Opinion
10-P-2195
03-01-2012
BRIAN STEELEY v. CHARLES J. DAVIGNON.
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
Steeley, appearing pro se throughout these proceedings, purportedly appeals from the denial of his request for injunctive relief. His arguments mainly focus on the Superior Court judge's refusal to continue a hearing on his request for injunctive relief.
Steeley was a tenant at a building managed by the defendant. Steeley's complaint alleges that the defendant is responsible for the theft of Steeley's belongings that were stored in the attic common space. His request for injunctive relief sought to prevent the destruction of certain of his personal possessions.
Steeley's initial motion was rejected for failure to comply with Superior Court Rule 9A. Steeley resubmitted the motion and the court sent notice on September 3, 2010, of a hearing scheduled for September 8, 2010. The notice was mailed to Steeley's address of record on the docket. However, he had recently been evicted from the apartment and his new mailing address was a post office box. Steeley's motion for injunctive relief mentioned his recent eviction and contained his new address in the signature line of the pleading, but no notice of the change of address pursuant to Mass.R.Civ.P. 11(d), as amended, 456 Mass. 1401 (2010), was submitted to the court. As a result, Steeley did not receive timely notice of the hearing on the injunction and did not appear.
The judge denied the motion with the following endorsement:
'The plaintiff failed to appear. The Court and defense counsel waited for him until 2:45 p.m. to no avail. All courtrooms were checked in the event the plaintiff went to the wrong one. I have nevertheless reviewed the motion itself and find, at this juncture, there is little or no likelihood of success on the merits of the plaintiff's complaint.'
Steeley apparently sent a letter to the Superior Court (it is included in the appendix at 3, but does not appear on the docket), notifying the clerk that notice of the hearing was not received and requesting that the hearing be rescheduled. The record does not reflect that any action was taken on the letter, nor was a motion seeking a new hearing or reconsideration of the order denying the injunction filed.
On appeal, Steeley argues only that the judge abuse her discretion by failing to reschedule the hearing. No abuse of discretion has been made to appear, as it has not been shown that a motion seeking the relief requested here was ever filed in the trial court. In addition, on the record provided to this court, no error in the denial of injunctive relief on the merits can be found, as there is no showing, indeed, no argument, that Steeley is likely to succeed on the merits of his underlying claim. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980).
The record as to this request consists only of his two-page motion; there are no affidavits or other documents referenced in the motion, nor have any been provided in the appendix. In addition, we note that the complaint was not verified.
In sum, no basis upon which relief may be granted appears on this spare record before us.
Order denying injunctive relief affirmed.
By the Court (Green, Brown & Agnes, JJ.), Clerk