Opinion
14-P-498
03-25-2015
PATRICIA HIXON, personal representative, v. EDMUND GLYNN & another.
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
Joseph Hixon (decedent) was a passenger in a vehicle driven by Thomas P. Lenane when it was rear-ended by a vehicle driven by Edmund Glynn. The decedent later died of unrelated causes. This negligence action, arising out of the accident and brought by the plaintiff, as personal representative of the decedent's estate, was tried over three days. In answers to special questions, the jury found that Glynn was not negligent and that Lenane was negligent, but that his negligence was not a substantial contributing cause of the decedent's injuries. After the judge denied the plaintiff's subsequent motion for a new trial, the plaintiff filed a notice of appeal from the judgment and the order denying her motion for a new trial.
1. Plaintiff's record appendix. Although the plaintiff challenges the judge's instructions and the sufficiency of the evidence, she did not include the complete trial transcript and exhibits in the record appendix. Indeed she included only isolated parts of the trial transcript. "An appellant's obligation to include those parts of the trial transcript . . . which are essential for review of the issues raised on appeal . . . is a fundamental and long-standing rule of appellate civil practice." Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) (citation omitted). The plaintiff failed to meet her "obligation to provide an adequate record for review." Smith v. Jones, 67 Mass. App. Ct. 129, 134 (2006).
2. Jury instructions. The plaintiff argues that the judge erred in his jury instructions. As indicated supra, one problem with this argument is that the plaintiff provided an incomplete record for our review.
The plaintiff faults the judge for not giving three of her proposed instructions: "9. If you find any Defendant to be any degree negligent, then you must find the Defendant negligent, for as a matter of law Mr. Hixon is not negligent because he is a passenger. "10. 'There is ample authority for the proposition that contribution is appropriate between persons who are liable jointly in tort for the same injuries . . . .' See Wolfe v. Ford Motor Co., 386 Mass. 95, 100 (1982). . . . "13. If either driver or both are 1% or more negligent, then each person 1% or more negligent is liable to Mr. Hixon."
Second, a "'trial judge has wide latitude in framing the language to be used in jury instructions' as long as the instructions adequately explain the applicable law. 'The judge [is] not bound to instruct in the exact language of the requests'; '[t]he test of the charge is the impression created by it as a whole.' In this case, the charge as a whole constituted a proper instruction on the applicable law." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009) (citations omitted).
Third, the plaintiff did not object during the charge conferences to the judge's proposed instructions nor to his decision not to use some of her proposed instructions and, in fact, expressed her agreement. Contrast Rotkiewicz v. Sadowsky, 431 Mass. 748, 750-752 (2000). Finally, the plaintiff failed to object after the judge's charge and did not preserve any challenge to the instructions for appellate review. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 442 (2006); Aimtek, Inc. v. Norton Co., 69 Mass. App. Ct. 660, 667 (2007).
3. Motion for a new trial. In her motion for a new trial, the plaintiff's main argument was that the verdict was against the weight of the evidence. Whether to grant a motion for a new trial "on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge." Moose v. Massachusetts Inst. of Technology, 43 Mass. App. Ct. 420, 426 (1997) (citation omitted). This is especially so when the motion judge was also the trial judge. Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003). We review a denial for abuse of discretion. Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 466-467 (2003). Here, where the plaintiff failed to provide us with most of the trial transcript and exhibits, we cannot possibly find that the verdict was against the weight of the evidence or that the judge abused his discretion.
The plaintiff also argued in her motion for a new trial that the judge's use of the model jury instructions was improper because they applied to a single defendant. As we discussed supra, the plaintiff did not preserve any issues with respect to the jury instructions.
Even if we were to assume that the plaintiff preserved the issues and that there was an error or errors in the instructions, in the absence of most of the trial transcript and exhibits, we are unable to conclude that any error was prejudicial and constituted reversible error. Masingill v. EMC Corp., 449 Mass. 532, 540 n.20 (2007).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
Panel members are listed in order of seniority.
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Clerk Entered: March 25, 2015.