Opinion
No. 12–P–1318.
2013-05-13
US BANK NATIONAL ASSOCIATION v. Paula T. TWOMEY & another.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Paula and Robert Twomey (Twomeys), appeal from a judgment of the Superior Court declaring that (1) the plaintiff, U.S. Bank National Association (U.S. Bank), holds a valid and enforceable first mortgage that was discharged in error, and (2) the wrongful discharge of that mortgage is null and void. On appeal, the Twomeys argue that (1) U.S. Bank was not the real party in interest because it did not properly hold the note and mortgage and (2) the trial judge was prejudiced. We affirm.
The judgment also dismissed the Twomeys' counterclaim seeking a declaration that the discharge of the first mortgage on Twomeys' property was a valid discharge.
The Twomeys' challenge to the judgment, and the factual findings on which it is based, fails for the reason, if no other, that the Twomeys have failed to provide an adequate appellate record as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and 18(a), as amended, 425 Mass. 1602 (1997). Having failed to provide a transcript of the testimony and the exhibits on which the judge based his decision, the Twomeys have failed utterly to meet the burden of providing us with a record that supports the appellate claims. See Arch Med. Assocs. v. Bartlett Health Enterprises, Inc ., 32 Mass. App Ct. 404, 406 (1992); Buddy's Inc. v. Saugus, 62 Mass.App.Ct. 256, 264 (2004). Absent such a record, we have no basis for concluding that any of the judge's findings are clearly erroneous. Compare Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996); O'Meara v. Doherty, 53 Mass.App.Ct. 599, 605–606 (2002). The inadequacy of the appellate record is likewise fatal to the Twomeys' claim that the trial judge was prejudiced. See Guindon Ins. Agency, Inc. v. Commercial Union Ins. Co., 15 Mass.App.Ct. 931, 931 (1983). US Bank requests its appellate attorney's fees and costs of appeal, pursuant to Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), arguing that the Twomeys' failure to provide a record suitable to review the claims renders the appeal “wholly insubstantial, frivolous, and not advanced in good faith.” We agree. See Avery v. Steele, 414 Mass. 450, 455 (1993). In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), U.S. Bank shall, within fourteen days, file with this court and serve on the Twomeys a motion for determination of the amount of its appellate attorney's fees, supported by an affidavit detailing such fees. The Twomeys may, within fourteen days thereafter, file with this court and serve on U.S. Bank any opposition.
Judgment affirmed.