MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Olga Bukaveckiene and Haddad Service Station, Inc., appeal from a Superior Court judgment and an order denying their motions for posttrial relief. The plaintiffs sought recovery pursuant to G. L. c. 21E, §§ 4, 4A, and 5 for costs incurred as a result of an oil release caused by the defendants on the abutting property. After trial, a jury awarded the plaintiffs $62,586.25 in past response costs, $200,000 in property damages, and $150,000 in future response costs. The judge then granted the plaintiffs’ motion for attorneys fees and costs, added prejudgment interest, and ordered judgment for the plaintiffs in the total amount of $1,019,986.90. On appeal, the defendants argue that the judge, in ruling on various posttrial motions, improperly upheld the awards for past response costs, future response costs, and property damage, and erred in awarding litigation costs and attorneys’ fees. We agree that the defendants are entitled to relief on the property damage award and the interest thereon but otherwise affirm the judgment.
Discussion. After the jury verdict, the defendants filed a posttrial motion seeking alternative relief for judgment notwithstanding the verdict pursuant to Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998), for a new trial or remittitur pursuant to Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), and to alter or amend the judgment pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974).
A motion for judgment notwithstanding the verdict presents a question of law: whether the evidence, construed against the movants, justifies the jury verdict against them. See OBrien v. Pearson, 449 Mass. 377, 383 (2007). On a new trial motion, a trial judge must consider “whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). “A judge acting on a motion for remittitur has broad discretion” and may remit so much of the damages as he “adjudges is excessive, in order to bring the award within the range of verdicts supported by the evidence” (quotation and citation omitted). Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 623 (2005). A motion to alter or amend a judgment “is designed to correct judgments which are erroneous because they lack legal or factual justification.” Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn, 394 Mass. 233, 237 (1985).
We review a ruling on a motion for judgment notwithstanding the verdict under the same standard as the trial judge, construing the evidence in the light most favorable to the nonmoving party -- here, the plaintiffs. See OBrien, 449 Mass. at 383. “Our duty in this regard is to evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [plaintiffs]” (quotation omitted). Id. We review the rulings on the motions for a new trial, remittitur, and to alter or amend the judgment for an abuse of discretion. See Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003) (motion for new trial); Reckis v. Johnson & Johnson, 471 Mass. 272, 299 (2015), cert. denied, 557 U.S. 1113 (2016) (motion for remittitur); Gannett v. Shulman, 74 Mass. App. Ct. 606, 615 (2009) (motion to alter or amend).
1. Past response costs. The jury awarded the plaintiffs $62,586.25 in past response costs pursuant to G. L. c. 21E, § 4. In their posttrial motions, the defendants argued that the plaintiffs’ environmental attorneys fees were not shown to be necessary and appropriate, but their sole argument on appeal is that the plaintiffs paid the attorney only $5,500 out of the total $53,900 billed, and therefore cannot recover the full amount billed as past response costs. Nowhere in their posttrial motions did the defendants make this argument, and so the argument is waived. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983). Thus we do not disturb the past-response-costs aspect of the judgment.
2. Future response costs. The jury awarded the plaintiffs $150,000 in future response costs pursuant to G. L. c. 21E, § 4A. In their posttrial motions, the defendants argued that the evidence supported only $130,000 in future response costs. However, during oral argument before us, the defendants conceded that there was evidence in the record from which a reasonable inference could be drawn in favor of the plaintiffs to support the jurys award of $150,000. See OBrien, 449 Mass. at 383. We agree; the plaintiffs’ environmental expert testified that $130,000 was the estimated cost of the removal of the contaminated soil at the time of a 2013 report, but the cost could have been ten percent higher by the time of trial. He also testified that monitoring costs could add $10,000 to $20,000 to future response costs and that the replacement of key monitoring wells destroyed by excavation could add another $7,000 to $8,000. Therefore, we see no reason to disturb the jurys award of future response costs.
3. Property damage. The defendants argue that the plaintiffs offered no evidence to support the jurys award of $200,000 for property damages incurred pursuant to G. L. c. 21E, § 5 (a) (5) (iii).
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The measure of property damage under that statute is the diminution in the fair market value of the property, which is “the difference in the fair market value of the injured premises before and after the injury.” See Black v. Coastal Oil New England, Inc., 45 Mass. App. Ct. 461, 465-466 (1998), quoting Belkus v. Brockton, 282 Mass. 285, 288 (1933). “A nonexpert owner of property may testify to its value upon the basis of ‘his familiarity with the characteristics of the property, his knowledge or acquaintance with its uses, and his experience in dealing with it.’ ” Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 759 (2010), quoting Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83, 85 (1954). Generally, “[w]hile it is true that a plaintiff need not prove damages with mathematical certainty, ‘damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty.’ ” Kitner v. CTW Transp., Inc., 53 Mass. App. Ct. 741, 748 (2002), quoting Lowrie v. Castle, 225 Mass. 37, 51 (1916).
