Smith v. Gladtidings Pentecostal Assembly Church, Inc.

2006 Mass. App. Div. 78, 2006 Mass. App. Div. LEXIS 21

• Court: Massachusetts District Court, Appellate Division
• Decided: April 25, 2006
• Status: Published

Opinion

Horgan, J.

In the original complaint filed in this matter on December 31,1999, the Plaintiff, B.J. Smith (“Smith”), alleged unfair and deceptive business practices (Count I), deceit, misrepresentation and fraud (Count II) and negligence (Count III) against the Defendants, Gladtidings Pentecostal Assembly Church, Inc. (“Gladtidings”), Charlesgate Construction and The M Company. When the case came to trial on June 22, 2004, Count II of the complaint alleging deceit, misrepresentation and fraud was the only remaining count. Gladtidings was the only defendant that was part of the trial or this appeal.

The circumstances that gave rise to this matter as follows. Smith was the owner of a parcel of real estate in Mattapan that was adjacent to a parcel owned by Glad-tidings. Smith alleged that the fence on his property sustained damage during the construction of a new church building on the property owned by Gladtidings. Smith also alleged that based on conversations that he had with a representative of Gladtidings, Smith came to understand that Gladtidings would indemnify him for the damages to the fence during construction. Gladtidings denied that any such conversation had taken place.

After a trial on the matter, the trial judge found for Gladtidings on the claim of deceit, misrepresentation and fraud. Smith now appeals that judgment.

Smith’s argument on appeal is that he sustained his burden at trial on the allegation of deceit, misrepresentation and fraud. It is essentially an argument that there was sufficient evidence before the trial judge from which she could conclude that the conduct of Gladtidings satisfied the standard for deceit, misrepresentation and fraud. In order to preserve issues related to the sufficiency of the evidence for appellate review, Smith was obligated to file requests for rulings on the sufficiency of the evidence in the form prescribed by Mass. R. Civ. R, Rule 64A(b). Morris v. Centola, 2001 Mass. App. Div. 39, 40. Because Smith did not raise issues related to the sufficiency of the evidence by proper requests, those issues have not been preserved for appellate review. Id. For this reason, we do not reach any issues concerning sufficiency of the evidence on Smith’s claim of deceit, misrepresentation and fraud.

Accordingly, for the reasons stated herein, we affirm the trial judge’s decision in favor of Gladtidings and dismiss Smith’s appeal.