Opinion
No. 12–P–1142.
2013-04-23
Marilyn C. LABOUNTY v. Peter J. UNITT & others.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendants pursuant to G.L. c. 231, § 118, par. 2, from the denials of their motions to vacate equitable orders restraining the Clerk of the Superior Court from “disbursing any of the funds” posted as bail in criminal cases against defendant Lee P. Unitt (LP Unitt) and defendant Peter J. Unitt (PJ Unitt). The record appendix indicates that $50,000 was posted as bail by defendant Jade Unitt for LP Unitt and $50,000 was posted as bail by defendant Peter Unitt IV for PJ Unitt.
It is a basic principle of appellate procedure that the party appealing from an order has the burden of providing the court with a record sufficient to demonstrate the existence of an alleged error that is prejudicial to the substantial rights of the appealing party. See Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1998) (this principle applies to appeals by pro se litigants as well as by those who are represented by counsel). In particular, Mass. R.A.P.18(a), as amended by 425 Mass. 1602 (1997), provides that “[t]he appellant shall prepare and file an appendix to the briefs. In civil cases, the appendix shall contain: (1) the relevant docket entries in the proceedings below; (2) any relevant portions of the pleadings, charge, findings, or opinion; (3) the judgment, order, or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court.” The defendants have failed to comply with rule 18(a) by neglecting to include the docket entries in the civil suit (that is the action before us) and other relevant portions of the record that are necessary to support the factual claims set forth in their brief, particularly at pages 4 through 10. As a result of the inadequacy of the record, we are unable to address the merits. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 84 (1995). For example, the defendants assert without any support in the record that the judgments against LP Unitt and PJ Unitt in the underlying civil actions are not valid;
that the bail money posted by sureties Jade Unitt and Peter Unitt IV is not the property of either LP Unitt or PJ Unitt; and that LP Unitt and PJ Unitt did not have notice of the hearings that resulted in the orders they challenge on appeal. Furthermore, there is no evidence in the record before us that any party with a legal claim to the funds that were posted as bail has presented such a claim to the clerk in the Superior Court in the manner required by law with the result that the clerk has denied the claim. “Errors that are not disclosed by the record afford no basis for reversal.” Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass.App.Ct. 404, 406 (1992). Error will not be presumed on the basis of an inadequate record. See Connolly v. Connolly, 400 Mass. 1002, 1003 (1987). See also Kunen v. First Agric. Natl. Bank, 6 Mass.App.Ct. 684, 691–692 (1978).
The underlying civil action in this case was the subject of an separate appeal in which a panel of this court upheld the trial judge's denial of a motion for relief from judgment. See LaBounty v. Unitt, 81 Mass.App.Ct. 1136 (2012) (memorandum and order pursuant to Appeals Court Rule 1:28). More recently, in LaBounty v. Unitt, 83 Mass.App.Ct. 1119 (2013), a panel of this court affirmed a decision by a judge of the Superior Court to deny defendant-appellant Peter J. Unitt relief from the entry of a default judgment.
Orders denying motions to vacate December 10, 2010, order affirmed.