Maureen Weeks v. Estate of Patricia Powers.

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

23-P-566

MAUREEN WEEKS

vs.

ESTATE OF PATRICIA POWERS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Maureen Weeks, appeals from a Superior Court

judgment, entered after remand, reinstating the jury's damages

award of $20,000 to the defendant, estate of Patricia Powers

(estate), on its nuisance and negligence counterclaims. Weeks

argues that she is entitled to judgment notwithstanding the

verdict (judgment n.o.v.) on those counterclaims because no

evidence was presented to prove either nuisance or negligence on

her part, or any damages suffered by the estate as a result of

her conduct. We affirm.

Background. We draw the following facts from the prior

decision of a panel of this court in Weeks v. Estate of Powers,

100 Mass. App. Ct. 1127 (2022) (Weeks I), the judge's decision

on remand, and the undisputed record.
The parties owned neighboring residential properties.

Starting in 2017, an underground drainage system (system)

running between the properties failed, causing flooding on both

properties. The estate engaged an engineer who reported finding

two blockages and a break in the portion of the system running

under Weeks's property.1 The estate requested that Weeks either

make the necessary repairs or permit the estate to do so. After

Weeks refused, she brought this action against the estate and

the estate brought counterclaims, with each side alleging that

the other was at fault for the flooding.

On the estate's partial motion for summary judgment on its

declaratory judgment counterclaim, the judge declared that

(1) the estate had a prescriptive easement to drain surface and

ground water through a catch basin located on Weeks's property

and through the system running under Weeks's property,2 and

(2) the estate had the right to make reasonable repairs and

perform reasonable maintenance in the easement area. The estate

undertook the repairs pursuant to a plan approved by the court.

The matter then proceeded to a trial. The jury returned a

verdict finding the reasonable cost to repair the system was

$50,000, and that sixty-five percent of the repairs ($32,500)

1 The estate's property eventually was sold to a third party.
2 The same judge who presided over the trial resolved all motions
relevant to this appeal.

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should be paid by Weeks based on the benefit to her property.

The jury also awarded the estate an additional $20,000 in

damages on its negligence and nuisance counterclaims.3 Weeks

moved for judgment n.o.v. on the $20,000 damages award. In a

written decision, the judge explained that the estate "did not

present evidence of damages beyond the cost of repairing the

drainage system"; however, the judge denied the motion on the

basis that "the jury could have awarded $20,000 to compensate

the Estate for Weeks' negligence in not maintaining the pipe

under her property and preventing the Estate from repairing the

system." Judgments entered awarding the estate a total of

$52,500 in damages -- $32,500 on its declaratory judgment

counterclaim, and $20,000 on the nuisance and negligence

counterclaims. Weeks appealed.

A panel of this court affirmed the judgments with the

exception of the $20,000 damages award on the estate's nuisance

and negligence counterclaims. See Weeks I, 100 Mass. App. Ct.

1127. On that issue, the panel explained that Weeks waived any

appellate argument regarding the sufficiency of the evidence

supporting the $20,000 damages award because Weeks did not

provide a trial transcript or exhibits. Nonetheless, the panel

3 The verdict slip apparently did not ask the jury to specify
whether the damages relate to the estate's counterclaim of
nuisance, negligence, or both.

3
noted an inconsistency between the judge's statement that the

estate presented no evidence of damages beyond the cost to

repair the system and the judge's conclusion that sufficient

evidence was presented to support the $20,000 award. Concluding

that Weeks did not necessarily waive the argument that the judge

committed an error of law in denying the motion for judgment

n.o.v. in light of that inconsistency, the panel vacated the

$20,000 award of damages and remanded the case for the limited

purpose of permitting the judge to reconsider whether to allow

the motion on the damages issue as a matter of law.

On remand, the judge issued a written memorandum and order

clarifying that the estate had not introduced evidence linking a

failed sale of the estate's property to the drainage problem.

However, the judge explained that "the jury could have concluded

that Weeks -- due to her negligence and creation of a nuisance -

- should pay [for] abating the nuisance." The judge explained

that while the jury found the reasonable cost to repair the

system was $50,000 on the declaratory judgment count, the jury

were free to credit evidence that in addition to that amount,

the estate spent $2,950 for a closed-circuit camera needed to

investigate the drainage problem when assessing damages on the

nuisance and negligence counterclaims. Where the evidence

demonstrated the cost to remedy the nuisance was roughly

$53,000, the jury's award ($32,500 on the declaratory judgment

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count and $20,000 on the nuisance and negligence counts) "fully

compensated the Estate for the damage caused by Weeks'

wrongdoing." Judgment then entered reinstating the $20,000

award. This appeal followed.

Discussion. The denial of a motion for judgment n.o.v.

"present[s] [a] question[] of law reviewed under the same

standard used by the trial judge." O'Brien v. Pearson, 449

Mass. 377, 383 (2007). "In reviewing the denial of a motion for

judgment [n.o.v.] the question is whether 'anywhere in the

evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be drawn in favor of the [nonmoving party].'" Beliveau v.

