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| FILED
APR 14 2021
NANTUCKET SUPERIOR
COMMONWEALTH OF MASSACHUSETTS COUPT CLERK
NANTUCKET, ss. SUPERIOR COURT DEPT.
OF THE TRIAL. COURT
Civil Action No, 1975CV00002
JIBO & COMPANY, INC.,
Plaintiff
Vv,
RYAN A. DUDDY and ERICA D.
DUDDY,
Defendants
DEFENDANTS’ UNOPPOSED EMERGENCY MOTION TO CONTINUE TRIAL
NOW COME the Defendants and hereby respectfully move for a continuance of
the trial of this matter which is presently scheduled for May 5, 2021. Defendants request
that the trial be rescheduled to the September trial session. In support of this motion,
Defendants state that they learned just yesterday that a crucial non-party witness, Carl
Clarke, who both parties have indicated they expect to call to testify at trial, will be
unavailable as he is scheduled to undergo hip replacement surgery on May 3, 2021, just
two days before trial. See Dkt. No. 11, Joint Pre-Trial Memorandum, at pp. 6-7.
No previous continuances have been sought in this case and none of the parties
will suffer any prejudice should the Court allow this motion. In contrast, should the
motion be denied, both parties stand to suffer substantial prejudice in that they will not be
able to present testimony that is critical to the facts in dispute in this case. Plaintiff's
counsel, Warren Brodie, Esquire, has stated that he does not oppose the requested
continuance.
Background Facts
This action involves the construction of a new home at | Monohansett Road,
Nantucket, Massachusetts (the “Duddy Project”). Defendants, the owners of the
property, hired Carl Clarke (“Clarke”) as their general contractor for the construction of a
new residential home. At or around the same time as the Duddy Project was ongoing,
Clarke was overseeing the construction of another residence immediately adjacent to the
Duddy’s property. When it came time for roofing and siding work to begin at the Duddy
Project, Clarke’s roofing crew was fully immersed at the neighboring project and Duddy
was informed that it would be several weeks before they could begin work at the Duddy
Project. Rather than risk weather damage by waiting several weeks for Clarke’s roofers
to become available, Defendant Ryan Duddy asked another island based roofer, Irakli
Jibladze, principal of the Plaintiff, Jibo & Company, Inc. (“Jibo”) if he was available to
perform the roofing and sidewall work at the Duddy Project. After some discussions and
an inspection of the Duddy Project, Jibo and Duddy reached an oral agreement pursuant
to which Jibo would perform the roofing and sidewall work at the Duddy Project. The
terms of the parties’ verbal agreement are at the heart of the dispute in this.case.
According to Duddy, he and Jibo agreed that Jibo would perform the work for a
fixed price of $55,000.00. Jibo on the other hand contends that his work would be billed
on a time and materials basis and has demanded payment from Duddy of an invoice dated
September 18, 2018 in the amount of $93,889.50, Jibo commenced this action asserting
claims sounding in breach of contract and quantum meruit. Under Jibo’s breach of
contract claim, the Court will be called upon to determine whether the parties entered into
an enforceable contract and, if so, what the terms of that contract were. If there was not
an enforceable contract between the parties, then under Jibo’s quantum meruit claim, the
Court will be asked to determine the fair value of the labor and materials supplied by Jibo
for the benefit of the Defendants.
Although he has not been deposed, the parties anticipate that Clarke will provide
critical testimony concerning the terms of the parties’ contract. In answers to
interrogatories, Jibo states: “After we had installed the ice and water shield and while we
were waiting for the trim contractors to make substantial progress on the. project,
{Duddy], myself and Carl Clarke met on site to finalize all the details going forward,
which were as follows: I would supply materials left over from priot projects or that I
could acquire at a wholesale price. Everything else that needed to be purchased would be
purchased at retail prices on [Clarke] and [Duddy’s] account.” Clarke’s testimony as'to
the meeting described by Jibo could very well be crucial to the determination of the hotly
disputed facts of this case.
Clarke is also expected to testify concerning roofing and sidewall supplies used
by Jibo on the Duddy Project. According to the document production in this case,
substantial amount of roofing and sidewall supplies used and incorporated by Jibo at the
Duddy Project were purchased from a Hyannis based supplier, Shepley, which supplies
were charged to Clarke and paid for by Duddy. It is expected that testimony will be
elicited from Clarke concerning the ordering of these supplies by Jibo for the Duddy
Project and the invoices themselves will be authenticated and admitted into evidence
through the testimony of Clarke.
In addition, Clarke, who was on site on a daily basis, is expected to provide
testimony concerning the accuracy of the labor hours set forth in Jibo’s invoice as well as
the dimensions of the Duddy Project in comparison to the amounts of materials billed to
Duddy by Jibo. Finally, Clarke is also expected to testify as to the fair value of the labor
and materials supplied by Jibo on the Duddy Project.
As indicated above, the continuance requested by the Defendants is the first trial
continuance sought in this case. The Plaintiff will not suffer any prejudice should this
motion be allowed while the Defendants will be severely prejudiced through the inability
to elicit testimony from a critical, non-party witness having extensive knowledge of the
facts and issues presented in this litigation.
