DAVID B. MINNICK & Another v. EASTWARD MBT, LLC, Trustee.

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-25

DAVID B. MINNICK & another1

vs.

EASTWARD MBT, LLC, trustee.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

To the plaintiffs, David B. Minnick and Michele L. Cross,

the problem was quite simple. From 2017, when they moved into

their home in Chatham, Massachusetts, until 2022 when the

defendant Eastward MBT, LLC ("Eastward"), purchased two adjacent

parcels of land, they never experienced flooding onto their

property. Once Eastward developed the vacant lots, significant

rain events would result in water overflowing the catch basin,

entering the plaintiffs' property, and flooding their basement.

The plaintiffs filed suit bringing claims of nuisance and

trespass, among others. The parties agreed to a jury-waived

1 Michele L. Cross.

2 Of Eastward Companies Business Trust.
trial under Superior Court Rule 20 (2) (h). A judge of the

Superior Court found for the defendant on both claims. We

affirm.

Background. The plaintiffs purchased their home on 20

Whiteley Way in 2017, a development that runs off Route 28 in

Chatham and is also known as "Whiteleys Way." When the

plaintiffs purchased the property, there were three other homes

on Whiteley Way -- numbers 2 and 26, which are elevated above

the plaintiffs' property, and number 12, with which the

plaintiffs share a driveway. In 2017, all of the stormwater

from Whiteley Way was diverted into one catch basin adjacent to

the plaintiffs' property.

Around 2022, Eastward purchased two vacant lots located at

11 and 21 Whiteley Way and began development. Eastward's

property and the catch basin were upgrade from the plaintiffs',

so any overflow of water from the catch basin flowed into their

property. Eastward soon learned that the plaintiffs were

concerned about the potential flow of water onto their property.

In response, Eastward cleaned out the catch basin and later

installed stormwater controls onto the lots, which included

directing the rain from the roof gutters into drywells and

installing trench drains and a lawn drain. When certain rain

events still resulted in flooding of the plaintiffs' yard and

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basement, they filed suit, alleging, among other claims,

trespass, and nuisance by Eastward.

Trial occurred pursuant to Superior Court Rule 20 (2) (h).

The trial judge heard testimony from plaintiff David Minnick;

the town of Chatham's building commissioner, Jay Briggs;

Eastward president Donald Poyant; and engineer David Clark.

Twenty-four exhibits were introduced and prior to deliberation,

the judge took a view of the property during a rain event. The

judge, using a "jury waived verdict form,"3 found that Eastward

did not commit an intentional trespass onto the plaintiffs'

property. On the nuisance claim, the judge found that even

though Eastward failed to control the flow of surface waters

from its property, Eastward did not cause substantial and

unreasonable interference with the plaintiffs' use and

enjoyment; that the interference was not intentional, negligent,

or reckless; and that the actions taken by Eastward to control

the flow of surface water were reasonable. This appeal

followed.

Discussion. 1. Standard of review. The parties agree

that waiving detailed findings of fact pursuant to Superior

3 Technically a jury renders a verdict while a judge makes
findings. Substantively there is no difference, see Superior
Court Rule 20 (8) (a), so we will also use the words "verdict
form."

3
Court Rule 20 (2) (h) means our review "shall be according to

the standard of review that would apply to a verdict by a jury

in a case tried to a jury and to the judgment entered thereon."

Rule 20 (8) (b) of the Rules of the Superior Court (2018). This

means that the judgment will be upheld if "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 [prevailing party]." Rabassa v.

Cerasuolo, 97 Mass. App. Ct. 809, 814 (2020), quoting Dobos v.

Driscoll, 404 Mass. 634, 656, cert. denied, 493 U.S. 850 (1989).

"To the extent that the [parties] argue that the basis of the

judge's finding is unclear, that argument is waived." Spinosa

v. Tufts, 98 Mass. App. Ct. 1, 17 (2020). With this deferential

standard in mind, we address the plaintiffs' claims of error.

