Butera v. Boucher

• Decision Date: 21 May 2002
• Docket Number: No. 1999-409-A.,1999-409-A.
• Parties: David Butera, d/b/a/ Butera Building and Design v. Richard N. Boucher et al.
• Court: Rhode Island Supreme Court

798 A.2d 340

David Butera, d/b/a/ Butera Building and Design v. Richard N. Boucher et al.

No. 1999-409-A.

Supreme Court of Rhode Island.

May 21, 2002.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Gerard M. DeCelles, Smithfield, for Plaintiff.

David Edward Maglio, III/Richard E. Kirby, Providence, Jonathan Oster, Lincoln, for Defendant.

OPINION

FLANDERS, Justice.

The American dream of building a home of one's own can sometimes turn into a nightmare. This case deals with some of the problems that arise when that dream bumps up against the reality of all that can go awry in the construction process. After a jury verdict, two disappointed homeowners and a frustrated builder appeal from a Superior Court judgment that awarded lost profits to the builder and damages for breach of contract to the homeowners. For the reasons crafted below, we affirm the Superior Court's judgment in all respects.

Facts and Travel

In April 1993, a builder, David Butera (plaintiff or builder) contracted to build an energy-efficient single-family residence for Richard N. Boucher (Boucher) and his wife, Janice E. Boucher (defendants or homeowners), for approximately $175,000. Two days before the date specified in the contract for completing construction, the homeowners terminated the builder's contract, alleging lack of job oversight and failure to accomplish substantial construction of the house by August 15, 1993, the completion date specified in the contract. In response, the builder filed a lawsuit in Superior Court, alleging wrongful termination of the contract, slander, malicious prosecution, and abuse of process. The homeowners answered the complaint, raised affirmative defenses, and filed a counterclaim for breach of contract. They also sought damages for the cost of remedial work, asserting that the builder had constructed the home in an unworkmanlike manner.

After a trial, a Superior Court jury returned a verdict in favor of the builder in the amount of $15,500 for his unrealized profits on this project, finding that the homeowners had terminated the contract without justification. But it also returned a verdict in favor of the homeowners on the builder's slander claim and awarded them $1,200 on their counterclaim against the builder for breach of contract. After the verdict, both parties moved for a new trial, but the trial justice denied their motions. Thereafter, the homeowners appealed and the builder cross-appealed. The builder argues that the trial justice erred in denying his motion for a new trial on the counts of slander, malicious prosecution, and abuse of process. See note 2, infra. In support of that assertion, he contends that on or about August 9, 1993, the supplier notified Boucher that a custom-ordered door had been returned for credit. Boucher disputed this fact, asserting that he was not aware that the door had been returned until September 8 or 9. In any event, on September 4, 1993, the homeowners filed a complaint against the builder with the Lincoln Police Department, accusing him of stealing the door. Later that month, Boucher returned to the police to file another complaint, accusing the builder of "fraud and deception." The homeowners also filed a complaint against the builder with the Rhode Island Contractors' Registration Board (board). The builder alleged that the homeowners subjected him to embarrassment and to public humiliation because of these and other accusations and that he had been forced to expend great sums of money financing his defense of these false charges.

The homeowners' appeal argues that both the jury verdict and the trial justice's denial of their motion for a new trial were in error, against the weight of the evidence, and that other procedural errors during the trial deprived them of a fair trial. We address and resolve each of these issues below.

I Quashing the Homeowners' Eve-of-Trial Subpoena For the Builder's Records Concerning Another Project

The homeowners asserted that the builder's chronic absence from the job site contributed to the construction delay, justifying their termination of the contract. Just two days before the trial began, the homeowners caused two extremely broad subpoenas duces tecum to be served on the builder, requiring him to produce a great number of documents, including, inter alia, his construction files and records for another house that he also was building while he was under contract to build the house for these homeowners. In response to the builder's motion to quash, the trial justice limited the scope of the records he had to produce by quashing the request for records pertaining to his other construction project. On appeal, the homeowners argue the court's granting of the motion to quash prejudiced them, and that their "defenses to [the builder's] petition for wrongful termination had essentially been emasculated * * *."

