Murphy v. J. Bowes Construction Co.

1981 Mass. App. Div. 135, 2 Mass. Supp. 585

• Court: Massachusetts District Court, Appellate Division
• Decided: July 3, 1981
• Status: Published

Opinion

Walsh, P.J.

This is a petition to establish a report brought pursuant to the provision of Dist./Mun. Cts. R. Civ. P., Rule 64(e). After the plaintiffs’ complaint was dismissed by the trial judge, a draft report was filed. After a hearing, the judge dismissed the original draft report, and according to the petition, “requested that a redraft of the submitted report be effected by the plaintiff addressing all the issues...”

After a second draft report was filed, the judge disallowed it setting forth at length and in considerable detail his reasons. This petition was then timely filed. A chronological list of events is set forth in the affidavit accompanying the petition along with the following statement:

That all of the material facts relating to this case are before the Court in the form of the draft report submitted herewith and the accompanying appendix which provides this Court with all the evidence material to the questions reported which were before the District Court in the two draft reports.

The petition fails for want of verification, i.e., that the draft report conformed to the truth. As stated in Cook v. Kozlowski, 351 Mass. 708 (1967), “The petition does not contain an unequivocal allegation, supported by an unequivocal affidavit, that the draft report conforms to the truth.” See Stevens v. United Artists Corporation, 373 Mass. 854 (1977); Lasell v. Director of the Div. of Employment Security, 325 Mass. 23, 25-26 (1949).

The plaintiffs’ petition to establish a report is hereby dismissed.