Opinion
11-P-54
11-18-2011
LANCE TUCKER 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, in an appeal from a decision and order of the Appellate Division, asks us to review the factual findings of a judge of the Boston Municipal Court. The appeal was initially undertaken to the Appellate Division pursuant to Dist./Mun. Cts. Appellate Division Appeal Rule 8A (1994), which specifies the method for taking an expedited appeal.
Decision. We set forth the facts that the trial judge found which are necessary for our brief analysis. When the trial judge acts as fact finder this court will 'accept the judge's findings of fact as true unless they are ' clearly erroneous." Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).
The defendant appears to contend that the trial judge applied the incorrect legal standard and therefore the decision is subject to de novo review. Because the defendant chose to file this expedited appeal without a transcript, this court has only the trial judge's findings of fact to review. Nothing in the trial judge's findings of fact indicates that the incorrect legal standard was applied.
The judge determined that the defendant breached his contract with the plaintiff to work on a construction job involving the rehabilitation of a building. Specifically, the trial judge found that: the defendant underestimated the cost of the project, the defendant assisted the plaintiff in applying for a building permit, the plaintiff concluded the defendant had not completed work that he was paid for and stopped paying, and the defendant refused to continue work without additional money.
The judge's findings are conclusory and vague and could be read as no more than a recitation of the plaintiff's beliefs. However considered as a whole, and with emphasis on findings numbered 32, 36 and 47 in context with the judgment, we conclude that they express the result we have stated here, namely that the perceptions of the developer were correct.
The defendant chose to file this expedited appeal subject to Dist./Mun. Cts. Appellate Division Appeal Rule 8A; therefore there is no trial transcript to consult. '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). As we accept the trial judge's findings of fact as true unless they are clearly erroneous, the slim record gives us no basis to disturb the trial judge's findings.
The defendant's anticipatory breach argument is inapposite. As the Appellate Division sagely stated below, 'the trial judge's findings made clear that it was Diamond who breached the contract.'
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Decision and order of Appellate
Division affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),