Hussain v. Cameron Construction & Roofing Co.

2007 Mass. App. Div. 14, 2007 Mass. App. Div. LEXIS 6
CourtMassachusetts District Court, Appellate Division
DecidedMarch 14, 2007
StatusPublished
Cited by3 cases

This text of 2007 Mass. App. Div. 14 (Hussain v. Cameron Construction & Roofing Co.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hussain v. Cameron Construction & Roofing Co., 2007 Mass. App. Div. 14, 2007 Mass. App. Div. LEXIS 6 (Mass. Ct. App. 2007).

Opinion

Merrick, J.

Plaintiff Riaz Hussain, M.D. (“Hussain”) owns a home in Foxboro, Massachusetts. In 2002, he approached defendant Cameron Construction and Roofing Co., Inc. (“Cameron”) to fix a leaky roof on his home. Hussain alleges that he eventually hired Cameron in December, 2002, to replace the roof, some siding and a storage shed in the yard and to supply a warranty for a total cost of $18,600.00. Hussain paid $17,000.00. Beginning in December of 2003, when the final payment was due, Hussain made several reports of leaks in the roof to Cameron. Hussain alleges that when Cameron’s repeated efforts to remedy Hussain’s continuing complaints failed, he brought this action.

Hussain’s pro se complaint is couched in terms of one for specific performance, an “extraordinary equitable remedy,” Hunt v. Rice, 25 Mass. App. Ct. 622, 633 (1988), which would not lie on either party’s version of the facts of this case. The complaint also sought money damages, however, and may be read as one for breach of contract. Both parties tried the case as a contract action, and we treat it as such. See Kagan v. Levenson, 334 Mass. 100, 106 (1956). Cameron counterclaimed to recover the unpaid balance of the contract price. After a bench trial, the judge found for defendant Cameron on Hussain’s complaint and for defendant-in-counterclaim Hussain on Cameron’s counterclaim,1 thus deciding each claim against the party with the burden of proof.

Hussain appealed on claims of error in the court’s rulings on pre-trial motions, trial procedure and the admission and exclusion of evidence.

It should be noted that Hussain, the medical doctor and homeowner who brought this action, elected to proceed pro se, representing himself both in the trial court and before this Division. As indicated, infra, most of the grounds advanced by Hussain [15]*15as the bases for appeal are the product of his own misconceptions about legal procedure or evidentiary rules, or are beyond the permissible scope of appellate review because he failed either to preserve'them in the trial court, or to furnish a proper trial court record on which appellate consideration could be based.2 Although he elected to proceed pro se, Hussain was subject to the same requirements applicable to a practicing attorney. Commonwealth v. Jackson, 419 Mass. 716, 719 (1995). “A pro se litigant is bound by the same rules of procedure as litigants with counsel.” International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). Those rules include the basic requirements of appellate procedure, including the preparation of an accurate and complete record appendix. Brossard v. West Roxbury Din of the Dist. Court Dept., 417 Mass. 183, 184 (1994) and cases cited.

1. About two years after this action was commenced, eight months after the court-ordered close of discovery, and subsequent to the scheduling of the case for trial, Hussain filed a lengthy, handwritten omnibus motion with a number of requests, including (1) that there be “No further postponement of the trial by the defendant,” (2) to “Amend [his] Initial Complaint,” (3) to allow “Another Expert Witness,” and (4) for the “Court to Visit Premises.” The motion was decided by a judge other than the trial judge, and Hussain has appealed the denial of his complaint amendment and expert witness requests.3

