Opinion
11-P-667
02-02-2012
WINN MANAGED PROPERTIES LLC v. KARA HOLDEN.
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
Winn Managed Properties LLC (Winn) appeals from a summary process judgment in favor of the defendant, Kara Holden. On appeal, Winn argues the judge improperly found his witnesses lacked credibility and improperly denied his motion for a new trial due to a missing transcript. We affirm.
The transcript of the trial could not be produced, because it was either not recorded, or could not be located by the trial court. Pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979), the parties and the trial judge reconstructed the record. The submissions by Winn and the final reconstruction by the judge are essentially similar, but vary as to the credibility of the officers testifying and as to an address given by one of the witnesses.
Witness credibility. Winn claims that the judge erred in his credibility determinations in light of the evidence presented at trial. '[W]e give due regard to the judge's assessment of the witnesses' credibility.' Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306 (2005). 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.' Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). See Perez v. Boston Hous. Authy., 379 Mass. 703, 705 (1980) ('[W]e also take the view that more general appraisals by the judge, who presided in the case from the beginning, are entitled to respect'). Based on the reconstructed record, we cannot permissibly set aside the judge's findings as clearly erroneous.
Motion for a new trial. Winn next claims that the judge should have granted a new trial where the record of the trial testimony could not be located or was not preserved and where there exists a discrepancy in Winn's account and the judge's account. We disagree. The fact that a portion of a trial transcript is unavailable 'does not warrant a new trial unless the trial proceedings cannot be reconstructed sufficiently to present the defendant's claims.' Commonwealth v. Harris, 376 Mass. 74, 78 (1978). Further, '[w]hen a dispute respecting the record is submitted to the . . . court, its determination is conclusive, absent a showing that the . . . court has intentionally falsified the record.' Burda v. Spencer, 28 Mass. App. Ct. 685, 689 (1990), quoting from Letch v. Daniels, 401 Mass. 65, 67-69 & n.3 (1987). Winn made no further attempt to amend or modify the record. See Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979). Therefore, we determine there was no error in the denial of the motion for a new trial.
Although the notice of appeal did not specify that the plaintiff is appealing from the order denying the motion for new trial, we nonetheless consider that order.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Graham, Brown & Meade, JJ.),