Mitchell v. Pollack

This is a petition to establish a report that was disallowed by the trial judge. We decline to establish the report.

In this action plaintiff seeks damages from defendant as a result of defendanf s removal of certain trees that were located at or near the boundary line between plaintiffs and defendant’s property. The judge made specific findings of fact with respect to the location of the trees and found for the defendant. These subsidiary findings of fact are not included in the draft report. As a result, we are unable to determine if the trees had been located on plaintiff’s property, on defendant’s property, or on both plaintiff’s and defendant’s property. Dist./Mun. Cts. R. Civ. R, Rule 64(c) (2) requires that a written decision or finding and any special findings of fact by the trial justice shall be included in all draft reports. This draft report is not in compliance with this provision of the rule.

In disallowing the report, the judge stated that certain of his findings of fact were described as “commentary” in the draft report. “Statements of fact made by the trial judge in such certificate are to be treated as true in the first instance and will stand as final unless rebutted, explained or overcome by other evidence.” Patterson v. Ciborowski, 277 Mass. 260, 265 (1931). Plaintiff has not met her burden of rebutting, explaining or overcoming by other evidence, the judge’s statement of fact.

Plaintiff has had ample time and opportunity to comply with the provision of Rule 64 because the time to establish the report had previously been extended by this division. The draft report is defective; its disallowance was not error.

Petition denied.