Opinion
19-P-1005
05-01-2020
IN THE MATTER OF THE ESTATE OF WILLIAM A. TEXEIRA, SR.
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
David A. Teixeira (David) appeals from a decree issued by a Probate and Family Court judge admitting the will of his father, William A. Teixeira, Sr. (decedent), to formal probate and striking David's affidavit of objections. Because the record on appeal is insufficient to support David's claims, we affirm.
To avoid confusion, we use the parties' first names.
The decedent's will of February 9, 2016, left everything to David's brother, William A. Teixeira, Jr. (William). David objected to the will on grounds of diminished capacity and undue influence. William moved to strike the affidavit, arguing that David lacked personal knowledge of the decedent's mental capacity on February 9, 2016, and that his claims were based on unsubstantiated personal opinion.
The judge deferred action on William's motion to strike until the pretrial conference, which was held on July 3, 2017, after the completion of discovery. David states in his brief that on May 9, 2017, he presented the judge with a chalk summarizing the father's hospital admissions from September 2015 to his death, but this is not reflected in the docket entries or in the record before us. In an order issued after the pretrial conference, the judge scheduled an evidentiary hearing on William's motion to strike, to be held on July 19, 2017. The order further stated that the witnesses were limited to "Dr. Patel" and "Atty Hanson," and the contested issue was "whether the objection filed by [David] should be stricken as it is deficient on its face at this point." According to David's affidavit of objections, Vasant Patel, M.D., was his father's doctor and Attorney Linda Hanson drafted the will.
A hearing was held on July 19, 2017, as scheduled, after which the judge allowed William's motion to strike David's affidavit. The judge's indorsement on the motion states, "The Court allows the motion to strike after having provided [David] w/an opportunity to obtain the testimony of Dr. Patel as well as Atty Hanson." The judge also ordered entry of the decree finding the February 9 will to be valid and unrevoked and admitting it to formal probate.
In his brief, David states that on July 3 the judge "determined that it would be helpful to take testimony from the decedent's primary care physician and his estate planning attorney," and that on July 19 the judge "took no testimony, primarily due to the failure of the decedent's primary care physician to comply with a witness summons which was properly served upon him by counsel for [David]." David has not supplied the transcript of either the July 3 hearing or the July 19 hearing, and the only record citation in his brief for these assertions is to the judge's indorsement quoted above.
On appeal, David argues that we should accept his affidavit on its face, asserting that "it is clear that the lower court considered only the Affidavit itself in making the ruling." This assertion is far from clear. It is evident that the judge held at least two hearings concerning William's motion to strike and gave David the opportunity to present evidence to support his objections. The judge's decisions to strike David's objections and allow the will were clearly based on whatever occurred at those two hearings.
An appellant bears the burden of producing a record appendix that is adequate for appellate review of his claims. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019); Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007); Commonwealth v. Woody, 429 Mass. 95, 97 (1999). The brief must contain "citations to the authorities and parts of the record on which the appellant relies." Mass. R. A. P. 16 (a) (9) (A).
David cannot ask us to reverse a ruling that was based on what may have occurred at the pretrial conference and the evidentiary hearing because he "failed to provide us with the transcript, and there is no record support for [his] argument." Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004). Nor may he proceed as if the pretrial conference and evidentiary hearing never took place. In short, the record does not provide us with any basis to conduct a meaningful review of the judge's decisions. See Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997) (declining to address merits of appellant's claim where brief had no citations to support factual allegations, appendix did not contain transcript or tape recording of the probate court proceedings, and appellant provided no documentary support "other than the unsubstantiated summaries asserted in the plaintiffs' brief"); Shawmut Community Bank, Nat'l Ass'n v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807, 810-812 (1992) (appellant not entitled to review of its claims where it omitted transcripts and record documents essential for review of issues raised on appeal).
Because David failed to provide a minimally adequate record, we decline to address the merits of his claims on appeal.
Decree affirmed.
By the Court (Wolohojian, Massing & Wendlandt, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 1, 2020.