The trial justice concluded that the records in question were "not relevant to this case," and that, in any event, the contract did not prevent the builder from constructing more than one home at a time. Furthermore, he found that contractors do not keep attendance records of the days and hours they spend on various job sites, especially when they have agreed to a contract price. In sum, it was the trial justice's judgment that the subpoenaed documents had nothing to do with the gravamen of the claims at issue in this case because, regardless of the builder's other contractual commitments, contractors "have to comply with the terms of their contract." We agree.

Additionally, the homeowners' eve-of-trial issuance of a blunderbuss subpoena — requesting the builder to produce reams of documents — was both overbroad and untimely because they served the subpoena on him just before trial without giving him adequate time to gather, review, and produce the requested records. Compare Rule 34 of the Superior Court Rules of Civil Procedure (allowing parties forty days to respond to document requests) with Rule 45 of the Superior Court Rules of Civil Procedure (allowing parties to subpoena trial witnesses and to require them to bring specified documents with them). In any event, the subpoena was objectionable because of its gross overbreadth. In National Exchange Bank v. Lubrano, 29 R.I. 64, 68 A. 944 (1908), this Court held that a trial justice properly quashed a subpoena duces tecum when the defendant moved for a writ of subpoena duces tecum, during trial, after the plaintiff had closed its case. The Court in Lubrano held that the defendant could have called a witness available in the court to provide testimony concerning the matter, and that in any case, it did not appear that the information, if produced, would have been material to the controversy.

When an analogous federal rule and our own state rule of civil procedure are similar, this Court has looked to the federal courts for interpretative guidance in applying the rules in question. Heal v. Heal, 762 A.2d 463, 466-67 (R.I.2000). Several federal district courts have held that a Rule 45 subpoena duces tecum, when used as a means of belated discovery, should not be allowed to circumvent the discovery deadlines for parties established by the other rules of civil procedure or by court order. See Dreyer v. GACS, Inc., 204 F.R.D. 120 (N.D.Ind.2001); Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556 (S.D.Cal.1999); Rice v. United States, 164 F.R.D. 556 (N.D. Okla.1995). For example, in Marvin Lumber and Cedar Co. v. PPG Industries, Inc., 177 F.R.D. 443 (D.Minn.1997) the court recognized that, although subpoenas can be used as a means of discovery, they, too, are subject to Rule 26 of the Federal Rules of Civil Procedure, and to the same time constraints and other limitations that apply to other methods of discovery. The court also recognized that, when used improperly, a Rule 45 subpoena "unnecessarily lengthens [the] discovery process, and diverts the parties' attention, from the post-discovery aspects of preparing a case for Trial." Id. at 445. As a general proposition, we subscribe to the notion that "parties should not be allowed to employ a subpoena after a discovery deadline [on the eve of trial] to obtain materials from third parties [or parties] that could have been produced before discovery [closed]." Charles Alan Wright & Arthur. R. Miller, 9A Federal Practice & Procedure § 2452 (Supp.2002).

Here, the trial justice considered that the subpoenaed documents either were irrelevant or immaterial to the breach-of-contract claim in question. Moreover, the builder acknowledged that he was working on two construction projects, and this fact was not lost on the jury during the trial. Under these circumstances, we are of the opinion that the trial justice exercised appropriate discretion in granting the motion to quash this overbroad, eve-of-trial subpoena insofar as it sought to obtain documents pertaining to the builder's other continuing construction project. This information was not discovered in a timely fashion and, if introduced into evidence, it could have confused the jury, encouraged speculation on an immaterial point, and delayed the trial. Moreover, the homeowners suffered no prejudice from this ruling because the evidence was undisputed that the builder did not personally spend most of his working time at the site.

II The Challenged Jury Instructions

A. Substantial Performance

The homeowners next argue that the trial justice erred in failing to instruct the jury on the issue of substantial performance of a contract. During the trial, the homeowners' attorney suggested the following jury charge:

"With regard to the claim asserted by David Butera, d/b/a/ Butera Building and Design that he was discharged by the Defendants after having performed his obligations under the contract, you are instructed that in order for you to find in favor of Mr. Butera, you must first find that Mr. Butera had substantially...