Opinion
No. 11–P–1538.
2012-07-10
Robert A. MANOCCHIA & another v. THOMAS LAND SURVEYORS AND ENGINEERING CONSULTANTS, INC., & another .
By the Court (COHEN, MILLS & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Robert A. Manocchia and Pamela Manocchia (the Manocchias) sued defendants Thomas Land Surveyors and Engineering Consultants, Inc. (Thomas Land Surveyors), and Maillet and Son, Inc. (Maillet), for damages allegedly arising from Maillet's conveyance of 43 Butler Road in Sudbury to the Manocchias. The Manocchias, by means of a six count complaint filed in Superior Court, claimed that Maillet conspired with Thomas Land Surveyors to trick the Manocchias into believing that they were receiving 10,546 square feet of land, when they were in fact receiving 8,712 square feet of land. The jury did not accept these claims and found that the defendants were not liable to the Manocchias. The Manocchias appealed and now raise several claims of error. We affirm. Discussion. 1. Jury question. The Manocchias' first allege that the trial judge erred in his response to a question from the jury. During the course of deliberations, the jury posed the following question to the judge: “In general does the certified plot plan super[s]ede the current deed?” The trial judge responded: “This is a question of fact that you may decide based upon the evidence presented at trial.” On appeal, the Manocchias argue that this answer was in error and that, therefore, a new trial is warranted. However, the Manocchias have not provided this court with a transcript of any portion of the trial, including discussions with counsel related to the jury question. It is the responsibility of appellants to include materials necessary to their appeal in the record appendix. See Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1998); Cameron v. Carelli, 39 Mass.App.Ct. 81, 84 n. 6 (1995; Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998). The Manocchias' failure to comply with this mandate has left us with no record indicating that the Manocchias lodged an objection to the trial judge's response to this question. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992) (noting that inclusion of transcript was necessary to determine if issues were properly preserved). The issue is accordingly waived. See Howe v.. Palmer, 80 Mass.App.Ct. 736, 744 n. 8 (2011) (a party must object to a jury instruction before the jury retires in order to preserve argument regarding instruction on appeal). Even if it were not waived, absent a record of the context in which the question arose, we cannot ascertain with certainty what precisely the jury meant by the question. We also are unable to assess whether, if there was an error, what impact such an error had on the case.
While the Manocchias' brief claims, without citation to the record appendix, that such an objection was lodged, appellate briefs are not a substitute for the record.
For example, we do not know whether the jury were pondering whether the plot plan superseded the deed in a strictly legal sense, whether the plot plan superseded the deed in the reasonable understanding of the size of the property of an individual reading both documents, or some other question.
2. Judgment notwithstanding the verdict. The Manocchias further argue that the trial judge abused his discretion by not granting their motion for a new trial or a judgment notwithstanding the verdict. The Manocchias specifically argue that the evidence did not warrant a defense verdict. However, for the reasons outlined supra, we cannot evaluate the Manocchia's claims regarding the sufficiency of the evidence in the absence of a trial transcript indicating what evidence was presented at trial.
The Manocchias further argue that their motion for a new trial or a judgment notwithstanding the verdict should have been granted because rights of third party landowners would be affected by the jury verdict. This argument is made in a conclusory fashion without citation to case law. It thus does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
3. Expert testimony. Finally, the Manocchias argue that the trial judge erred in excluding the proposed testimony of their expert, Richard Goulet. However, Goulet's proposed expert testimony was only in regard to damages, not liability. Since the jury found that the defendants were not liable to the Manocchias and we find no basis to reverse that finding, the trial judge's exclusion of Goulet's expert testimony had no impact on the outcome of the case. As such, even if the judge erred in excluding Goulet's testimony, doing so did not constitute reversible error.
Given our resolution of this case, we need not address the defendants' further contention that the Manocchias failed to properly appeal certain issues pursuant to Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999).
Judgment affirmed.