Here, the only evidence that the plaintiffs presented at trial regarding the difference in fair market value before and after the contamination was plaintiff James Tiviniss testimony that the property was worth between $1.2 to $1.5 million at the time of trial and was “worth a lot less” than if it had not been contaminated. Under Bleicken v. Stark, 61 Mass. App. Ct. 619, 623 (2004), it is for the judge to decide in the first instance whether an owner of property is qualified to testify as to its value, and here, the judge decided that Tivinis was not qualified to testify to any specific amount of diminution in value due to the contamination. The plaintiffs have not challenged that ruling on appeal.
At oral argument, the plaintiffs asserted that the notice of activity and use limitation (AUL) on the defendants’ property suggested that an AUL would inevitably be placed on, and diminish the value of, the plaintiffs’ property as well. However, the plaintiffs did not introduce any evidence at trial as to whether the defendants’ AUL would affect the plaintiffs’ property, or the amount of diminution of value it would cause, and therefore the jury could have only speculated on the matter.
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With the only evidence as to the property damage being Tiviniss testimony that the property was now “worth a lot less” as a result of the contamination, the amount of the plaintiffs’ property damages, particularly once remediation is performed, was “speculative, hypothetical, and not within the realm of reasonable certainty.” Kitner, 53 Mass. App. Ct. at 748. Therefore, the award of $200,000 in property damages cannot stand.
The parties agreed at oral argument that, if we determined the damages award to be unsupported, the most procedurally appropriate method to grant relief would be to order the judgment amended pursuant to Mass. R. Civ. P 59 (e). See Pentucket Manor Chronic Hosp., Inc., 394 Mass. at 237. Accordingly, the judgment must be amended to eliminate the award of property damages. The prejudgment interest award must also be vacated and recalculated to reflect the elimination of the property damage award.
4. Litigation costs and attorneys fees. The judge granted the plaintiffs’ motion for litigation costs and attorneys fees pursuant to G. L. c. 21E, § 4A.
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The defendants argue that in awarding such costs and fees based on the defendants’ “fail[ure] without reasonable basis to make a timely response to a notification pursuant to this section,” G. L. c. 21E, § 4A (d) (1), the judge failed to consider the defendants’ claimed basis for doing so: that they lacked sufficient knowledge of the notification. However, the record indicates that the judge did consider defendants’ claimed basis but did not find it credible. In coming to his decision, the judge found as fact that copies of the notice under § 4A were sent by first class mail to valid addresses for Maurice Haddad (at that time the owner of the defendant Haddad Service Station, Inc.,) and were not returned as undeliverable. Further, the judge found that a copy of the notice was sent to an attorney employed by Haddad, and that the attorney then had discussions with the plaintiffs’ counsel in April 2011. Accordingly, the judge found that the defendants had actual notice. The defendants do not argue that these findings were clearly erroneous, nor do they contest that actual notice would suffice under § 4A. Therefore, we see no reason to disturb the award of litigation costs and attorneys fees.
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Conclusion. So much of the judgment as awarded $200,000 in property damages and prejudgment interest thereon is vacated. The matter is remanded for the recalculation of prejudgment interest and the entry of an amended judgment that omits such property damages and any interest thereon. The remainder of the judgment is affirmed.
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So ordered.
Affirmed in part; vacated in part and remanded
FOOTNOTES
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. The defendants also argue that the plaintiffs failed to prove that the damage was permanent. However, this argument was not raised in the defendants’ posttrial motions and thus is waived. See Albert, 388 Mass. at 493-494.
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. We also agree with the defendants that the plaintiffs presented no evidence to substantiate public “market fears” about the plaintiffs’ property, the test for determining property damage under the alternative theory of stigma. See Bisson v. Eck, 40 Mass. App. Ct. 942, 942 (1996).
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. The court also found that G. L. c. 21E, § 15 provided an additional ground for the award of fees made under § 4A.
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. Because we conclude that the judge did not err in his determination that the defendants failed without reasonable basis to timely respond to the notification, we need not consider the other potential bases for an award of litigation costs and attorneys’ fees under G. L. c. 21E, §§ 4A or 15.
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. The plaintiffs’ request for fees on the basis of a frivolous appeal pursuant to G. L. c. 211A, § 15, is denied.