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07/29/77 GOPE H. GIDWANI v. PETER W. WASSERMAN

July 29, 1977

GOPE H. GIDWANI
v.
PETER W. WASSERMAN



Middlesex. Contract or tort. Writ in the Third District Court of Eastern Middlesex dated December 11, 1974. Two actions of contract. Writs in the Third District Court of Eastern Middlesex dated April 17, 1974. The actions were heard by Fine, J.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Proximate Cause. Negligence, Proximate cause. Landlord and Tenant, Recovery of possession. Res Judicata.

The opinion of the court was delivered by: Abrams

In an action for wrongful entry upon a tenant's premises by a landlord, evidence warranted a finding that the landlord failed to give written notice at least ten days prior to his attempted repossession as required by the terms of the lease. [165-166]

Where a landlord wrongfully entered a tenant's premises, disconnected a burglar alarm, and failed to reset it, he was liable for damages resulting from a burglary of the premises. [166-167]

In a civil action, a Judge did not err in excluding the testimony of a witness where the offer of proof did not show that the witness could testify to anything admissible in evidence with respect to any of the issues. [167-168]

A landlord was barred by the doctrine of issue preclusion from relitigating a claim seeking recovery of rents allegedly owed by a tenant where the issue was litigated in an earlier proceeding between the same parties and was essential to the earlier judgment. [168-169]

Where issues sought to be raised by a complaint were fully litigated by trial on two earlier consolidated claims, there was no error in the denial of leave to amend the third claim. [169]

This appeal concerns three separate actions, each tried in a District Court. On entry of judgment, the landlord Wasserman, who is the appellant in each action, claimed a report to the Appellate Division of the District Courts, Northern District. G. L. c. 231, § 108. The Appellate Division found no error and dismissed the reports. Wasserman sought review in this court. We affirm the order of the Appellate Division dismissing the reports.

The plaintiff lessee Gidwani brought an action for breach of contract and tort for trespass. Count 1 sought recovery for wrongful entry and possession of premises by Wasserman, the defendant landlord. Count 2 sought compensation for merchandise stolen from the premises allegedly as a consequence of Wasserman's having disengaged the burglar alarm.

Earlier, Wasserman had commenced an action in contract against Gidwani for rent payments due in March and April, 1974. Gidwani answered by general denial, accord and satisfaction, and denial of signature. By amended answer, Gidwani asserted wrongful entry and breach of contract. The two actions were consolidated for trial.

The landlord brought a subsequent action for rents owing for October, November, and December, 1974, and Gidwani offered the same defenses. This action was not consolidated with the others.

In the action brought by the lessee Gidwani, the trial Judge, after denying the defendant's requests for rulings, found for the plaintiff on both counts, and awarded $2,350 in damages on count 1 and $9,600 on count 2. In the consolidated ...


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