Opinion
15-P-1220
04-01-2016
E. C. M. v. T. E. C. & another.
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 pro se defendants, who live together in a condominium on Beacon Hill, appeal from a one-year order entered after an evidentiary hearing pursuant to G. L. c. 258E, that requires them to stay away from, not abuse, and not contact the plaintiff, who is their neighbor. In addition to the c. 258E order, the defendants appeal from the denial of their motions to vacate the order, for reconsideration, and to stay the order. In essence, the defendants argue: (1) the plaintiff was not entitled to a harassment protection order because the requirements of c. 258E were not met; (2) the judge denied them due process by not adequately considering the evidence and applying the law; (3) the rules of civil procedure were not observed; and (4) the orders may have emboldened the plaintiff and endangered the defendants. The plaintiff has not filed a brief, citing lack of funds (she is pro se) and fear of retaliation by the defendants. We affirm.
The defendants have not included the notices of appeal in the record. Therefore, we are not able to determine whether the notices comply with the rules. That said, the plaintiff has not raised any issue regarding the sufficiency or the timeliness of the notices of appeal.
Since the plaintiff has decided not to file a brief, we do not consider any of the statements in the letter she has submitted in which she explains her decision.
Although the defendants are pro se, they are nonetheless required to provide us with an appellate record that is sufficient to consider and decide their claims. See Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997) (pro se appellants who provide court with inadequate appendix held to same standard as litigants represented by counsel). Where, as here, the defendants "urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, [they] shall include in the record a transcript of all evidence relevant to such finding or conclusion." Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1601 (1999). The District Court docket does not indicate that the defendants ordered the transcript of the hearing below. Moreover, no transcript is included in the appellate record, despite the defendants' obligation, under Mass.R.A.P. 9(a), as amended, 417 Mass. 1601 (1994), to include all materials necessary to our consideration of their arguments. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995), quoting from Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991) ("An appellant's obligation to include those parts of the trial transcript and copies of motions 'which are essential for review of the issues raised on appeal . . . is a fundamental and longstanding rule of appellate civil practice.'" See also Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811-812 (1992). Since an error will not be presumed in the absence of an adequate record, see Connolly v. Connolly, 400 Mass. 1002, 1003 (1987), we affirm the orders dated April 7, 2015, and May 26, 2015, of the District Court.
So ordered.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 1, 2016.