According to his motion, Hussain’s proposed complaint amendment would have specified various areas in the house which showed water damage from leaks in the roof which occurred subsequent to the commencement of suit. While a motion to amend a complaint rests within a judge’s discretion, “leave should be granted unless there are good reasons for denying the motion.” Leonard v. Town of Brimfield, 423 Mass. 152, 157 (1996).. “[T]he record must show some reason for the denial of a motion to amend a pleading.” Jessie v. Boynton, 372 Mass. 293, 295 (1977). While there is nothing in the record before us to indicate why the motion to amend should not have been allowed, it is clear that there was no necessity for the amendment and that Hussain was not prejudiced by the denial of his motion. Under the liberal rules of pleading in this Commonwealth, a complaint must provide only fair notice of the claims presented and need not contain a precise formulation of the specific issues for trial. Republic Floors of New England, Inc. v. Weston Racquet Club, Inc., 25 Mass. App. Ct. 479, 487 (1988). All that is required is a short and plain statement of the plaintiff’s claim. Mass. R. Civ. P., Rule 8(a). Further, pleadings are to be construed by the trial court so as to do “substantial justice.” Mass. R. Civ. P., Rule 8(f); Wood v. Roy Lapidus, Inc., 10 Mass. App. Ct. 761, 765 (1980). The trial judge did not limit Hussain’s evidence to the roof leaks alleged in his original complaint. Sugarman v. Malkemus, 1997 Mass. App. Div. 64, 65, and Hussain introduced evidence of additional damage alleged in his motion to amend. Therefore, as noted, Hussain was not prejudiced by the denial of the requested amendment

We are unable to determine whether the motion judge abused his discretion in excluding an expert witness. Derby Ref. Co. v. Chelsea, 407 Mass. 703, 716 n.11 (1990). “[I]n the absence of an offer of proof (citation omitted), there is no showing that it was prejudicial to refuse to admit the excluded testimony.” Cooke v. Walter Kidde & Co., 8 Mass. App. Ct. 902, 903 (1979). See Mass. R. Civ. P., Rule [16]*1643(c). It was Hussain’s burden to establish prejudicial error. Carrel v. National Cord & Braid Corp., 447 Mass. 431, 450 (2006). He failed to do so.

2. About a year before the trial, a second motion judge allowed Hussain’s motion for a view of his property by the trial judge. The other motion judge, acting on the later omnibus written motion, did not decide that portion of the motion requesting the “Court to Visit Premises.” Finally, on the day of trial, the trial judge declined to conduct a view. Hussain has appealed the trial judge’s failure to take a view after the earlier allowance by another judge of his motion for the same.

“Although a judge should not lightly undo the work of another judge, ... the power to reconsider an issue remains in the court until final judgment,” Riley v. Presnell, 409 Mass. 239, 242 (1991), even when the judge is revisiting precisely the same motion decided by the first judge. Barron v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519 (2003). As a matter of common sense as well as law, the decision to conduct a view during a trial is peculiarly one for the trial judge, Commonwealth v. Cataldo, 423 Mass. 318, 327 n.8 (1996); Commonwealth v. King, 391 Mass. 691, 694 (1984), and rests within his or her discretion. Uraneck v. Lima, 359 Mass. 749, 750 (1971). There was no error in the trial judge’s refusal, after all of the evidence had been presented, to take a view.

3. At the beginning of the trial, both Hussain and defense counsel addressed some evidentiary issues in limine. Among other things, Hussain attempted to have the parties’ contract and a report from the Foxboro Building Commissioner admitted into evidence. The court properly ruled that it would reserve decision on those matters until they arose at the appropriate time during the trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Grandoit v. R.J. Leyden, LLC
2015 Mass. App. Div. 107 (Mass. Dist. Ct., App. Div., 2015)
Consumer Product Distributors, Inc. v. Toy Town Pit Stop, Inc.
2011 Mass. App. Div. 42 (Mass. Dist. Ct., App. Div., 2011)
Yetman v. Cavanagh
2007 Mass. App. Div. 162 (Mass. Dist. Ct., App. Div., 2007)

Cite This Page — Counsel Stack

Bluebook (online)
2007 Mass. App. Div. 14, 2007 Mass. App. Div. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hussain-v-cameron-construction-roofing-co-massdistctapp-2007.