Opinion
16-P-686
04-03-2017
Paul HARRIS v. Adam SANDOFSKY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant and former tenant Adam Sandofsky, acting pro se, appeals from a Housing Court judgment in favor of plaintiff and former landlord Paul Harris, entered following a jury trial which, the defendant claims, was infected by a litany of errors. We affirm.
Background. From 2002 to 2015, the defendant resided in an apartment located on Amory Street in the Jamaica Plain section of Boston. The property is subject to an affordable housing covenant. In October of 2014, the plaintiff purchased the building in which the defendant lived. In January of 2015, the plaintiff requested an increase in rent and the defendant refused. On March 2, 2015, the plaintiff served the defendant with a notice to quit. On March 30, 2015, the plaintiff filed a summons and complaint for summary process, based upon the defendant's nonpayment of rent. The defendant filed an answer in which he acknowledged owing rent. He also challenged the plaintiff's right to possession and asserted counterclaims for retaliation, interference with the right to quiet enjoyment, and violation of G. L. c. 93A. The defendant requested a jury trial on all claims.
On August 18, 2015, the trial judge allowed the plaintiff's motion in limine, precluding the defendant from challenging at trial the plaintiff's right to possession or the amount of unpaid rent due, from litigating the substance of the affordable housing covenant, and from discussing actions allegedly taken by the plaintiff prior to his purchase of the property. Following a two-day jury trial, verdicts were returned for the plaintiff on his claims for possession and quiet enjoyment. The judge reserved the defendant's G. L. c. 93A counterclaim to herself and found for the plaintiff. On November 13, 2015, judgment entered in favor of the plaintiff for possession and $4,700.05 in damages, and against the defendant on his counterclaims.
Apparently, the judge allowed a motion by the plaintiff for a directed verdict on the retaliation claim.
Discussion. "Because the [defendant]'s record appendix [i]s insufficient to permit us to consider [his] claim[s] on appeal," which are too numerous to list, "we are unable to consider [his] arguments." Camillo v. Camillo, 31 Mass. App. Ct. 286, 286 (1991). We cannot consider the hundreds of pages of documents submitted by the defendant, although we have reviewed them, because most were not before the jury or the trial judge and we "do no sit as triers of fact." Commonwealth v. Alphas, 430 Mass. 8, 21 (1999) (Greaney, J., concurring). The defendant's brief is replete with "factual assertions without the required references to the record," Camillo v. Camillo, supra at 287 (citing Mass.R.A.P. 16 [a][3], 365 Mass. 861 [1974], and Mass.R.A.P. 16 [e], as amended, 378 Mass. 940 [1979]), and there are no transcripts before us. The defendant wrongly "assumed" that we have what it is his burden to provide. See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999); Mass.R.A.P. 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998); Mass.R.A.P. 9(c)(1), as amended, 378 Mass. 935 (1979); Mass.R.A.P. 9(c)(2), as amended, 437 Mass. 1602 (2002); Doten v. Doten, 395 Mass. 135, 139 (1985).
In his brief, the defendant identifies fourteen "issues" and twenty-six "arguments."
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"It is the responsibility of the parties and primarily the appellant to reproduce in the record appendix such court documents and exhibits ... as may assist the appellate court in deciding the appeal." Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 10 n.3 (1994). However, neither party requested transmittal of the exhibits once they noticed that they were not in the appendix. See Mass.R.A.P. 9(b), as amended, 378 Mass. 935 (1979). "[I]n a civil case, the record transmitted by the clerk of the lower court consists of ‘two certified copies of the docket entries,’ ... and no more. It is the duty of the appellant to bring any other part of the record on appeal" to us. Camillo v. Camillo, supra at 291, quoting from Mass.R.A.P. 9(d), as amended, 378 Mass. 936 (1979). "The fact that [the defendant] represents himself does not excuse his noncompliance with the procedural rules." Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994). His claims cannot succeed "because of the lack of record support." Camillo v. Camillo, supra at 288.
Judgment affirmed.