Opinion
11-P-55
11-18-2011
MICHAEL LUNGELOW v. RUDY DIAMOND.
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
The defendant appeals from the decision and order of the Appellate Division and asks us to revisit the factual findings of a Boston Municipal Court judge without providing a record. We do not address the obstacle normally presented in this circumstance because the judgment itself is not supported by the findings of fact.
'It is, of course, the burden of an appellant to provide us with those portions of the record that support his claims on appeal.' Woolbridge v. Hickey, 45 Mass. App. Ct. 637, 641 (1998).
Discussion. The judge found that the defendant contracted with the plaintiff to work on a construction job that was abandoned prior to completion by another contractor. Findings 3-8. The judge also found that both the plaintiff and the construction lender refused to make further payments to the defendant when they decided that the defendant 'failed to complete work that he had already been paid to do.' Findings 31 and 32. Further the judge found that the defendant then refused to continue work, subsequently demanding additional payment. Findings 36 and 37. Other than reciting the beliefs and positions of the parties however, the judge made no finding as to their accuracy and did not make any other finding that would support the judgment.
The order of the Appellate Division is vacated and a new order is to enter vacating the judgment of the Boston Municipal Court and remanding the case to the Boston Municipal Court for additional findings of fact and further proceedings consistent with this memorandum and order. So ordered.
We express no opinion on the final result in this case, and this disposition should not be so construed.
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By the Court (Grainger, Fecteau & Agnes, JJ.),