Procopio Construction Co. v. DiMarco

2000 Mass. App. Div. 166, 2000 Mass. App. Div. LEXIS 63
CourtMassachusetts District Court, Appellate Division
DecidedJune 14, 2000
StatusPublished
Cited by1 cases

This text of 2000 Mass. App. Div. 166 (Procopio Construction Co. v. DiMarco) 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
Procopio Construction Co. v. DiMarco, 2000 Mass. App. Div. 166, 2000 Mass. App. Div. LEXIS 63 (Mass. Ct. App. 2000).

Opinion

Greco, J.

Plaintiff Procopio Construction Co., Inc. (“Procopio”) brought this action to recover the balance due on its contract to assemble and install a prefabricated house for defendants Luigi and Mary Anne DiMarco. The defendants counterclaimed for damages allegedly caused by Procopio’s faulty work. After the case against Mary Anne DiMarco was dismissed, the matter went to trial and the court found for Luigi DiMarco on both his counterclaim for breach of contract and Proco-pio’s original complaint.2 Judgment was entered for DiMarco in the amount of $30,000.00, and Procopio appealed pursuant to Dist./Mun. Cts. R. A. D. A, Rule 8C.

As the trial judge found, the components of the prefabricated house in question were manufactured by a third party and arrived on the home site “in four pieces or ‘boxes.’” It was Procopio’s “job ... to set the boxes on the foundation, to attach the boxes to each other properly, to ‘button up’ the house as attached, and to do other work as specified in the [parties’] contract.” After the boxes were set in place,

it was seen that the house was several inches bigger than the foundation. The foundation was the proper size. The house was a bit too large, but the major problem was that the boxes were not bolted together tightly, causing the house to move and to be out of plumb. That problem ... caused considerable problems to the house.

[167]*167As a result of these problems, DiMarco did not pay the $13,800.00 balance due under the contract.3 In arriving at his award of $30,000.00 on the counterclaim, the trial judge was able to consider the testimony of Joseph Procopio, the president of the plaintiff corporation, homeowner Luigi DiMarco, and DiMarco’s expert witness (whose testimony is discussed below).

On this appeal, Procopio argues: (1) that the testimony of DiMarco’s expert as to the costs to correct the problems with the house was admitted without a proper foundation, (2) the expert’s testimony was beyond the scope of what DiMarco had represented it would be in a pretrial memorandum, and (3) the evidence required a finding for Procopio on its original complaint.

1. DiMarco called Jack Elliot (“Elliot”) as his expert witness. Elliot testified that he was a construction consultant with a master’s degree in business administration. He had taught construction related courses at Wentworth Institute of Technology, Harvard University, the University of Rhode Island and the Rhode Island School of Design. He had personally built between one-hundred and fifty and two hundred houses, including “a few modular homes.” Elliot also testified that he made a visual examination of the DiMarcos’ house. He determined that because parts of the house were not properly bolted together, it had a tendency to “walk,” or “move a little bit.” This movement caused the house to be out of plumb which, in turn, caused walls and windows to crack, put floors “out of kilter,” and allowed water to enter. In Elliot’s opinion, it would cost $4,000.00 to $5,000.00 to hire a structural engineer to assess the full damage and to determine if in fact it could be corrected.

Over Procopio’s objection, Elliot was permitted to testify that assuming the problems could be corrected, the homeowner “could spend twenty to thirty thousand dollars at the drop of a hat” to do so. Procopio again objected, asking “on what basis.” When asked by DiMarco’s attorney for such a basis, Elliot testified that in addition to the cost of the structural engineer, a crane would have to be rented, walls opened, the debris removed, and the work redone, which would include the replacement of doors and windows. He further testified that non-union professional carpenters would bill at the rate of $50.00 per hour. In addition, it would cost $4,000.00 to bring the house in line with the foundation, $4,000.00-$5,000.00 to relocate the vent pipe, $1,200.00-$1,500.00 to relocate the electrical service, $2,000.00 to repair the jacuzzi, and $600.00-$800.00 to replace a counter.

Procopio argues on this appeal that Elliot’s testimony as to damages was based on “generalized conclusions” and “surmise and conjecture.” There was no error. “The admission of expert testimony lies largely in the discretion of the trial judge.” Commonwealth v. Devlin, 365 Mass. 149, 152 (1974). See also Giannasca v. Everett Alum., Inc., 13 Mass. App. Ct. 208, 211 (1982). Based on his qualifications and experience, Elliot had sufficient “education, training, experience and familiarity” with the construction of houses, and specifically modular homes, to render his testimony of assistance to the fact finder. See Gill v. North Shore Radiological Associates, Inc., 10 Mass. App. Ct. 885, 886 (1980). See also Letch v. Daniels, 401 Mass. 65, 68 (1987). Moreover, Elliot made a personal inspection of the DiMarcos’ home, and was thus in a position to apply his general knowledge of repair costs to the problems he observed with the house. See Fourth St. Pub, Inc. v. National Union Fire Ins. Co., 28 Mass. App. Ct. 157, 161 (1989).

2. At the conclusion of Elliot’s testimony, Procopio moved to strike it on the ground that it was inconsistent with DiMarco’s forecast of the testimony in his pretrial memorandum. That memorandum has not, however, been made part of the record before us.4 Putting that procedural defect aside, we accept the representa[168]*168tion made at trial by Procopio’s attorney that the pretrial memorandum stated that Elliot would “testify regarding deviations from state and local building codes.” The trial judge would have been justified in concluding that the problems Elliot described at the DiMarcos’ house fell under the general category of code violations. Even if the challenged testimony went beyond that description,

a trial judge has broad discretion in deciding whether to permit expert testimony when the proponent has not given proper notice of the identity of the expert or the subject matter of the expert’s anticipated testimony, either in his answers to interrogatories or in his supplementary responses.

Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993). We conclude that the same discretion would exist where the representation was made in a pretrial memorandum and, further, that the trial court did not abuse that discretion in refusing to strike Elliot’s testimony herein. In so concluding, we note that two and a half months before the trial, DiMarco complied with the requirements of Mass. R. Civ. P., Rule 26(e) (1) (B), by filing a supplemental answer to interrogatories in which he stated that in addition to “deviations from state and local building codes,” Elliot would testify to “the respects in which construction was defective or unworkmanlike; and the reasonable and customary cost of repairing the defects.” A list of specific defects was provided.5 See Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 350 (1995); Giannaros v. M.S. Walker, Inc., 16 Mass. App. Ct. 902, 903 (1983).

3. Finally, Procopio argues that the trial judge erred in denying its request for a ruling of law that a finding in its favor was required. There is very little in Proco-pio’s brief that passes for argument on this point.

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Bluebook (online)
2000 Mass. App. Div. 166, 2000 Mass. App. Div. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/procopio-construction-co-v-dimarco-massdistctapp-2000.