No. 15-P-1619.


Appeals Court of Massachusetts.

Attorney(s) appearing for the Case

Yolanda Morales, for Plaintiff/Appellant, Pro Se.

Kevin Valarezo, for Plaintiff, Pro Se.

Timothy Barnes, Esquire , Dana Alan Curhan, Esquire , for Eric Valarezo, Defendant/Appellee.

By the Court (Green, Agnes & Desmond, JJ.)


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 Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

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.2 No cross appeal by Valarezo has been pursued. We affirm.

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 Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997). Here, the two briefs submitted by the plaintiffs are noncompliant, in several respects, with our procedural rules. See Mass.R.A.P. 16(a)(1), as appearing in 424 Mass. 1601 (1997); Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979). The briefs contain only a small number of record references, presumably because most of the plaintiffs' factual assertions were rejected by the judge or have no basis in the evidence. The mandatory tables of cases are blank, reflective of the complete absence of citation to any legal authority. Some of the issues presented for review are not developed in any meaningful way. Conclusory statements that are devoid of factual detail and legal reasoning do not meet acceptable appellate standards. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). Given these deficiencies, we need not reach the merits of the appeal. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

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 Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 2), 424 Mass. 471, 472 (1997).

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 Goddard v. Goucher, 89 Mass.App.Ct. 41, 47-48 (2016). Where, as here, the judge's findings challenged by the plaintiffs were supported by a reasonable view of the evidence, and the rational inferences drawn therefrom, they must stand. Id. at 48.

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 Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The plaintiffs may, within fifteen days thereafter, file with this court and serve on Valarezo an opposition to the amounts so claimed. Ibid.

Judgment affirmed.


1. Kevin Valarezo.
3. The panelists are listed in order of seniority.
2. The related summary process action in the Housing Court was transferred, pursuant to an order of assignment, to the Superior Court and settled by an agreement for judgment. All claims between the parties in that action have been resolved.


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