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Appeals Court of Massachusetts.

Christopher C. MATHERS v. Joyce BUONO.


Decided: April 26, 2021

By the Court (Wolohojian, Englander & Hand, JJ.1)


Defendant Joyce Buono appeals from a judgment in favor of plaintiff Christopher C. Mathers, doing business as Mathers and Mathers, (“Mathers”), in this breach of contract action. We affirm.

Buono retained the law firm of Mathers & Mathers to represent her in a personal injury matter arising from a car accident. Mathers negotiated a $200,000 settlement offer. Buono initially rejected the offer, but later accepted it. A dispute arose about Mathers's entitlement to a portion of the settlement pursuant to a contingency fee agreement, and Mathers sued; Buono filed counterclaims. The judge determined that Mathers was entitled to his fee under the terms of the fee agreement,2 and granted summary judgment of Mathers's claims pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974). Buono's counterclaims were dismissed in two additional orders pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and Mass. R. Civ. P. 56. Buono appealed.

As the appellant, Buono bears the duty of providing our court with an adequate record. Mass. R. A. P. 18 (a) (1) (A), as appearing in 481 Mass. 1637 (2019). She is required to include in the appendix the documents filed in the case that relate to the issues to be argued on appeal, and any documents on which she relies for her assignments of error. Mass. R. A. P. 18 (a) (1) (A) (v), as amended, 425 Mass. 1602 (1997). See also Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007). Buono, in her initial record appendix, included only twenty seven pages of the trial court record. Mathers responded in his brief that none of Buono's thirty nine arguments on appeal could be resolved absent much of the record, and did not respond substantively to Buono's claims. Thereafter, Buono filed several motions to this court, and was given leave to file an amended brief and record appendix.

Buono subsequently provided more record material; however, we still have not been provided many portions of the record that are necessary to evaluate Buono's arguments. For example, several of Buono's contentions seem to address the judge's entry of summary judgment that Mathers had a valid contingency fee agreement, which Buono had breached. However, Mathers's complaint does not appear anywhere within the record, nor has Buono included Mathers's statement of undisputed material facts, Buono's response, the majority of the summary judgment briefing, or any way to determine what evidence was submitted to the Superior Court in connection with the summary judgment motions. No transcript of any hearing has been received by this court, and thus there is no record of what was argued at each of the several hearings. The record is also unclear regarding the numerous discovery motions filed by Buono. “When a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document.” Chokel, 449 Mass. at 279.3

Judgment affirmed.


2.   Buono asserts she signed the contingency fee agreement after meeting with Christopher Mathers's brother, Chuck. At some point in 2013, Chuck withdrew from the case, and Christopher thereafter filed an appearance in the personal injury matter. Buono argues in this court that Christopher and the current Mathers & Mathers cannot enforce the contingency fee agreement for various reasons, but as noted below, from the record provided on appeal we cannot determine whether these arguments were made in the trial court or if so, why they were resolved against Buono.

3.   While we are mindful that Buono is proceeding pro se, that does not excuse her from complying with the applicable rules of appellate procedure, see Maza v. Commonwealth, 423 Mass. 1006 (1996), particularly where such record evidence is necessary to our review of the claimed errors on appeal. See Mass. R. A. P. 18 (a) (1) (A).

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