Opinion
13-P-1556
11-26-2014
DONAL B. BARRETT v. DAVID M. PILGRIM & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff in this medical malpractice case appeals from an order of the Superior Court allowing the defendants' motion under Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994), to dismiss the plaintiff's appeal for failure to file the docketing fee required by Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001). The plaintiff argues first that the motion judge erred in failing to make an explicit finding of inexcusable neglect. Our cases are clear, however, that while such a finding is preferable, it is not required. See, e.g., Tammaro v. Colarusso, 11 Mass. App. Ct. 44, 47 n.7 (1980). The plaintiff also argues that the judge's finding of inexcusable neglect, which we take to have been implicit, was not supported by the evidence, i.e., the plaintiff's opposition to the defendants' motion, which included factual averments and which was made under pains and penalties of perjury, and his testimony at the hearing held on the motion. The plaintiff, however, has not included in his record appendix a transcript of that hearing. The burden is on the appellant to present us with a record sufficient to allow appellate review of his claim. See, e.g., Commonwealth v. Sargent, 449 Mass. 576, 582 n.10 (2007). In the absence of a transcript we are unable to determine that the evidence before the judge was insufficient to support a finding of inexcusable neglect. The order allowing the defendants' motion therefore will be affirmed.
So ordered.
By the Court (Trainor, Rubin & Sullivan, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 26, 2014.