trustee [Note 1].

LIACOS, J. This action in contract originated in the Milford Division of the District Court, was removed to the Superior Court, and then transferred back to the District Court where judgment issued in favor of the plaintiff, Karen Construction Co., Inc. (builder). In accordance with G. L. c. 231, Section 102C (1984 ed.), the case again was removed to the Superior Court for a trial de novo. The case was tried before a jury on the plaintiff's complaint and the defendant's (owner) counterclaim. The jury found for the builder in the amount of $4,088.14, and for the builder, the defendant in counterclaim. On March 6, 1984, a judge in the Superior Court entered a judgment in accordance with the jury verdict in favor of the builder on the complaint and a judgment against the owner on her counterclaim. The clerk of court assessed interest on the jury's award from the date the complaint was filed at the statutory rate of 12%. G. L. c. 231, Section 6C (1984 ed.). On March 22, 1984, the builder filed a motion to alter judgment and to assess attorney's fees. The motion was denied. On April 18, 1984, forty-three days after judgment entered, the owner filed a notice of appeal. The builder moved to dismiss the owner's appeal as untimely filed. This motion also was denied. The builder filed a cross-appeal from the denial of its postjudgment motion to alter judgment. We transferred the case to this court on our own initiative.

There was evidence warranting the jury's findings as follows. According to a written contract with owner, the builder

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agreed to furnish and erect for the owner, a preengineered building for $55,950. The contract price was to be paid in seven instalments as the work progressed. The first four stages of work were completed and payment tendered without incident. When the builder requested payment for the fifth stage, erection of the walls, the owner tendered to the builder $2,000 of the $3,000 specified in the contract. The builder proceeded to complete the sixth stage, the liner panel. Subsequently, the builder sent the owner an invoice for the sixth instalment of $3,000 and for the seventh and final instalment of $1,000, though the last stage of the project, the punch list, was never completed. The owner failed to pay either the $1,000 balance due on the fifth instalment or the sixth and seventh instalments, arguing that the builder had erected the building in a defective and unworkmanlike manner.

The owner argues on appeal that the trial judge erred in excluding evidence of damages in support of her counterclaim. The builder contends that the owner's appeal should have been dismissed as untimely. The builder also argues that the judge erred in denying its motion to alter judgment because (1) interest on the jury's award should have been assessed from September 25, 1980 (the alleged date of the breach), rather than from the date of the complaint and at 18% rather than at 12%, and (2) attorney's fees should have been awarded.

1. Timeliness of the Owner's Appeal.

Massachusetts Rule of Appellate Procedure 4(a), as appearing in 378 Mass. 924 (1979), requires, inter alia, that notice of appeal in civil cases be filed within thirty days of the date of the entry of the judgment. A motion to alter or amend judgment, brought pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), tolls the running of the thirty-day appeal period, but a motion for relief from judgment brought under Mass. R. Civ. P. 60, 365 Mass. 828 (1974), does not toll the appeal period.

The owner filed a notice of appeal forty-three days after judgment entered, apparently believing that the builder's "Motion to Alter Judgment as to Interest Only" was brought under

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Mass. R. Civ. P. 59 (e) and thus tolled the appeal period. [Note 2] The judge denied the builder's motion to dismiss the owner's appeal as untimely. He granted the owner, nunc pro tunc, an extension of time for filing notice of appeal under Mass. R. A. P. 4 (c), as appearing in 378 Mass. 924 (1979), [Note 3] finding excusable neglect attributable to a misunderstanding of the effect of the builder's posttrial motion.

In construing the "excusable neglect" requirement of Mass. R. A. P. 4 (c), we stated in Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981), that mistakes of counsel regarding the meaning of a rule may not justify relief. We also have stated, however, that "[w]hile the new rules [of appellate procedure] still include many time limitations for doing specified acts, they also include provisions giving the courts broad discretion and authority to permit a deserving party, on a showing of `excusable neglect' . . . to prosecute an appeal notwithstanding his failure to comply with a procedural time limitation." Giacobbe v. First Coolidge Corp., 367 Mass. 309, 315-316 (1975). Given the broad discretion granted to the judge in this matter and the opportunity he had to hear counsel's argument, we cannot say that he abused his discretion in denying the builder's motion to dismiss the owner's appeal. [Note 4]

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2. Exclusion of Evidence of Damages.

