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Appeals court considers whether defective Rule 20 verdict slip and mixed expert evidence require new trial in neighbor water dispute
Summary
The panel heard May 5 arguments over a Superior Court judgment awarding damages for trespass and nuisance after a neighbor placed boards and sandbags to divert water; the appellants say the special verdict form (Rule 20) was defective and the record does not support the findings.
The Appeals Court considered an appeal from a Superior Court judgment awarding damages to Rita Battles after the court found that neighbors Rita Tam and Catherine Mooy diverted stormwater onto Battles’ property, causing landscaping damage.
Julie Berry, representing the appellants Tam and Mooy, argued the trial judge used a defective Rule 20 special verdict slip that omitted required elements and therefore left the appellate court unable to determine the factual basis for findings of trespass and nuisance. Berry told the panel that the parties had agreed an amended form would be used, but that the revised slip still lacked interrogatories or findings tied to each legal element as Rule 20 requires; she asked the court to remand for proper findings or a new trial.
Rita Battles’ counsel, David Conti, defended the sufficiency of the record, pointing to undisputed facts that the Tam property sits substantially downhill from Battles’ property, that the Tam parties admitted placing boards to divert water, and that Battles produced an estimate from Alex’s Landscaping, which the judge awarded in the amount of $22,750 to reseed and repair yard damage. Conti also emphasized testimony from a drainage expert (Ronald Tabari) and photos and videos the judge could credit in finding an unreasonable diversion that caused the damage.
The appeals panel questioned whether the parties’ agreement to use a simplified verdict form waived Rule 20’s minimum requirement that elements be separately addressed, and whether a party can accept an agreed form and later challenge it on appeal. Counsel debated whether the judge’s discretionary decision to rely on the agreed slip is reviewable without instructing a remand for fuller findings. The court also examined the record for competing expert testimony about whether the water flow was a natural sheet flow from Blue Hills or an unnatural concentrated flow caused or worsened by the defendants’ diversion efforts.
After argument the panel took the case under submission. The record includes invoices and estimates, expert statements about flow patterns, town citations about fence disrepair, and testimony about when boards were installed and later removed.
