
    Ann Marie O’Sullivan vs. Lin and Tai, Inc., and another
    
    Municipal Court
    June 14, 1996.
    Present: Hershfang, Bakas & Giles, JJ.
    John L. Diaz for the plaintiff.
    Thomas M. Elcock for the defendants.
    
      
      Doing business as King’s Chinese American Restaurant.
    
    
      
      Phil Liu.
    
   Bakas, J.

The trial judge’s findings as evinced by the record reveals that on the evening of November 10, 1991 at approximately 11:00 p.m. the plaintiff, ANN MARIE O’SULLIVAN, was injured while on the premises of the corporate defendant, namely, LIU & TAI, INC. d/b/a KING’S CHINESE AMERICAN RESTAURANT, hereinafter referred to as “KING’S.” The circumstances thereof indicate that the plaintiff placed an order for Chinese food with an employee of “KING’S” and paid for it. While waiting for her order she determined from her receipt that she had been overcharged'which prompted her to confront the employee. A hands on dispute followed over the plaintiff’s receipt and as a consequence thereof the plaintiff fell to the floor where she was then kicked by the defendant PHIL LIU (a “KING’S” employee), together with another employee of “KING’S.”

The trial judge’s findings of fact and the ultimate favorable finding for the plaintiff, ANN MARIE O’SULLIVAN, on Count I against “KING’S” and Count III against PHIL LIU of the (first) amended complaint is amply supported by the record. In addition, the record fully supports the court’s findings for all defendants on the other counts. Nor is there any error relative to the court’s findings for the plaintiff, ANN MARIE O’SULLIVAN, on all of the defendants) counterclaims.

The defendants’ grievance and narrow issue for our consideration concerns the plaintiff’s legal theory of recovery. The defendants assert that the trial judge committed error in allowing a recovery grounded upon intentional misconduct (namely assault and battery) given the fact that the plaintiff’s (second) amended complaint was framed on a theory of unintentional misconduct (namely negligence). In substance, the trial judge treated the plaintiff’s (second) amended complaint (containing 2 counts) as being supplemental to the (first) amended complaint, thus, as if having before him Counts I, II, III of the (first) amended complaint together with the 2 supplemental counts which he designated as Counts IV and V. It is the defendants’ contention that the (second) amended complaint was a substitution of the (first) amended complaint and not supplemental, nor could it be scored as an amendment, and, therefore, the only theory of recovery before the court was based on negligence.

The plaintiff’s original complaint (filed August 14, 1992) sets forth six (6) counts. Counts I, II, III and IV are against the corporate defendant “KING’S”; Count V is against a person named WAI LAP LIU; and, Count VI is against the defendant, PHIL LIU. The legal theory against “KING’S” is grounded upon “respondeat superior,” and, “negligent hiring, retention and/or supervision” incident to intentional misconduct, i.e., assault and battery upon (lie plaintiff by “KING’S” employees, WAI LAP LIU and. PHIL LIU. The legal theory relative to both Counts V and VI is based upon intentional misconduct, i.e., assault and battery upon the plaintiff by WAI LAP LIU and PHIL LIU respectively.

Following the filing of the complaint it was determined that the two (2) individuals named as defendants in the original complaint were the same person, namely PHIL LIU. Consequently, the plaintiff pursuant to an assented-to motion to amend the original complaint filed her (first) amended complaint (on December 21,1992) deleting the name and the claim against WAI LAP LIU and setting forth three (3) counts. The legal theory respecting counts I and II against the corporate defendant “KING’S” is grounded upon “respondeat superior,” and “negligent hiring, retention and/or supervision” incident to intentional misconduct, i.e., assault and battery upon the plaintiff by one PHIL LIU an employee of “KING’S.” The legal theory relative to Count III is based upon intentional misconduct, i.e., assault and battery upon the plaintiff by PHIL LIU.

Thereafter, the plaintiff filed a (second) amended complaint (on January 28, 1993) setting forth two (2) counts. Count I is against the corporate defendant “KING’S” and Count II is against the individual PHIL LIU. The legal theory regarding both counts is based upon negligence.

Apart from the (second) amended complaint it appears from the other pertinent pleadings and the trial of the case itself that the plaintiff’s legal theory was based upon an assault and battery or intentional misconduct by the defendant PHIL LIU, and, on the doctrine of respondeat superior against “KING’S” arising out of the assault and battery by “KING’S” employees.