2. Trespass claim. The plaintiffs claim that the trial

judge erred because the undisputed facts establish the elements

of an intentional trespass. Under Massachusetts law, to

establish a claim for trespass, a landowner must demonstrate an

intentional physical entry onto its land by the defendant. See

Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 424 (2002), quoting

Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass.

180, 187 (1956) ("[A] landowner who sets in motion a force

which, in the usual course of events, will damage the property

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of another is guilty of trespass on such property"). In Deyo v.

Athol Hous. Auth., 335 Mass. 459, 462 (1957), the court noted

that while a landowner can collect surface water on his own land

for a lawful purpose,

"he is liable if he discharges it on his neighbor's land by
means of a definite artificial channel. He is also liable
if surface water so channeled is artificially retained so
that by its retention it is deflected or backed up upon
another's land. It is immaterial whether injury from water
so collected or retained results from the flow of surface
water or from subsurface percolation." (Citations
omitted.)

The judge's determination that Eastward did not commit an

intentional trespass was a question of fact. "On appeal, we are

bound by a judge's findings of fact that are supported by the

evidence, including all inferences that may reasonably be drawn

from the evidence." Twin Fires Inv., LLC v. Morgan Stanley Dean

Witter & Co., 445 Mass. 411, 420 (2005). "A finding is clearly

erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed"

(quotation and citation omitted). Marlow v. New Bedford, 369

Mass. 501, 508 (1976). Nothing in our review of the record

leaves us with the "definite and firm conviction" that a mistake

has been committed.

In essence, on appeal the plaintiffs claim that Eastward

was aware that there was one existing catch basin for surface

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water and failed to calculate what amount of water would be

added to the catch basin by the development of the lots, and

that flooding of the plaintiffs' property was foreseeable

because of the additional burden on the catch basin. While we

acknowledge the plaintiffs' theory of liability at trial, on

appeal our role is not to determine if the plaintiffs' claims

were supported by the record, but rather to determine whether

from "anywhere in the evidence" a reasonable inference could be

drawn in favor of the prevailing party, here Eastward. We find

that there was such evidence.

The judge heard testimony that the plaintiffs' property was

located downhill from Eastward's. Further, runoff water from

other properties on Whiteley Way as well as Route 28 flowed into

the catch basin. The judge also heard testimony that Eastward

reduced the flow of surface water by expanding a driveway drain

and installing leach basins. Once that remediation was

complete, no surface water from Eastward's lots directly entered

the plaintiffs' property. Instead, some water from the lawn

surfaces of the Eastward lots entered the catch basin on Whitely

Way, just as water from Route 28 and another property on the

road did.

Finally, while Minnick testified numerous times that his

property had not been flooded prior to Eastward's development in

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February 2022, at trial he admitted that in September 2021

(prior to Eastward purchasing the property), a significant

rainfall caused water from the catch basin to overflow, and

water entered his basement.4 While Minnick testified that the

amount of water in his basement was significantly less prior to

the defendant's development of the vacant lots, the judge was

free to consider the undisputed fact that Minnick's property

flooded before Eastward purchased, let alone developed, the

vacant lots. "Where differing inferences can be drawn from the

evidence, and a reasonable view of the evidence supports [the

judge's] findings, we defer to the trial judge." Beninati v.

Borghi, 90 Mass. App. Ct. 556, 564 (2016). We conclude that

there was sufficient evidence to support the judge's finding

that Eastward did not commit a trespass.

3. Nuisance claim. Next, the plaintiffs challenge the

judge's finding of fact that the defendant did not create a

private nuisance. Under Massachusetts case law, a landowner can

be held liable for private nuisance caused by the flow of

surface waters onto another's property if the landowner is not

4 Minnick also testified the flooding of his basement was
due to the intensity of the storm and the overburdening of the
one catch basin rather than any action by Eastward to direct
water onto his property.

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making a reasonable use of the land. Trenz v. Norwell, 68 Mass.

App. Ct. 271, 275 (2007).

"[I]n order for a condition to constitute a nuisance, the

impact on the plaintiffs' property must be substantial and

unreasonable" (quotation and citation omitted). Gillis v.