Ware, 87 Mass. App. Ct. 615, 616 (2015), quoting Zaniboni v.

Massachusetts Trial Court, 81 Mass. App. Ct. 216, 217 (2012).

The sole issue before us is whether the judge erred as a

matter of law in denying Weeks's motion for a judgment n.o.v.

with respect to jury's assessment of $20,000 damages on the

nuisance and negligence counterclaims. On remand, the judge

(who presided over the trial) explained the basis for her

decision to reinstate the damages award, namely that the amount

awarded by the jury did not exceed the amount of damages caused

by the nuisance supported by the evidence and was meant to fully

compensate the estate for the repairs.

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Weeks argues that the costs of repair were not caused by

the nuisance or her negligence. She may in fact be correct,

but, though represented by counsel, and already having lost an

appeal for failure to provide this court with an adequate

record, she has again failed to provide us with a complete

transcript of the trial, including her own direct testimony,

that would allow us to make a determination of the matter. The

transcript excerpt that she did provide shows that on cross-

examination she admitted that she opposed the estate's initial

attempts to remedy the drainage problem because "I wanted my own

damages considered and included as well." The judge on remand

said that the full cost of the repair, $53,000, was the "actual

cost to remedy the nuisance." We are unable to conclude that

that is not so without a complete transcript of the trial.

And, even if we were to assume without deciding that the

judge's analysis was in error, and that the costs of the repair

borne by the estate could not be the measure of damages on the

tort claims, or either of them, in the absence of a full

transcript we would be unable to determine whether "anywhere in

the evidence" there is support for the award of the $20,000.

Zaniboni, 81 Mass. App. Ct. at 217.

To the extent Weeks argues that the obligation to repair

and maintain the system within the easement rested solely with

6
the estate as the dominant estate holder,4 the jury were free to

award additional damages on the tort counterclaims including the

cost to abate any nuisance caused by Weeks's conduct.5 See

Rattigan v. Wile, 445 Mass. 850, 861 (2006), quoting Guaranty–

First Trust Co. v. Textron, Inc., 416 Mass. 332, 337 (1993)

("[W]here damage to real property [caused by nuisance] is not

permanent, the measure of recovery is the reasonable expense of

repairing the injury plus the intervening loss of rental value

for the period reasonably needed to repair the injury");

Bousquet v. Commonwealth, 374 Mass. 824, 824 (1978) (plaintiff

in private nuisance action entitled to loss of value in

property, and "their reasonable expenses in preventing, reducing

or abating the results of the defendant's wrongful acts").

4 In the prior appeal, the panel affirmed the judge's decision
that the owner of a servient estate (here, Weeks) who benefits
from an easement should share in the costs of maintaining the
easement. See Weeks I, 100 Mass. App. Ct. 1127. In the verdict
on the declaratory judgment counterclaim, the jury found that
Weeks's property received sixty-five percent of the benefit from
the repairs to the system. We decline to reconsider those
issues on this appeal and focus solely on the damages award
related to the nuisance and negligence counterclaims. See King
v. Driscoll, 424 Mass. 1, 8 (1996) ("An issue once decided,
should not be reopened unless the evidence on a subsequent trial
was substantially different, controlling authority has since
made a contrary decision of the law applicable to such issues,
or the decision was clearly erroneous and would work a manifest
injustice" [quotation and citation omitted]).
5 We do not even have the jury instructions in the record before

us and, therefore, do not know how the jury were instructed on
the damages issue.

7
Weeks's remaining arguments challenge the sufficiency of

the evidence at trial proving that Weeks was negligent, or that

her conduct constituted a private nuisance. The panel in

Weeks I, 100 Mass. App. Ct. 1127, confined the issue on remand

to a determination whether, as a matter of law, Weeks was

entitled to a judgment n.o.v. with respect to the $20,000

damages award. Because Weeks's sufficiency arguments are beyond

the scope of the remand, we need not consider them. See Tracy

v. Curtis, 16 Mass. App. Ct. 910, 910 (1983). Moreover, even if

we were inclined to reach the merits of Weeks's sufficiency of

the evidence arguments, we are unable to do so because, again,

she failed to provide us with the trial record.6 See Wooldridge

v. Hickey, 45 Mass. App. Ct. 637, 641 (1998) ("A party claiming

6 Weeks's submission of excerpts of her trial testimony in this
appeal does not satisfy her obligation to produce the necessary
trial record. See, e.g., Cameron v. Carelli, 39 Mass. App. Ct.
81, 83-84 (1995) (appellate court unable to review sufficiency
of evidence where only limited excerpts of transcript provided).

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an insufficiency of evidence . . . has the burden on appeal of

furnishing the court with all the evidence").7

Judgment entered April 12,
2023, affirmed.

By the Court (Rubin,
Ditkoff & Grant, JJ.8),

Assistant Clerk

Entered: March 11, 2024.

7 The estate's request for appellate attorney's fees and costs is
denied.
8 The panelists are listed in order of seniority.

9