KENNETH R. IVESTER, THIRD v. FRANCIS MURRAY, FOURTH, & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-933

KENNETH R. IVESTER, THIRD

vs.

FRANCIS MURRAY, FOURTH, & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, the jury returned

a verdict in favor of the plaintiff, Kenneth R. Ivester, III, on

his claim of conversion of a bulldozer by the defendant, Murray

Enterprises, Inc., (Murray Enterprises) and awarded damages in

the amount of $230,000, plus interest and costs for a total

award of approximately $409,000. Murray Enterprises appeals,

contending that the judge erred in denying its motion for a

directed verdict, and that the verdict slip and jury

instructions contained prejudicial errors. 2 We affirm.

1 Murray Enterprises, Inc.

2Although the judgment, as entered, was against both Murray
Enterprises and Francis Murray, IV, only Murray Enterprises
filed a notice of appeal. The remaining defendants were
Background. The jury could have found the following facts.

Ivester works in the construction industry and owns and operates

heavy equipment. In 2015, he owned a CAT D5G bulldozer, which

he used to perform excavation work on property owned by Glen and

Danielle McKay in Lynnfield. Ivester and the McKays had several

disagreements, and at a certain point the McKays wanted Ivester

to remove his bulldozer from their property. When Ivester did

not immediately respond to the request, the McKays called the

Lynnfield police department seeking assistance and were advised

that the bulldozer could be towed away. The McKays then

contacted Murray Enterprises and requested that the bulldozer,

which weighs approximately 16,000 pounds and requires a flatbed

truck to move, be taken away from their property. Without

notifying Ivester or allowing him to retrieve the bulldozer,

Murray Enterprises arrived that same evening and towed the

bulldozer to its lot in Woburn. Thereafter, as Ivester

testified, Murray Enterprises sent Ivester "fraudulent" bills

and invoices related to the storage and maintenance of the

bulldozer and refused to return the bulldozer to Ivester. 3

dismissed by stipulation, motion, or directed verdict, and none
of them have appeared here.

3 Both Ivester and the owner of Murray Enterprises, Francis
Murray, IV, testified at trial and each provided different
versions of events. Given the verdict reached by the jury, it
is apparent that they were persuaded by Ivester's account.

2
After a number of unsuccessful attempts to retrieve the

bulldozer and settle his dispute with Murray Enterprises,

Ivester filed this action in 2016. 4 Murray Enterprises filed a

counterclaim for unpaid storage fees totaling about $260,000.

Ultimately, a jury trial was held in 2022. At the conclusion of

the trial, Murray Enterprises filed a motion for a directed

verdict, which was allowed in part, and denied in part.

Specifically, the judge dismissed Ivester's claims of negligence

and trespass to chattels. With respect to Murray Enterprises'

claim that it was entitled to a directed verdict because Ivester

had failed to prove damages, the judge stated the following:

"The testimony of the plaintiff as to jobs lost or
inability to do . . . different jobs, and the amount of
money . . . he would have earned to rent the bulldozer or
use the bulldozer on projects was not proven with
reasonable certainty. However, I'm going to not direct out
any additional claims in the complaint. We will let the
jury decide . . . and we can deal with the damages issues,
if any, post judgment."

As previously noted, the jury, on special questions,

returned a verdict for Ivester on the conversion claim only,

finding that Murray Enterprises either

"(a) [had] no right to possession of the bulldozer at the
time of their acts of control or dominion over it; or (b)

4 Ivester's complaint alleged conversion, fraud, trespass to
chattels, a violation of The Fair Debt Collection Practices Act,
pursuant to 15 U.S.C. § 1692, unfair business practices,
pursuant to G. L. c. 93A, civil conspiracy, a violation of his
constitutional rights pursuant to the Fourteenth Amendment to
the United States Constitution and 42 U.S.C. § 1983, and
negligence.

3
. . . had a right to possession of the bulldozer when they
acted, but they failed to return the bulldozer to Mr.
Ivester when he made a reasonable demand that they do so."

The jury answered "no" to the questions of whether Murray

Enterprises committed a c. 93A violation or was unjustly

enriched. Murray Enterprises' counterclaim was dismissed.

Judgment entered accordingly, and this appeal followed.

Discussion. Murray Enterprises first argues that its

directed verdict motion should have been allowed in its entirety

because Ivester failed to submit any evidence of damages "other

than his own speculative (and contradictory) testimony." 5 While

we agree, as the judge observed, that the evidence of Ivester's

damages was not overwhelming, we are satisfied that Ivester

presented sufficient evidence upon which a reasonable jury could

find nonspeculative damages in the amount returned. Ivester

testified that the value of the bulldozer was "about $125 an

hour at the time it was taken," amounting to "[a]bout a thousand

dollars a day," and explained that "the average use of the

machine is about three days a week, say for 42 weeks a year."

This testimony adequately proved that Ivester had sustained

5 Without citation to any authority, Ivester argues that
Murray Enterprises has waived this claim because it failed to
pursue any post-trial remedies as the judge recommended. While
the better course would have been to do so, we exercise our
discretion to consider the issue on the merits.

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damages. 6 See Selmark Assocs. v. Ehrlich, 467 Mass. 525, 545

(2014) ("While damages may not be determined by mere speculation

or guess . . . that there may be an element of uncertainty as to

the amount of damages does not bar their recovery" [quotations

and citation omitted]). Again, we recognize that Ivester did no

more than provide the jury with his own calculations, none of

which were supported by documentation. However, nothing

prevented the jury from relying on this testimony in reaching

their verdict. Furthermore, we cannot say on this record that

the amount of damages was excessive. 7 See Ayash v. Dana-Farber

Cancer Inst., 443 Mass. 367, 404 (2005) ("a reviewing court

should not disturb a jury's award of damages unless it is

clearly excessive in relation to what the plaintiff's evidence

has demonstrated damages to be").

