Opinion
15-P-688
04-08-2016
JUAN PENA & another v. NORVIA PENA & others.
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
This is a personal injury action against the operators of a bar in Roxbury. The plaintiffs alleged that as a result of the defendants' negligence, they were stabbed by a patron at the bar. After the defendants defaulted, a Superior Court judge held an evidentiary hearing to assess the plaintiffs' damages. Based on the testimony at the hearing, the judge found that one plaintiff suffered $70,000 in damages and the other plaintiff suffered $500 in damages, and judgment entered to that effect. On appeal, the defendants argue that the judge's findings are inadequately supported by the evidence adduced at the hearing. We have no way of assessing that claim, because the defendants have failed to include a transcript of the evidentiary hearing. See Mass.R.App.P. 8(b)(1), as amended, 430 Mass. 1603 (1999) ("If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion"). In the absence of a transcript, we assume that the judge's findings are adequately supported by the evidence she heard. See Connolly v. Connolly, 400 Mass. 1002, 1003 (1987). Accordingly, the defendants have failed to demonstrate error.
We allow the plaintiffs' request for appellate attorney's fees and costs. Within fourteen days of the issuance of this memorandum and order, the plaintiffs shall submit a statement of their attorney's fees and costs, with appropriate supporting materials, in accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), and within fourteen days thereafter, the defendants may submit an opposition to the amount requested.
Judgment affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 8, 2016.