Legal Discussion
The decision on whether to continue any judicial proceeding is a matter entrusted
to the sound discretion of the judge, and the judge's discretion will be upheld absent an
abuse of that discretion. In re Adoption of Gillian, 63 Mass.App.Ct. 398, rev. den. 444
Mass. 1107 (2005). While the Court wields great discretionary authority, it is clear the
Court may grant a continuance at any time prior to trial, indeed at any time prior to
judgment. American Woodworking Machinery Co. v. Forbush, 193 Mass. 455, 457
(1907). “The judge’s discretion is not unfettered, however, but bounded by important
considerations. In considering a request for a continuance, a trial judge should balance
the movant’s need for additional time against the possible inconvenience, increased costs,
and prejudice which may be incurred by the opposing party if the motion is granted.”
Commonwealth v. Clegg, 61 Mass.App.Ct. 197, 200 (2004) (quotations and citations
omitted).
Mass. R. Civ. P. 40(b), which allows for continuances upon a showing of “good
cause,” seeks the orderly management of a trial list. Orderly management ofa trial list is
a legitimate concern of this Court and, while not necessarily a determinative
consideration, ought not to be belittled in determining whether the judge abused her
ae
discretion in ordering a case to proceed to trial. Beninati v. Beninati, 18 Mass.App.Ct.
529 (1984). Denial of a motion to continue has been found to be an abuse of discretion in
instances, like this one, where there had been no previous request for a continuance, the
proceedings had not been protracted or particularly contentious, the parties would not be
prejudiced by a continuance, and a specific time request which was reasonable was made.
Botsaris v, Botsaris, 26 Mass.App.Ct. 254 (1988).
WHEREFORE, Defendants respectfully request that this unopposed Motion be
ALLOWED and that this matter be rescheduled for trial during the Court’s September
trial session.
RYAN A DUDDY and ERICA D DUDDY
By their attorneys,
224 Clarendon Street, Suite 32
Boston, MA 02116
(617) 266-9600
spe@seriffinlaw.com
CERTIFICATION OF COUNSEL
I, Stephen P. Griffin, counsel for the Defendants in this action, hereby certify that
on this 14" day of April, 2021, I spoke with Plaintiffs counsel, Warren Brodie, Esq. and
explained to him that I would be filing a motion to continue the pending trial of this
matter as I had just learned that Carl Clarke will be unavailable to testify due.to the fact
that he is having hip replacement surgery on May 3, 2021, just two days before trial.
Attorney Brodie stated that he would not oppose a continuance to the September trial
session.
ba
Stephen P Griffin
CERTIFICATE OF SERVICE
I, Stephen P. Griffin, do hereby certify that on April 14, 2021, I caused a copy of
the foregoing to be served via e-mail on all counsel of record.
Lite
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| FILED APR 14 2021 NANTUCKET SUPERIOR COMMONWEALTH OF MASSACHUSETTS COUPT CLERK NANTUCKET, ss. SUPERIOR COURT DEPT. OF THE TRIAL. COURT Civil Action No, 1975CV00002 JIBO & COMPANY, INC., Plaintiff Vv, RYAN A. DUDDY and ERICA D. DUDDY, Defendants DEFENDANTS’ UNOPPOSED EMERGENCY MOTION TO CONTINUE TRIAL NOW COME the Defendants and hereby respectfully move for a continuance of the trial of this matter which is presently scheduled for May 5, 2021. Defendants request that the trial be rescheduled to the September trial session. In support of this motion, Defendants state that they learned just yesterday that a crucial non-party witness, Carl Clarke, who both parties have indicated they expect to call to testify at trial, will be unavailable as he is scheduled to undergo hip replacement surgery on May 3, 2021, just two days before trial. See Dkt. No. 11, Joint Pre-Trial Memorandum, at pp. 6-7. No previous continuances have been sought in this case and none of the parties will suffer any prejudice should the Court allow this motion. In contrast, should the motion be denied, both parties stand to suffer substantial prejudice in that they will not be able to present testimony that is critical to the facts in dispute in this case. Plaintiff's counsel, Warren Brodie, Esquire, has stated that he does not oppose the requested continuance. Background Facts This action involves the construction of a new home at | Monohansett Road, Nantucket, Massachusetts (the “Duddy Project”). Defendants, the owners of the property, hired Carl Clarke (“Clarke”) as their general contractor for the construction of a new residential home. At or around the same time as the Duddy Project was ongoing, Clarke was overseeing the construction of another residence immediately adjacent to the Duddy’s property. When it came time for roofing and siding work to begin at the Duddy Project, Clarke’s roofing crew was fully immersed at the neighboring project and Duddy was informed that it would be several weeks before they could begin work at the Duddy Project. Rather than risk weather damage by waiting several weeks for Clarke’s roofers to become available, Defendant Ryan Duddy asked another island based roofer, Irakli Jibladze, principal of the Plaintiff, Jibo & Company, Inc. (“Jibo”) if he was available to perform the roofing and sidewall work at the Duddy Project. After some discussions and an inspection of the Duddy Project, Jibo and Duddy reached an oral agreement pursuant to which Jibo would perform the roofing and sidewall work at the Duddy Project. The terms of the parties’ verbal agreement are at the heart of the dispute in this.case. According to Duddy, he and Jibo agreed that Jibo would perform the work for a fixed price