Opinion
12-P-222
12-18-2012
MICHAEL A. STELLA v. ANNETTE MCCARTHY. [FN1]
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
This is an appeal by the defendant, Annette McCarthy (tenant), from an order of the Housing Court dated July 25, 2011, allowing the plaintiff, Michael A. Stella (landlord), to execute on a judgment authorizing the landlord to recover possession. In September, 2010, the parties entered into an agreement for judgment, which provided that judgment for possession would enter for the landlord and awarded back rent in the amount of $7,230, but that execution would not issue if the tenant paid her continuing monthly rent ($1,150) when due and made additional monthly payments of $450 that would be applied to arrears until the existing delinquency was retired. On July 11, 2011, the landlord filed a motion seeking execution of the judgment on grounds that the tenant had failed to make payments required by the terms of the agreement for judgment. After a hearing on July 21, 2011, the judge entered an order on July 25, 2011, which provides in part as follows: 'Had the [tenant] complied with the agreement, her rent arrearage would have been reduced to $2,280 by July 2011. However, the [tenant] has not complied with the agreement. As of July 21, 2011, the [tenant's] rent arrearage has increased to $7,730. For these reasons, the [landlord's] Motion to Allow Execution to Issue is Allowed.
The tenant alleges in her brief, without reference to the record or an affidavit, that she then 'immediately filed a motion to reconsider based on the fact that she was told her case would be called at 2 pm, and when she returned at that time she had been defaulted. Her motion was heard, and denied on August 4th, 2011.'
The landlord, on the other hand, asserts (also without reference to the record or an affidavit) that the tenant was present at the hearing on July 21, 2011, that her voice can be heard on an audiotape of the hearing, and that she voluntarily left the courtroom before the hearing was completed. The landlord further maintains that the parties appeared before the judge on July 28, 2011, at which time the tenant agreed to voluntarily vacate the premises on or before August 9, 2011. Finally, the landlord maintains that the tenant's notice of appeal was untimely. As noted in the text, infra, the record of the proceedings below is fatally deficient.
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The tenant has failed to include in her record appendix a copy of her notice of appeal or the docket entries from the Housing Court. An appeal from an adverse judgment of the Housing Court must be filed 'with the court within 10 days after the entry of the judgment.' G. L. c. 239, § 5, as amended through St. 2004, c. 252, § 19. Moreover, there is no transcript of any of the proceedings before the judge. See Mass.R.A.P. 8(b)(3), as amended, 430 Mass. 1601 (1999). The tenant has the burden of presenting this court with a record that enables this court to determine that her appeal was timely and to assess the merits of the alleged errors she claims were made by the judge. See Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979); Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). See also Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014 (1998). '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 of Berkshire County, 6 Mass. App. Ct. 684, 691-692 (1978).
Order dated July 25, 2011, affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Trainor, Agnes & Sullivan, JJ.),