Indeed, counsel for the plaintiff in his opening alludes to me plaintiff being “kicked” and “assault and battery” no less than four (4) times. A colloquy between the trial judge and both counsel during the plaintiff’s opening recognizes the presence of tiie “assault and battery” which resonates throughout the entire record. In fact, the only negative but weak response by counsel for the defendants to an inquiry by the trial judge was that it was defendants’ counsel’s understanding that the assault and battery count “was dismissed from this complaint and no longer before the court, but we’ll find out. I suppose”. Beyond this the only objection by counsel for the defendants was voiced after the trial and during the defendants’ closing argument. At no time during the openings or the trial itself was there any indication by counsel for the defendants that the theory of assault and battery was objectionable or that it was a surprise. Nor was there a request for a continuance by the defendants in order to re-examine their defense or trial tactics given the plaintiffs resurrection of her legal theory based upon assault and battery. Nor was there any objection to any of the evidence pertaining to the assault and battery or that the same was prejudicial to the defendants. Further, the direct and crossexam-ination of the plaintiff centered upon the issue of assault and battery on numerous occasions; and, finally, the trial judge indicated in no uncertain terms before taking the case under advisement that he would resolve the issue of the plaintiffs legal theory in accordance with Mass. R. Civ. R, Rule 15.

On the strength of the obvious objectives and literal meaning of Mass. R. Civ. R, Rule 15(b) entitled Amendments to Conform to the Evidence the trial judge quite properly conformed the pleadings to the evidence inasmuch as the case was clearly tried by implied consent (and arguably express consent) on a legal theory of assault and battery thereby, implicating the application of Rule 15(b). In short, the instant case was tried on the theory of assault and battery, even though, the last pertinent pleading, i.e., the (second) amended complaint, rested upon a theory of negligence. Mass. R. Civ. R, Rule 15(b) states that:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence, (emphasis supplied)

Even if it could be suggested that there was no request by the plaintiff to amend per Rule 15(b) (and we do not intimate that this is so, in fact, the transcript at pages 150-156 clearly indicates otherwise) the rule does not prohibit a trial judge from amending the pleadings to conform to the evidence on his own initiative. Indeed, the rule states that even the “failure to amend does not affect the result of the trial of these issues.” And, it should be noted that the defendants’ failure to object to the assault and battery evidence or that the admission thereof would prejudice them or to request a continuance as set forth in Rule 15(b) does nothing to enhance the merits of their appellate posture.

A cogent case within the orbit of Rule 15(b) is Republic Floors of New England, Inc. v. Weston Racquet Club, Inc.; CPR Industries, Inc., 25 Mass. App. Ct. 479, 487-488 (1988) where the prayer for relief relative to damages was based on negligence rather than for breach of warranty, it was error not to submit the warranty claims to the jury pursuant to Rule 15(b) given the fact that the claims “were tried on a warranty theory by implicit consent.” The court also cited Gallant v. Worcester, 383 Mass. 707, 709 (1981) and Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 89 (1979) for the well established principle, that, “under current Massachusetts practice there is no requirement that a complaint state the correct substantive theory of the case.” In addition, see Ames v. Beal, 284 Mass. 56, 61-62 (1933) where it was held that the trial judge rightly ruled that there was a variance between the pleadings and the proof. Furthermore, it was concluded by the court that “there is no error in the allowance of an amendment to the pleadings after trial if the issues presented by the amendment were fully and fairly tried.”

See also National Medical Care, Inc. & another v. Sheldon Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984) where the affirmative defense of estoppel was not affirmatively pleaded as required by Rule 8(c) but, held nevertheless “even though estoppel is not affirmatively pleaded, if the issue is tried by the express or implied consent of the parties and there is no prejudicial surprise, it is treated as if it had been raised in the pleadings without regard to whether the pleadings are amended to conform to the evidence. See Mass. R. Civ. R, Rule 15(b), 365 Mass. 761 (1974); Tillman v. National City Bank, 118 F. 2d 631, 635 (2d Cir. 1941 ); Jakobson v. Massachusetts Port Authority, 520 F.2d 810, 813-815 (1st Cir. 1975); Mason v. Hunter, 534 F. 2nd 822, 825 (8th Cir. 1976); Jones v. Miles, 656 F. 2d 103, 107 (5th Cir. 1981); 2A MOORE’S, FEDERAL PRACTICE par. 8.27(3) (2d ed. 1984); 5 Wright and Miller, supra." See also, Worcester Ins. Co. v. Fells Acre Day School, Inc., 408 Mass. 393 (1990); Reilly v. M.B.T.A., 32 Mass. App. Ct. 410, 414-415 (1992) and Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 355 (1978).

