Opinion
11-P-1074
02-13-2012
WOLFGANG W. FEIST & another v. STEVE WILSON.
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
On February 5, 2011, Wolfgang Feist and Jeanette Vass (the landlords) commenced this eviction action in the Northeast Housing Court against their holdover tenant, Steve Wilson. Following a trial, the judge awarded possession to the landlords and damages of $6,900 for three months of unpaid rent. Wilson timely appealed from the judgment of summary process entered in favor of the landlords. Because meaningful review was impossible on this wholly inadequate record, we affirm.
As the landlords noted, since the lease expired on February 1, 2011, the damages awarded for the month of February were technically for Wilson's use and occupancy. See Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 502-503 (1997).
As the appellant, Wilson had the burden of providing us with a record that supported his claims on appeal. See Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). Here, Wilson's appendix lacked copies of, inter alia, essential pleadings, alleged postjudgment orders, and the 'modified judgment' he referred to in his brief. His five-page brief was devoid of any reasoned analysis or citation to any relevant authority. Both submissions came nowhere close to meeting proper appellate standards. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Cameron v. Carelli, 39 Mass. App. Ct. 81, 84-86 (1995). Compounding the problems posed by these meager offerings, although the gist of Wilson's appeal concerned his challenge to the judge's factual findings, he failed to provide us with a copy of the trial transcript.
Wilson purported to challenge the judge's findings that he paid no rent from December, 2010 through February, 2011, and that he suffered from financial hardship.
Absent a transcript, any type of evidentiary record, or even a hint of the testimony given at the trial, we have no basis for concluding that any of the judge's findings were clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996); O'Meara v. Doherty, 53 Mass. App. Ct. 599, 605-606 (2002). In passing, we note that the January 30, 2010, agreement relied upon by Wilson did not support his claim that the landlords credited back lease payments for those three months.
Pursuant to that agreement, where, as here, Wilson failed to exercise his option to purchase the property by February 1, 2011, all monies paid by Wilson were deemed rent, and Wilson forfeited his $5,000 deposit. We have disregarded Wilson's factual assertions in his brief that were unsupported by accurate record references. See Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979); Fiduciary Trust Co. v. Gow, 440 Mass. 1037, 1038 & n.4 (2004).
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Judgment affirmed.
By the Court (Berry, Kafker & Mills, JJ.),