Burda v. Spencer

11 Citing cases

  1. Commonwealth v. Denehy

    466 Mass. 723 (Mass. 2014)   Cited 69 times
    In Commonwealth v. Denehy, 466 Mass. 723, 740 (2014), we stated that with respect to restitution, "[t]he Commonwealth bears the burden of proving both a causal connection and the amount of the loss by a preponderance of the evidence.

    Thus, “absent a showing that the court has intentionally falsified the record,” the court's “determination is conclusive.” Id. at 172, quoting Burda v. Spencer, 28 Mass.App.Ct. 685, 689, 554 N.E.2d 1227 (1990). The only evidence the defendant proffers in support of his argument is an affidavit from trial counsel expressing her intentions and an ambiguous statement in the transcript.

  2. Winn Managed Props. LLC v. Holden

    11-P-667 (Mass. Feb. 2, 2012)

    Further, '[w]hen a dispute respecting the record is submitted to the . . . court, its determination is conclusive, absent a showing that the . . . court has intentionally falsified the record.' Burda v. Spencer, 28 Mass. App. Ct. 685, 689 (1990), quoting from Letch v. Daniels, 401 Mass. 65, 67-69 & n.3 (1987). Winn made no further attempt to amend or modify the record.

  3. In re Ursa

    224 N.E.3d 491 (Mass. App. Ct. 2023)

    A judge’s determination of an issue on the docket is conclusive "absent a showing that the court has intentionally falsified the record." Zabin v. Picciotto, 73 Mass. App. Ct. 141, 172, 896 N.E.2d 937 (2008); quoting Burda v. Spencer, 28 Mass. App. Ct. 685, 689, 554 N.E.2d 1227 (1990). The mother provides no reason, and we see no reason, to question these docket entries.

  4. Adoption of Ursa.

    103 Mass. App. Ct. 558 (Mass. App. Ct. 2023)

    A judge's determination of an issue on the docket is conclusive “absent a showing that the court has intentionally falsified the record.” Zabin v. Picciotto, 73 Mass. App. Ct. 141, 172 (2008), quoting Burda v. Spencer, 28 Mass. App. Ct. 685, 689 (1990). The mother provides no reason, and we see no reason, to question these docket entries.

  5. Nasdi v. City of Lawrence

    179 N.E.3d 1134 (Mass. App. Ct. 2021)

    If, on the other hand, the plaintiff does not allege compliance with a condition precedent, the defendant is "under no obligation to deny the nonexistence averment ‘specifically and with particularity.’ " Burda v. Spencer, 28 Mass. App. Ct. 685, 686 n.3 (1990), quoting Vasys, 387 Mass. at 55. For this reason, the defendant retains the right to "raise the issue [of noncompliance] at any time before or during trial."

  6. Shine v. Shine

    113 N.E.3d 933 (Mass. App. Ct. 2018)

    The "burden is on the appellant to provide [the appellate] court with an appendix sufficient to support its points on appeal." Burda v. Spencer, 28 Mass. App. Ct. 685, 688 (1990). See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992).

  7. Commonwealth v. Merrill

    83 Mass. App. Ct. 1122 (Mass. App. Ct. 2013)

    See Commonwealth v. Harris, 376 Mass. 74, 77 (1978) (“[I]f the proceedings at trial can be sufficiently reconstructed and presented to the appellate court, a new trial is not constitutionally required when the transcript is not available through no fault of the parties”); Commonwealth v. Flint, 81 Mass.App.Ct. 794, 800–802 (2012). See also Zabin v. Picciotto, 73 Mass.App.Ct. 141, 172 (2008), quoting from Burda v. Spencer, 28 Mass.App.Ct. 685, 689 (1990) (where “a dispute respecting the record is submitted to the ... court, its determination is conclusive, absent a showing that the court has intentionally falsified the record”). The judge approved a reconstructed record, and the defendant does not take particular issue with its contents.

  8. Zabin v. Picciotto

    73 Mass. App. Ct. 141 (Mass. App. Ct. 2008)   Cited 104 times
    Holding that the conduct must rise to the level of an “extreme or egregious” business wrong, “commercial extortion,” or similar level of “rascality” that raises “an eyebrow of someone inured to the rough and tumble of the world of commerce.”

    However, "[w]hen a dispute respecting the record is submitted to the . . . court, its determination is conclusive, absent a showing that the court has intentionally falsified the record." Burda v. Spencer, 28 Mass. App. Ct. 685, 689 (1990), quoting from Letch v. Daniels, 401 Mass. 65, 67-69 n. 3 (1987). To the extent that the judge's reconstruction of the expert's testimony differs from the expert's affidavit describing his proposed trial testimony, we note simply that it is not unusual for trial testimony to vary from what a witness or the parties may have anticipated; we do not view any such variance to stand as evidence that the testimony was reconstructed falsely.

  9. Beaupre v. Smith Associates

    50 Mass. App. Ct. 480 (Mass. App. Ct. 2000)   Cited 112 times
    Holding that individual harasser could be found liable for aiding and abetting his corporate entity which was the vehicle through which the plaintiff was dismissed for refusing his sexual advances

    The judge's discretionary decision in this respect "is conclusive . . . absent a showing that the . . . court has intentionally falsified the record." Burda v. Spencer, 28 Mass. App. Ct. 685, 689 (1990), quoting from Letch v. Daniels, 401 Mass. 65, 67-68 n. 3 (1987). No such showing was attempted here.

  10. Parks v. Johnson

    46 Mass. App. Ct. 905 (Mass. App. Ct. 1998)   Cited 7 times
    Holding that a party to a construction contract impliedly waived, through words and conduct, a provision requiring changes to be in writing

    It was the appellant's burden to provide us with an adequate record demonstrating that the issues had been preserved. Burda v. Spencer, 28 Mass. App. Ct. 685, 688 (1990). 2.