See also, G.L. (Ter. Ed.) c. 231, §51, as hereinafter set forth:

In all civil proceedings, the court may at any time, allow amendments adding a party, discontinuing as to a party or changing the form of the action, and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause or for recovery for the injury for which the action was intended to be brought... (emphasis supplied).

Given the tortuous history of the plaintiffs legal theory of recovery as demonstrated by her several complaints in the context of all of the aforesaid we conclude that the action of the trial judge pursuant to Rule 15(b) and G.L. (Ter. Ed.) c. 231, §51, prevented form from prevailing over substance, unfairness from prevailing over fairness or the tail from wagging the dog, as it were. In substance, he effectuated the purpose and objective of both Rule 15(b) and G.L. (Ter. Ed.) c. 231, §51; and, we therefore affirm the judgments rendered by him.

DISSENTING OPINION

Giles, J.,

dissenting:

For the reasons that follow, I believe that the trial judge’s allowance of the instant plaintiff/appellee’s attempt to amend her complaint at trial was improper. Therefore, I respectfully dissent.

The only section of District/Municipal Courts Rule Civil Procedure 15 applicable to such an amendment of the pleadings as occurred here is Section (b) (“Amendments to Conform to the Evidence”). Dist./Mun. Cts. R. Civ. R, Rule 15(b). To be sure, said Rule 15(b) clearly says that leave to amend shall be “freely” granted, id.; and it is well settled that motions to amend pleadings should be looked upon favorably, Castellucci v. United States Fidelity and Guaranty Company, 372 Mass. 288, 289 (1977); DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 78 (1994). I also recognize that consent to litigate an issue may be implied if evidence is received without objection and the non-objecting party can fairly be thought to have been appraised that the evidence went to the unpleaded issues. Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 355 (1978).

Nevertheless, the invocation of Rule 15(b) requires the trial court to find that the objecting party expressly or implicitly consented to having the unpleaded issue tried. Dist./Mun. Cts. R. Civ. R, Rule 15(b). In the case at bar, the attorney for the defendants/appellants expressly objected to the resurrection of the plaintiff’s first or second complaint. Appendix 228,222. With regard to a tacit finding by the trial judge of implicit consent by the defendants, in my opinion there was no adequate basis for such a finding. Although the plaintiff’s counsel referred in his opening statement to an alleged assault and battery against his client, defense counsel stated both at the beginning and at the end of his opening statement that the plaintiff had amended her complaint so as to leave only negligence claims. Appendix 77, 82-83. In response to these early statements, the plaintiff’s attorney said nothing; he failed or refused to disabuse either defense counsel or the court of defense counsel’s said belief.

■ Furthermore, plaintiff’s counsel’s allegations in his opening statement of assault and battery were relevant to the defendants’ counterclaims for abuse of process, malicious prosecution, and slander. “If... the evidence is also relevant to an issue already in the case, and there is no indication that the party introducing it was seeking to raise a new issue, consent will not be implied, since the opposing party may not have been aware of the evidence’s different thrust.” MASSACHUSETTS PRACTICE, RULES PRACTICE, SMITH AND ZOBEL, sec. 15.7 (“Amendments to Conform to Evidence-Amendment by Motion or Implied Consent”). See Harrington-McGill v. Old Mother Hubbard Dog Food Co., Inc., 22 Mass. App. Ct. 966, 968 (1986). It is entirely reasonable to infer from this record that the defendants’ attorney believed that the plaintiff’s attorney’s references to assault and battery went to the counterclaims' and not to the complaint.

A judge properly may deny a motion to amend if there appears some good reason for such action. Castellucci v. United States Fidelity and Guaranty Company, supra. Goulet v. Whitin Machine Works, Inc., 399 Mass. 547, 549 (1987). Such reasons include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Castellucci v. United States Fidelity and Guaranty Company, supra at 290, quoting Foman v. Davis, 371 U.S. 178, 182 (1962). I find at least three of those enumerated factors to be extant in the instant action: (1) bad faith, (2) repeated failure to cure deficiencies by amendments previously allowed, and (3) undue prejudice to the opposing party.

