OBUCHOWSKI v. BREAULT (2024)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

As best can be discerned from the inadequate record in this case, a trust of which the plaintiff, Andrew Paul Obuchowski Jr., was trustee, owned a home in Boylston where Obuchowski lived with his then girlfriend, Kerri Breault. After Obuchowski and Breault stopped dating, Breault continued to occupy the premises and her daughter and the daughter's boyfriend moved in. Obuchowski brought a summary process action to evict the defendants.⁴ The defendants did not answer the plaintiff's complaint. A summary process trial was heard in Housing Court on October 21, 2022. At trial, the defendants apparently asked for a continuance, which was denied. Judgment in favor of the plaintiff entered on October 25, 2022. On November 3, 2022, the defendants filed motions for a new trial and to vacate the judgment, which the judge denied.

In their brief, the defendants argue that the trial judge abused her discretion by denying their motion to continue the trial so that they could file an answer to the plaintiff's complaint. That issue, however, is not properly before this court. Rather, the only order before us for review is the judge's order dated September 13, 2023, which allowed the plaintiff's motion to dismiss the defendants’ appeal from an April 20, 2023 order, which in turn dismissed the defendants’ initial appeal on the merits.⁵ Because the defendants do not even address the September 13, 2023 order in their brief, their appeal fails for that reason alone. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

The defendants’ appeal also fails because they have not presented this court with a record showing any claimed error. Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1998); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995) (appellant claiming legal error bears burden of providing record support for own argument). In particular, the defendants have not included in the record the plaintiff's August 29, 2023 motion to dismiss the appeal; their filings in response; the transcript of the hearing on September 13, 2023; the judge's order entered that same day; or their notice of appeal dated September 20, 2023.

Furthermore, even if the trial judge's decision to deny the defendants’ motion to continue the trial were properly before us, the arguments in the defendants’ brief are unsupported by reasoned analysis or relevant authority and, as such, fail to rise to the level of adequate appellate argument as required by Mass. R. A. P. 16 (a) (9). See Cameron, 39 Mass. App. Ct. at 85-86. The defendants’ failure to include the trial transcript in the record also makes it impossible to review the basis for the defendants’ motion for a continuance or the judge's decision to deny it.

Accordingly, we decline to disturb the judge's decision.⁶

Order dated September 13, 2023, affirmed.

FOOTNOTES

4.   For the sake of simplicity, we refer herein to defendants in the plural even though it is unclear which of them have appealed from the judgment below. The trial court docket shows that the various notices of appeal were filed on behalf of all three defendants. In the civil docketing statement filed on August 30, 2023, defendant Breault is listed as the only appellant. The brief is titled “Appellant's Brief of Kerri Degon,” but no one with that name is listed on the trial court's or this court's docket.

5.   According to the trial court docket, the defendants first filed a notice of appeal on November 3, 2022. The judge dismissed the appeal in a written order with findings dated April 20, 2023. The record does not include the plaintiff's motion to dismiss the appeal, the defendants’ opposition, the transcript of the hearing on April 18, 2023, or the judge's order. On May 1, 2023, the defendants filed a notice of appeal from the order dated April 20, 2023. The plaintiff moved to dismiss that appeal on June 6 and again on July 12, 2023. Following a hearing, the judge allowed the motion on July 21, 2023. On July 26, 2023, the defendants filed an assented-to motion to reinstate the appeal, which the judge allowed without a hearing. On August 29, 2023, the plaintiff filed another motion to dismiss the appeal and issue an execution, which the judge allowed following a hearing on September 13, 2023. In their brief, the defendants state that “[f]ollowing a flurry of pleadings and hearings and appeals, a Notice of Appeal was filed with this Court on August 16, 2023,” but August 16 is the date that the appeal was entered on this court's docket; the trial court docket does not show a notice of appeal filed on or about that date.

6.   The plaintiff's request for attorney's fees is denied.