MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See
This case involves a dispute between Yolanda Morales and her son, Eric Valarezo, over the ownership of a two-family house in Haverhill. Morales and another son, Kevin Valarezo, (collectively, the plaintiffs) appeal from the judgment entered in the Superior Court dismissing all but one of their eleven claims.
The plaintiffs' appeal fails both on procedural and substantive grounds. As pro se litigants, the plaintiffs are held to the same standards as their represented counterparts. See
In any event, the appeal is without evident substantive merit. None of the plaintiffs' numerous claims of error provides grounds for reversal.
To the extent that the plaintiffs contend that age and ethnic bias infected the decision-making, the claim is not supported by the record; the judge excluded a certain receipt not because it was written in Spanish but due to the lack of foundation. The judge's single reference in a footnote to witnesses Luz Garcia, age eighty-four, and Jose Rivera, age sixty-six, as "aging" does not show discriminatory animus. Read in context, the word means senior or elderly, words Morales herself used to describe the witnesses.
The record undermines Morales's contention that she was not allowed to defend herself prior to the March 27, 2014, order modifying the preliminary injunction. The final judgment adjudicating Morales a mere tenant mooted the plaintiffs' appeal of the order rescinding the injunction. See
The plaintiffs' motion to modify the record was properly denied. At the trial, the plaintiffs had a full opportunity, through their attorney, to present the evidence of their choice. The materials that the plaintiffs sought to add to the record were not admitted as trial exhibits. A postjudgment motion to supplement the record is not a permissible vehicle to correct evidentiary inadequacies.
Over the course of the five-day trial, the judge heard a significant amount of conflicting testimony. We see no reason to disturb the assessments by the judge of the credibility of witnesses, as he had the distinct advantage of seeing and hearing the witnesses. See
In short, based on our review of the evidence, we conclude that the trial judge's findings of fact on all material issues were not clearly erroneous, and that in arriving at his decision, the judge applied correct principles of law. No other claim of error is properly before us.
Citing the frivolous nature of the plaintiffs' appeal, Valarezo has requested an award of double costs and attorney's fees. We agree that such an award is appropriate. Valarezo may within fifteen days of the date of the rescript file with this court and serve on the plaintiffs a motion for determination of the amount of his attorney's fees and costs incurred on appeal, supported by appropriate documentation, in accordance with the procedure described in