Where a party has asserted successfully an inconsistent position in a previous proceeding involving the same parties, Massachusetts courts have applied the doctrine of “judicial estoppel,” or estoppel by pleading. Fay v. Federal National Mortgage Association, 419 Mass. 782, 788 (1995). The primary concern of this doctrine is to protect the integrity of the judicial process. Correia v. DeSimone, 34 Mass. App. Ct. 601, 604 (1993). The plaintiff’s assertion of negligence as her sole cause of action had been so clear and unequivocal before trial that, at best, she should have been estopped from asserting the intentional tort of assault and battery at trial; at worst, she was playing “fast and loose” with the court, see Fay v. Federal National Mortgage Association, supra, and, therefore, should not prevail under principles of fundamental fairness, see Correia v. DeSimone, supra.

In her assented-to motion to amend her first amended complaint, the plaintiff asserted that “[a]fter further investigation, and the receipt of information from the defendants, the plaintiff’s counsel has a good faith basis to characterize the facts underlying this claim as negligent conduct rather than intentional conduct” (emphasis added). Appendix 17. Her second (and last) amended complaint removed all references to assault and battery and any other intentional act or cause of action and clearly labelled each new count as “Negligence”; there were six references in this final complaint to the “negligence” or “negligent acts” of the defendants without a single mention of an intentional tort. Appendix 19-21. The plaintiff’s reliance upon a theory of negligence against the defendants up to the time of trial could not have been clearer.

Moreover, the parties entered into an Agreed Statement of Facts, in which the plaintiff and her attorney agreed that the plaintiffs injury was caused by her falling backward onto the floor and striking a table; not a word was said about an assault and battery upon the plaintiff. Factual allegations in pleadings bind the party making them, G.L.c. 231, sec. 87, and may constitute judicial admissions, Wood v. Roy Lapidus, Inc., 10 Mass. App. Ct. 761, 765 (1980). A finding by the court contrary to such an admitted fact must be disregarded. De Nunzio v. City Manager of Cambridge, 341 Mass. 420, 421 (1960).

After the plaintiff claimed negligence so clearly and directly before trial, it is not surprising that, during opening statements, both the trial judge and defense counsel expressed their belief that the plaintiffs complaint sounded in negligence. Appendix 81-83. The ambivalent, ambiguous positions of plaintiffs counsel caused the learned trial judge no little amount of confusion throughout the trial. Appendix 81-83,211-219.

It is significant that the plaintiff came to court armed with requests for rulings based only upon negligence, Appendix 41-42, 216, and clearly asserted the claims of both negligence and assault and battery only after the defendants pressed their counterclaims for abuse of process, malicious prosecution, and slander. Appendix 79-81.1 surmise that, in the face of those counterclaims, the plaintiff became dodgy in order to prosecute her negligence claims and defend the intentional tort counterclaims in the same breath.

At the end of the opening statements, when defense counsel argued to the trial judge that the plaintiffs complaint sounded in negligence, the plaintiffs attorney remained conspicuously silent. “It defies logic and fundamental principles of fairness to allow a represented party who has sought justice in a forum to contradict and undermine an agreement it reached and acknowledged in the same forum, especially when the judge and other litigants appear to have relied on that acknowledgement. Correia v. DeSimone, supra. Under the circumstances of this case, it would be fundamentally unfair to allow the plaintiff to play so loosely, particularly at the eleventh hour.

The plaintiff also should have been denied this relief because of her repeated prior failures to cure any alleged deficiencies by amendments previously allowed. The instant action was commenced on August 14,1992. Appendix 6. Over the next five months, the plaintiff presented three versions of her complaint, the last of which was sanitized on January 27,1993, to remove all mention of intentional conduct. Appendix 19-21. The trial took place on May 31,1995. Therefore, the plaintiff maintained assault and battery claims for a mere five months and then asserted solely claims of negligence for over sixteen months, up to the day of trial. Two motions to amend her complaint and sixteen months thereafter were more than sufficient opportunities for the plaintiff to awaken to any shortcomings in her pleadings.