Uxbridge, 103 Mass. App. Ct. 100, 103-104 (2023). Furthermore,

"[i]f a landowner fails to control the flow of surface waters

but on a consideration of all of the relevant factors his

actions are reasonable, an action for nuisance will not lie."

Id. at 104. "The issue of reasonableness is 'a question of

fact'" and requires "consideration of all the relevant

circumstances, including such factors as the amount of harm

caused, the foreseeability of the harm which results, the

purpose or motive with which the possessor acted, and all other

relevant matter." Von Henneberg v. Generazio, 403 Mass. 519,

522 (1988), quoting Tucker v. Badoian, 376 Mass. 907, 918 n.2

(1978) (Kaplan, J. concurring).

The evidence at trial supported the judge's finding that,

while Eastward did not control the surface water, its actions

were reasonable. Again, we note that Minnick testified that

flooding occurred prior to Eastward's development of the lots.

Eastward cleaned out the catch basin and installed drywells, a

trench, and lawn drains. The testimony of engineer Dan Clark

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supported the inference that once those remediations were made,

water did not flow from Eastward's lots to the plaintiffs'

property. In sum, when the plaintiffs purchased the property,

which was located at a low point in the subdivision, the

potential for flooding existed prior to Eastward developing the

lots. Unlike cases cited by the plaintiffs, there was no

evidence in this case that even suggested Eastward diverted

water onto the plaintiffs' property, thereby creating a

nuisance. Rather, the evidence supported the inference that

Eastward's use of the property was reasonable.

4. Verdict form. Finally, the plaintiffs claim that the

judge made an error of law when considering the legal standard

for a private nuisance by considering whether the defendant's

actions were intentional, negligent, or reckless rather than

properly focusing only on whether the defendant's actions were

unreasonable. This argument fails.

First, we have reviewed the trial transcript and

acknowledge that at the outset of the jury-waived trial, there

is a passing reference regarding the verdict form and each party

submitted differing versions of a verdict form that were

docketed but not introduced in evidence or marked for

identification. Nowhere in the trial record did the plaintiffs

lodge an objection to the verdict form the judge used, nor did

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they provide their proposed verdict form in the record appendix.

Thus, the argument is waived. "[N]o party may assign as error

the giving or failure to give an instruction unless [the party]

objects thereto before the jury retires to consider [their]

verdict, stating distinctly the matter to which [the party]

objects and the grounds of [the] objection." Rotkiewicz v.

Sadowsky, 431 Mass. 748, 751 (2000), quoting Mass. R. Civ. P.

51 (b), 365 Mass. 816 (1974). Because the "primary purpose of

the rule is to put the judge on notice of the issue," a party

objecting to an instruction must "clearly bring the objection

and the grounds for it to the attention of the judge." Id. By

failing to object to the special verdict form, the plaintiffs

have waived their right to challenge it on appeal. See Motsis

v. Ming's Supermkt., Inc., 96 Mass. App. Ct. 371, 383 (2019)

("Any objection to the form of a verdict slip must be timely

raised").

Finally, we note that even if the panel were to consider

the substance of the claim, the issue of nuisance always turns

on the reasonableness of the use of the land. In DeSanctis v.

Lynn Water & Sewer Comm'n, 423 Mass. 112, 117 (1996), the court

noted that "[r]egardless of the category into which the

defendant's actions fall [intentional and unreasonable or

negligent, reckless, or abnormally dangerous], the reasonable

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use rule explicitly, as in the case of intentional acts, or

implicitly, as in the case of negligent acts, requires a finding

that the conduct of the defendant was unreasonable" (citation

omitted).5 There was no error in the verdict form.6

Judgment affirmed.

By the Court (Desmond,
Walsh & Toone, JJ.7),

Clerk

Entered: December 24, 2024.

5 Like the verdict form in this case, in DeSanctis, supra at
118, the jury were asked whether the defendant "intentionally or
negligently, or by unreasonable use of its property, caused
water to flow onto the [plaintiffs'] property."

6 We note that Eastward requests an award of attorney's fees
due to the plaintiffs' misleading statements about Minnick's
trial testimony and because the appeal is frivolous. We decline
to award attorney's fees.

7 The panelists are listed in order of seniority.

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