Vega v. Franciosa

Ruma, J. This is an action for breach of contract to recover damages for the defendant’s allegedly defective workmanship in the construction of a single-family dwelling for the plaintiffs. The defendant counterclaimed for the value of work performed in excess of original contract specifications. The trial court entered judgment for both parties, assessing damages against the defendant for faulty workmanship and against the plaintiffs for a balance owed by them for additional work completed by the defendant. The plaintiffs thereafter sought an appeal to this Division alleging error in the trial court’s admission into evidence, over the plaintiffs’ objection, of the defendant’s testimonial estimate of the value of the additional work performed. Rule 64(a) of the Dist./Mun. Cts. R. Civ. P. prescribes the exclusive procedure for preserving for appellate review any issue relative to a trial court’s eviden-tiary rulings. See, generally, Kayser-Roth Industries, Inc. v. Sylon Industries, Inc., 1985 Mass. App. Div. 117, 117. The rule mandates: When an objection is made to a ruling on the admission or exclusion of evidence, a request for a report shall be made at the time of the ruling and shall be reduced to writing and filed with the clerk within five days of the hearing of all the evidence. The report does not state that the plaintiffs requested a report at the time of the court’s evidentiary ruling. The plaintiffs also failed to submit, within five days of the conclusion of the April 15,1986 trial of this case, a written request for a report setting forth their objection to the admission of the defendant’s testimony. In fact, the plaintiffs did not file a request for a report and draft report until October 13, 1987, six months after trial. The plaintiffs’ noncompliance with Rule 64(a) constituted a waiver of any right to appellate consideration by this Division of the trial court’s evidentiary ruling. See, e.g., Concord Oil Co. v. Palmer, 1984 Mass. App. Div. 121, 123; Onessimo v. Carvelli, 1983 Mass. App. Div. 56, 58; Lavoie v. Empire Mutual Ins. Co., 1981 Mass. App. Div. 184, 185 and cases cited. Report dismissed.