Finally, allowing the plaintiff to amend her complaint in this manner caused the defendants undue prejudice. A Rule 15(b) motion to amend the pleadings to conform to the evidence should not be allowed if the opponent satisfies the court that the admission of such evidence would prejudice him/her/it in maintaining his/her/its action or defense upon the merits. Dist./Mun. Cts. R Civ. R, Rule 15(b). “It is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment.” Goulet v. Whitin Machine Works Inc., supra at 550, quoting Cornell & Co. v. Occupational Safety & Health Review Commission, 573 F.2d 820, 823 (3d Cir. 1978). “A liberal amendment policy does not justify overriding the rights of a person who would be prejudiced by the last minute allowance of a motion to amend.” Castellucci v. United States Fidelity and Guaranty Co., supra at 292.

I see at least two bases of undue prejudice to the defendants in the trial court’s ruling to allow the plaintiff to revive her intentional tort causes of action. First, the court’s action had a direct impact upon the main theory of the defense: “that intentional conduct cannot be negligent conduct and that negligent conduct cannot be intentional conduct.” Waters v. Blackshear, 412 Mass. 589, 590 (1992). Flood v. Southland, 33 Mass. App. Ct. 287, 295-296 (1992). Sabatinelli v. Butler, 363 Mass. 565, 567 (1973). The defendants’ attorney acquiesced in and sought not to attack the plaintiffs ¿legations concerning assault and battery, Appendix 141-144, believing in good faith that the plaintiffs own testimony would provide his clients with a complete defense to her negligence complaint. By permitting the plaintiff to press both her negligence and assault and battery claims, the trial judge undermined the defense’s chief trial strategy. Second, in pursuing the defendants’ intentional-conduct-is-not-negligence-is-not-intentional-conduct defense, their attorney deliberately established on cross examination the identity of defendant Phil Liu as her alleged assailant, Appendix 118, something the plaintiff’s own counsel was unable to do or uninterested in doing during the plaintiff’s direct examination.

For all these reasons, I dissent.

CONCURRING OPINION

Hershfang, J.

concurring:

I concur in the reasoning and result of the court’s opinion. While my colleague’s learned dissent raises the often critical issue of prejudice, in this case I believe that concern takes a back seat to the responsibility of the judge and the parties with respect to the trial and, in any event, to what actually happened here.

In his opening plaintiff’s counsel explains why plaintiff’s theory of liability had been changed, from her original claim of an intentional tort - assault and battery - to the claim of the unintentional tort grounded in negligence. That change, which defendant assented to and which also resulted in an agreed statement of facts, was brought about by plaintiff’s manifest desire, unopposed by defendants, to have defendants’ insurer foot the bill. Plaintiff may have viewed defendants’ insurance coverage as unavailable had the assault and battery claim remained. See Worcester Ins. Co. v. Fells Acres Day School, 408 Mass. 393, 410 (1990). (where negligence and assault and battery claims were asserted against the same defendants for the same actions, held negligence claims do not lie because negligent contact cannot be intentional. “The act of striking another in the face [means] that... a person who performed the act intended the resulting harm.” Id. at p. 400.) It is evident from the fact the case proceeded to trial that plaintiff’s expectation or hope of an insurance payment, if it existed, was not realized.

However, whatever may have been the reason (s) for the switch, when the time finally came to try the case, as the opinion of the court details, plaintiff’s counsel made obvious in his opening that plaintiff was proceeding under her original assault and battery theory. Given the nature of plaintiff’s injuries - described in plaintiff’s opening as “kicked several times and someone pulling at her ear” - this approach was hardly a surprise. Surely it is not the stuff of the usual negligence claim. Cf., Worcester Ins. Co. v. Fells Acre Day School, op. cit.

Plaintiff’s opening here also underscores the notable feature of this case. In contrast with the overwhelming majority of other Rule 15(b) cases on which defendants rely, the question of how the parties were going to proceed here was raised before trial.

Why is the timing important?

After plaintiff’s opening, the trial judge announced his understandable confusion caused by the string of three sets of complaints. With respect to the individual defendant (the only defendant against whom judgment entered and therefore the only one of concern to us here), the words of plaintiffs counsel’s opening unambiguously sounded in assault and battery. But, as the judge pointed out, the written words of the second amendment complaint sounded only in negligence. Unlike the aging Biblical Isaac who remained confused when the person with the hairy arm of Esau spoke with the voice of Jacob, here the trial judge commendably sought before trial to sort out and get a handle on what was to come.