In count 2 of her amended counterclaim, the owner alleged that the builder's negligent construction of the building caused the roof to leak resulting in water damage to the owner's property. At one point during the trial, the judge excluded testimony as to the dollar amount of that damage. Other testimony was admitted as to the water damage sustained by the owner, though none of this testimony placed a dollar figure on the amount of damage. The judge instructed the jury that if they found that the builder was negligent and the owner damaged thereby, they should "make a determination as to how much money would adequately and reasonably and fairly compensate [the owner] for those damages." The owner argues that the exclusion of testimony of the nature and amount of damages was reversible error. We disagree. In finding against the owner on her counterclaim, the jury determined that the builder was not liable to the owner. Thus, the issue of damages due the owner became immaterial. Since the jury's finding in favor of the builder as to the counterclaim meant that the builder either was not negligent or its negligence did not cause the owner's damages, the owner was not entitled to damages, and the excluded testimony was rendered immaterial. See MacAlister v. Thomas, 5 Mass. App. Ct. 798 (1977).

3. Interest and Attorney's Fees.

The builder introduced in evidence the written contract between it and the owner. The contract required the owner to pay interest on past due accounts at 18% per month and to pay reasonable attorney's fees charged the builder in its enforcement of the contract. [Note 5] Following the return of a general verdict

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in favor of the builder, the court clerk, pursuant to G. L. c. 231, Section 6C, assessed interest at the rate of 12% on the jury's award from the date the complaint was filed. [Note 6] The builder now argues that the date of breach of the contract (September 25, 1980) was established as was the contractual rate of 18% and therefore its motion to alter judgment so as to assess interest from September 25, 1980, at 18% should have been allowed. [Note 7] We disagree.

The record indicates that the judge did not instruct the jury regarding the assessment of prejudgment interest. He did not ask them to find the date of the breach. The judge charged the jury that, in order to find for the plaintiff, they had to find that (a) there was a contract between the parties; (b) the defendant breached the contract; and (c) the plaintiff suffered damages as a result of the breach. There was no reference in the charge to the question of the jury's fixing the date of the breach; nor was the issue whether the owner's failure to pay within ten days of receipt of the invoices (see note 5, supra) could constitute the basis of the jury's finding that there was a breach of the contract. While the record shows that the builder may have requested jury instructions, the instructions requested are not part of the record before us, and the record does not show that

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the builder objected to the judge's failure to instruct on the issue of fixing the date of the breach of the contract. [Note 8] See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). When no objection is taken to the failure of a judge to give an instruction, and the attention of the judge is not called to the matter, such failure cannot be raised on appeal. See Weeks v. Harbor Nat'l Bank, 388 Mass. 141, 146-147 (1983); Hoyt v. Kennedy, 170 Mass. 54, 55 (1898); Zedros v. Kenneth Hudson, Inc., 11 Mass. App. Ct. 1007, 1008 (1981). The plaintiff urges this court to reverse the denial of its motion and to alter the judgment to assess interest at 18% from September 25, 1980. The plaintiff apparently misunderstands the role of an appellate court. A trial has proceeded before a jury. The date of an alleged breach is question of fact for the trier of fact. See Harvey v. Bross, 216 Mass. 57, 60-61 (1913); Palmiero v. Spada Distrib. Co., 217 F.2d 561, 565 (9th Cir. 1954). Neither this court nor the trial judge is permitted to determine when the breach occurred. [Note 9] Cf. Ward v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 101 (1983). Compare Cesco Mfg. Corp. v. Norcross, Inc., 7 Mass. App. Ct. 837, 839, 845 (1979) (trial judge, sitting without jury, applied G. L. c. 231, Section 6C, provision and awarded interest from date of breach). See Morris v. Watsco, Inc., 385 Mass. 672, 677 n.7 (1982).

The denial of the plaintiff's motion to alter judgment is affirmed, the denial of the motion to dismiss the defendant's appeal is affirmed, and the judgment is affirmed.

So ordered.