of $55,000.00. Jibo on the other hand contends that his work would be billed on a time and materials basis and has demanded payment from Duddy of an invoice dated September 18, 2018 in the amount of $93,889.50, Jibo commenced this action asserting claims sounding in breach of contract and quantum meruit. Under Jibo’s breach of contract claim, the Court will be called upon to determine whether the parties entered into an enforceable contract and, if so, what the terms of that contract were. If there was not an enforceable contract between the parties, then under Jibo’s quantum meruit claim, the Court will be asked to determine the fair value of the labor and materials supplied by Jibo for the benefit of the Defendants. Although he has not been deposed, the parties anticipate that Clarke will provide critical testimony concerning the terms of the parties’ contract. In answers to interrogatories, Jibo states: “After we had installed the ice and water shield and while we were waiting for the trim contractors to make substantial progress on the. project, {Duddy], myself and Carl Clarke met on site to finalize all the details going forward, which were as follows: I would supply materials left over from priot projects or that I could acquire at a wholesale price. Everything else that needed to be purchased would be purchased at retail prices on [Clarke] and [Duddy’s] account.” Clarke’s testimony as'to the meeting described by Jibo could very well be crucial to the determination of the hotly disputed facts of this case. Clarke is also expected to testify concerning roofing and sidewall supplies used by Jibo on the Duddy Project. According to the document production in this case, substantial amount of roofing and sidewall supplies used and incorporated by Jibo at the Duddy Project were purchased from a Hyannis based supplier, Shepley, which supplies were charged to Clarke and paid for by Duddy. It is expected that testimony will be elicited from Clarke concerning the ordering of these supplies by Jibo for the Duddy Project and the invoices themselves will be authenticated and admitted into evidence through the testimony of Clarke. In addition, Clarke, who was on site on a daily basis, is expected to provide testimony concerning the accuracy of the labor hours set forth in Jibo’s invoice as well as the dimensions of the Duddy Project in comparison to the amounts of materials billed to Duddy by Jibo. Finally, Clarke is also expected to testify as to the fair value of the labor and materials supplied by Jibo on the Duddy Project. As indicated above, the continuance requested by the Defendants is the first trial continuance sought in this case. The Plaintiff will not suffer any prejudice should this motion be allowed while the Defendants will be severely prejudiced through the inability to elicit testimony from a critical, non-party witness having extensive knowledge of the facts and issues presented in this litigation. Legal Discussion The decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judge's discretion will be upheld absent an abuse of that discretion. In re Adoption of Gillian, 63 Mass.App.Ct. 398, rev. den. 444 Mass. 1107 (2005). While the Court wields great discretionary authority, it is clear the Court may grant a continuance at any time prior to trial, indeed at any time prior to judgment. American Woodworking Machinery Co. v. Forbush, 193 Mass. 455, 457 (1907). “The judge’s discretion is not unfettered, however, but bounded by important considerations. In considering a request for a continuance, a trial judge should balance the movant’s need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted.” Commonwealth v. Clegg, 61 Mass.App.Ct. 197, 200 (2004) (quotations and citations omitted). Mass. R. Civ. P. 40(b), which allows for continuances upon a showing of “good cause,” seeks the orderly management of a trial list. Orderly management ofa trial list is a legitimate concern of this Court and, while not necessarily a determinative consideration, ought not to be belittled in determining whether the judge abused her ae discretion in ordering a case to proceed to trial. Beninati v. Beninati, 18 Mass.App.Ct. 529 (1984). Denial of a motion to continue has been found to be an abuse of discretion in instances, like this one, where there had been no previous request for a continuance, the proceedings had not been protracted or particularly contentious, the parties would not be prejudiced by a continuance, and a specific time request which was reasonable was made. Botsaris v, Botsaris, 26 Mass.App.Ct. 254 (1988). WHEREFORE, Defendants respectfully request that this unopposed Motion be ALLOWED and that this matter be rescheduled for trial during the Court’s September trial session. RYAN A DUDDY and ERICA D DUDDY By their attorneys, 224 Clarendon Street, Suite 32 Boston, MA 02116 (617) 266-9600 spe@seriffinlaw.com CERTIFICATION OF COUNSEL I, Stephen P. Griffin, counsel for the Defendants in this action, hereby certify that on this 14" day of April, 2021, I spoke with Plaintiffs counsel, Warren Brodie, Esq. and explained to him that I would be filing a motion to continue the pending trial of this matter as I had just learned that Carl Clarke will be unavailable to testify due.to the fact that he is having hip replacement surgery on May 3, 2021, just two days before trial. Attorney Brodie stated that he would not oppose a continuance to the September trial session. ba Stephen P Griffin CERTIFICATE OF SERVICE I, Stephen P. Griffin, do hereby certify that on April 14, 2021, I caused a copy of the foregoing to be served via e-mail on all counsel of record. Lite