Of course, plaintiffs counsel could and should have dispelled all doubt by designating which of the counts plaintiff was relying on, or, more appropriately, by motion, preferably before trial. But in its absence the trial judge soldiered on. If plaintiff had filed no motion, she had certainly sent a clear signal as to how she planned to proceed. The parties and witnesses were present. The case had been called for trial. Plaintiff and defendant deserved their day in court. “When trial is imminent, a judge may give weight to the public interest in the efficient operation of the trial list and to the interests of the other parties who are ready for trial.” Goulet v. Whitin Machine Works, Inc., 399 Mass. 547, 550 (1987).

This, then, was the context in which, before trial, defendant was clearly told how plaintiff planned to proceed.

What did defendant’s counsel do? He outlined his defenses.' If plaintiff was injured, she hadn’t sustained those injuries on defendants’ premises or at the hand of any defendant. If she did, it was her fault.

Thus, whatever expectations defendants may have had before the day of trial as to how the trial would proceed, after plaintiff’s opening the defendants surely could not claim surprise.

With this background we turn to Mass. R Civ. R, Rule 15(b) (“Amendments to Conform to the Evidence”) quoted in the dissent.

We start with the proposition that, as Mass. R. Civ. R, Rule 15(a) expressly notes, “leave [to amend] shall be freely given when justice so requires.” See, too, Goulet v. Whitin Machine Works, Inc., supra at 549. (Held trial judge error in denying a plaintiff’s motion to amend complaint at beginning of trial and motion to conform pleadings to evidence after trial because no showing of prejudice and complaint had implicitly included the claim.) But that is only the general rule. Mass. R. Civ. R, Rule 15(b) continues: “If evidence is objected to at the trial on an ground that it is not within the issues made by the pleadings, the court may allow pleadings to be amended and shall do so freely when... the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits.” (A continuance may be granted to allow the objecting party to meet such evidence.) As the opinion of the court notes, no request for continuance was made here.

Thus, even in the case where a party claims surprise because during trial the evidence is allegedly different from the claim, the clear burden of not proceeding in the way the case is going is on the opposing party.

Here, however, plaintiff’s position was outlined in advance. The defendants knew what to expect. Yet, defendants made no showing before or during the trial that they were or would be prejudiced. Never did defendants object to the manifest assault and battery claim or testimony. They never established nor offered to show how the outcome of the case would have been different had there been an explicit preliminary motion to proceed on the assault and battery theory. Rather, they stuck to their announced defense and simply left for speculation that or what they may have done differently. Having been forewarned by plaintiff’s opening and the judge’s colloquy and plaintiff having proceeded on the assault and battery claim, defendants’ “We’ll find out, I suppose,” can hardly be viewed even as an objection. Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346 (1978). (Upholds judge’s allowance of motion to amend complaint before trial and motion to conform pleadings to evidence after trial and, held, defendant’s failure to object to evidence amounted to implied consent to try issue.)

While the dissent notes that defendant did object to the assault and battery counts, as the opinion points out that objection was raised after trial. And even then defendants made no showing of prejudice. The dissent distills that conclusion, but only after the fact. The rule as noted requires that objection and a showing of prejudice be made at the time, and not after the trial. Those were lacking here.

In short, in the circumstances of this case the trial judge had ample authority, if not the responsibility, to cause both parties to focus on the matter (s) being tried and had ample basis and reason to allow the case to be tried and decided on the assault and battery claim. Indeed, not one case cited or that we are aware of results in overturning the action of a trial judge in allowing a case to be tried and a motion allowed in the circumstances that existed here. There was no abuse of discretion.

Accordingly, I concur. 
      
      The imposition of the doctrine of judicial estoppel does not conflict with Dist./ Mun. Cts. R. Civ. R, Rule 8(e) (2), which provides for inconsistent claims or defenses made within a single proceeding; judicial estoppel applies to the assertion of inconsistent positions by a litigant in separate proceedings or in successive stages of the same litigation. Fay v. Federal National Mortgage Association, supra at 788-789 n. 10.
     
      
      Of the cases cited in the briefs of both parties and the opinions here only one concerns a motion before trial. This should hardly be a surprise since, as the dissent acknowledges, “leave to amend shall be freely granted.” The one case is Mathis v. Mass. Electric Co., 409 Mass. 256 (1991) (trial judge’s denial of motion to amend six months before trial but four years after suit filed is upheld where no justification for delay is found and proposed amendment is deemed futile).
     