Next, Murray Enterprises asserts that "prejudicial wording

in the verdict slip and jury instructions" require us to vacate

the judgment. In both instances, Ivester's "demand" that Murray

Enterprises return the bulldozer was described as "reasonable."

The verdict slip posed the following question:

"Did Mr. Murray either (a) have no right to possession of
the bulldozer at the time of his acts of control or

6 Contrary to Murray Enterprises' assertion, expert
testimony was not required to prove damages.

7 Ivester testified his damages amounted to $882,000 at the
time of trial; however, the jury awarded a far lesser amount of
$230,000.

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dominion over it; or (b) he had a right to possession of
the bulldozer when he acted, but he failed to return the
bulldozer to Mr. Ivester when Mr. Ivester made a reasonable
demand that he do so?"

Similarly, the judge instructed the jury that "Mr. Ivester

may prove this element," by showing that "even though the

defendants had a right to possession of the bulldozer when they

acted, they failed to return the bulldozer when Mr. Ivester

reasonably demanded he do so."

Murray Enterprises argues that the use of the word

"reasonable" effectively caused the jury to improperly presume

that Ivester's demand for the bulldozer's return was appropriate

notwithstanding that Ivester had not paid Murray Enterprises its

usual and customary storage fees. According to Murray

Enterprises, had "reasonable" been better defined or explicated,

the jury would have returned a verdict in its favor. In

addition, Murray Enterprises claims that this error "sabotaged"

its counterclaim which sought reimbursement for tow and storage

charges.

As an initial matter, we question whether this issue is

properly before us. With regard to the verdict slip, we

conclude that the record does not support Murray Enterprises'

claim that it objected to the use of the word "reasonable." The

relevant portion of the transcript at which the parties

discussed the verdict slip is inaudible, and Murray Enterprises

6
did not attempt to clarify or reconstruct the record as it

should have done. 8 In the absence of any clarification or

reconstruction of the record, we are not able to conclude that a

proper objection was lodged and, as a result, any challenge to

the verdict slip is waived. Shafnacker v. Raymond James &

Assocs., 425 Mass. 724, 731 (1997) (claimed error in verdict

form waived by failure to object at trial).

We reach a different conclusion regarding the jury

instructions. Although Murray Enterprises requested some

additional language with regard to the jury instructions, it did

not clearly object during the charge conference or after the

judge instructed the jury as to the use of the word

"reasonable." 9 See Mass. R. Civ. P. 51, 365 Mass. 816 (1974)

("No party may assign as error the giving or the failure to give

an instruction unless he objects thereto before the jury retires

to consider its verdict, stating distinctly the matter to which

8 Counsel for Murray Enterprises stated the following: "I
have an objection to the use of the word [Whispering at Sidebar
at 2:24:28 p.m.] 'cause it implies [Whispering at Sidebar at
2:24:30 p.m.]," after which counsel for Ivester began speaking,
"[Crosstalk at 2:24:30 p.m.] [Whispering at Sidebar at 2:24:35
p.m.]," which is when the judge acknowledged the objection.

9 When initially discussing the jury instructions, counsel
for Murray Enterprises told the judge, "I was going to suggest
. . . fourth, that the defendants either A or B, they had a
right to possession of the bulldozer when they acted, but they
failed to return the bulldozer to Mr. Ivester when he made a
reasonable demand that they do so. I think I'd be okay with
that."

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he objects and the grounds of his objection"). It was incumbent

upon Murray Enterprises to preserve its challenge with an

objection to "save [its] appellate rights." Flood v. Southland

Corp., 416 Mass. 62, 66 (1993). That said, we recognize that

the judge noted counsel made objections and stated that they

were preserved. We therefore address the merits of the

challenge to the jury instructions. 10

"When reviewing jury instructions to which there has been

an objection, we conduct a two-part test: 'whether the

instructions were legally erroneous, and (if so) whether that

error was prejudicial.'" Kelly v. Foxboro Realty Assocs., LLC,

454 Mass. 306, 310 (2009), quoting Masingill v. EMC Corp., 449

Mass. 532, 540 n.20 (2007). Here, the judge informed the jury

that Ivester "must prove that the defendants exercised a serious

measure of control over the bulldozer through some act . . .

after a reasonable demand is made" (emphasis added). This

sentence, given the insertion of the article "a," did not convey

10After he instructed the jury, the judge called the
attorneys to a sidebar conference and asked if there were any
objections. There were none. However, because the judge
informed counsel that their prior objections were preserved, we
apply the more favorable standard of review. The judge stated
the following: "I'll just state for the record . . . [t]wo
things. One, we had a charge conference and earlier . . .
arguments were made, objections were made, and also the counsel
have submitted written jury instructions. So, your rights are
preserved as to what you’ve requested in writing and already
argued."

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any presumptions. In addition, the judge's remaining

instructions did not include any language which could be

interpreted as indicating a presumption in favor of Ivester. As

such, there was no error.

Judgment affirmed.

By the Court (Vuono,
Desmond & Toone, JJ. 11),

Clerk

Entered: December 8, 2025.

11 The panelists are listed in order of seniority.

9