Opinion
14-P-1303
01-22-2016
JOAN L. SCHAUB v. BOARD OF ASSESSORS OF BOSTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The appellant, Joan L.Schaub, appeals an Appellate Tax Board (ATB) decision upholding the denial of her abatement request by the city of Boston (Boston) for 2011 and 2012. On March 20, 2013, a hearing took place before the ATB where Schaub appeared pro se, made arguments, and presented evidence. The ATB ruled in favor of Boston, finding that Schaub "failed to present persuasive evidence of overvaluation" and denying her abatement request. We affirm.
Discussion. We are unable to evaluate the claims raised by Schaub because of the insufficient record she has provided us. The appellant bears the burden on appeal to ensure that an adequate record exists. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995). See also Mass.R.A.P. 8, as amended, 430 Mass. 1601 (1999). General Laws c. 58A, § 10, as appearing in St. 1998, c. 485, § 2, provides in relevant part:
"If no party requests that the proceedings be reported, all parties shall be deemed to have waived all rights of appeal to [sic] appeals court or the supreme judicial court upon questions as to the admission or exclusion of evidence, or as to whether a finding was warranted by the evidence. The right of appeal upon questions of law raised by the pleadings or by an agreed statement of facts or shown by the report of the board shall not be deemed to be waived."There is no indication that Schaub requested that her hearing be recorded and no transcript of the hearing has been provided to this court. Therefore, Schaub has waived her right to appeal the ATB's decision as to the issues related to the admission or exclusion of evidence, or whether the ATB's findings were warranted by the evidence. See G. L. c. 58A, § 10. See also New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 749-751 (1975) (where no transcript of proceedings was made or requested, appellate court could not consider whether, as matter of law, evidence before ATB warranted its findings); Good v. Commissioner of Rev., 395 Mass. 686, 687 (1985) (appellate court could only discover errors of law by ATB and not whether a finding was warranted by the evidence because there was no request for stenographic record). Accordingly issues A, B, C, D, and E of Schaub's brief are deemed to be waived by Schaub.
Schaub states in her reply brief, "The single-member Commissioner knew the hearing was not being recorded. The failure of the Report to memorialize the aborted hearing, whether due to the passage of time, bias, or convenience, work to sabotage taxpayer's case." We understand this to be an admission by Schaub that neither she nor Boston requested that the hearing be recorded.
In issue A, Schaub claims that the ATB Commissioner abruptly ended the hearing after the presentation of evidence by Boston, declared he would decide the case on the papers, and left the room. The affidavit provided by Schaub alleging this does not suffice.
In issue B, Schaub argues that a spreadsheet offered by Boston was improperly introduced in evidence at the ATB hearing.
In issue C, Schaub argues that the ATB improperly excluded her report on spalling masonry.
In issue D, Schaub argues that the ATB improperly excluded her "Home Consultation" report as being hearsay.
In issue E, Schaub claims that the ATB improperly rejected or ignored two of her arguments regarding: (1) disparate treatment in assessed value in surrounding properties; and (2) inequity resulting from payment of taxes based on arbitrary valuations.
We are mindful that Schaub would be able to prevail without a hearing record only if she could show that the ATB made an error of law in its findings of fact and report. See Montaup Elec. Co. v. Assessors of Whitman, 390 Mass. 847, 848-849 (1984). However, Schaub has not provided us with the complete ATB decision, making it impossible for us to determine if there is an error of law in the ATB's findings of fact and report.
Decision of Appellate Tax Board affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 22, 2016.