Opinion
16-P-41
02-01-2017
Christopher BENOIT v. Kevin STRICK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties decided to work together to buy and redevelop property (with the plaintiff providing the capital and the defendant the construction services). After they renovated two properties, both of which sold at a loss, the defendant refused to compensate the plaintiff for his share of the loss. The plaintiff then brought this case alleging breach of contract, promissory estoppel, and unjust enrichment. Following a jury-waived trial, a Superior Court judge ruled in the plaintiff's favor on his contract claim and dismissed the other claims as moot. The judge found that the defendant conceded that the parties' agreement created an enforceable contract, but she rejected the defendant's contention that the parties had agreed that the defendant alone was to reap the profits and bear any loss. She credited the plaintiff's testimony in this respect.
On appeal, the defendant's sole argument is that the judge's findings were clearly erroneous. Fatal to this appeal is the defendant's failure to order a transcript of the trial, making it impossible for us to conduct an adequate review of his claim of error. See Discover Realty Corp . v. David , 49 Mass. App. Ct. 535, 535 n.2 (2000) ("As the plaintiff has failed to provide this court with a transcript of the evidence presented at trial, we are unable to assess whether any of the findings were clearly erroneous, and we assume that the findings are adequately supported by the evidence"). See also Cameron v. Carelli , 39 Mass. App. Ct. 81, 83 (1995) (declining to address sufficiency of the evidence where appellant failed to provide "all portions of the trial transcript that are crucial to [the court's] review of the evidence").
Relatedly, the defendant's appellate brief is deficient in that it lacks citations to the record as required by Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979).
We are left to consider the plaintiff's request for appellate attorney's fees and double costs pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), and G. L. c. 211A, § 15. In this regard, we note that the governing appellate rule is clear that a transcript of the trial testimony should have been ordered. See generally Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999) ("If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion"). Moreover, after the defendant filed his appellate brief without the transcript, the plaintiff promptly brought this fatal flaw to the defendant's attention by filing a motion to dismiss the appeal both in the trial court and this court. Nonetheless, the defendant did not voluntarily agree to dismiss his appeal or make any effort to try to cure the problem. Compare Wooldridge v. Hickey , 45 Mass. App. Ct. 637, 639 & n.2 (1998) (appellate court may opt to consider a transcript received late, but is not bound to do so).
Although the trial court judge and a single justice of this court denied those motions, their rulings both make it clear that they did so only because they thought that a panel of this court provided a proper forum for considering the motion before them.
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We agree with the plaintiff that he was forced to defend against an appeal that lacked any reasonable chance of success and that he therefore is entitled to reasonable appellate attorney's fees and double costs. Within fifteen days, the plaintiff shall submit a statement of his requested attorney's fees and costs in accordance with the procedure specified in Fabre v. Walton , 441 Mass. 9, 10-11 (2004), and within fifteen days thereafter, the defendant may submit an opposition to the amount requested.
Judgment affirmed .