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-768 MAUREEN WEEKS vs. ESTATE OF PATRICIA POWERS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 This litigation, which began in 2017, arises from a dispute between neighboring property owners concerning a drainage system affecting both of their properties. This is the third time the plaintiff has brought the case before us. Her first appeal was from the original judgment, entered after a jury trial, awarding the defendant $32,500 on its "declaratory judgment claim with statutory interest as provided by law" and an additional $20,000 in damages on its nuisance and negligence counterclaims. A panel of this court ordered a limited remand for the trial judge to reconsider the plaintiff's motion for judgment notwithstanding the verdict as to the $20,000 damages award, but otherwise affirmed the judgment in its entirety. See Weeks v. Estate of Powers, 100 Mass. App. Ct. 1127 (2022) (Weeks I). On remand the trial judge again denied the plaintiff's motion for judgment notwithstanding the verdict, and a judgment entered reinstating the original judgment. On the plaintiff's second appeal, a different panel of this court affirmed. See Weeks v. Estate of Powers, 103 Mass. App. Ct. 1126 (2024) (Weeks II). 1 Following the entry of judgment after rescript in the trial court, the defendant promptly filed a request for issuance of an execution on the judgment. The plaintiff opposed the request, claiming for the first time that prejudgment interest should not be added to the $32,500 award on the defendant's declaratory judgment claim because that award was not "compensatory." A different judge allowed the defendant's request and ordered that execution issue on the full amount of the judgment "plus interest." Execution issued in May 2024, and the plaintiff then filed this appeal, challenging the award of prejudgment interest.

We agree with the defendant that the plaintiff waived her challenge by not raising the issue of prejudgment interest in her first appeal. As mentioned, the original judgment stated that "[t]he defendant will recover $32,500.00 on the declaratory

judgment claim with statutory interest as provided by law." "[T]he application of prejudgment interest to" the $32,500 award was therefore "apparent on the face of the judgment[] from which the [plaintiff] initially appealed." H1 Lincoln, Inc. v. South Washington St, LLC, 104 Mass. App. Ct. 256, 260 (2024), rev'd in part on other grounds, 495 Mass. 484 (2025). Thus, because the plaintiff could have challenged the application of prejudgment interest in her first appeal, but did not, she has waived the issue and cannot raise it now. See City Coal of Springfield v. Noonan, 424 Mass. 693, 695 (1997) (argument that prejudgment interest should be calculated at lower rate was waived because "the issue was apparent on the face of the judgment" and could have been raised in earlier appeal); H1 Lincoln, supra at 261 ("What [the losing parties] could not do is proceed with their appeal on liability and the propriety of delay damages and then -- after the Supreme Judicial Court rejected their arguments, affirmed the judgment, and issued the rescript -- renew their motion on the applicability of prejudgment interest").

Furthermore, even were we to put aside the waiver, we are unpersuaded by the plaintiff's argument that the $32,500 awarded on the defendant's declaratory judgment claim was not compensatory. With approval from a judge, the defendant made extensive modifications and repairs to the drainage system, incurring approximately $50,000 in costs. See Weeks I, 100

The plaintiff's reliance on Governo Law Firm LLC v. Bergeron, 487 Mass. 188 (2021), is misplaced. In that case the court held that prejudgment interest was unwarranted because the prevailing party's "recovery was based on the [losing parties'] wrongful gains rather than on [the prevailing party's] own losses," and the jury award already accounted for the delay between the commencement of the action and eventual recovery by "includ[ing] [the losing parties'] unjust profits gained during the time period that the case was pending." Id. at 200.

Neither circumstance is present here.

The defendant has requested an award of appellate attorney's fees and double costs on the ground that the appeal is frivolous. We agree that the appeal is frivolous as the plaintiff had no reasonable expectation of reversal.

Accordingly, within fourteen days of the date of this decision, the defendant may file an application for fees and costs. The plaintiff may have fourteen days to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Order dated April 17, 2024, on the request for issuance of an execution on the judgment affirmed.

By the Court (Henry, Shin & Brennan, JJ. 2),

Clerk

Entered: April 7, 2025.